# Ross v. State

> Supreme Court of Georgia · May 23, 2005 · 279 Ga. 365

URL: https://www.frixlaw.com/law-library/cases/9596526

## Case

- **Full name:** Ross v. the State
- **Court:** Supreme Court of Georgia
- **Decided:** May 23, 2005
- **Citations:** 279 Ga. 365; 2005 Fulton County D. Rep. 1580; 614 S.E.2d 31; 2005 Ga. LEXIS 371
- **Precedential status:** Published
- **Opinion:** Concurrence by Carley
- **Judges:** Fletcher, Hunstein, Carley, Hines
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9596526

## How later opinions describe it (automated extraction)

- holding that when a defendant’s prior conviction is offered solely for the purpose of proving the defendant’s status as a convicted felon and “is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations, ... t…
- concluding that the trial court erred by rejecting the appellant’s offer to stipulate to his convicted-felon status, but that the admission of the evidence of his prior conviction for enticing a child for indecent purposes was harmless in light of the overwhelming evidence of …
- discussing the prejudicial effect of character evidence when accident or justification is at issue
- discussing whether a trial court erred in failing to accept a defendant’s stipulation to a prior felony conviction and completely silent as to sentencing

## Opinion text

*369 CARLEY, Justice,
concurring specially.
I fully concur in Divisions 1 and 3, and in the judgment affirming Ross’ convictions. In Division 2, however, the majority holds that, when relevant evidence of a defendant’s prior conviction is of a nature likely to inflame the passions of the jury and to raise the risk of a verdict based on improper considerations, and has the sole purpose of proving his status as a convicted felon, then it is an abuse of discretion for the trial court to reject his offer to stipulate to the prior conviction and to admit evidence of its name and nature. By this holding, the majority overturns considerable Georgia case law in order to embrace a limited, non-binding 5-4 decision of the Supreme Court of the United States which is based on a highly questionable rationale. Old Chief v. United States, 519 U. S. 172 (117 SC 644, 136 LE2d 574) (1997).
As the majority at least implicitly acknowledges, the interpretation of Rule 403 of the Federal Rules of Evidence by the Supreme Court of the United States obviously does not constitute any precedent binding on this Court regarding the admissibility of similar crimes or extrinsic acts evidence, including predicate offenses for a firearm possession charge. Quinn v. State, 255 Ga. App. 744, 747 (3) ( 566 SE2d 450 ) (2002); Starks v. State, 240 Ga. App. 346, 349-350 (3) ( 523 SE2d 397 ) (1999); Sisson v. State, 232 Ga. App. 61, 66 (3) (b) ( 499 SE2d 422 ) (1998). See also Hepner v. Southern R. Co., 182 Ga. App. 346, 350 ( 356 SE2d 30 ) (1987) (on motion for rehearing en banc, involving Federal Rule of Civil Procedure 56). “Many state courts have distinguished Old Chief and have refused to follow that case.” Ex parte Peraita, 897 S2d 1227 (C) (Ala. 2004) ( 2004 WL 1233972 , Case Number 1021974, not yet released for publication). “Old Chief involved a federal crime and a federal trial, under the Federal Rules of Evidence.” Starks v. State, supra at 349 (3). That “decision was not based on constitutional principles which would be binding on the states, but instead was based on the specific language of 18 U.S.C. § 922 .” State v. Ball, 756 S2d 275, 278 (La. 1999). See also Ex Parte Peraita, supra. We have no indication that Georgia’s statutory proscription on possession of a firearm by a convicted felon, OCGA § 16-11-131 (b), was patterned after the federal statute. See State v. Ball, supra.
Furthermore, “proving the name of the offense resulting in the conviction [is] often less prejudicial than telling the jury that the defendant was a convicted felon. [Cit.]” Ex Parte Peraita, supra. See also State v. Ball, supra at 279. In the latter case, the jurors may well wonder why they have not been told the name of the crime and may assume that the defendant was convicted of a more heinous offense. Old Chief v. United States, supra at 198 (II) (O’Connor, J., dissenting); State v. Ball, supra at 280, fn. 9. Keeping the jurors uninformed of the *370 “convicted felon” element is not a solution, since “ ‘ “[d]oubt as to the criminality of (the defendant’s) conduct may influence the jury when it considers the possession element.” ’ [Cit.]” Old Chief v. United States, supra at 199 (II) (O’Connor, J., dissenting).
“Any incremental harm resulting from proving the name or basic nature of the prior felony can be properly mitigated by limiting jury instructions.” Old Chief v. United States, supra at 196 (I) (O’Connor, J., dissenting). “There are numerous instances where the state may offer evidence of prior crimes or bad acts committed by a defendant for a purpose other than to show the defendant is a person of bad character....” Crane v. State, 263 Ga. 518, 519 (1) (a) ( 436 SE2d 216 ) (1993). Whether the prior crime is admitted to show a predicate offense for firearm possession or to fulfill some other legitimate purpose, a limiting instruction is always available upon request, and will greatly diminish the danger of unfair prejudice and focus the jury’s attention on the proper issues and away from the prior conviction. Head v. State, 262 Ga. 795, 798 (4) ( 426 SE2d 547 ) (1993); State v. Ball, supra at 279, fn. 7.
Even more so, if the prior conviction is an element of the crime, introduction of that crime should be allowed. To argue that it is prejudicial is not enough; there must be unfair prejudice. As Justice O’Connor argued in her dissent, it is not unfairly prejudicial for the state to establish an essential element of its case against a defendant with direct proof of his prior conviction. [Cit.]
State v. Ball, supra.
[I]n our system of justice, a person is not simply convicted of “a crime” or “a felony.” Rather, he is found guilty of a specified offense, almost always because he violated a specific statutory prohibition. . . . That a variety of crimes would have satisfied the prior conviction element . . . does not detract from the fact that [the defendant] committed a specific offense. The name and basic nature of [his] crime are inseparable from the fact of his earlier conviction and were therefore admissible to prove [his] guilt.
Old Chief v. United States, supra at 194 (I) (O’Connor, J., dissenting). “[A] defendant’s stipulation to an element of an offense does not remove that element from the jury’s consideration.” Old Chief v. United States, supra at 200 (II) (O’Connor, J., dissenting). Much less should the element be removed from the jury’s deliberations where, as here, there is no true stipulation because the parties did not ever *371 reach an agreement. Old Chief v. United States, supra. See also Reed v. State, 249 Ga. 52, 57 (6) ( 287 SE2d 205 ) (1982). Ross is effectively attempting to waive his right to a jury trial on the “convicted felon” element, even though we have held that the trial court is not required to accept a waiver of trial by jury. Old Chief v. United States, supra at 201 (II) (O’Connor, J., dissenting); McCorquodale v. State, 233 Ga. 369, 374 (3) ( 211 SE2d 577 ) (1974).
“Relevant evidence cannot be kept from the jury by an admission of the fact or waiver of the requirement of proof. [Cit.]” Franklin v. State, 245 Ga. 141, 150 ( 263 SE2d 666 ) (1980).
[A] s recognized by the maj ority in Old Chief , the general rule is that “the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it.” [Cit.] ... “[T]he State cannot be robbed of the moral force of its case merely because the stipulation is offered.” [Cit.]
State v. Ball, supra at 280. The decision in Old Chief marked “the first time the Supreme Court [of the United States] has limited the time-honored principle of allowing the prosecution the freedom to refuse offers to stipulate and to try its case as it sees fit.” Casenote: Old Chief v. United States: Radical Change or Minor Departure? How Much Further Will Courts Go in Limiting the Prosecution’s Ability to Try Its Case?, 49 Mercer L. Rev. 855 (1998). Instead of disregarding that venerable principle, this Court preserved it by establishing a procedure for avoiding the potential of unfair prejudice long before the decision in Old Chief . If the charge of possession of a firearm by a convicted felon is unrelated to another count for which the defendant is to be tried, the correct remedy is for the trial court to bifurcate the proceedings on proper motion. Head v. State, 253 Ga. 429, 431 (3) (a) ( 322 SE2d 228 ) (1984). However, where the count charging possession of a firearm by a convicted felon might be material to a more serious charge, we determined that evidence of the prior convictions does not unfairly place the defendant’s character in issue on the other charges against him, the relevance of such evidence outweighs the possibility of undue prejudice, bifurcation is unnecessary, and a limiting instruction sufficiently protects the rights of the accused. Roberts v. State, 255 Ga. 170, 171 ( 336 SE2d 246 ) (1985); Head v. State, supra at 431 (2), fn. 1, 432 (3) (d). Based on the establishment of these procedures, we specifically held that the trial court does not err “in refusing to accept the defendant’s proffered stipulation and in failing to suppress evidence of the prior [conviction].” Roberts v. State, supra at 172. See also Banks v. State, 184 Ga. *372 App. 504, 506 (6) ( 362 SE2d 227 ) (1987) (quoting Franklin v. State, supra). Thus, the majority clearly has made an extreme and unwarranted departure from settled Georgia law. Accordingly, I concur specially in the judgment of affirmance.
Decided May 23, 2005.
Carl P. Greenberg, for appellant.
Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, Thurbert E. Baker, Attorney General, Frank M. Gaither, Jr., Assistant Attorney General, for appellee.
I am authorized to state that Justice Hunstein and Justice Hines join in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9596526. Public record. Not legal advice.