Belt v. State , 227 Ga. App. 425 ( 1997 )

Pope, Presiding Judge.

Defendant Christopher Belt was indicted for possession of cocaine with intent to distribute. He pled not guilty and demanded a jury trial. Prior to trial, the trial court conducted a hearing pursuant to USCR 31.3 (B) to determine whether the State would be allowed to introduce similar transaction evidence. Specifically, the State sought to introduce evidence regarding defendant’s conviction for two previous cocaine sales. During the hearing, the State satisfactorily made the showings required by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), and after acknowledging this fact on the record, the trial court ruled that the similar transaction evidence would be allowed for the limited purposes of showing identity, intent and state of mind. Subsequently, the similar transaction evidence was introduced, but no limiting instruction concerning this evidence was ever given to the jury. Thereafter, the jury convicted defendant. Defendant appeals asserting two enumerations of error.

1. In his first enumeration, defendant acknowledges that no oral or written request for a limiting instruction was made by his trial counsel and that his trial counsel also failed to raise or reserve any objection to the charge actually given to the jury. Nevertheless, he contends that his conviction should be reversed based on the trial court’s failure to instruct the jury regarding the limited purposes for which the similar transaction evidence was being admitted and the extent to which it could be considered. Under the circumstances presented in this case, we agree with defendant.

Although it is true that when evidence is admitted for one purpose, it generally is not error for a trial court to fail to instruct the jury to limit its consideration of said evidence to that one purpose absent a written request, see Prickett v. State, 220 Ga. App. 244, 245-246 (2) (469 SE2d 371) (1996); Moore v. State, 202 Ga. App. 476, 480 (3) (414 SE2d 705) (1992), we are unaware of any Supreme Court of Georgia decision issued after Williams and Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991), holding this general rule applicable to a situation such as that found here. And to the extent that there may be some Supreme Court cases, or for that matter, cases from this Court, decided prior to Williams and Stephens applying the general rule to situations involving prior similar transaction evidence, we conclude that they are distinguishable and not controlling. We reach this conclusion because any such cases could not have taken into account the importance of the holdings in Williams and Stephens and their recognition of the necessity of protecting an accused from the prejudice of having a jury consider any prior acts committed by the accused for an improper purpose during trial of the accused for a subsequent crime.

Specifically, in Williams and Stephens the Supreme Court established mandatory procedural safeguards designed to protect an accused. Pursuant to those safeguards, before any prior transaction evidence can be introduced, the State must make three separate showings to the trial court during a hearing conducted prior to trial. The State must show the trial court that (1) the prior transaction evidence is being introduced for some appropriate purpose that is an exception to the general rule of inadmissibility; (2) there is sufficient evidence that the accused committed the prior act in question; and (3) there is sufficient similarity between the prior independent act and the current crime charged such that proof of the former tends to prove the latter. Williams, 261 Ga. at 642. Additionally, during the course of the trial, the State must also present evidence to the trier of fact regarding the second and third showings. Id.; Stephens, 261 Ga. at 468-469 (6). Clearly this is to enable the trier of fact to make a reasoned determination as to whether the prior transaction evidence is in any way relevant and can be considered in assessing defendant’s guilt in the case before it. It is implicit, however, in the Williams and Stephens’ holdings, that such a determination can only be made upon proper instruction from the trial court regarding the limited purpose for which the prior transaction evidence is being introduced and can be considered. Failing to acknowledge this would effectively negate the purpose behind implementation of the abovementioned safeguards in that it would allow a jury to consider prior similar transaction evidence as substantive direct evidence of a defendant’s guilt in the case at hand, or for any other improper purpose, so long as the evidence could have been considered for some legitimate purpose outside the jury’s knowledge.

As to those cases involving the introduction of prior similar transaction evidence decided by this Court after Williams and Stephens, we acknowledge that there is a split of authority regarding applicability of the general rule. In cases typified by Bell v. State, 219 Ga. App. 553, 554 (2) (466 SE2d 68) (1995) and Sloan v. State, 214 Ga. App. 784, 785-786 (2) (449 SE2d 328) (1994), the general rule was applied. But in cases such as Prickett and Moore, this Court concluded that the failure to give an instruction regarding the limited scope and purpose of such evidence, even though unrequested, is so blatantly and plainly erroneous as a matter of law as to require the reversal of a conviction because it deprives a defendant of the right to a fair trial to determine his or her guilt or innocence. Prickett, 220 Ga. App. at 245-246 (2); Moore, 202 Ga. App. at 480-482 (3). In Prickett, it was also held that in the presence of such blatant error a defendant’s failure to specifically object or reserve objection to any omission regarding the limited scope and purpose of similar transaction evidence in the general charge did not waive the matter for purposes of appellate review. 220 Ga. App. at 245-246 (2); see Laney v. State, 184 Ga. App. 463, 467 (2) (361 SE2d 841) (1987).

Upon consideration of the two lines of authority set forth above, we conclude that Prickett and Moore, with their acknowledgment of an exception to the general rule in cases involving the introduction of prior similar transaction evidence, are the better reasoned because they are in sync with the underlying purposes, considerations and rationale found in Williams and Stephens as well as the procedural safeguards found therein. Accordingly, to the extent that cases such as Bell and Sloan, or any other cases decided by this Court, fail to acknowledge such an exception to the general rule, they are hereby overruled.

As acknowledged in Prickett, “ ‘[presenting a jury with [similar transaction] evidence serves no useful purpose unless the jury also is given adequate instructions regarding (the) issues of fact they must resolve from the evidence before they can consider the similar act or transaction for the limited purpose for which [it] was introduced. Moreover, providing the jury with adequate instructions as to the admission of any evidence of similar or logically connected offenses or transactions is necessary in the interest of justice. . . .’(Emphasis in original.) Adams v. State, 208 Ga. App. 29, 37 (3) (e) (430 SE2d 35) (1993).” 220 Ga. App. at 246 (2). To hold otherwise would be to ignore the recognition and express prohibition found in the suggested pattern jury instructions pertaining to the introduction of similar transaction evidence, that “[s]uch evidence, if any, may not be considered by [the jury] for any other purpose [than the stated purpose for which it was admitted].” See Counsel of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II, pp. 24-25 (Rev. 1996). And in essence, such a holding would not only allow, but would sanction a jury’s consideration of previous independent acts or crimes committed by an accused as substantive and direct evidence of an accused’s guilt on trial in a subsequent case. Moore, 202 Ga. App. at 481 (3).¹ Clearly, this is impermissible and would violate the well settled rule that absent jury consideration for a specified limited purpose, “evidence which in any manner shows or tends to show that [an] accused has committed another crime wholly independent from that for which [the accused] is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.” (Citation and punctuation omitted; emphasis in original.) Stephens, 261 Ga. at 469 (6).

Accordingly, we now hold that in cases where the trial court has conducted the requisite preliminary hearing and thereafter determined that similar transaction evidence will be admitted at trial for a specified limited purpose, it is incumbent upon the trial court to instruct the jury, preferably at the time the evidence is introduced and in its general charge to the jury, regarding the fact that the accused is not on trial for any prior acts and that such acts are only to be considered for that specified limited purpose and not for any other purpose. Additionally, immediately after so instructing the jury, it is incumbent upon the trial court to further instruct the jury that before it can consider any prior act for the limited purpose specified, it should first determine whether the accused actually committed the prior act, and if so, whether the act was similar enough to the crime with which the accused is now charged so that proof of the prior act in light of the limited purpose for which it was introduced tends to prove the latter crime. See Prickett, 220 Ga. App. at 246 (2). Because the trial court failed to do this in the case at bar, we reverse defendant’s conviction and remand the case for a new trial.

2. In light of our holding in Division 1, we need not address defendant’s second enumeration of error, in which he contends that his conviction must be reversed based on his trial counsel’s alleged ineffectiveness in failing to request a limiting instruction or charge regarding the admission of similar transaction evidence and in failing to object or reserve objection to the trial court’s general charge.

Judgment reversed.

Johnson, Blackburn and Smith, JJ., concur. Beasley, J., concurs specially. Ruffin, J, concurs in the judgment only. Andrews, C. J., McMurray, P. J., Birdsong, P. J., and Eldridge, J., dissent.

1 This is especially true under the specific facts in this case. Absent a limiting instruction regarding evidence of defendant’s prior conviction for selling cocaine, the trial court’s general charge specifically instructed the jury to treat documentary evidence admitted at trial pertaining to that conviction, as well as the testimony of the officer that presented evidence relating to the facts surrounding the prior conviction, as direct evidence which “pointfed] immediately to the question at issue,” i.e., defendant’s guilt in the present case. As such, the general charge instructed the jury to do something that is expressly forbidden by law. The general charge therefore contained a substantial error which was harmful as a matter of law and which requires reversal and remand of the case for a new trial. See Moore, 202 Ga. App. at 481 (3).