State v. Braddy

Smith, Justice.

A Ware County jury convicted Malcolm Braddy, Jr., appellee, on two counts of theft by receiving stolen property. He appealed and the Court of Appeals reversed the convictions. Braddy v. State, 172 Ga. App. 386 (323 SE2d 219) (1984). We granted certiorari to determine when a defendant’s testimony will entitle him to a jury charge on good character. We find the Court of Appeals’ reasoning sound and affirm their opinion.

During his trial on twelve counts of theft by receiving stolen property, Braddy testified that he was an active church member, that he taught Sunday School, that he was an associate minister of youth at his church, and that he had never been charged with or convicted of a crime. On the basis of this testimony, he requested the court to charge the jury to consider evidence of his good character in reaching its decision. The trial court ruled that although this testimony would open the door for the state to introduce evidence of Braddy’s bad character, it did not relate to his general reputation in the community and thus would not support the requested charge.

The character of a defendant in most criminal cases is a substan*367tive issue.1 Sims v. State, 84 Ga. App. 753 (67 SE2d 254) (1951). A party can establish character by showing the community’s perception of the defendant — his reputation,2 things the defendant has done — specific acts, and what a witness thinks personally about the defendant. The rules of evidence determine, by attempting to balance the truth seeking function with the interest of fairness, which method a party may use to establish character in a given situation. See 1A Wig-more, Evidence, § 52, at 1148 (Tillers Revision, 1983).

Conduct reveals character as accurately as reputation does.3 A defendant, as opposed to a third party in many cases, will be an authority on his past conduct. When he testifies on direct examination, thus, he provides the state with an opportunity to thoroughly cross-examine him as to the subject of his direct testimony, an opportunity that is less available when a third party testifies as to a defendant’s past conduct.4 As a defendant’s testimony as to his past conduct is relevant to his character, does not deny the state a thorough cross-examination on the subject of the direct testimony, and allows the state to bombard the jury with evidence of the defendant’s bad character when such evidence exists, we find that such testimony may raise the defendant’s good character for the purpose of proving the defendant’s innocence.

We do not limit the use of such testimony to the issue of the defendant’s credibility. Normally, a party may not bolster the veracity of its own witness until the witness has been impeached by the adverse party. Hamilton v. Conyers, 28 Ga. 276 (1859). However, where “the nature of the action involves such character and renders necessary or proper the investigation of such conduct,” a party may produce evidence of the good character of its witness prior to any attack on the witness’ character. Rowell v. State, 122 Ga. App. 568, 569-70 (177 SE2d 812) (1970). In this case, the evidence of the witness’ good character is admissible despite the bar on bolstering an *368unimpeached witness only because the witness is the defendant, whose character is a substantive issue in the case. In light of this, we will not hold that the testimony in question only relates to the credibility of the defendant.

Here, the defendant testified as to his specific acts, his church activities and his absence of trouble with the law, to establish his good character. While testimony as to specific acts may not always be used to raise the character issue, where a defendant himself provides such testimony and is available to the state for cross-examination as to his own actions and disposition, his testimony is admissible to show his good character. The testimony here was admissible for that purpose.

A trial judge in a criminal case should deliver a charge tailored to the indictment and adjusted to the evidence. Crosby v. State, 150 Ga. App. 555 (258 SE2d 264) (1979). Under the standard we have developed pursuant to OCGA § 24-9-20, appellee’s testimony was sufficient to raise the character issue. See, e.g., Brown v. State, 237 Ga. 467 (228 SE2d 853) (1976). As the testimony was admissible and sufficient to raise the character issue, a substantive issue in the case, we find that the Court of Appeals correctly held that the trial court should have given the desired charge following Braddy’s request.5

Judgment affirmed.

All the Justices concur, except Weltner and Bell, JJ., who concur in the judgment only, and Hill, C. J., and Gregory, J., who dissent.

Here, where the act of purchasing the items in question is established and the criminal intent is the only issue, character is particularly relevant and material. In cases involving criminal strict liability, on the other hand, the character issue will generally be irrelevant to a determination of guilt. See Smith, J., specially concurring in Price v. State, 253 Ga. 250 (319 SE2d 849) (1984).

The Court of Appeals has correctly noted, “Character is internal; reputation external. One is substance; the other shadow.” Clark v. State, 52 Ga. App 254, 255 (183 SE 92) (1935). We disagree with the court’s subsequent statement that character and reputation are identical in “legal parlance.” Character is the fact to be proved. Production of reputation evidence is but one method of proving that fact.

For two theories on the relationship between conduct and character, see Phillips v. State, 254 Ga. 370 (329 SE2d 475) (1985), and the dissent in Phillips.

Third parties’ limited knowledge of a defendant’s past conduct may be one factor supporting the rule, found in Waters v. State, 248 Ga. 355 (283 SE2d 238) (1981), that third party character witnesses may only establish good character by reputation evidence.

In doing so, we affirm the Court of Appeals’ overruling of cases in conflict with this holding.