Tuesday, January 19, 2021
OCGA § 24-4-405(a) states that
In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.
This Georgia rule of evidence is similar to Federal Rule of Evidence 405(a). Federal courts, however, have carved out an exception to Rule 405(a) known as communicated character. Under the communicated character theory, a defendant can present evidence of prior bad acts by the victim, not to prove the victim's bad character, but to prove the defendant's reasonable apprehension of the victim.
In its recent opinion in Beck v. State, 2020 WL 7133063 (Ga. 2020), the Supreme Court of Georgia dealt with the question of whether the Peach State should adopt this communicated character exception.
In Beck, Dallas Jarvis Beck was convicted of felony murder and possession of a weapon during the commission of a crime in connection with the 2012 shooting death of Corey Liverpool. After he was convicted, Beck appealed, claiming that the trial court improperly precluded him from presenting evidence of Liverpool's two prior convictions.
In addressing this issue, the Supreme Court of Georgia noted that
"[a]lthough this Court has not yet decided whether, under the current Evidence Code, a victim's specific acts of violence of which the defendant had personal knowledge may be admissible to show the defendant's state of mind with respect to a claim of self-defense," something that federal courts have allowed,...this case does not call on us to decide that issue.
Instead, the court found that
Here, Beck provided notice of his intent to introduce two prior convictions of Liverpool, a conviction for carrying a firearm without a license and some other unspecified conviction apparently related to selling drugs. Beck's counsel proffered to the trial court that Beck communicated with Liverpool while Liverpool was incarcerated, suggesting that Beck was aware of those convictions. But Beck makes no particular argument that either of these convictions show “specific acts of violence” within the meaning of the federal case law. And even assuming that the firearm possession conviction could constitute evidence of an act of violence, that evidence, along with any other evidence about Liverpool's violent character that Beck was precluded from introducing, was cumulative of the evidence about Liverpool that was introduced. As recounted above, the jury heard evidence that Liverpool went by the name “Killer” and had a reputation for being dangerous and carrying a firearm, as well as evidence of a prior incident at a bus stop two days before the shooting in which Liverpool flashed a pistol at Beck and made a threatening gesture. Moreover, Burroughs testified without objection that Liverpool had a tattoo that said “no mercy.” And both Beck and Burroughs testified to their belief that Liverpool was looking to harm Beck based on an incident in which Beck was accused of stealing a truck. Thus, any error by the trial court in limiting evidence about Liverpool's allegedly violent character was harmless, as it is highly probable that any such error did not contribute to the verdicts.