SIMILAR TRANSACTIONS (404B)
Although the conduct of a defendant in other transactions is generally irrelevant and inadmissible, evidence that a defendant previously committed a similar crime can be used against a defendant during the trial of his case. Walker v State, 310 Ga. App. 223 (2011). For example, if a defendant is charged with armed robbery, the State can ask the judge to let the jury hear about a prior armed robbery. The prior event is called a similar transaction. Similar transaction evidence is highly and inherently prejudicial. Hudson v. State, 271 Ga. 447 (1999).
"Notices of the State's intention to present evidence of similar transactions or occurrences . . . shall be given and filed at least ten [10] days before trial unless the time is shortened or lengthened by the judge." Uniform Superior Court Rule 31.1. Perry v. State, 314 Ga. App. 575 (2012); Bright v. State, 314 Ga. App. 589 (2012). Notice of the prosecution's intent to present evidence of similar transactions 160"shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice." "The purpose of the notice requirement contained in USCR 31.3 is to provide a criminal defendant adequate notice of the state's intent to use similar transactions to enable the defendant to resolve questions regarding admissibility of such evidence before trial." Bright v. State, 314 Ga. App. 589 (2012).
Before the State can introduce similar transaction evidence, the judge must conduct a hearing under Uniform Superior Court Rule 31.3 (B), and the State must make three affirmative showings as to each prior act. Griffin v. State, A14 A0189; Hickson v. State, 308 Ga. App. 50 (2011). The State must show that: (1) it seeks to introduce the evidence for an appropriate purpose, such as showing a defendant's identity, intent, course of conduct, and bent of mind; (2) there is sufficient evidence to establish that the defendant committed the independent offense, and (3) there is sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (1991); Faniel v. State, 291 Ga. 559 (2012); Evans v. State, 288 Ga. 571 (2011); Gardner v. State, 273 Ga. 809 (2001); Wade v. State, 295 Ga. App. 45 (2008). After the required showings the judge can admit the similar transaction evidence unless the probative value is substantially outweighed by the risk of prejudice to the defendant. Bibb v. State, 315 Ga. App. 49 (2012). The same test applies whether the similar transaction occurred before or after the charged crimes. Whitman v. State, 316 Ga. App. 655 (2012); Ayiteyifio v. State, 308 Ga. App. 286 (2011).
The judge's failure to make the required findings on the record is harmless error. Holder v. State, 314 Ga. App. 36 (2012).
When the similar transaction is admitted for purposes of intent and course of conduct a lesser degree of similarity is required than when such evidence is introduced to prove identity of the defendant as the perpetrator. Watt v. State, 317 Ga. App. 551 (2012); Neal v. State, 290 Ga. 563 (2012). One of the questions the judge should consider is, “Does the State need this evidence to prove the issue, or can the fact be proved otherwise by less inflammatory evidence?” Newton v. State, 313 Ga. App. 889 (2012); Smith v. State, 232 Ga. App. 290 (1998).
The State can proceed by proffer at the hearing and does not need to present witnesses. Hinton v. State, 290 Ga. App. 479 (2008). A rule 31.3(b) hearing must be held even if not requested by the defendant. An in chambers discussion without the 162defendant present is not a proper hearing. Moore v. State, 290 Ga. 805 (2012).
There is no requirement that the similar transaction be identical to the crime charged; "the proper focus is on the similarity, not the differences, between the separate crimes and the crime in question." Waters v. State, 303 Ga. App. 187 (2010). This rule is most liberally extended in cases involving sexual offenses to show the lustful disposition of the defendant. Heck v. State, 313 Ga. App. 571 (2012); Butler v. State, 311 Ga. App. 873 (2011); Payne v. State, 285 Ga. 137 (2009); Henderson v. State, 303 Ga. App. 531 (2010). With regard to the lapse of time, Georgia courts have authorized the admission of similar transaction evidence that is more than 20 years old in sexual abuse cases. The lapse in time generally goes to the credibility of the evidence. It is a factor to be considered when balancing the probative value against its potential prejudice. Farley v. State, 317 Ga. App. 628 (2013); Wheeler v. State, 290 Ga. 817 (2012). The defendant's youth at the time of the similar transaction should be considered in deciding if the testimony should be admitted. Ledford v. State, 313 Ga. App. 389 (2011).
There is no requirement that the earlier act have resulted in a formal criminal charge, prosecution, or conviction. Hunt v. The State, 288 Ga. 794 (2011); Brown v. State, 201 Ga. App. 473 (1991). However, evidence of a similar transaction may not admissible under the rule of collateral estoppel where the defendant has been tried and acquitted of the alleged similar transaction. Faniel v. State, 291 Ga. 559 (2012); Banks v. State, 185 Ga. App. 851 (1988); Moore v. State, 254 Ga. 674 (1985). The judge must decide what facts were in issue and necessarily resolved in the defendant's favor at the first trial. Salcedo v. State, 258 Ga. 870 (1989). Specifically, "it must be determined whether an issue that was in dispute in the previous trial -- and resolved in the defendant's favor -- is what the state is now trying to establish in this trial, notwithstanding the previous acquittal." For example, in a rape case if consent was the issue in the first trial and the State seeks to use the similar transaction to show identity then the similar transaction may be admissible despite the acquittal in the former case. Bell v. State, 311 Ga. App. 289 (2011).
The similar transaction must be an act. A defendant's statements are not "independent offenses or acts" unless those statements in and of themselves constitute a crime. Boynton v. State, 197 Ga. App. 149 (1990); Newsome v. State, 288 Ga. 647 (2011).
The decision to admit similar transaction evidence is within the judge's discretion and will not be disturbed on appeal absent an abuse of that discretion. Flowers v. State, 269 Ga. App. 443 (2004); Long v. State, 307 Ga. App. 669 (2011). When reviewing the judge's factual findings regarding whether the State satisfied the three prong test, the appeals courts apply a clearly erroneous standard. Once the judge has a hearing and decides to admit similar transaction evidence against a defendant, the defendant does not have to raise an objection at the time the evidence is presented at trial. Rogers v. State, 290 Ga. 401 (2012); Whitehead v. State, 287 Ga. 242 (2010). However, only the ground raised pretrial is preserved at trial. Butler v. State, 290 Ga. 425 (2012.
The State's obligation to establish the similarity of the offenses does not satisfy the obligation to present proof at trial. Stephens v. State, 261 Ga. 467 (1991). Certified copies of convictions are admissible to help establish the identity of the defendant as the perpetrator of the similar transaction, but are not admissible as the only evidence of the previous crime. Perry v. State, 314 Ga. App. 575 (2012).
PRIOR AND SUBSEQUENT DIFFICULTIES
Evidence of the defendant's prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim. Washington v. State, 312 Ga. App. 68 (2011). Wall v. State, 269 Ga. 506 (1998). This evidence, called prior difficulties, is admissible to show the defendant's motive, intent, and bent of mind in committing the act against the victim which resulted in the charges for which the defendant is being prosecuted. Hammontree v. State, 283 Ga. App. 736 (2007). Evidence of prior difficulties between the defendant and victim is admissible without notice or a hearing." Stillwell v. State, 294 Ga. App. 805 (2008); O'Toole v. State, 258 Ga. 614 (1988).
A subsequent difficulty (it happened after the act for which the defendant is being prosecuted) between a defendant and the victim is also admissible as evidence of the relationship between the two, and may show the defendant's motive, intent, and bent of mind in committing the alleged crime against the victim. Bond v. State, 283 Ga. App. 620 (2007); Reed v. State, 309 Ga. App. 183 (2011).
A defendant's prior substance abuse is admissible as prior difficulties when it explains the friction between the alleged victim and the defendant that led to the crime charged. Billington v. State, 313 Ga. App. 624 (2012).
VICTIM'S VIOLENT ACTS
Evidence of specific acts of violence by a victim against third persons is admissible where the defendant claims justification, provides proper notice, and makes a prima facie or initial showing that the victim was the aggressor. Chandler v. State, 261 Ga. 402 (1991). Such Chandler evidence is admissible to show the victim's character for violence or tendency to act in accordance with his character as it relates to the defendant's claim of justification. Barber v. State, 268 Ga. 156 (1997); Alexander v. State, 285 Ga. 166 (2009); Traylor v. State, 280 Ga. 400 (2006). The burden is on the defendant seeking to introduce Chandler evidence to establish that the victim's prior acts involved violence. Bennett v. State, 265 Ga. 38 (1995). "Mere membership in a gang is not a specific act of violence." Kolokouris v. State, 271 Ga. 597 (1999); Daniely v. State, 309 Ga. App. 123 (2011).