Chandler v. State

Benham, Justice,

concurring specially.

I concur in the majority opinion and the judgment with one exception. I do not agree with that portion of Division 3 which adopts the reasoning of Justice Weltner’s special concurrence in Lolley v. State, 259 Ga. 605, 607 ( 385 SE2d 285 ) (1989), and holds that henceforth “evidence of specific acts of violence by a victim against third persons shall be admissible where the defendant claims justification.” *409 It is important to recognize that the rule advanced by the majority is not limited to the “similar transactions” rationale advanced by Justice Gregory in his dissent to Lolley, supra. If the new rule, announced by the majority were to be considered as an attempt to “balance the right of the state to offer similar crimes against a defendant to prove intent, motive, scheme, or bent of mind” (see Lolley, supra, dissent of Justice Gregory at 610, 611), the better way to level the playing field would be to return to the days when the admission of similar transaction evidence was a limited exception to the rule against putting the defendant’s character in issue, rather than the separate rule it has become. The position adopted by today’s majority is, instead, a much more fundamental break with existing authority 6 and is a move to replace trial by evidence with trial by character assassination. When applied to homicide cases, this revolutionary change in the law of evidence is a throwback to frontier days and gives judicial sanction to a new defense to murder: the victim “needed killing.”

It is well put in Harrison v. State, 251 Ga. 837 (3) ( 310 SE2d 506 ) (1984) , that, “[generally the character of a victim is not admissible, it being as unlawful to kill a violent person as to kill a nonviolent person.” See also Bennett v. State, 254 Ga. 162 (3) ( 326 SE2d 438 ) (1985) . In Henderson v. State, 234 Ga. 827 (1) ( 218 SE2d 612 ) (1975), this court noted that the

reasons for the rule prohibiting proof of specific acts of violence appear to be at least threefold: (1) A single act may have been exceptional, unusual, and not characteristic and thus a specific act does not necessarily establish one’s general character; (2) although the state is bound to foresee that the general character of the deceased may be put in issue, it cannot anticipate and prepare to rebut each and every specific act of violence; and (3) permitting proof of specific acts would multiply the issues, prolong the trial and confuse the jury. [Cit.]

By ignoring the reasons enumerated in Henderson , the majority invites trial by ambush. And even if the State expends the resources necessary for a complete background investigation of the victim, the majority’s new rule would require that mini-trials be conducted in which the State would be burdened with providing an explanation for *410 every act of violence of which the victim was accused. As was noted in reason (3) in Henderson , the rule against admitting evidence of specific acts of violence by the victim against third persons is intended to avoid just such a proliferation of issues.

Decided July 3, 1991.

Roger E. Douglas, for appellant.

Robert B. Ellis, Jr., District Attorney, Robert D. Cullifer, Assistant District Attorney, Michael J. Bowers, Attorney General, Andrew S. Ree, for appellee.

Under prior decisions of this court, once a defendant makes a prima facie case of justification, evidence of a victim’s specific acts of violence against the defendant is admissible to illustrate the defendant’s contention that he reasonably believed he had to use deadly force to defend himself (Milton v. State, 245 Ga. 20, 22 ( 262 SE2d 789 ) (1980)), and evidence of the victim’s general reputation for violence, including the victim’s general reputation for a specific type of violence is admissible “to corroborate the defendant’s testimony that the victim was violent on the occasion in question and to show the defendant’s state of mind (reasonable fear) at the time of the incident in question.” Bennett v. State, supra at 164. See also Cooper v. State, 249 Ga. 58 ( 287 SE2d 212 ) (1982); Williams v. State, 249 Ga. 6 ( 287 SE2d 31 ) (1982). The majority would now throw open the doors to any incident of violence in a victim’s past, whether or not the defendant had knowledge of the victim’s past indiscretions. Thus, evidence of a victim’s prior violent acts directed toward third parties is now admissible simply to show the victim was a violent person and deserved to die.

I would continue to follow the well-reasoned principles of law set out in the many cases cast aside by the majority today. As a consequence, although I agree with the judgment and with the rest of the majority opinion, I cannot concur in Division 3.

I am authorized to state that Presiding Justice Smith joins in this special concurrence.

See, e.g., Stoudemire v. State, 261 Ga. 49 ( 401 SE2d 482 ) (1991); Chapman v. State, 259 Ga. 706 ( 386 SE2d 129 ) (1989); Hill v. State, 259 Ga. 655 ( 386 SE2d 133 ) (1989); Harrison v. State, 251 Ga. 837 ( 310 SE2d 506 ) (1984); Golden v. State, 250 Ga. 428 ( 297 SE2d 479 ) (1982); Respress v. State, 249 Ga. 731 ( 293 SE2d 319 ) (1982); Smith v. State, 247 Ga. 453 ( 276 SE2d 633 ) (1981); Music v. State, 244 Ga. 832 ( 262 SE2d 128 ) (1979); Andrews v. State, 118 Ga. 1 ( 43 SE 852 ) (1903).