concurring specially.1
“Does it have to be said that the half-baked notion that the defendant has ‘opened the door’ cannot by itself explain or justify the prosecutor’s right to submit evidence of bad character because the defendant has done so?” Wigmore on Evidence, § 58 at 1210 (Tillers Revision, 1983). Obviously it has to be said in this state, as the majority has concluded that a defendant who introduces evidence of less than all of his prior criminal acts puts his character in issue “by attempting to portray his character, albeit bad, as being better than it really is.”
A defendant’s prior acts bear no direct relationship to the question of whether that defendant committed a subsequent crime. In order to relate prior acts to subsequent conduct, a party must draw from the acts a preliminary conclusion as to, for example, the defendant’s motive, intent, or state of mind. A jury may then follow that *373preliminary conclusion to determine whether a defendant committed a crime. See Wigmore, supra, § 55.1 at 1160.
A defendant may attempt to bridge the gap between his prior acts and his innocence through the use of character evidence. He may want the jury to conclude from the use of third-party reputation evidence, for example, that: a) This defendant has a good reputation; b) Therefore, this defendant has a good character, and; c) No one with such a good character would have committed this crime. In holding that the defendant in this case has put his character in issue, the majority totally ignores the second step in this process.
Though the defendant’s testimony was exculpatory, the connection he drew between his prior acts and his innocence did not rest upon his character. The connection rested upon the assumption that if he was not present at the crime scene, he could not have committed the crime. The testimony actually reflected badly upon his character.
Under the majority’s logic, however, a defendant, through introduction of only a few of his prior criminal convictions, attempts to convince the jury that: a) This defendant’s character is worse than we thought it was before he told us about that crime, but; b) His character, “albeit bad,” could be even worse, so; c) We conclude from our view of his character that this defendant did not commit this crime. The problem with the majority’s alchemic discovery of a character issue is that evidence of a defendant’s previous crimes does not generally establish a character that is inconsistent with criminal conduct.2 The connection between the defendant’s testimony and his innocence is irrelevant to his character, and the testimony raises no dispute or question as to his character.
Black’s Law Dictionary defines an issue, for the purpose of practice and pleading, as “a disputed point or question upon which [the parties] are desirous of obtaining either decision of court on question of law or of court or jury on question of fact.”3 Most “issues” in a criminal case, such as intent, differ from the character issue in that the state must obtain a decision of the jury on those issues as a prerequisite for conviction. The elements of a crime must be established regardless of the defendant’s actions at trial.
Under OCGA § 24-9-20, however, a court may not consider the character issue raised until the defendant, as opposed to the indictment, has created a dispute for resolution by the jury. A defendant’s *374admission that he committed a crime creates an inference, to which only a very strange prosecutor would object, that the defendant has a bad character. There is no dispute as to the defendant’s character in such a situation, and there is nothing for the jury to resolve. The defendant, thus, has not put his character in issue, and the door has not been opened under OCGA § 24-9-20.
Decided April 30, 1985 — Rehearing denied May 21, 1985. Gardner, Willis & Sweat, James H. Moore III, for appellant.As the state may introduce evidence that reflects badly upon a defendant’s character for limited purposes, a defendant should be allowed to introduce evidence that reflects badly upon his character for the limited purpose of showing his absence from the crime scene, even where the character evidence is not necessary to his goal. Such a rule would reflect the lack of a dispute as to the character issue and would follow the policy underlying the legislature’s creation of OCGA § 24-9-20. I would adopt Judge Benham’s concurrence, leaving the “deprived” prosecutors in this state the scant opportunity to introduce specific acts which show a defendant’s bad character: for the purpose of cross-examining defendants pursuant to Judge Benham’s concurrence; to show a defendant’s systematic commission of similar crimes, his guilty knowledge, the nature of his relationship with the victim, his bent of mind, his malice, or his motive or intent; in cases where an independent crime is a part of the res gestae or relates to the identification of the defendant, or; where a defendant raises the character issue by introducing evidence that implies that the defendant is innocent by portraying his character as inconsistent with criminal conduct. See Daniel, Georgia Criminal Trial Practice, § 20-42, at 557 (1984 ed.). While “bright lines” are certainly desirable, we should not create them at the expense of reason.4
I am authorized to state that Justice Bell joins in this special concurrence.
The concurrence in the judgment here is premised on an understanding that the state only introduced the conviction that led to the defendant’s parole. Under this opinion, as the defendant testified about the parole, the underlying conviction would be admissible.
A defendant may occasionally outline her criminal past to show, for example, that she has never acted violently in committing a crime. See, e.g., State v. Allen, 266 S.C. 468 (224 SE2d 881) (1976). In such a case, the exculpatory nature of the defendant’s testimony relates entirely to the defendant’s character, as opposed to the defendant’s location at the time of the crime.
Citing Muller v. Muller, 235 Cal.App.2d 341, 45 Cal.Rptr. 182, 184 (1965).
The reasoning of the majority opinion leads to the conclusion that a defendant who introduces some of his criminal convictions has raised his character, while the defendant who introduces all of his criminal convictions does not raise his character. This is, indeed a strange brew.