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Blackwell v. State

Court of Appeals of Georgia, Fifth Division

July 1, 2019

BLACKWELL
v.
THE STATE

          MCFADDEN, C. J., MCMILLIAN, P. J. and GOSS, J.

          MCFADDEN, CHIEF JUDGE.

         After a jury trial, Chris A. Blackwell was convicted of armed robbery, of multiple counts of aggravated assault, of making terroristic threats, and of possession of a firearm during the commission of a felony. Among other claims, Blackwell argues that the trial court erred in allowing the state to present character evidence in the form of his prior arrest for armed robbery. We agree that this was harmful error, so we reverse. Because the evidence authorized Blackwell's convictions, he may be retried. We do not reach Blackwell's other claims of error.

         1. Facts.

         Viewed in the light most favorable to the judgment, see Garza v. State, 347 Ga.App. 335 (1) (819 S.E.2d 497) (2018), the trial evidence showed that Blackwell, along with several other people, planned and executed the robbery of a bank in Carrollton during the afternoon of April 29, 2013. That day, Blackwell, Jonathan Irving, [1] Gibran Ezell, and one other man (who was not named at trial) drove in two cars from Atlanta to Carrollton. There, Ezell and the other man got into one car and drove to the bank. Inside the bank, Ezell shot a gun into the ceiling before pointing it at the numerous bank customers and employees who were present. The other man jumped over the teller counter and took approximately $14, 000 in cash. During the robbery, the men demanded money, yelled profanities, and threatened to shoot the people inside the bank, frightening them. After leaving the bank, the men drove to a nearby road, abandoned their car, rejoined Blackwell and Irving, and returned to Atlanta.

         The investigation of the bank robbery led law enforcement to arrest Ezell, who ultimately gave a statement implicating Blackwell and described Blackwell's involvement in the robbery at trial. Other trial evidence corroborated Ezell's testimony. Investigators found Blackwell's fingerprint inside the car that Ezell and the other man had abandoned near the bank. That car had been stolen two days before the bank robbery. In addition, Blackwell's former girlfriend testified to an instance where Blackwell had borrowed her car in exchange for a Dodge Charger. Her testimony was consistent with Ezell's description of a car swap the morning of the bank robbery.

         Blackwell does not challenge the sufficiency of the evidence supporting his convictions, and we find that this evidence authorized his convictions. See OCGA § 16-5-21 (aggravated assault), § 16-8-41 (armed robbery), § 16-11-37 (terroristic threats), § 16-11-106 (possession of firearm). See also OCGA § 16-2-20 (a) ("Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime."). So the state may retry him on remand. See Frazier v. State, 339 Ga.App. 405, 413 (5) (793 S.E.2d 580) (2016).

         2. Admission of character evidence.

         Blackwell testified at trial, and during his cross-examination the prosecutor asked him about a prior arrest for armed robbery. Blackwell's counsel objected and moved for a mistrial, but the trial court ruled that the state could elicit that evidence under OCGA § 24-4-404 (a) (1) ("Rule 404 (a) (1)"). (The state emphasized that it did not seek admission of the evidence as a prior bad act under OCGA § 24-4-404 (b).) We review the trial court's decision for abuse of discretion, Ramirez v. State, 303 Ga. 232, 235 (II) (811 S.E.2d 416) (2018), and because Rule 404 (a) (1) is materially identical to Federal Rule of Evidence 404 (a) (2) (A), we apply federal case law and Georgia case law decided under our new Evidence Code, rather than Georgia case law decided under our former Evidence Code. State v. Almanza, 304 Ga. 553, 556 (2) (820 S.E.2d 1) (2018). Considering that authority, we agree with Blackwell that the trial court's ruling was error and that the error was harmful, requiring us to reverse the judgment.

         (a) Error.

         Rule 404 of our new Evidence Code, like its federal counterpart, embodies "the fundamental rule . . . that the government may not rely on the accused's bad character to win a conviction unless character has been put in issue by the defense." United States v. LeQuire, 943 F.2d 1554, 1570 (VII) (C) (11th Cir. 1991) (citation and punctuation omitted). Generally, "[e]vidence of a person's character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion[.]" OCGA § 24-4-404 (a). See United States v. Rutgerson, 822 F.3d 1223, 1239 (IV) (11th Cir. 2016). But Rule 404 (a) (1) provides an exception to that general rule: "Evidence of a pertinent trait of character [may be] offered by an accused or by the prosecution to rebut the same[.]" OCGA § 24-4-404 (a) (1). This exception permits the admission of prior bad act evidence, that would not be admissible otherwise, "after the opposing party has 'opened the door' to its admission.'" United States v. Birchette, 908 F.3d 50, 61 (III) (B) (4th Cir. 2018). Proof of good character is that evidence "introduced by a defendant to show circumstantially that he is unlikely to have committed the crime for which he is accused[.]"). United States v. Thomas, 676 F.2d 531, 537 (III) (11th Cir. 1982). If a defendant introduces evidence of "pertinent" - meaning relevant - character traits, he "open[s] the door to cross-examination and rebuttal on those traits." United States v. Hewitt, 634 F.2d 277, 278-279 (5th Cir. 1981).

         The state has substantial latitude in this regard. United States v. Bah, 574 F.3d 106, 118 (III) (2d Cir. 2009). Nevertheless, prosecutorial use of character evidence under this exception is "limited to instances that are relevant to the traits of character about which the witnesses have testified." United States v. Coumaris, 399 F.3d 343, 348 (II) (A) (D.C. Cir. 2005). "[T]he new evidence must be reasonably tailored to rebut the original evidence," Birchette, 908 F.3d at 61 (III) (B) (citation and punctuation omitted), and its relevance "is to be determined with reference to the characteristics of the proffered trait and the elements of the charged offense." United States v. Williams, 2014 U.S. Dist. LEXIS 199704, *3 (I) (B) (SD Ga. 2014) (citing Hewitt, 634 F.2d at 279). See Montgomery v. State, ____ Ga.App.____, ___ (1) (S.E.2d ___) (Case No. A19A1353, decided May 24, 2019) (rebuttal evidence under Rule 404 (a) (1) is limited to specific instances of defendant's conduct relevant to character trait offered by defendant).

         The state makes two different arguments that evidence of Blackwell's prior arrest for armed robbery was admissible to rebut purported character evidence offered by Blackwell. As detailed below, neither has merit.

         (i) Claim that evidence rebutted Blackwell's mention of being a mentor.

         The trial court found, and the state argues on appeal, that evidence of Blackwell's prior arrest for armed robbery was admissible under Rule 404 (a) (1) to rebut his testimony that he mentored children. But Blackwell did not offer this testimony to establish a pertinent trait of character that would allow for rebuttal evidence. And even if Blackwell's testimony did open the door under Rule 404 (a) (1), the evidence of his prior arrest was not reasonably tailored to rebut that evidence.

         For the Rule 404 (a) (1) exception to apply, a defendant "must choose to place his good character in issue. . . ." Montgomery, ___ Ga.App. At ___ (1) (emphasis supplied). See generally Michelson v. United States, 335 U.S. 469, 477 (69 S.Ct. 213, 93 LE 168) (1948) (describing act of defendant "elect[ing] to initiate a character inquiry"); United States v. Lewis, 482 F.2d 632, 637 (II) (D.C. Cir. 1973) (referring to election by defendant to advance evidence of one or more character traits as evidence of innocence). "[P]rosecutors should not be allowed to go into matters of character if the defendant presents background facts briefly and simply, painting an ordinary picture of a life in being. On the other hand, prosecutors certainly should be able to answer any inference suggested by the defendant that he is not the kind of person who would do the acts . . . charged. . . ." 1 Christopher B. Mueller et al., Federal Evidence ยง 4:24 (4th ed. updated June 2019). The record shows that Blackwell's comments about mentoring fall into ...


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