Smith v. State , 270 Ga. 240 ( 1998 )

Carley, Justice,

dissenting.

In Division 4, the majority holds that it was reversible error to exclude evidence which it deems to be relevant and exculpatory of Smith. In my opinion, Smith did not preserve this issue for review by this Court. Moreover, even if this issue may be raised on appeal, I do not believe that the trial court erred in proscribing the introduction of the evidence. Therefore, I respectfully dissent to the reversal of Smith’s conviction.

This issue arose, as the majority points out, in the context of the State’s motion in limine. At the hearing thereon, the trial court only held that Smith could not introduce evidence of two prior occurrences involving the victim “unless and until they otherwise become relevant,” and further ruled as follows: “If the defense feels at some point that that evidence becomes relevant through impeachment or other legal means then they are hereby instructed to bring it to the attention of the court outside the presence of the jury. . . .” Thus, the trial court did not make a definitive final ruling on the inadmissibility of the evidence, but simply held that its admissibility would be conditional upon a subsequent showing by Smith of its relevancy. “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. [Cits.]” State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982). In this case, the trial court exercised its right to refuse to determine the ultimate admissibility of the two prior incidents, and, as it was. authorized to do, made its preliminary decision subject to subsequent revision if Smith could show the relevance of those incidents at a later hearing. Pye v. State, 269 Ga. 779 (6) (505 SE2d 4) (1998); Smith v. State, 270 Ga. 240 (4) (510 SE2d 1) (1998); Johnson v. State, 270 Ga. 234 (2) (507 SE2d 737) (1998). It appears that Smith never asked for such a hearing. Moreover, neither the State nor Smith ever attempted to call the witnesses who could testify to the prior incidents, and Smith never raised the issue again during the guilt-innocence phase. It is my opinion that, under these circumstances, the exclusion of the evidence cannot constitute reversible error. Pye v. State, supra; Johnson v. State, supra.

However, even assuming that Smith was not required to raise the issue during the trial, I still cannot accept the majority’s premise that evidence of the victim’s possession of one of the shotguns two days before the homicide is relevant to the claim of self-defense. A defendant is entitled to attempt to prove his reasonable belief that force was a necessary response to the incident in question. Insofar as the admissibility of prior incidents involving the victim is concerned, however, the trial court is authorized to limit the evidence to those acts involving the use of a weapon or object to assail the defendant, and to those violent acts against third parties which were within the knowledge of the defendant. Allen v. State, 249 Ga. 486, 488 (4) (291 SE2d 719) (1982). See also Williams v. State, 254 Ga. 6, 11 (8) (326 SE2d 444) (1985); Williams v. State, 145 Ga. 177 (4) (88 SE 958) (1916); A-1 Bonding Service v. Hunter, 125 Ga. App. 173, 180 (6) (186 SE2d 566) (1971), aff’d 229 Ga. 104 (189 SE2d 392) (1972). Compare Brady v. State, 259 Ga. 573, 578 (2) (385 SE2d 653) (1989) (where the State opened the door on direct examination); Daniel v. State, 103 Ga. 202 (1) (29 SE 767) (1897) (the victim habitually and notoriously carried a concealed pistol); Reynolds v. State, 1 Ga. 222 (1846) (it was relevant to show that the victim armed himself 20-30 minutes before the murder). Consistent with these limitations on admissibility, this Court recently held in a unanimous decision that a victim’s previous request to borrow the defendant’s gun in order to shoot someone else does not tend to prove that the victim was attempting forcibly to take the defendant’s gun on the night of the murder and, therefore, was not relevant to justification. Bennett v. State, 265 Ga. 38, 41 (4) (453 SE2d 458) (1995). Similarly, the fact that the victim here previously carried Smith’s gun without any violent or threatening incident, but in alleged preparation for the robbery of someone else, does not tend to prove that the victim carried the gun on the day of the murder or attempted to use it in any violent or threatening manner. “The prior act of possessing a gun is not admissible for the purpose of proving that because he possessed a gun on another occasion, he was likely to have one on the night in question. [Cit.]” State v. White, 909 SW2d 391, 395 (II) (B) (Mo. App. W.D. 1995).

The exclusion of evidence on grounds of irrelevancy is reversible error only if that ruling constitutes an abuse of the trial court’s discretion. “[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). Furthermore, “ ‘[t]he scope of cross-examination is not unlimited, but rests largely within the discretion of the trial court, and its discretion will not be disturbed on appeal unless it has been abused.’ [Cit.]” Williams v. State, 254 Ga., supra at 11 (8). In my opinion, Bennett v. State, supra at 41 (4), is controlling authority which compels a holding that the trial court’s exclusion of the evidence in this case was not an abuse of discretion. The excluded evidence does not implicate the victim in any relevant prior use of force, but merely constitutes an impermissible attack by Smith on the victim’s character as an alleged co-conspirator in armed robbery. While justification is a defense to a criminal charge, evidence which only impugns the character of the deceased victim is not relevant to that defense. Therefore, I do not concur in the majority’s holding in Division 4.

In Divisions 6 and 7, the majority finds that the trial court made additional erroneous evidentiary rulings, but relies upon the holding in Division 4 as obviating the need to address whether those rulings were harmful and thus reversible errors. Because of my disagreement with Division 4, I will address the merits of those evidentiary rulings to determine whether any is an independent ground for reversal of Smith’s convictions.

In Division 6, the majority concludes that the trial court erred in holding that Smith could not impeach Hopkins with his prior inconsistent statement. It appears, however, that Smith was not seeking to prove that the witness had made any prior statements which were inconsistent with his testimony. At trial, Hopkins testified that he had made a certain previous statement to the police. Smith did not attempt to prove that, on any previous occasion, Hopkins denied that he made that statement to the police. Smith wanted only to show that Hopkins’ present testimony about the existence of his previous statement was not true. “As the absence of a prior statement . . . fails to amount to a contradiction, there could be no impeachment under the provisions of OCGA § 24-9-83. . . . [Cit.]” Thomas v. State, 168 Ga. App. 587 (1) (309 SE2d 881) (1983). See also Hightower v. State, 227 Ga. App. 74, 77 (a) (487 SE2d 646) (1997); Weathers v. State, 198 Ga. App. 871 (2) (403 SE2d 449) (1991). Smith never made any proffer of Hopkins’ prior statements and, thus, never showed the absence of the particular statement at issue. Thompson v. State, 187 Ga. App. 152 (369 SE2d 523) (1988). It is clear that, in order to obtain a reversal, an appellant must demonstrate harm as well as error. Davis v. State, 266 Ga. 801, 804 (9) (471 SE2d 191) (1996). The actual making of a particular statement by Hopkins was not material to Smith’s guilt or innocence. Thomas v. State, supra at 587 (1). See also Hightower v. State, supra at 77 (a). Therefore, I do not believe that, even if the trial court’s evidentiary ruling was erroneous, it requires reversal of Smith’s conviction.

In Division 7, the majority holds that a general inquiry into whether Hopkins was a racist was relevant because of a purported dispute over who made a particular racial comment regarding the victim. As noted, however, this Court should not disturb the trial court’s discretion, absent a clear abuse, in limiting the scope of cross-examination on relevancy grounds.

“[T] rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such • cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” [Cit.]

Farley v. State, 225 Ga. App. 687, 692 (484 SE2d 711) (1997). Cross-examination regarding general racial bias or prejudice is often only marginally relevant, at best.

To justify court sanctioned fishing in the murky and dangerous currents of racial bias or prejudice, there must be a foundation laid, sufficient to justify the risk of dredging up passions that may overcome the jury or the public, undermining the administration of justice and the perception of equal justice. Only a potential violation of due process by denial of the right of confrontation in the proper case, supported by the proper evidentiary basis, will justify . . . permitting such cross-examination. General racial bias or prejudice alone would not be sufficient.

Farley v. State, supra at 692. The trial court specifically permitted defense counsel to ask Hopkins other relevant questions, such as whether he was the one who actually used the racial slur. “The inflammatory nature of racial bias is such that it requires careful shepherding in its presentation to the jury. [Cit.]” Moreno v. United States, 482 A2d 1233, 1238 (III) (D.C. App. 1984). Hopkins’ racism, even if proved, is neither exculpatory of Smith’s guilt for the murder nor does it make it any more likely that Hopkins, rather than Smith, made a particular racial remark about the victim. If Hopkins was subject to impeachment, then Smith should have attempted to impeach him. If Hopkins was not subject to impeachment, then Smith should not be allowed to attack his character by questioning him about the irrelevant topic of his purported racism. In my opinion, the question asked by Smith regarding racism on the part of Hopkins injected into the trial an improper element of racial bias, and the trial court was authorized to exclude such evidence as irrelevant. Farley v. State, supra at 694; Shropshire v. State, 210 Ga. App. 241, 242 (1) (435 SE2d 700) (1993); Mitchell v. State, 200 Ga. App. 146, 148 (2) (407 SE2d 115) (1991).

Also in Division 7, the majority concludes that the trial court erred by preventing Smith from testifying that he had dated an African-American woman. Again, however, there is nothing to suggest that the trial court abused its discretion in concluding that evidence of Smith’s romantic relationships had no bearing on whether he made a racial slur about an individual whom he was charged with murdering. Such evidence might be admissible at the sentencing phase of the trial, but was, in my opinion, a completely irrelevant topic during the guilt-innocence phase. Moreover, the record shows that defense counsel never made a proffer as to what Smith would answer if the question was posed to him. Indeed, there is other testimony that the female in question was white. Because no proffer was made, there is nothing to review. Harris v. State, 263 Ga. 526 527 (2) (435 SE2d 669) (1993).

I agree with the majority that there is no error in any of the remaining enumerations regarding Smith’s guilt. Under the majority’s holdings in Divisions 4, 6 and 7, however, it is now permissible for the defendant to make an irrelevant attack on the character of the victim and the State’s witnesses, while introducing during the guilt-innocence phase irrelevant character evidence regarding his romantic inclinations. Because I cannot agree with those holdings, I dissent to the reversal of Smith’s convictions for murder and for possession of a firearm during the commission of a felony. Furthermore, I believe that there is no error in the sentencing phase and, therefore, that both the judgments of conviction and the sentences should be affirmed.

Decided November 9, 1998. John A. Beall IV, for appellant. Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V Boleyn, Senior Assistant Attorney General, Christopher L. Phillips, Assistant Attorney General, for appellee.