dissenting.
I concur fully with the majority in Divisions 5 and 6.1 concur in Division 7 except to the extent that it concludes that the errors in Divisions 2 and 3 were harmless. I concur in Division 1 only to the extent that it concludes that the evidence was sufficient to support the verdict. I respectfully dissent from Divisions 2, 3, and 4 and from the judgment.
1. The majority assumes, without deciding, that Mika’s pretrial statement to police was the product of improper interrogation, but finds its admission to be harmless error.
Mika’s statement was clearly inadmissible because it was obtained in violation of Edwards v. Arizona.1 Edwards holds that a defendant who invokes his Fifth Amendment right to counsel after being advised of his Miranda rights may not be subjected to further “interrogation” until counsel is made available to him, unless he subsequently initiates communication. “ ‘The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . .’ [Cit.]”2 The officer’s remarks to Mika were not “normally attendant to arrest and custody,”3 and he should have known that if he advised Mika of the incriminating evidence against them, it was reasonably likely that Mika’s response would prove incriminating to some degree. Therefore, the trial court erred in denying Mika’s motion to suppress his pretrial statement.
Although the State does not raise this issue, the majority takes the position that any error in the admission of Mika’s statement was harmless. “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”4 The prosecution bears the burden of making this showing, and the fact that there was other evidence sufficient to convict does not make the error harmless.5 The test is whether the evidence may have influenced the jury’s verdict.6
Contrary to the majority’s position, the evidence was not cumu*554lative of other evidence or entirely consistent with Mika’s defense. The officers’ testimony was that they observed Cash hand money to Mika whereas Mika’s statement was an explanation of why Cash gave him money. Mika’s statement that Cash may have owed him some money contradicted his defense that Cash gave him money to buy drinks. Because this inconsistency may have influenced the jury’s perception of Mika and thereby affected its verdict, Mika is entitled to a new trial.7
2. The majority concludes that the trial court properly admitted similar transaction evidence showing that, eight years prior to the present offense, Mika sold one-half gram of cocaine to an undercover drug agent for $50 after being introduced to the agent at an apartment complex in Statesboro. The majority bases its conclusion solely on the similarities between the two offenses and takes the position that the passage of eight years between the two incidents does not render the prior offense too remote. The majority does not discuss the purpose for which the similar transaction was admitted and fails to point out that the passage of time is one of the more important factors to weigh in considering the admissibility of evidence.8
Before any evidence of independent offenses or acts may be admitted, the state must make three affirmative showings.9
The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.10
It is important to keep in mind, however, that the first and third showings are not made in isolation but rather embrace highly interrelated inquiries. This was recognized in King v. State,11 wherein the court observed:
Indeed, “the test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities *555between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” [Cit.] “Similarity is an important factor in determining the admissibility of the extrinsic crime; however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Depending on the purpose for which the extrinsic evidence is offered, the State may be required to prove a high degree of similarity between the relevant characteristics of the extrinsic crime and the crime charged, or it may have only the burden of showing a logical connection between the crimes which are essentially dissimilar. [Cit.]” [Cit.]12
In this case, the evidence of the independent crime was admitted to show the defendant’s intent, course of conduct, bent of mind, and modus operandi. Mika, however, did not raise the issue of criminal intent (mens rea) but rather denied that he committed the act of selling cocaine to Cash (actus reus). Consequently, neither intent nor bent of mind was a disputed issue. Moreover, “ ‘[t]he state of mind that will permit the admission of an unrelated crime is the state of mind at the time of the commission of the offense as shown by the acts or words of the defendant so close in time to the alleged offense as to have a bearing upon his state of mind at that time. . . .’ [Cit.]”13 And “course of conduct,” properly construed, means “a continuous course of conduct, closely connected in time, place and manner of commission. [Cit.]”14 Extrinsic offenses are properly admitted under the modus operandi exception where they are “ ‘so nearly identical in method [as the crime charged] as to earmark them as the handiwork of the accused.’ [Cit.]”15 Consequently, evidence of Mika’s earlier crime was not properly admitted to show either course of conduct or modus operandi in this case. The real role which the extrinsic crime evidence played at trial was simply to show that Mika had sold cocaine before, thereby permitting the jury to infer that he had done so again. “Under our law, however, that is not a permissible basis for introducing similar transaction evidence. [Cit.]”16
*556Decided July 16, 2002 Jackson & Schiavone, Steven L. Sparger, for appellant. Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.3. The trial court correctly instructed the jury on impeachment by proof that a witness has been convicted of a crime involving moral turpitude and immediately thereafter erroneously inserted the phrase “or by proof that the witness has been convicted of a crime involving moral turpitude” into an instruction meant only to address impeachment by proof of contradictory statements. Although the additional requirements necessary to impeach by proof of a contradictory statement could not logically be applied to impeachment by proof that the witness has been convicted of a crime involving moral turpitude, the erroneous instruction was nevertheless misleading and confusing. “Where the judge gives a correct instruction upon an issue involved in a criminal case . . . and afterwards gives a further instruction upon the same issue, which is misleading and confusing to the jury, and fails to withdraw such further charge and call the jury’s attention to the error, error results.”17
And the error was not harmless. It was vitally important to Mika’s defense that he discredit Cash’s testimony, and impeachment by proof that he had been convicted of a crime of moral turpitude was one way to achieve that goal. After the erroneous instruction was given, it is unlikely that the jury clearly understood the requirements for impeachment by that method. Because it is not “obviously highly probable that the error . . . did not contribute to the verdict,”18 I would reverse.
I am authorized to state that Judge Miller joins in this dissent.
451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981).
Cottingham v. State, 206 Ga. App. 197, 200-201 (4) (424 SE2d 794) (1992).
See Franks v. State, 268 Ga. 238 (486 SE2d 594) (1997) (discussing the “routine booking question” exception to the Miranda rule).
Chapman v. California, 386 U. S. 18, 24 (87 SC 824, 17 LE2d 705) (1967).
Mangum v. State, 274 Ga. 573, 577 (2) (555 SE2d 451) (2001).
Id.
See id.
Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252) (1998).
Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).
(Citation and footnote omitted.) Id.
230 Ga. App. 301 (496 SE2d 312) (1998).
Id. at 302 (1); see State v. Hinson, 269 Ga. 862, 863 (506 SE2d 870) (1998) (Fletcher, P. J., dissenting).
Walraven v. State, 250 Ga. 401, 408 (4) (b) (297 SE2d 278) (1982).
Putnam v. State, 251 Ga. 605, 608 (2) (308 SE2d 145) (1983).
Felker v. State, 252 Ga. 351, 360 (1) (a) (314 SE2d 621) (1984); see Shuman v. State, 244 Ga. App. 335, 336 (3) (535 SE2d 526) (2000).
King v. State, supra at 303.
Reece v. State, 210 Ga. 578, 579 (2) (a) (82 SE2d 10) (1954).
(Citation and punctuation omitted.) Carr v. State, 251 Ga. App. 117, 120 (3) (553 SE2d 674) (2001) (physical precedent).