Hunter v. Hardnett

Beasley, Judge,

dissenting.

I respectfully dissent, as I do not concur in Division 1.

When counsel argued appellant’s motion in limine at the commencement of the trial, it had not been established in either the pleadings or in discovery whether or not Hunter had in fact pled guilty to the charge. His counsel made a proffer of Hunter’s anticipated testimony, stating that it would show he had in fact not pled guilty. He argued that the traffic citation was inadmissible because it would show he had not pled guilty or at best was ambiguous and did not show what it was offered to show, that he had pled guilty. He maintained that a conviction in the absence of a plea of guilty is inadmissible, which is eminently correct. Pierce v. Pierce, 241 Ga. 96, 100 (3) (243 SE2d 46) (1978).

Hardnett countered that the certified copy of the conviction was the best evidence of it, so that explanatory hearsay testimony would be inadmissible. Although it was authenicated evidence of conviction, it was offered to show what that conviction was based on; as to that fact it was neutral, no more establishing that the basis for the conviction was á guilty plea than that it was a finding of guilt. The trial court reasoned that the ambiguity in the document was no reason to hold it inadmissible. It ruled that the traffic citation was admissible if it was explained through the testimony of witnesses.

At trial, Hunter testified without contradiction that he had not pled guilty to the traffic charge in municipal court. No evidence tending to show that he had pled guilty, so that the document could be construed as a record of such, was ever offered. Thus the ambiguous document was never made competent evidence. There was no foundation laid for its admissibility. It was only admissible if it was evidence of a guilty plea, and the cupboard was bare of any ingredients for such a finding. Although it was an authentic document and thus the best evidence of the municipal court record as such, it was not competent evidence of the fact it was offered to show, i.e., that Hunter had pled guilty. It was simply inconclusive.

The trial court charged the jury that there was evidence of a plea of guilty by him, which is admissible as an admission. The trial court did not charge the jury that an adjudication of guilt in the absence of a guilty plea is inadmissible. The real problem is that the court gave to the jury the judicial task of making an evidentiary ruling. Before the document could be admitted into evidence as competent, the court would have had to find that it represented a guilty plea. Because of the ambiguity, it could not do so. That did not pave the way for the jury to do so either; it could not logically find that the document was competent evidence of a guilty plea. There was no evidence with which to resolve the ambiguity in favor of such a finding. Yet the court permitted it to do so.

The trial court’s denial of appellant’s motion in limine and allowing the non-probative evidence constituted error which was harmful by its nature and requires reversal. It presented appellant with a Hobson’s choice. If appellant had indeed pled guilty to the traffic charge in municipal court, it would have constituted an admission of liability. But he maintained that he did not plead guilty, and he did not wish to let the jury make the inculpatory finding without at least contradicting the inadmissible evidence. Appellant was thus compelled to testify that he had not pled guilty, thereby resolving the ambiguity and establishing the probative value of the document he rightfully sought to preclude. However, it was thus made probative of a fact which was inadmissible.

Decided March 15, 1991 Rehearing denied March 29, 1991 W. Allen Evans, for appellant. Law Offices of Sam G. Nicholson, Kenneth M. Nimmons, Oscar H. Allen, for appellee.

The question, to be answered affirmatively apart from the question of relevancy, was whether the document was admissible. The document was never shown by its profferer to be admissible, i.e., that it memorialized a guilty plea. Allowing the jury to determine its admissibility, a legal question, meant that if the jury decided it was inadmissible, it then had to consciously and subconsciously take the difficult step of ignoring the conviction. This step likely faced the jury, because there was no evidence to resolve the ambiguity in favor of its recordation of a guilty plea, while on the other hand there was affirmative evidence that it was not such.

Relegating the threshold judicial task to the jury infected its deliberations with inadmissible evidence which was highly prejudicial to defendant.