Morales v. State

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Divisions 1 and 3 of the majority opinion. However, because the trial court did not follow the procedural requirements for admitting evidence of similar transactions provided in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), I believe the defendant’s conviction must be reversed.

In Williams, the Supreme Court emphasized that before any evidence of independent offenses may be admitted, “the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility.

“The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act, The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.] After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” (Emphasis supplied.) Williams, supra at 642.

Those procedures laid down in Uniform Superior Court Rule 31.3 (B) and Williams, which were designed to protect against the improper admission of character evidence, are requirements and not mere recommendations. Neither the State, the trial court, nor this court may ignore or only partially follow that mandate of the Supreme Court.

In the instant case, it is uncontroverted that the trial court did not comply with the procedural requirements of Williams. That omission may be understandable in light of the fact that the trial occurred several months before the Supreme Court’s decision in Williams. However, this court has already decided that Williams must be applied retroactively. Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3) (1992).

The majority opinion acknowledges that retroactive application of Williams, but then proceeds to avoid applying it to the instant case by concluding that the evidence was sufficient to meet the Williams requirements. In doing so, it misplaces any reliance upon Wells v. State, 208 Ga. App. 298 (430 SE2d 611) (1993), and Jefferson v. State, 206 Ga. App. 544 (425 SE2d 915) (1992), as each of those cases specifically noted that the defendant did not question the sufficiency of the trial court’s compliance with Williams. This court did observe in Jefferson (in a footnote) and in Wells (in a reference to that footnote) that the evidentiary showing was sufficient under Williams. However, those observations were mere dicta, and did not purport to establish a rule with which to dodge Williams.

Another deficiency in the determination regarding the admissibility of the similar transaction evidence in this case was the trial court’s failure to balance the relevance of the evidence with the prejudice it created. “It has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. [Cits.]” Robinson v. State, 246 Ga. 469, 470 (271 SE2d 786) (1980). However, as in the instant case, that rule has been honored more in its breach than by its observance.

In cases such as the instant one, the admission of evidence of similar transactions is often particularly needed to prove the current charge of child molestation. However, admission of such evidence is not automatic. USCR 31.3 (B) and Williams delineate procedural requirements that must be followed, and it places no onerous burden on the State for it to satisfy those requirements. The State failed to do so in this case, and the only appropriate remedy is reversal of the defendant’s conviction.

Decided September 28, 1993. Corinne M. Mull-Milsteen, for appellant. J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Anne G. Maseth, Assistant District Attorneys, for appellee.

Accordingly, I must respectfully dissent from Division 2 of the majority opinion.

I am authorized to state that Judge Cooper joins in this opinion.