Bernyk v. State

Beasley, Judge,

concurring specially.

I concur fully in Division 1. However, I cannot agree with Division 2 insofar as it concludes at the end that the evidence of the other crimes was admissible because “similar.” The crime for which Bernyk was on trial was the armed robbery of a young woman in a parking lot in which the property taken was her car. The independent crimes were armed robberies of establishments, a bank (twice) and a retail *332store, for cash. The indicia of sameness which the majority articulates do indicate clearly, however, that the crimes were logically connected.

The whole course of criminal conduct occurred between September 14 and 24, in the same locality. In at least one of the bank robberies, the car which was the object of the robbery on trial was used. Thus, as highlighted by the majority at the outset of Division 2, there was a logical connection between the crime for which Bernyk was on trial and the three other incidents which were a part of his spree. As such, even if they were not similar, they were admissible as sufficiently connected.

The Supreme Court has stated the exception to the rule of inadmissibility of separate crimes clearly: “The only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried. Crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence. Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980).

Thus, either similarity or, as we have here, close connection in terms of such factors as time and place, are two categories of those logically connected crimes which may be considered admissible. As to the latter, see, e.g., Putman v. State, 251 Ga. 605, 608 (2) (308 SE2d 145) (1983).

In addition, at least a certain portion of one of the bank robberies was admissible for the reason that it was inextricably tied to the car robbery victim’s identification of defendant. She first identified him as her robber when she saw a photo monitor surveillance of the bank robbery on television.

We must always be vigilant, as the court is here, to carefully draw the distinction between which other crimes are admissible and which are not, in order to steadfastly abide by the traditional mandate codified in OCGA § 24-2-2. Otherwise we will allow an inching over into a practice where a defendant’s past behavior is routinely admitted and we have trials by dossier rather than trials limited to the person’s relationship to simply the act with which he is charged.

In this vein, too, the purpose for which the other crimes are admitted should be articulated. OCGA § 24-2-2 states that they are “irrelevant” to start with, “unless the nature of the action (on trial) involves such character (of defendant) and renders necessary or proper the investigation of such (other) conduct.” In this case, as in many, the district attorney never stated what specific purpose this evidence was to serve. Nor was it required by the court to be narrowed or articulated. What issue or issues were at stake for which the evidence was relevant was never identified. Instead, the whole list of permissi*333ble purposes was assumed, in justification for the admission of the evidence, despite defendant’s initial attempt to raise the question.

Decided March 18, 1987 Rehearing denied March 27, 1987 Lawrence L. Schneider, for appellant. Robert E. Wilson, District Attorney, Susan Brooks, John H. Petrey, Assistant District Attorneys, for appellee.

The evidence of other crimes is not rendered admissible simply because it meets the two criteria set out in French v. State, 237 Ga. 620, 621 (229 SE2d 410) (1976). It must be relevant to an issue. See Walraven v. State, 250 Ga. 401, 407 (4b) (297 SE2d 278) (1982); see also Hunter v. State, 177 Ga. App. 326, 327 (339 SE2d 381) (1985), Beasley, J., dissenting. Otherwise it is forbidden. See also OCGA § 24-9-20 (b).