BARNES, P. J., MERCIER and BROWN, JJ.
Barnes, Presiding Judge.
found Nathan Alan Montgomery guilty of false imprisonment,
aggravated assault, and hindering an emergency telephone
call. Following the denial of his amended motion for new
trial, Montgomery appeals, contending that the trial court
erred in finding that he intentionally placed his general
character in issue and, consequently, erred in permitting the
State to cross-examine a witness about his criminal history.
Montgomery further contends that the trial court committed
plain error by not instructing the jury on how to consider
evidence of a defendant's general good character, and
that his trial counsel rendered ineffective assistance by
failing to request such an instruction. Discerning no basis
for reversal, we affirm.
appeal after a criminal conviction, we view the evidence in
the light most favorable to the jury's verdict.
Anthony v. State, 317 Ga.App. 807, 807 (732 S.E.2d
845) (2012). So viewed, the evidence showed that Montgomery
and the victim were married for several years and had a
volatile, contentious relationship. In early 2015, Montgomery
and the victim separated and filed for divorce. On March 21,
2015, which was before the divorce was finalized, Montgomery
encountered the victim at a brewery. The victim left to go
home after Montgomery upset her, and Montgomery had a
coworker drive him to the victim's house a short while
arriving at the victim's house, Montgomery entered
through an unlocked door while his coworker waited in the
car. The victim asked Montgomery to leave, but he forced her
into another room, lifted her up, slammed her to the floor,
jumped up and down on her chest with his feet, pressed her
face into the floor with his foot, and placed her in a
headlock. When the victim reached for her cell phone and told
Montgomery she was calling the police, Montgomery grabbed her
arm, wrestled the phone away from her, and threw it against
the wall across the room. During the attack, Montgomery
confined the victim in the bathroom for a period of time and
would not let her leave. According to the victim, Montgomery
also forced her to perform oral sex and to have sexual
intercourse with him and placed a pillow over her face to
suffocate her. Montgomery left the victim's house after
the attack, and she called 911 and was transported to the
hospital by ambulance.
was indicted for rape, aggravated sodomy, false imprisonment,
aggravated assault (two counts), and hindering an emergency
telephone call. During the jury trial, the victim testified
to the attack by Montgomery as set forth above. She also
testified about four prior difficulties between her and
Montgomery, including prior incidents in which he sexually
and physically abused her. The State sought to corroborate
the victim's description of the attack through
photographs taken of her at the hospital and the
sheriff's office and emails between her and Montgomery on
the day of the attack. Additionally, among other witnesses,
the State called an investigator from the sheriff's
office who testified that the victim appeared
"terrified" at the hospital and described the
bruises and other marks that he saw on her neck, arms, and
elected to testify and denied that he ever physically or
sexually assaulted the victim. He also called eleven
character witnesses who testified about his reputation for
honesty and/or their opinion that he was trustworthy. After
one of the character witnesses testified more broadly that
Montgomery was "to be admired," the trial court
warned that the defense was getting close to the line of
placing Montgomery's general character in issue.
Ultimately, when one of the character witnesses testified on
direct-examination that Montgomery was a "man of
integrity," the trial court ruled that the defense had
intentionally placed Montgomery's general character in
issue and thus had opened the door to the State
cross-examining the witness about whether the witness knew or
had heard about Montgomery's drug, alcohol and
driving-related arrests and convictions.
in the trial, during the charge to the jury, the trial court
gave an instruction on evidence of the defendant's
character for truthfulness, pointing out to the jury that
"[y]ou should consider any such evidence along with all
the other evidence in deciding whether or not you have a
reasonable doubt about the guilt of the defendant."
Defense counsel had requested the instruction.
its deliberations, the jury found Montgomery guilty of false
imprisonment, hindering an emergency telephone call, and one
count of aggravated assault (based on the allegation that he
jumped up and down on the victim's chest with his feet).
The jury acquitted him of rape, aggravated sodomy, and the
second count of aggravated assault (based on the allegation
that he covered her face with the pillow in a manner
"likely to result in strangulation"). Montgomery
then filed a motion for new trial, as amended, which the
trial court denied after conducting a hearing in which
Montgomery's two trial attorneys testified. This appeal
Montgomery contends that the trial court erred in finding
that he intentionally placed his general character in issue
and, therefore, erred in permitting the State to
cross-examine one of his character witnesses about his
criminal history. We disagree.
Georgia's current Evidence Code, the admissibility of
evidence of a defendant's character is governed by OCGA
§§ 24-4-404 and 24-4-405. See Timmons v.
State, 302 Ga. 464, 467 (2) (a) (807 S.E.2d 363) (2017).
As a general rule, evidence of a person's character is
inadmissable. See OCGA § 24-4-404 (a); Wade
v. State, 304 Ga. 5, 10 (3) (815 S.E.2d 875) (2018);
Timmons, 302 Ga. at 468 (2) (a). But, "[w]hen a
witness testifies about a defendant's good character, the
State may cross-examine that witness about the
defendant's prior misconduct in an attempt to undermine
the witness's credibility." Leanos v.
State, 303 Ga. 666, 672 (2) (c) (iii) (814 S.E.2d 332)
(2018). See OCGA §§ 24-4-404 (a) (1); 24-4-405 (c);
United States v. Glass, 709 F.2d 669, 673 (11th Cir.
1983) (per curiam). As part of the cross-examination of the
character witness by the State, "inquiry is allowable
into relevant specific instances of conduct, including prior
convictions or arrests of the accused." (Citations and
punctuation omitted.) United States v. Coumaris, 399
F.3d 343, 348 (II) (A) (D. C. Cir. 2005). See OCGA §
24-4-405 (c); United States v. Collins, 779 F.2d
1520, 1532 (11th Cir. 1986) (character witness could be
questioned on cross-examination about whether he had heard of
defendant's prior arrests and convictions).
defendant elicits testimony from a character witness
regarding a specific character trait of the defendant, the
State is limited to cross-examining the witness about
specific instances of the defendant's conduct that
"are relevant to the trait[ ] of character about which
the witness[ ] has testified." Coumaris, 399
F.3d at 348 (II) (A). See OCGA § 24-4-404 (a) (1);
Stroud v. State, 301 Ga. 807, 812 (II), n. 7 (804
S.E.2d 418) (2017) (noting that "under both old and new
Evidence Code, [a] defendant's character witnesses may be
cross-examined about their knowledge of a prior conviction if
such conviction rebutted the 'specific character
trait' as to which the witness testified") (citation
omitted); United States v. Adair, 951 F.2d 316, 319
(II) (C) (11th Cir. 1992) (when a witness testifies about
defendant's character trait, cross-examination is
permitted with regard to "particular instances of
conduct relevant to the trait in question"). By
contrast, if the defendant places his general character in
issue through a character witness, the door is opened for the
prosecution to cross-examine the witness about specific
instances of the defendant's conduct reflecting bad
character. See United States v. Clark, 26 Fed.Appx.
422, 428 (6th Cir. 2001) (per curiam). See also United
States v. Mendoza-Prado, 314 F.3d 1099, 1105 (C) (2)
(9th Cir. 2002) (concluding that "evidence of general
good character opened the door to the government's
evidence of prior bad acts to demonstrate bad
character"); United States v. Hegwood, 977 F.2d
492, 496 (III) (9th Cir.1992) ("[W]hen the defendant
'opens the door' to testimony about an issue by
raising it for the first time himself, he cannot complain
about subsequent government inquiry into that issue.").
after a defense character witness testified on
direct-examination that Montgomery was a "man of
integrity," the trial court ruled that Montgomery had
placed his general character in issue, thereby opening the
door to the State cross-examining the witness about
Montgomery's arrests and convictions for drug, alcohol,
and driving offenses. On appeal, Montgomery contends that the
trial court erred in finding that he placed his general
character in issue because the character witness's
testimony was nonresponsive to the question originally posed
by defense counsel.
inadvertent or nonresponsive answer by a witness that invokes
the defendant's good character . . . does not
automatically put his character at issue so as to open the
door to character evidence." (Citation and punctuation
omitted.) Harris v. State, 330 Ga.App. 267, 271 (1)
(765 S.E.2d 369) (2014). See Wade v. State, 304 Ga.
5, 10 (3) (815 S.E.2d 875) (2018) (noting that
"witnesses' statements were nonresponsive" and
thus did not put the defendant's character at issue under
OCGA § 24-4-404). See also 2 Christopher B. Mueller et
al., Federal Evidence § 4:43 (4th ed. updated July 2018)
("It seems that if a defense witness gives a
nonresponsive answer that contains an endorsement of the good
character of the defendant, . . . the prosecutor should not
be allowed to exploit this situation by cross-examining on
bad acts or offering other negative character
evidence."). Rather, the defendant must choose to place
his good character in issue through the examination of the
witness. See Garner v. State, 346 Ga.App. 351, 359
(2), n. 26 (816 S.E.2d 368) (2018) ("Generally, the
character of the defendant should not come into evidence
unless he chooses to put his character in issue[.]")
(citation and punctuation omitted). See also Milich, supra,
§ 11:4 ("The defendant chooses whether or not to
put his character in issue."); Govt. of Virgin
Islands v. Roldan, 612 F.2d 775, 778 (II) (A) (3d Cir.
1979) (defendant "opened the door by putting his
character in issue," where witness's statement that
defendant "never bother[ed] anybody" was not a
"gratuitous, unsolicited remark") (punctuation
[W]hether a statement [by a witness] making reference to the
defendant's good character is merely inadvertent or
manifests a conscious election [by the defendant to put his
character in issue] is a question of fact, determined
primarily upon the trial court's assessment of the intent
of the accused and his counsel. We afford great deference to
the trial court's rulings in this regard.
(Citation and punctuation omitted.) Harris, 330
Ga.App. at 271 (1). Furthermore, the question whether the
defendant has intentionally placed his character in issue
through the direct-examination of a witness is not assessed
in a vacuum; rather, the trial court can consider the
questioning of the witness in the context of the trial
proceedings as they have unfolded and the trial strategy
being pursued by defense counsel. See id.
of these principles, we turn to the record in the present
case to ascertain whether the trial court abused its
discretion in determining that Montgomery intentionally
placed his general character in issue. The record reflects
that during the defense's opening statement, defense
counsel emphasized to the jury:
Pay close attention, if you will, please, to evidence we
believe is going to [be] brought forth in the form of
witnesses as far as character for Mr. Montgomery. We've
given quite a few names to the State and they know about
them. And these folks are going to come forth and they're
going to take an oath. And these folks are going to swear to
tell the truth. And it will be your decision to decide
whether you believe them or not, but telling the truth
matters to these people. They're going to take time out
of their lives and come up here today and I want you to
listen closely. Listen to what they're going to say.
Listen to what they're going to say about the character
of the man sitting there accused.
during defense counsel's cross-examination of
Montgomery's coworker who drove him to the victim's
house, the following exchange occurred:
Q: Okay. How long have you known Mr. Montgomery?
A: Let's see, since 2014 at least.
Q: Okay. How would you describe your opinion of Mr.
A: As what?
Q: Of Mr. Montgomery's character, what kind of person ...