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Peak v. State

Court of Appeals of Georgia

January 14, 2015

PEAK
v.
THE STATE

Impeachment. Greene Superior Court. Before Judge Prior.

Darel C. Mitchell, for appellant.

Fredric D. Bright, District Attorney, Allison T. Mauldin, Assistant District Attorney, for appellee.

BARNES, Presiding Judge. Boggs and Branch, JJ., concur.

OPINION

Page 276

Barnes, Presiding Judge.

Clarence Peak was indicted for malice murder, felony murder, aggravated assault, and three firearms possession counts. The trial court granted the State an order of nolle prosequi on one of the firearm possession charges, and the jury acquitted Peak of malice murder and felony murder but convicted him of voluntary manslaughter as a lesser included offense and of the other charges. The trial court sentenced him to a total of 25 years to serve in prison. After the trial court denied Peak's motion for new trial, he filed this appeal, contending that the court erred in allowing the State to admit evidence of Peak's 1978 convictions for burglary and armed robbery for impeachment purposes. Because the trial court did not make express findings about the prejudicial versus probative value of the evidence, we vacate Peak's convictions and remand this case to the trial court to reconsider Peak's motion for new trial on this ground.

Before 2005, a witness or defendant could be impeached by evidence he had been convicted of a crime of " moral turpitude," no matter how old the conviction was. Harwell v. State, 270 Ga. 765, 768 (2) [330 Ga.App. 529] (512 S.E.2d 892) (1999). All felonies were considered crimes involving moral turpitude, as were certain misdemeanors. Rehberger v. State, 269 Ga. 576 (1) (502 S.E.2d 222) (1998).

In 2005, new legislation tracked the language of Rule 609 of the Federal Rules of Evidence, and the new statute differentiated in some respects if the person testifying was a defendant or a witness and based on the age of the conviction.[1] First, for convictions less than ten years old, the statute provided that evidence that a witness or defendant had been convicted of a crime involving dishonesty or making a false statement was admissible regardless of whether the crime was a felony or misdemeanor and required no finding as to whether its probative value outweighed its prejudicial effect. Former OCGA § 24-9-84.1 (a) (3). Second, to admit evidence of a witness's felony convictions that did not involve dishonesty or false statements, the trial court was required to find that " the probative value of admitting the evidence outweighs its prejudicial effect." Former OCGA § 24-9-84.1 (a) (1). Third, to admit evidence of a defendant's felony convictions that did not involve dishonesty or false statements,

Page 277

the trial court was required to find that " the probative value of admitting the evidence substantially outweighs its prejudicial effect." (Emphasis supplied.) Former OCGA § 24-9-84.1 (a) (2).

The 2005 statute also established a presumption against the admission of evidence of a conviction if more than ten years had elapsed since the date of the conviction or the release of the defendant or witness from the confinement imposed for that conviction, whichever was later. Former OCGA § 24-9-84.1 (b). Regardless of whether the person testifying was the defendant or a witness,

[u]nder subsection (b) of [former OCGA § 24-9-84.1], a conviction more than ten years old may not be used to impeach [the defendant or witness] unless the trial court " determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

(Citation and punctuation omitted; emphasis supplied.) Hinton v. State, 280 Ga. 811, 818 (7) (631 S.E.2d 365) (2006). Additionally, the proponent was required to give sufficient notice to the adverse party to give him a fair opportunity to contest the use of the evidence. [330 Ga.App. 530] Former OCGA § 24-9-84.1 (b). The statute made the requirements for admitting evidence of older convictions " far more rigorous" than the requirements for admitting more recent convictions. Newsome v. State, 289 Ga.App. 590, 593 (2) (657 S.E.2d 540) (2008). The presumption underlying former OCGA § 24-9-84.1 (b) was that if more than ten years had elapsed from the date of the conviction or the date of release from confinement for the conviction,[2] whichever was later, evidence of the conviction was generally inadmissible. Hinton, 280 Ga. at 819 (7). This presumption was " founded on a legislative perception that the passage of time ...


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