Simmons v. State

Fletcher, Presiding Justice,

concurring specially in part.

I concur fully in the majority opinion except for Division 2 (b). While I agree that the prior difficulties evidence was admissible in *230this case, a narrower analysis is required and would provide more guidance in the consideration of this confused area of evidentiary law.

Decided February 12, 1996. Johnston, Brannen & Mikell, Gary L. Mikell, for appellant. R. J. Martin III, District Attorney, Richard A. Mallard, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Peggy R. Katz, Assistant Attorney General, for appellee.

Simmons contends that incidents occurring 11 years prior to the murder were too remote to be admissible. Lapse of time is a factor to be considered in determining admissibility of prior difficulties, but is rarely the determining factor.3 Here, Simmons and the victim had been divorced one month at the time of the murder. The prior difficulties evidence showed a pattern that spanned the 11 years of the marriage. Because each incident involved Simmons and the victim and occurred throughout their relationship, the lapse of 11 years does not render the evidence inadmissible.

Simmons also maintains that the prior difficulties were inadmissible because they were not similar to the murder. The test of admissibility is not the number of similarities between the prior act and the charged offense; rather, it is whether the prior act is substantially relevant for some purpose other than to show the defendant’s criminal character.4 Here, Simmons contended that the shooting was an accident. Therefore, the testimony of prior difficulties during the marriage was relevant to rebut this claim. Additionally, the incidents showed a pattern of abuse and were probative of the issue of malice.

Campbell v. State, 234 Ga. 130, 132 (214 SE2d 656) (1975).

Farley v. State, 265 Ga. 622, 624 (458 SE2d 643) (1995).