State v. Johnson , 246 Ga. 654 ( 1980 )

Bowles, Justice.

We granted certiorari to consider the opinion of the Court of Appeals in Johnson v. State, 154 Ga. App. 793 (270 SE2d 214) (1980) reversing a conviction for sale of marijuana because evidence of two subsequent sales of drugs from the same defendant to the same police officer was admitted into evidence.

1. We begin with the general rule that in the trial of a crime, evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant’s character into evidence. See Code Ann. § 38-202. See also, Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952). However, exceptions to the rule have developed over the years so that now there are times that evidence of other crimes committed by the defendant can be admitted for limited purposes.

“[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the¿ independent crime and the offense charged, that proof of the former tends to prove the latter. French v. State, 237 Ga. 620, 621 (229 SE2d 410) (1976). Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. [Cits.]” Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515) (1977).¹

We do not concede, as suggested by some, that the exceptions have swallowed the rule of inadmissibility of separate crimes. The only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried. Crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence. Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.

Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct. Contrary to the finding by the Court of Appeals in the case at bar that the only probative value to be attached to the evidence of other crimes was that it tended to improperly show criminal bent of mind (see Lee v. State, 8 Ga. App. 413 (69 SE 310) (1910)), we find that the evidence of other crimes was probative as to identity, the main issue in the case.

We have here involved a case of the “typical swearing match” as described in Hart v. State, 149 Ga. App. 785 (256 SE2d 127) (1979). The police officer testifies the defendant sold him drugs; the defendant says “It wasn’t me.” The jury looking at the police officer, would see an undercover agent “in the business” of buying drugs from many people. They might consider that the officer making one drug buy from one individual could be mistaken about who that individual was. However, when the officer testifies that he has made three drug buys from the same person within a relatively narrow time frame, the jury could consider that the likelihood that the officer is mistaken about that person’s identity is greatly diminished.

Argued September 10, 1980 Decided October 29, 1980 Rehearing denied November 13, 1980.

Furthermore, in the case at bar, one strategy of the defense was to convey to the jury the impression that the undercover police officer had a tendency to “manufacture” his drug cases. The jury could consider that one case might be manufactured but the likelihood that three cases could be successfully manufactured is remote.

There has been some conflict among the different divisions of the Court of Appeals about the application of the rule of admissibility of evidence of other crimes. See Laws v. State, 153 Ga. App. 166 (264 SE2d 700) (1980); Anglin v. State, 151 Ga. App. 570 (260 SE2d 563) (1979); Mayfield v. State, 150 Ga. App. 807 (258 SE2d 613) (1979); Hart v. State, supra. These cases necessarily turn on their facts and are in the last analysis, judgment calls. It is important to remember, however, that evidence of other crimes is not limited to proving “plan, motive or scheme” as emphasized by the Court of Appeals in the case at bar but also “identity.”

2. The Court of Appeals also held the evidence of other drug sales inadmissible because those criminal acts were not included in the indictment and “to allow them in evidence on the trial of the December 20 episode for whatever probative value they may have in influencing a jury to convict is to use the same evidence to secure multiple convictions for unrelated offenses.” 154 Ga. App. 793, supra, at 798. First, the evidence is not admitted for whatever probative value it may have in convincing a jury to convict. It is admitted for the limited purpose of showing identity, plan, motive, scheme, bent of mind or course of conduct and the defendant is entitled to a charge to that effect upon request. Furthermore, the other crimes need not be listed in the indictment. Defendant is not on trial for those crimes.² This is a matter of evidence, or proof, not pleading.

Judgment reversed.

All the Justices concur, except Jordan, P. J., and Hill, J., who dissent. Richard E. Allen, District Attorney, Steven L. Beard, Assistant District Attorney, for appellant. Lewis R. Slaton, District Attorney, H. Allen Moye, Assistant District Attorney, Tony H. Hight, J. Robert Sparks, amicus curiae. Kenneth R. Chance, for appellee.

1 Similar crimes may also show common design, modus operandi, etc. See Lyles v. State, 215 Ga. 229 (109 SE2d 785) (1959).

2 In the case at bar, the defendant could not have been on trial at the time for the other crimes as they were committed in a different county or venue.