Phillips v. State

Hill, Chief Justice.

We granted certiorari in Phillips v. State, 171 Ga. App. 827 (321 SE2d 393) (1984), to determine whether a defendant in a criminal case who introduces evidence tending to show his bad character has “put his character in issue” within the meaning of OCGA § 24-9-20 (b).¹

Jimmy Lee Phillips was indicted for and convicted of a robbery by intimidation which occurred in Dougherty County, Georgia, on May 17, 1982. His defense was that he was at his aunt’s home in Deerfield, Florida, from May 6 until June 1, 1982. On direct examination, his attorney asked him, “[W]hy did you go down there?” He responded, “Well, I was on parole and I had violated my parole and — .” At that point his attorney interrupted and asked, “Were you going down there to visit your family members?” Defendant answered, “I was going down there to visit with my father.”

On cross-examination, the district attorney asked, “What are you on parole for?” When the defendant’s attorney objected that the defendant had not placed his character in issue, the court overruled the objection, noting that the defendant had placed his character in issue when he testified that he went to Florida because he had violated his parole. The district attorney subsequently introduced into evidence a 1975 conviction for armed robbery.

On appeal, the Court of Appeals affirmed in an en banc opinion. Phillips v. State, supra. The majority opinion held that the defendant had put his character in issue within the meaning of OCGA § 24-9-20 (b), supra. In a concurring opinion, two judges concluded that the defendant’s testimony did not put his character in issue, but did open the door for cross-examination regarding the parole pursuant to OCGA § 24-9-64, which provides that “The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.”² One judge dissented, on the ground that defendant’s testimony did not put his character in issue, and unless a defendant does so, OCGA § 24-9-20 (b) prohibits evidence of prior convictions, notwithstanding OCGA § 24-9-64.

The majority of jurisdictions treat the defendant’s election to testify as a decision to put his character in issue. 81 AmJur2d 587, Witnesses, § 582, see also § 569 (1970). For example, the Federal Rules of Evidence allow impeachment of a Witness, including the accused, by evidence of conviction of crime, albeit with certain exceptions. Fed. Rules Evid., Rule 609.

OCGA § 24-9-20 (b), supra, provides, in relevant part, as follows: “(b) If a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.”

The issue is whether a defendant who testifies that he previously has committed a single criminal violation may be cross-examined (1) as to it and other criminal convictions, or (2) only as to that particular violation, or (3) not at all regarding the admitted violation.

May a defendant testify that although he was present at the scene of the crime he did not participate in it and that he ran from police because he was on probation, but nonetheless deprive the prosecutor of proving that in fact he was an escapee? We find that he may not.

May a defendant admit to having been a juvenile offender during his youth, and deprive the prosecutor of proving he had a record of convictions as an adult? Or, may a defendant admit to having committed the offense of shoplifting (thereby implying that this was his only offense) and deprive the prosecutor of proving that, in addition to the one shoplifting offense, the defendant had been convicted of several burglaries? We conclude that he may not.

We therefore hold that where a defendant admits any prior criminal conduct less than all his criminal offenses, he has put his character in issue within the meaning of OCGA § 24-9-20 (b), supra, by attempting to portray his character, albeit bad, as being better than it actually is. Thus, when a defendant admits any prior criminal conduct, the prosecutor may cross-examine him as to such conduct and may prove other prior convictions. This holding provides a simple rule, in the direction taken by a majority of jurisdictions.

To the extent that O’Neal v. State, 239 Ga. 532 (238 SE2d 73) (1977), is narrower than this decision, this decision controls.

The majority opinion of the Court of Appeals is therefore affirmed.

Judgment affirmed.

All the Justices concur, except Smith, Gregory and Bell, JJ., who concur specially.

1 Regarding the question of when a defendant is entitled to have the jury charged as to “good character,” see State v. Braddy, 254 Ga. 366 (330 SE2d 338) (1985).

2 Although the identification in Judge Benham’s concurring opinion of three categories of cases, each with a different scope of admissibility, appears to be a correct analysis of those cases, we adopt a broader rule for the sake of clarity and simplicity.