McDaniel v. State , 221 Ga. App. 43 ( 1996 )

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent as I believe the trial court erred in granting the State’s motion in limine, thereby preventing defendant from introducing evidence that Officer Pearson abused his authority during other incidents while performing his law enforcement duties.

The trial court refused to allow at least a dozen internal affairs’ complaints against Officer Pearson indicating prior incidents where the officer was unable to exercise restraint while performing his duties. One of these reports reflects an incident at Shallowford Hospital in 1991 where Officer Pearson threatened to arrest an emergency room physician for obstruction of an officer because the doctor “didn’t act as the officer thought he should. . . .” Defense counsel offered this proof not just for impeachment purposes (as inferred by the majority), but also to show “a pattern of conduct by the officer.” It is my view, that the proffered evidence was relevant to defendant’s sole defense, i.e., that defendant did not obstruct Officer Pearson, but that the officer overreacted by exiting the patrol car, confronting defendant and threatening defendant with arrest if he uttered “another word.”¹

While specific acts are generally not admissible to prove reputation or character, such evidence is admissible to prove habit, course of conduct or bent of mind. Milton v. State, 245 Ga. 20, 24-26 (262 SE2d 789); Little v. State, 164 Ga. 509, 510 (1) (139 SE 37). See Stripling v. Godfrey, 143 Ga. App. 742 (2) (240 SE2d 145); Sams v. Gay, 161 Ga. App. 31, 32 (1), 33 (288 SE2d 822). The rationale is that “[h]abit in the usual sense is more probative of the doing of a particular act out of habit than is character, because habit is more specific.” (Footnote omitted.) Thomas F. Green, Jr., Georgia Law of Evidence (4th ed.), p. 136, § 67. In the case sub judice, I believe the evidence underlying prior complaints against Officer Pearson, particularly the incident at Shallowford Hospital, was relevant because it tended to support defendant’s claim that Officer Pearson was prone to overreact to volatile situations and abuse his police authority. See Milton v. State, 245 Ga. 20, 25, supra; Gibson v. State, 176 Ga. 384 (3) (168 SE 47). I believe that holding otherwise is contrary to the well-worn principle that “ ‘[t]his court stands pledged, by its past history, for the abolition, to the extent of its power, of all exclusionary rules which shut out facts from the jury which may serve, directly or remotely, to reflect light upon the transaction upon which they are called upon to pass.’ Baker v. State, [142 Ga. 619, 623 (83 SE 531)].” Milton v. State, 245 Ga. 20, 25, supra.

Decided March 15, 1996 Reconsideration denied March 29, 1996. Clifford H. Hardwick, for appellant. Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Rosanna M. Szabo, Assistant Solicitors, for appellee. I am authorized to state that Judge Ruffin joins in this dissent.

1 “The Georgia Supreme Court held in Cargill v. State, 255 Ga. 616, 638 (23a) (340 SE2d 891) (1986), that when the defense seeks to discover the personnel file of a law enforcement officer, some showing of need must be made.” Houston v. State, 217 Ga. App. 279, 280 (2), 281 (456 SE2d 766). In the case sub judice, defendant did not seek examination or disclosure of Officer Pearson’s personnel file, he sought to introduce evidence collected during an independent investigation by defense counsel. These circumstances distinguish the case sub judice from cases where the defense was unable to point to specific proof casting doubt upon the officer’s credibility. See Durden v. State, 187 Ga. App. 154, 158 (3) (369 SE2d 764); Lockwood v. State, 184 Ga. App. 262 (361 SE2d 195), rev’d on other grounds, 257 Ga. 796 (364 SE2d 574); Taylor v. State, 172 Ga. App. 827 (1) (324 SE2d 788); and Jinks v. State, 155 Ga. App. 925 (2) (274 SE2d 46).