Johnson v. State

Andrews, Chief Judge,

dissenting.

Because I conclude the admission of the prior shoplifting conviction as impeachment evidence was reversible error, I respectfully dissent.

Johnson testified on direct examination that, other than the 1987 drug offense admitted as a similar transaction, he had never been convicted of a crime. Based on this statement, the State sought to impeach him with evidence that he had a prior conviction for shoplifting. Where a defendant testifies in his own behalf and falsely denies a past criminal conviction, the State is entitled to impeach the defendant by producing rebuttal evidence establishing the prior conviction. Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988). Although under the “best evidence” rule, a prior conviction must be proved by a certified copy rather than by cross-examination, defense counsel made no objection to the State’s initial attempt to prove the prior conviction by cross-examination of Johnson. See McIntyre v. State, 266 Ga. 7, 10 (463 SE2d 476) (1995).

On cross-examination, the State confronted Johnson with a certified copy of an October 1975 misdemeanor shoplifting conviction of an “Edward Johnson.” The conviction showed that the Edward Johnson who was convicted of the offense was 28 years of age at the time of the offense and resided at an address in Fort Lauderdale, Florida. The defendant in the present case was indicted under the name “Edward Devoun Johnson.” The 1975 shoplifting conviction showed *306that it was prosecuted in the State Court of Chatham County. The present charges were tried in the Superior Court of Chatham County where Johnson currently resided.

In response to questions posed by the prosecutor, Johnson gave his social security number and testified that he was born on April 28, 1948. It follows that at the time of the October 1975 shoplifting offense, Johnson was 27 years old. Johnson further testified that in 1975, he graduated from Savannah State College and took a teaching job in Albany, Georgia. After Johnson reviewed the shoplifting conviction at the prosecutor’s request, he said, “I don’t know anything about this.” The prosecutor then stated to Johnson, “[This] [a]ppears to be a shoplifting conviction you pled guilty to, isn’t it?” Johnson responded, “Shoplifting? No, I never shoplift before.” Thereafter, the prosecutor stated to the trial court that, “[W]e’re going to offer this into evidence even though he’s contesting it” and submitted to the court for impeachment purposes an exhibit containing a certified copy of the warrant and plea on the prior conviction and what appeared to be a copy of criminal records kept by the district attorney’s office. The prosecutor also informed the trial court that the' State found the shoplifting conviction during “a records check” on the defendant and that “it [came] up under his records for the social security number and date of birth he’s given.” Defense counsel objected to admission citing the lack of a proper foundation.

Although in making the objection defense counsel did not specify that Johnson was not identified as the person convicted of shoplifting, it was clear from the context of the proceedings that the objection was made on the basis of Johnson’s immediately preceding denial that he was the person convicted and the prosecutor’s immediately preceding statement to the trial court that the conviction was being offered into evidence even though Johnson had just denied that he was the person convicted. Moreover, in ruling to admit the certified copy of the conviction, the trial court showed that it understood the specific basis of the objection by stating that, “I don’t know that it satisfactorily identifies him, but that doesn’t go to the admissibility of it, it goes to the weight and credit of it.”

The general rule as to preservation of an objection to admission of evidence has been stated as follows: “[T]he burden is upon the objecting party to state at the time some reason why it should not be admitted. It will not be sufficient for him to say, T object,’ or T object because the evidence is not competent’ or ‘is inadmissible.’ The attention of the [trial] court must be called to the specific ground of objection at the time the evidence is offered, and a failure [to do so] will be considered as a waiver.” (Punctuation omitted.) Perkins v. Edwards, 228 Ga. 470, 473 (4) (186 SE2d 109) (1971), quoting from Andrews v. State, 118 Ga. 1, 3 (43 SE 852) (1903); King v. State, 151 Ga. App. 762 *307(261 SE2d 485) (1979). The record demonstrates that in the context in which it was made, the trial court clearly understood the basis for the objection made by defense counsel and ruled on that specific basis. Under these circumstances, there is no reason to conclude that this issue was not sufficiently preserved for appellate review.

In considering whether to admit the exhibit submitted by the State, the trial court noted that it not only contained the certified copy of the shoplifting conviction but also had attached what appeared to be “a copy of the D.A.’s criminal record-keeping system.” The record-keeping system contained information apparently compiled by the district attorney’s office showing that an “Edward Johnson” was sentenced on a shoplifting charge in October 1975. Under a separate listing, the record-keeping system also showed an “Edward D. Johnson” with the same social security number and birthday as the defendant. The trial court properly refused to admit the copy of the D.A.’s criminal record-keeping system. But the trial court admitted into evidence the certified copy of the shoplifting conviction for impeachment purposes.

I disagree with the majority’s conclusion that Johnson did not sufficiently deny he was the person convicted in the 1975 shoplifting conviction. Any fair construction of the record shows that when Johnson was confronted by the prosecutor with the certified copy of the 1975 shoplifting conviction, he clearly denied he was the person convicted. Other evidence that Johnson had memory problems did not change his testimony on this point. Johnson also gave testimony on cross-examination indicating that at the time of the 1975 shoplifting, he was 27 years old and resided in Albany, Georgia — not 28 years old and a resident of Fort Lauderdale, Florida, the age and residence of the convicted shoplifter. Moreover, contrary to the State’s contention, no evidence was admitted showing that Johnson’s age and social security number coincided with the age and social security number of the “Edward Johnson” convicted of shoplifting.

There was no question that if Johnson was the person convicted of the prior shoplifting, the conviction was relevant and admissible for impeachment purposes. Jones, 257 Ga. at 759. Under these facts, the function of the trial court in considering the admissibility of the prior shoplifting conviction for impeachment purposes was to first determine whether the evidence was sufficient to make a prima facie case to submit the factual issue to the jury of whether Johnson was identified as the convicted shoplifter. OCGA § 24-4-40 (a); Wyley v. State, 169 Ga. App. 106, 109 (311 SE2d 530) (1983); see Plummer v. State, 200 Ga. 641, 645 (38 SE2d 411) (1946); Stembridge v. State, 82 Ga. App. 214, 215 (60 SE2d 491) (1950); Green, Ga. Law of Evidence (4th ed.), § 9. Concordance of name is some evidence of identity and is generally sufficient to establish prima facie evidence of identity of *308persons, but it is not conclusive. OCGA § 24-4-40 (a); Mullery v. Hamilton, 71 Ga. 720, 724-725 (51AR 288) (1884); Shuler v. State, 125 Ga. 778, 782 (54 SE 689) (1906); Hicks v. Simpson, 229 Ga. 214, 218 (190 SE2d 73) (1972). Where concordance of name is established, “in the absence of any denial by the defendant and no proof to the contrary[,] this concordance of name is sufficient to show that the defendant and the [individual] previously convicted were the same person.” (Citations and punctuation omitted.) Hammond v. State, 139 Ga. App. 820, 822-823 (229 SE2d 685) (1976); Hill v. State, 162 Ga. App. 637, 638 (292 SE2d 512) (1982); Glass v. State, 181 Ga. App. 448 (352 SE2d 642) (1987).

Applying these principles, the record shows that the only evidence submitted by the State establishing that Johnson and the individual previously convicted of shoplifting were the same person was the concordance of name, which established prima facie evidence of identity. The majority concludes that there was more than concordance of name, finding that “[t]here was also concordance of location between the prior offense and Johnson’s locale at the time of the offense (Savannah), and similarity of age in 1975 (27-28 years old).” The record does not support this conclusion. Although the October 1975 shoplifting occurred in Savannah, Johnson testified that he left Savannah when he graduated from college in 1975 and took a teaching position in Albany. Moreover, the certified copy of the 1975 shoplifting conviction shows that the “Edward Johnson” convicted of the offense was a resident of Fort Lauderdale, Florida, and was 28 years of age at the time. The record shows that Johnson was 27 years old in October 1975. The only evidence produced by the State to establish a prima facie case that Johnson was the person convicted of the 1975 shoplifting was concordance of name.

Johnson’s testimony denying that he was the convicted shoplifter rebutted the State’s prima facie case and shifted the burden to the State to produce additional evidence of identity. Since the State produced no additional evidence, the evidence was not sufficient for the trial court to admit the prior shoplifting conviction and submit it to the jury. Accordingly, the trial court erred in doing so.

The question remains whether the error can be found harmless. Under the test set forth in Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976), the error can be deemed harmless if it is highly probable the error did not contribute to the guilty verdict. Although on cross-examination of Johnson, the jury had already been made aware of the State’s contention that Johnson had a prior shoplifting conviction, Johnson denied the allegation and at that point, the prior conviction had not been admitted into evidence. Thereafter, the trial court erroneously admitted the prior conviction into evidence and charged the jury that a witness may be impeached by proof of the *309prior conviction and that “to impeach a witness is to prove the witness is unworthy of belief.” Johnson’s defense was that he did not sell the cocaine to the police officers. He produced testimony from friends that he was sick and could not get out of bed on the day of the alleged cocaine sales. Johnson testified in his own defense that he did not sell the cocaine and that the police officers were lying. Given that Johnson’s defense was to directly challenge the credibility of the police officers, who were the State’s only witnesses to his alleged sale of cocaine, his own credibility was crucial. Accordingly, I cannot conclude that the trial court’s erroneous admission of this impeachment evidence and its charge to the jury that an impeached witness is unworthy of belief was harmless. Beasley v. State, 204 Ga. App. 214, 218 (419 SE2d 92) (1992); see Wilson v. State, 254 Ga. 473, 477 (330 SE2d 364) (1985).

Decided June 19, 1998 Reconsideration denied July 8,1998 C. Jackson Burch, for appellant. Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.