Stephens v. State

*471 Bell, Justice,

dissenting.

I dissent to Division 6 of the majority opinion and to the judgment of reversal. The majority erroneously predicates the admissibility of Stephens’ prior criminal conduct on whether the facts in the prior case were similar to those in the instant case, and wrongly concludes that, as the certified copy of the conviction lacks any indication of factual similarity, the certified copy was inadmissible. Majority opinion p. 468. These errors stem from the majority’s misperception of the true test of admissibility of other crimes evidence.

The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the casé. The inquiry is whether the proof of the extrinsic crimes tends to prove the crimes charged. [Williams v. State, 251 Ga. 749, 784 (4) ( 312 SE2d 40 ) (1983).]

In a more recent case we have reiterated the correct rule:

The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between 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. . . .” ’ ” Williams v. State, 251 Ga. 749, 755 [4] ( 312 SE2d 40 ) (1983). Thus, the requisite similarity between the two incidents depends on the purpose for which the evidence is being presented. If, for example, the evidence is being presented to prove the identity of the perpetrator of the offense charged, a long list of similarities between or among the crimes might be necessary to show that the crime on trial bears the defendant’s “criminal signature.” [Maggard v. State, 259 Ga. 291, 293 (2) ( 380 SE2d 259 ) (1989).]

In the instant case, the majority does not examine the purpose for which the other crime was admitted and does not examine whether the certified copy of the prior conviction, by itself, was relevant to that purpose. This failure, I believe, leads the majority to adopt an erroneous rule — that the state can never prove other crimes by the use of a certified copy of a conviction. In some cases, including this one (see below), the introduction of the certified copy of conviction is sufficient by itself to establish the relevance of the prior crime to the crime charged, and the state should not have to go to the unnecessary step of calling witnesses to testify regarding the other crime. In appropriate cases federal courts, which in relevant *472 part operate under the same rules regarding other crimes evidence that this state does, see Fed.R.Evid. 404 (b), permit the prosecution to rely solely on a certified copy of a prior conviction to prove a prior crime. See Wright and Graham, Federal Practice and Procedure, Vol. 22, § 5249 (1978); United States v. Hadfield, 918 F2d 987, 994 (4) (1st Cir. 1990) (copies of convictions relevant to defendants’ intent to distribute drugs).

I will now examine the purposes for which the evidence of the prior crime was admitted in this case, and will show that the certified copy of the conviction tends to prove those purposes. On direct examination by the state, Allison testified that Stephens sold him cocaine. On cross-examination, defense counsel attempted to get Allison to admit that the cocaine was Allison’s and that Allison was lying about Stephens selling the cocaine. The trial court later admitted the evidence of Stephens’ prior conviction for the sale of cocaine to show Stephens’ state or bent of mind and course of conduct regarding the sale of cocaine in the present case, i.e., that Stephens indeed sold the cocaine.

It is my opinion that, as the trial court concluded, Stephens’ prior crime was relevant to demonstrate Stephens’ state or bent of mind and course of conduct during the transaction at issue in this case. Stephens’ state or bent of mind and course of conduct were placed in issue by Stephens’ cross-examination of Allison. Furthermore, I conclude that the certified conviction of the prior crime was sufficient by itself for this purpose. Calling witnesses to give details of the prior sale of cocaine might have added somewhat to a fuller understanding of Stephens’ state or bent of mind and course of conduct, but would have been unnecessary. Moreover, it has long been the rule in Georgia that a trial court, before admitting evidence of an independent crime, should balance the prejudice it creates against its relevance to the issues. Robinson v. State, 246 Ga. 469, 470 (2) ( 271 SE2d 786 ) (1980). If witnesses are available to testify regarding a prior crime (as was the case here), requiring the state to prove the prior crime by the conviction and by having witnesses describe to a jury the details of the crime will certainly have more prejudicial impact on the defendant than simply proving the prior crime by only the copy of the prior conviction. Thus, in cases in which the copy of the conviction establishes the relevance of the prior crime, it is to the defendant’s benefit to have that crime proved only by a copy of the conviction and not by witnesses as well.

For the foregoing reasons I conclude the trial court properly admitted the certified copy of the conviction.

*473 Decided July 3, 1991 —

Reconsideration denied July 24, 1991.

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.