McGee v. State

Hunstein, Justice,

concurring specially.

I respectfully disagree with the majority’s holding'in Division 2 that there was an insufficient probative connection between McGee’s conduct towards his former girl friend and the charged crime so that it was error by the trial court to admit the prior act evidence. This is not an instance in which the trial court found that the prior act evidence was “ ‘so attenuated and dissimilar as to lack relevancy.’ ” Majority opinion at p. 563. Rather, the trial court here, after con*567ducting the hearing required by Uniform Superior Court Rule 31.1, ruled the prior act evidence admissible. Although the majority’s opinion correctly acknowledges the two conditions required for the admissibility of prior act evidence, the majority fails to recognize that in reviewing the admissibility of such evidence, the correct focus of the appellate court must be on the similarities between the prior act and charged crime, not upon the differences. Farley v. State, 265 Ga. 622, 624 (458 SE2d 643) (1995). The similarities here show that in each case appellant would harass and threaten a woman with whom he was formerly sexually and emotionally involved, obviously with the intent to do violent injury; that in each case he would threaten not only the woman but also the man with whom she had subsequently become involved; and that he made these threats indifferent to any assistance the woman might obtain from the police or courts. I would consider this evidence admissible as relevant to prove McGee’s disposition, course of conduct, and bent of mind toward resolving disputes arising from a failed relationship by threatening violent injury to his former female partner. See, e.g., Ward v. State, 262 Ga. 293 (2) (417 SE2d 130) (1992); Moore v. State, 207 Ga. App. 897 (1) (429 SE2d 340) (1993). That the former girl friend was not murdered or physically injured did not make the prior act so dissimilar that it had no relevance to the issues in the trial of the case. See id. Therefore, I can concur only in the judgment in Division 2.

Decided February 3, 1997 Reconsideration denied February 28, 1997. Duana R. Sanson, for appellant.

I write also to note the inconsistency between the holding in Division 5 of the majority’s opinion and the recent holding in Dix v. State, 267 Ga. 429 (2) (479 SE2d 739) (1997) regarding the trustworthiness of evidence under the necessity exception to the hearsay rule. The majority here summarily affirms the admission of statements the victim made to her boyfriend, father, and a friend “ fin whom she placed great confidence’ ” although these statements, had they been made by the victim to her attorney within the confines of the attorney-client privilege, would have been deemed inherently untrustworthy by the court in Dix unless a contrary conclusion was demonstrated by other evidence unrelated to the making of the statements. From this I can only conclude that the majority is more willing to believe a woman will lie to her lawyer than to a lover, parent, or friend.

I am authorized to state that Chief Justice Benham joins in this special concurrence.

*568J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.