Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-9-84.1 are included in the annotations for this Code section.

Constitutionality.

- Based on the slight probative value of over-age convictions, the fact that former O.C.G.A. § 24-9-84.1(b) permitted use of such convictions on a showing of specific facts and circumstances establishing the probative value of the particular conviction, and the fact that former § 24-9-84.1 did not preclude all inquiry on a subject with respect to which a defendant was entitled to a reasonable cross examination, former § 24-9-84.1 was not unconstitutional as a violation of the confrontation clause. Hinton v. State, 280 Ga. 811, 631 S.E.2d 365 (2006) (decided under former O.C.G.A. § 24-9-84.1)

Defendant's constitutional attack on former O.C.G.A. § 24-9-84.1(a)(2), which allowed impeachment of the defendant with defendant's prior convictions if defendant chose to testify, was meritless. The constitutional right to testify did not carry with it a right to prohibit impeachment by prior convictions. Childs v. State, 287 Ga. 488, 696 S.E.2d 670 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Construction of former provisions.

- Former O.C.G.A. § 24-9-84.1(a)(2), by the statute's own terms, applied to the admissibility of prior convictions for the purpose of impeaching a testifying defendant, and the statute did not apply when the prior conviction was admitted as a similar transaction for non-impeachment purposes because the analyses for each purpose were treated differently in case law; for example, when a conviction was admitted for impeachment, it was impermissible to use the prior conviction to show a criminal propensity or as substantive evidence of the offense at issue, and likewise, similar transactions were admissible not for impeachment but for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. Robertson v. State, 306 Ga. App. 721, 703 S.E.2d 343 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Supreme Court of Georgia adopted the date the witness testified or the evidence of the prior conviction was introduced as the end point for determining whether a conviction fell within the ten-year limit prescribed by former O.C.G.A. § 24-9-84.1(b). Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Federal interpretation of balancing tests.

- Looking for guidance from federal courts and state courts interpreting Fed. R. Evid. 609(b) or analogous state evidentiary rules regarding impeachment by convictions older than ten years, and citing the Eleventh Circuit opinion of United States v. Pritchard, 973 F.2d 905 (11th Cir. 1992), the Georgia Supreme Court adopted a five-factor analysis for weighing a prior conviction's probity regarding the accused's veracity against the prejudice to the accused: (1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider that conviction as evidence that the defendant committed the crime for which the defendant is on trial; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Trial court erred by permitting the state to impeach the defendant with evidence of a prior conviction from 1985 for impersonating a police officer without conducting the proper balancing tests under O.C.G.A. § 24-9-84.1(b) as the record showed that the trial court failed to make express findings in determining whether the 1985 conviction was admissible. Robinson v. State, Ga. App. , S.E.2d (Mar. 26, 2015).

In determining whether to admit a prior conviction against a defendant for impeachment purposes, a court should consider: (1) the impeachment value of the crime; (2) the time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. Waye v. State, 326 Ga. App. 202, 756 S.E.2d 287 (2014).

Federal interpretation of ten year limitation.

- In a matter of first impression, the Georgia Supreme Court looked to the decisions of federal courts in Trindle v. Sonat Marine, 697 F. Supp. 879 (E.D. Pa. 1988), and United States v. Cathey, 591 F.2d 268 (5th Cir. 1979), interpreting Fed. R. Evid. 609(b), in adopting the date that the witness testifies or that the evidence of the prior conviction is introduced as the end point for determining whether a conviction falls within the ten-year limit prescribed by former O.C.G.A. § 24-9-84.1(b). Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Balancing required.

- Supreme Court of Georgia adopted the application of the following five factors in conducting the balancing required under former O.C.G.A. § 24-9-84.1(b): (1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction did not create an unacceptable risk that the jury would consider it as evidence that the defendant committed the crime for which the defendant was on trial; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. While this list was not exhaustive and a trial court had the discretion to consider other factors as the court may deem appropriate in a particular case, these five factors outline the basic concerns relevant to the required balancing. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

On-the-record finding required.

- Trial court must make an on-the-record finding of the specific facts and circumstances upon which the court relied in determining that the probative value of a prior conviction that was more than ten years old substantially outweighed the prejudicial effect before admitting evidence of the conviction for impeachment purposes under former O.C.G.A. § 24-9-84.1(b). To the extent Treadwell v. State, 285 Ga. 736 (2009) and Wilkes v. State, 293 Ga. App. 724 (2008) could be interpreted to hold otherwise, those decisions were overruled. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Trial court erred by failing to make an on-the-record finding of whether the probative value of admitting the defendant's 1991 conviction substantially outweighed its prejudicial effect, and to enter express findings as to whether the probative value of defendant's 1987 conviction substantially outweighed its prejudicial effect. Waye v. State, 326 Ga. App. 202, 756 S.E.2d 287 (2014).

Trial court is required to make a different determination regarding a prior felony conviction that is older than ten years and evidence of such a conviction is not admissible unless the 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. Waye v. State, 326 Ga. App. 202, 756 S.E.2d 287 (2014).

Trial court must make an on-the-record finding of the specific facts and circumstances upon which the court relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect before admitting evidence of the conviction for impeachment purposes Waye v. State, 326 Ga. App. 202, 756 S.E.2d 287 (2014).

In considering the admissibility of prior convictions less than ten years old, a trial court must make an on-the-record finding that the probative value of admitting the conviction substantially outweighs its prejudicial effect, but is not required to list the specific factors the court considered in making the court's decision. Waye v. State, 326 Ga. App. 202, 756 S.E.2d 287 (2014).

In an action decided under former O.C.G.A. § 24-9-84.1(a)(2), the trial court erred when the court did not make an on-the-record finding of the specific facts and circumstances on which the court relied in determining that the probative value of the 32-year-old convictions substantially outweighed their prejudicial effect, but only found on the record that despite the fact of their age, the convictions' probative value insofar as impeachment goes outweighed the prejudicial factor to the defendant. Peak v. State, 330 Ga. App. 528, 768 S.E.2d 275 (2015)(decided under former O.C.G.A. § 24-9-84.1(a)(2)).

Redaction not required.

- Neither case law nor former O.C.G.A. § 24-9-84.1(a)(2) required redaction of portions of a validly admitted felony conviction. Wilkes v. State, 293 Ga. App. 724, 667 S.E.2d 705 (2008), overruled on other grounds, Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Obstructing or hindering law enforcement officers.

- In a parent's tort action arising from an accusation by store employees that the parent's child stole from the store, the trial court properly refused to strike evidence of an employee's conviction for violating O.C.G.A. § 16-10-24 by obstructing or hindering law enforcement officers submitted in the parent's motion for summary judgment response even though the conviction was not used to impeach the employee at the employee's deposition. The conviction could be used for impeachment at trial under former O.C.G.A. § 24-9-84.1(a)(1) because the violation was a felony punishable by imprisonment for not less than one nor more than five years and similarly may be submitted in the summary judgment motion even though it was not presented to the witness at the deposition. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008) (decided under former O.C.G.A. § 24-9-84.1)

Crimes involving dishonesty.

- For impeachment purposes, crimes of "dishonesty" were limited to those crimes that bear upon a witness's propensity to testify truthfully; accordingly, misdemeanor theft by receiving stolen property was not a crime involving dishonesty within the meaning of former O.C.G.A. § 24-9-84.1(a)(3). Adams v. State, 284 Ga. App. 534, 644 S.E.2d 426 (2007) (decided under former O.C.G.A. § 24-9-84.1)

Federal interpretation of crimes of dishonesty.

- Noting that the General Assembly, in enacting former O.C.G.A.24-9-84.1(a)(2), had chosen to use the language of Fed. R. Evid. 609(a)(2), and citing the Eleventh Circuit precedent of United States v. Sellers, 906 F.2d 597 (11th Cir. 1990), and the Fifth Circuit precedent of United States v. Ashley, 569 F.2d 975 (1978), and other federal circuits construing Rule 609(a)(2), as well as some state appellate courts with evidence rules similar to Rule 609(a)(2), the Court of Appeals held that, for impeachment purposes, crimes of "dishonesty" are limited to those crimes that bear upon a witness's propensity to testify truthfully, and not to crimes such as misdemeanor theft by receiving stolen property or shoplifting. Adams v. State, 284 Ga. App. 534, 644 S.E.2d 426 (2007) (decided under former O.C.G.A. § 24-9-84.1)

Impeachment for conviction in civil tort action.

- In an intentional tort action against a retailer and one of the retailer's employees, the employee could be impeached with a conviction under O.C.G.A. § 16-10-24 which occurred after that employee gave a deposition as the length of punishment that could be imposed thereunder satisfied the requirements of former O.C.G.A. § 24-9-84.1(a)(1) for impeachment with a conviction, and no other evidence was presented which prohibited the employee's impeachment. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008) (decided under former O.C.G.A. § 24-9-84.1); Chandler v. State, 281 Ga. 712, 642 S.E.2d 646 (2007);(decided under former O.C.G.A. § 24-9-84.1)

In a personal injury suit filed by a car driver against a truck driver, because the trial court erred by admitting evidence of the car driver's prior DUI charges and testimony by the investigating officer about charges filed against the car driver in traffic court, and by excluding an admission by the car driver's treating emergency room physician, a new trial was ordered. Laukaitis v. Basadre, 287 Ga. App. 144, 650 S.E.2d 724 (2007) (decided under former O.C.G.A. § 24-9-84.1)

Convictions did not show dishonesty.

- In a trial for aggravated assault, the trial court did not err in barring the defendant from introducing evidence about a third person's misdemeanor convictions for criminal trespass and family violence battery; the convictions did not involve dishonesty and did not support the defendant's self-defense theory as the third person remained behind as the defendant advanced on the victim. Fields v. State, 285 Ga. App. 345, 646 S.E.2d 326 (2007) (decided under former O.C.G.A. § 24-9-84.1)

Because defendant made no effort to show that the conviction defendant intended to use to impeach an accomplice who testified involved fraud or deceit, the trial court did not err in excluding that conviction for use for impeachment purposes under former O.C.G.A. § 24-9-84.1(a)(3). Clements v. State, 299 Ga. App. 561, 683 S.E.2d 127 (2009) (decided under former O.C.G.A. § 24-9-84.1)

Conviction did not show fraud and deceit.

- Because the defendant did not show that a misdemeanor shoplifting conviction involved fraud and deceit, the trial court properly refused to allow the defendant to use the conviction to impeach a witness under former O.C.G.A. § 24-9-84.1(a)(3). Martin v. State, 300 Ga. App. 39, 684 S.E.2d 111 (2009) (decided under former O.C.G.A. § 24-9-84.1)

Trial court did not abuse the court's discretion in preventing the defendant from cross-examining a witness regarding the fact that the witness was on probation because the witness was on probation for misdemeanor shoplifting and the defendant failed to show that such a conviction involved fraud or deceit. Campbell v. State, 329 Ga. App. 317, 764 S.E.2d 895 (2014).

Indictment is not a conviction.

- Trial court did not err by only allowing into evidence the certified convictions of the state's witness and by not allowing the indictments associated with those convictions to be admitted into evidence as well because the indictments should not have been admitted into evidence along with the witness's convictions; an indictment represented only accusations against a defendant, and was not in itself a conviction. Carter v. State, 289 Ga. 51, 709 S.E.2d 223 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Trial court must establish that it balanced use of defendant's prior conviction against risk of prejudice.

- With regard to defendant's conviction for aggravated assault, which was reversed on appeal as a result of the trial court erring in recharging the jury on a question it asked, the appellate court was unable to determine whether the trial court engaged in any meaningful analysis of the relevant factors of the evidence of defendant's prior felony conviction for possession of cocaine or whether the trial court balanced the probative value against the prejudicial effect to the accused. In the event of retrial, the trial court was directed to balance the probative value of defendant's prior felony conviction against its prejudicial effect and to make a finding on the record as to whether the former substantially outweighed the latter, subject to appellate review for an abuse of discretion. Quiroz v. State, 291 Ga. App. 423, 662 S.E.2d 235 (2008) (decided under former O.C.G.A. § 24-9-84.1)

Trial court failed to enter express findings on the record as to whether the probative value of a defendant's 1981 bail-jumping conviction substantially outweighed the conviction's prejudicial effect. If on remand, the trial court determined that the prior conviction was inadmissible after engaging in the balancing test required under former O.C.G.A. § 24-9-84.1(b), then a new trial was required. But, if the trial court determined that the prior conviction was admissible, a new trial was not mandated, subject to appellate review for an abuse of discretion. Robinson v. State, 312 Ga. App. 736, 719 S.E.2d 601 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Defendant's convictions for rape, kidnapping, and armed robbery were vacated because the trial court failed to make express findings in determining whether the defendant's 1985 conviction for impersonating a police officer was admissible for impeachment purposes and the court failed to do so again in the court's order denying the defendant's motion for new trial. Robinson v. State, 332 Ga. App. 240, 771 S.E.2d 751 (2015).

Trial court did not abuse the court's discretion by admitting the defendant's prior burglary and armed robbery convictions, older than 10 years, for impeachment purposes because the trial court specifically addressed each Clay factor, finding that both felony convictions involved stealing of which the impeachment value was high. Peak v. State, 337 Ga. App. 441, 787 S.E.2d 792 (2016), cert. denied, No. S16C1773, 2017 Ga. LEXIS 121 (Ga. 2017).

Federal interpretation on defendant's failure to testify and impact upon utilization of prior conviction.

- The Georgia Supreme Court turned to Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), and its progeny in holding that, by choosing not to testify at trial, defendant rendered the record inadequate for meaningful review of the preliminary ruling that defendant's prior conviction constituted impeachment evidence under former O.C.G.A. § 24-9-84.1; for the record to have been adequate for review, defendant had to testify, as even a proffer would be insufficient because defendant's trial testimony could differ. Because it was an issue of first impression, and recognizing that the language of former § 24-9-84.1 mirrors that of Rule 609(b) of the Federal Rules of Evidence and the statutes based on Rule 609(b) that have been enacted by several other states, it was proper to look for guidance to the judicial decisions of the federal courts construing Rule 609(b), and the courts of other states construing their statutes modeled on Rule 609(b), in interpreting that provision. Warbington v. State, 316 Ga. App. 614, 730 S.E.2d 90 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Balancing test applied during motion for new trial sufficient.

- Trial court engaged in the required balancing test and made express findings in accordance with former O.C.G.A. § 24-9-84.1(a)(2), which supported the admission of a defendant's prior conviction for enticing a child for indecent purposes in an aggravated assault trial. The statute was satisfied even though these findings were not made until the hearing on the defendant's motion for new trial. Carter v. State, 303 Ga. App. 142, 692 S.E.2d 753 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Remand required to address admissibility of prior convictions.

- There was sufficient evidence to support a defendant's conviction for manufacturing methamphetamine as it was for the jury to reject the defendant's defense that others had equal access to the contraband found in the defendant's home and vehicle. However, the conviction was conditionally affirmed and the case was remanded to the trial court for the court to set forth an express ruling on the record as to whether the probative value of the evidence of the defendant's prior conviction substantially outweighed the prejudicial effect of the evidence as the record failed to contain any such findings. Miller v. State, 298 Ga. App. 792, 681 S.E.2d 225 (2009) (decided under former O.C.G.A. § 24-9-84.1)

Prior convictions properly admitted for both impeachment and sentencing purposes.

- Trial court properly admitted certified copies of the defendant's two prior convictions of aggravated assault and possession of a firearm during the commission of a felony as: (1) it carefully balanced the competing interests; (2) the prior offenses had a substantial probative value which outweighed their prejudicial effect; and (3) nothing prevented the use of a defendant's convictions for both impeachment and sentencing purposes. Moreover, the court rejected the defendant's claim that by adding the word "substantially" to the balancing test, the Georgia legislature meant to incorporate the standard for admissibility embodied in Fed. R. Evid. 609(b). Newsome v. State, 289 Ga. App. 590, 657 S.E.2d 540 (2008), cert. denied, No. S08C1042, 2008 Ga. LEXIS 494 (Ga. 2008) (decided under former O.C.G.A. § 24-9-84.1)

Federal interpretation of balancing for admissibility of previous conviction.

- Citing the Eleventh Circuit holding construing Fed. R. Evid. 609(a)(2) in United States v. Chilcote, 724 F.2d 1498 (11th Cir. 1984), the Georgia Court of Appeals held that, under former O.C.G.A. § 24-9-84.1(a)(2), when evaluating the admissibility of a prior conviction, the trial court's balancing properly focused on whether the previous conviction indicated a probable lack of veracity for purposes of impeaching the defendant's credibility rather than a propensity to commit the crime of which the defendant was charged. Tate v. State, 289 Ga. App. 479, 657 S.E.2d 531 (2008), cert. denied, No. S08C0986, 2008 Ga. LEXIS 386 (Ga. 2008) (decided under former O.C.G.A. § 24-9-84.1)

Because the language of former O.C.G.A. § 24-9-84.1(b) mirrors that of Fed. R. Evid. 609(b) and the statutes based on Rule 609(b) that have been enacted by several other states, in determining the end point for the 10-year period specified in former § 24-9-84.1(b), requiring a stricter balancing test for the admission of prior convictions older than ten years for impeachment purposes, it is proper to look for guidance to the judicial decisions of the federal courts construing Rule 609(b) and the courts of sister states construing their statutes modeled on Rule 609(b) in interpreting that provision. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Prior conviction properly admitted to impeach defendant's credibility.

- Trial court did not err in admitting evidence of the defendant's 1993 interference with government property conviction; a new trial was properly denied because the evidence was properly admitted, not as substantive evidence of the offense at issue, but only as to the issue of credibility, providing support for the admission of the evidence. Tate v. State, 289 Ga. App. 479, 657 S.E.2d 531 (2008), cert. denied, No. S08C0986, 2008 Ga. LEXIS 386 (Ga. 2008) (decided under former O.C.G.A. § 24-9-84.1)

In a prosecution for entering an automobile with the intent to commit theft, the trial court allowed the state to impeach the defendant's testimony with evidence of a burglary conviction that was over 10 years old. Admission of this evidence did not violate former O.C.G.A. § 24-9-84.1 as the defendant testified on direct examination about the sentence the defendant served for that crime. Love v. State, 293 Ga. App. 499, 667 S.E.2d 656 (2008) (decided under former O.C.G.A. § 24-9-84.1)

Given that a defendant's defense to charges of burglary and criminal trespass was that the defendant believed the defendant had permission to remove a television and DVD player from an apartment, the trial court did not abuse the court's discretion in admitting two prior convictions for burglary and attempted burglary, which indicated a probable lack of veracity by the defendant. Love v. State, 302 Ga. App. 106, 690 S.E.2d 246 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Trial court did not err in admitting the defendant's prior felony conviction because the court did not abuse the court's discretion in concluding that the probative value of admitting the evidence substantially outweighed its prejudicial effect since the prior conviction's probative value went to the defendant's credibility and the likelihood or not that someone convicted of a felony would disregard the duty to testify truthfully; the trial court instructed the jury that the prior felony conviction was to be considered only for impeachment purposes, and, because the defendant testified and denied knowledge that the co-defendant had a gun, the defendant's credibility was highly relevant to the jury's decision. Cobb v. State, 302 Ga. App. 821, 692 S.E.2d 65 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Defendant failed to show that the trial court abused the court's discretion in admitting the defendant's prior conviction for burglary, O.C.G.A. § 16-7-1(a), as impeachment evidence under former O.C.G.A. § 24-9-84.1 because the defendant's credibility as to intent was highly relevant to the jury's decision; observing that both the charged offense and the burglary offense for which the defendant was previously convicted involved an intent to commit a theft, the trial court found that the defendant's burglary conviction had sufficient probative value for the purpose of impeachment on whether the defendant intended to commit the charged theft and that the probative value of the burglary conviction substantially outweighed the conviction's prejudicial effect. Hopkins v. State, 309 Ga. App. 298, 709 S.E.2d 873 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Defendant's prior convictions for felony forgery, O.C.G.A. § 16-9-1(a), misdemeanor theft by deception, O.C.G.A. § 16-8-3(a), and misdemeanor giving a false name to a law enforcement officer, O.C.G.A. § 16-10-25, were all less than 10 years old and involved dishonesty or false statements. Therefore, those convictions were admissible in the defendant's child molestation trial under former O.C.G.A. § 24-9-84.1(b). Damerow v. State, 310 Ga. App. 530, 714 S.E.2d 82 (2011) (decided under former O.C.G.A. § 24-9-84.1)

In a forgery prosecution, the trial court properly admitted for impeachment purposes the defendant's prior conviction for felony cocaine possession as the court correctly applied the standard set forth in former O.C.G.A. § 24-9-84.1(a)(2) and expressly found that the probative value of the prior conviction substantially outweighed the prejudicial effect. Chandler v. State, 311 Ga. App. 86, 714 S.E.2d 597 (2011), cert. denied, No. S11C1861, 2011 Ga. LEXIS 985 (Ga. 2011) (decided under former O.C.G.A. § 24-9-84.1)

Trial court did not err in admitting the defendant's prior felony convictions to impeach the defendant pursuant to former O.C.G.A. § 24-9-84.1(a)(2) because the trial court conducted the proper balancing test when the court admitted the prior felony convictions, and the trial court did not abuse the court's discretion in determining that the probative value of evidence of the prior convictions substantially outweighed their prejudicial effect; former § 24-9-84.1(a)(2), which applied to prior felony convictions, did not require that the crimes involve dishonesty or making a false statement. Hogues v. State, 313 Ga. App. 717, 722 S.E.2d 430 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Prior conviction of witness improperly admitted.

- Trial court did not err when the court failed to give the defendant's requested charge on impeachment by a prior conviction because the statutory requirements had not been met, and the witness's 1988 conviction should not have been admitted, so the fact that the defendant was allowed to use the prior conviction evidence at all, inured to the defendant's benefit; the trial court's failure to give the charge requested was harmless error as it was not highly probable that the error contributed to the verdict; the jury was properly instructed on impeachment in general; and, during closing argument, defense counsel was able to use the prior conviction and other evidence to argue to the jury that the witness's testimony was not worthy of belief. Cannon v. State, 302 Ga. 327, 806 S.E.2d 584 (2017).

Because Georgia's new rules of evidence applied and the defendant's prior felony conviction was not more than 10 years old, the trial court was not required to list the specific factors the court considered in ruling that the prior conviction was admissible for the purpose of generally attacking the defendant's credibility; nevertheless, the trial court did list the factors the court considered, including the fact that the defendant's credibility would be a substantial factor in the case, the probative value of the conviction, the nature of the prior crime of burglary as making it less likely to serve as improper propensity evidence of a drug possession offense, and the age of the prior conviction as mitigating an improper propensity inference. Smith v. State, 331 Ga. App. 296, 771 S.E.2d 8 (2015).

Admission of evidence of the defendant's prior aggravated assault conviction for impeachment purposes was not erroneous as the defendant's credibility was under attack by the state since the defendant claimed that the defendant was justified in the shooting death of the victim. Jones v. State, 318 Ga. App. 105, 733 S.E.2d 407 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Prior conviction improperly admitted.

- No independent ground pursuant to the impeachment rules of former O.C.G.A. § 24-9-84.1(a)(2) authorized the introduction of evidence that the defendant was previously convicted of aggravated assault since defendant did not testify. Furthermore, the statements regarding defendant's criminal record were inherently prejudicial, and, as a result of the admission of those statements, defendant's convictions had to be reversed. Pelowski v. State, 306 Ga. App. 41, 701 S.E.2d 529 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Prior acts discharged under first offender status excluded.

- Trial court did not abuse the court's discretion in excluding impeachment evidence, prior bad acts by a deputy that were discharged under the first offender status, which were not pertinent to the traffic stop or the deputy's subsequent investigation. Anderson v. State, 338 Ga. App. 171, 789 S.E.2d 363 (2016).

First offender guilty plea not conviction.

- There was no error in the trial court's refusal to give an instruction on impeachment by prior conviction since the defendant's first offender guilty plea was not a conviction for purposes of O.C.G.A. § 24-6-609. Manner v. State, 302 Ga. 877, 808 S.E.2d 681 (2017).

Erroneous admission of prior conviction harmless.

- While the appellate court was unable to determine whether the trial court engaged in any meaningful analysis of the relevant factors or balanced the probative value of the admission of the defendant's prior burglary conviction against the prejudicial effect to the defendant, any error was harmless because there was no reasonable probability that the results of the trial would have differed if the evidence of the defendant's burglary conviction had been excluded given that the defendant's DNA was obtained from blood on a screwdriver inside the victim's home and the broken window in the victim's bedroom. Crosby v. State, 319 Ga. App. 459, 735 S.E.2d 588 (2012)(decided under former O.C.G.A. § 24-9-84.1)

Prior convictions admitted when defendant placed character in evidence.

- Trial court properly admitted impeachment evidence of the defendant's convictions of vehicular homicide that were over 10 years old. Defendant's testimony regarding the defendant's charitable activities resulted in the defendant's placing the defendant's character into issue. McNabb v. State, 292 Ga. App. 395, 664 S.E.2d 800 (2008), cert. denied, No. S08C1910, 2008 Ga. LEXIS 927 (Ga. 2008) (decided under former O.C.G.A. § 24-9-84.1)

Prior conviction properly admitted.

- Defendant impeached a plumbing contractor's testimony to the fullest extent allowed by former O.C.G.A. § 24-9-84.1 by introducing and reading into the record a certified copy of the felony conviction of the witness. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Trial court did not abuse the court's discretion in allowing the state to introduce evidence of the defendant's prior aggravated assault conviction under former O.C.G.A. § 24-9-84.1 because the trial court specifically addressed the relevant factors including the kind of felony involved, the date of the conviction, and the importance of the witness's credibility and properly considered the specific facts and circumstances of the defendant's prior aggravated assault conviction, as required by former § 24-9-84.1(b), before concluding that the probative value of evidence of the conviction substantially outweighed the evidence's prejudicial effect; the former statute itself contained no distinction between defendants and witnesses when more than ten years had passed since the applicable conviction or release. Dozier v. State, 311 Ga. App. 713, 716 S.E.2d 802 (2011), overruled on other grounds, Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Defendant failed to prove that defense counsel was ineffective for failing to ask an inmate witness about the witness's numerous prior convictions because the record showed that the defendant's lawyer did ask the inmate about convictions that were not too old to be admitted pursuant to former O.C.G.A. § 24-9-84.1 and the defendant did not come forward with any legal theory under which the remaining convictions about which the defendant's lawyer did not ask would have been admissible. Sears v. State, 292 Ga. 64, 734 S.E.2d 345 (2012)(decided under former O.C.G.A. § 24-9-84.1)

Trial court did not err in refusing to allow the defendant to impeach a state's witness with a prior drug conviction that was over 10 years old and was not relevant to the witness's capacity as an eyewitness to an automobile accident. Smith v. State, 319 Ga. App. 164, 735 S.E.2d 153 (2012)(decided under former O.C.G.A. § 24-9-84.1)

Trial court did not err in admitting the defendant's prior theft-by-receiving convictions because that evidence was admissible, implicating a perpetrator's honesty. Stroud v. State, 301 Ga. 807, 804 S.E.2d 418 (2017).

Failure to apply balancing test was harmless error.

- During a defendant's trial for obstruction of a police officer and other related crimes, a trial court erred by failing to consider the balancing test required under former O.C.G.A. § 24-9-84.1(a)(1) with regard to allowing the state to impeach all of the defendant's defense witnesses with prior convictions, However, the error was harmless since the convictions involved moral turpitude and were admissible regardless. Whatley v. State, 296 Ga. App. 72, 673 S.E.2d 510 (2009) (decided under former O.C.G.A. § 24-9-84.1)

No duty to conduct balancing test absent objection.

- Absent an objection by the defendant, the trial court had no duty to conduct the balancing test of former O.C.G.A. § 24-9-84.1(a)(1) sua sponte. Moreover, since the jury was authorized to believe the testimony of officers over that of the witnesses in question, there was no reasonable probability that the verdict would have been different had the trial court conducted the balancing test. Thomas v. State, 291 Ga. App. 795, 662 S.E.2d 849 (2008) (decided under former O.C.G.A. § 24-9-84.1)

Investigator's testimony did not bolster.

- Trial court did not err in admitting testimony by the investigator because even though the state relied heavily on the co-defendant's testimony, the investigator's testimony did not give critical weight to that testimony and there was other evidence linking the defendant to the two burglaries. Silvey v. State, 335 Ga. App. 383, 780 S.E.2d 708 (2015).

Listing specific factors considered in weighing probative value of prior conviction against risk of prejudice not required.

- While under former O.C.G.A. § 24-9-84.1(a)(2), a trial court must make an on-the-record finding that the probative value of admitting a prior conviction substantially outweighed its prejudicial effect, there was no requirement in the language of former § 24-9-84.1(a)(2) that the trial court must list the specific factors the court considered in ruling on the probity of convictions that were not more than ten years old. To the extent that Abercrombie v. State, 297 Ga. App. 522 (2009), and Dozier v. State, 311 Ga. App. 713 (2011), hold otherwise, those cases are overruled. Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012) (decided under former O.C.G.A. § 24-9-84.1)

Prior conviction of witness properly excluded.

- In convictions of child molestation, aggravated child molestation, and aggravated sexual battery, a trial court properly excluded for impeachment purposes prior convictions of a motel clerk, who testified that the clerk recalled renting a room to defendant and the victim, since the prior convictions were more than 10 years old. Woods v. State, 304 Ga. App. 403, 696 S.E.2d 411 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Prior conviction of witness improperly excluded.

- Although the victim's conviction for possession of cocaine might have been admissible as the conviction was less than 10 years old and constituted a crime punishable by imprisonment in excess of one year, the trial court erred in merely finding that the probative value of the victim's prior conviction for possession of cocaine was outweighed by the conviction's prejudicial effect and by not requiring the state to show that such prejudice substantially outweighed any probative value; however, the error was harmless because the admission of the victim's prior conviction would have been cumulative of the victim's own damaging testimony. Williams v. State, 328 Ga. App. 876, 763 S.E.2d 261 (2014).

Credibility determination for trier of fact.

- Evidence was sufficient to support the defendant's conviction for forgery because whatever purported inconsistencies could have existed in a witness's testimony were for the finder of fact to weigh and pass upon, and the trial court found that although the witness was not the most credible of witnesses, the witness's testimony was an inculpatory statement against the witness's penal interests, and there was no reason not to believe the testimony; the trial court considered the validity of the witness's testimony in light of the impeaching evidence, and it was not within the purview of the court of appeals to upset that judgment. Martin v. State, 305 Ga. App. 764, 700 S.E.2d 871 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Questioning defendant about convictions allowed.

- Trial court did not err by denying defendant's motion in limine, which sought to prevent the state, for the purpose of impeachment, from questioning defendant, if defendant testified at trial, regarding defendant's prior convictions for burglary, statutory rape, and failure to register as a sex offender as former O.C.G.A. § 24-9-84.1 specifically applied to the situation and permitted the questioning regarding defendant's prior convictions. Whitaker v. State, 283 Ga. 521, 661 S.E.2d 557 (2008) (decided under former O.C.G.A. § 24-9-84.1)

Probation did not qualify as confinement.

- Trial court did not err when the court declined to permit the defendant to impeach a witness under former O.C.G.A. § 24-9-84.1 with prior convictions because more than ten years had elapsed since the witness was released from the confinement resulting from the convictions, and defense counsel did not provide specific facts and circumstances demonstrating that the probative value of the convictions outweighed their prejudicial effect; probation did not qualify as confinement under former § 24-9-84.1(b), and the legislature distinguished "confinement" from release on parole and suspended and probated sentences. Allen v. State, 286 Ga. 392, 687 S.E.2d 799 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Federal interpretation of confinement.

- Because former O.C.G.A. § 24-9-84.1 does not define 'confinement', and the Georgia appellate courts had not had the opportunity to construe that portion of the statute, and because the language of former § 24-9-84.1(b) mirrors that of Rule 609(b) of the Federal Rules of Evidence and the statutes based on Rule 609 (b) that have been enacted by several other states, the Georgia Supreme Court cited United States v. Rogers, 542 F.3d 197 (7th Cir. 2008), United States v. Lorenzo, 43 F.3d 1303 (9th Cir. 1995), United States v. Lopez, 979 F.2d 1024 (5th Cir. 1992), and the courts of states that have enacted statutes modeled on Rule 609(b) and that have followed the lead of the federal courts in holding that 'confinement' does not include that portion of a sentence served while on probation or parole, in concluding that probation does not qualify as confinement under former § 24-9-84.1(b). Allen v. State, 286 Ga. 392, 687 S.E.2d 799 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Notice to the state was insufficient.

- There was no error in refusing to admit a victim's prior conviction for purposes of impeachment because under the circumstances, which included very little, if any, "advance" notification and the state's claim that the state did not have time to prepare, the trial court did not abuse the court's discretion in finding that the notice to the state was not sufficient when the defendant's counsel served the state with the notice of intent to introduce the victim's conviction the day after the jury had been selected but before the presentation of evidence to the jury; given the lack of any facts and circumstances, absent speculation, that illegal drugs were involved in the altercation at issue, the trial court did not abuse the court's discretion in determining that irrespective of the timeliness of the notice, the prejudicial effect of the victim's prior conviction outweighed any probative value and that the evidence of the conviction was therefore inadmissible. Crowder v. State, 305 Ga. App. 647, 700 S.E.2d 642 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Trial court did not abuse the court's discretion in finding that a time period that the parties disputed but that was, at most, 11 business hours before the start of trial was insufficient to meet the notice requirement for use of the victim's old conviction for deposit account fraud. Green v. State, 339 Ga. App. 263, 793 S.E.2d 156 (2016).

Effective assistance of counsel.

- Defense counsel did not perform deficiently when defense counsel failed to make a meritless objection to the evidence of defendant's conviction for giving false information that was less than 10 years old because former O.C.G.A. § 24-9-84.1(a)(3) and (b) authorized the admission of convictions 10 years old or less for crimes involving dishonesty or making a false statement, and the trial court did not have to weigh the probative value of the old conviction against the prejudicial effect since the conviction at issue was less than 10 years old. Habersham v. State, 289 Ga. App. 718, 658 S.E.2d 253 (2008) (decided under former O.C.G.A. § 24-9-84.1)

Defense counsel's failure to object or move for a mistrial based on the state's introduction of evidence relating to a witness's misconduct that fell short of a conviction was not ineffective assistance under circumstances in which counsel's decisions not to object to the state's pursuit of the topic of the witness's misdemeanor driving violations, and to attempt to rehabilitate the defendant by showing the minor nature of one of the violations, were objectively reasonable. Defense counsel could not have been faulted for failing to complete the state's work for it, or for declining to highlight any of this testimony. Noellien v. State, 298 Ga. App. 47, 679 S.E.2d 75 (2009) (decided under former O.C.G.A. § 24-9-84.1)

With regard to a defendant's conviction for aggravated assault, although the prosecutor was impermissibly permitted to impeach a defense witness by asking the witness about a recent guilty plea to two counts of theft by taking, which was not a felony or a crime which involved dishonesty or making a false statement, the defendant failed to establish that defense counsel's failure to object rendered defense counsel ineffective. At the hearing on the defendant's motion for a new trial, defense counsel was not questioned on whether the failure to object was strategic and, given the overwhelming evidence of the defendant's guilt, the defendant failed to show that there was a reasonable probability that the verdict would have been different if defense counsel had objected. Jacobs v. State, 299 Ga. App. 368, 683 S.E.2d 64 (2009) (decided under former O.C.G.A. § 24-9-84.1)

Defendant failed to establish that the defendant received ineffective assistance of trial counsel due to counsel's failure to provide the state with written notice of the defendant's intent to use evidence of a witness's prior conviction for impeachment purposes pursuant to former O.C.G.A. § 24-9-84.1(b) because even if the conviction had been admitted and the jury had disregarded the witness's testimony, there remained evidence sufficient to convict the defendant; the witness's trial testimony conflicted with the witness's prior statements, and the witness admitted on the stand being a crack dealer. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Defendant did not show a reasonable probability that the trial would have ended differently if trial counsel had uncovered all the details about the victim's first offender plea and cross-examined the victim about the victim's possible bias toward the state because five witnesses separately testified that the defendant assaulted the victims with a gun; thus, even if the jury decided to completely disregard the victim's testimony based on successful cross-examination, the testimony of four other eyewitnesses remained. Strong v. State, 308 Ga. App. 558, 707 S.E.2d 914 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Trial court's conclusion that trial counsel's failure to obtain certified copies of the victim's prior felony convictions and first offender plea, which the defendant asserted would have been admissible to impeach the victim and show bias under former O.C.G.A. § 24-9-84.1, did not constitute ineffective assistance was not clearly erroneous because counsel made a strategic decision not to expend the limited resources of the office to obtain the certified copies, choosing instead to focus on other avenues of defense. Strong v. State, 308 Ga. App. 558, 707 S.E.2d 914 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Trial counsel did not erroneously fail to impeach a state's witness under former O.C.G.A. § 24-9-84.1(a)(3) with evidence of the witness's prior misdemeanor convictions for theft by receiving stolen property and theft by taking because the defendant failed to show that the theft convictions would have been admitted for impeachment purposes at trial; the evidence the defendant presented at the motion for new trial hearing did not show that the misdemeanor theft convictions involved fraud or deceit within the meaning of former § 24-9-84.1(a)(3). Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Trial counsel was not ineffective for failing to impeach the victim with felony convictions under former O.C.G.A. § 24-9-84.1 because the defendant did not show that, but for counsel's failure to introduce the victim's earlier convictions, there was a reasonable probability that the outcome of the trial would have been different; the victim was referred to as "not trustworthy" and "a thief" during the trial, and the victim's conviction for burglary was admitted and referenced repeatedly during the trial. Askew v. State, 310 Ga. App. 746, 713 S.E.2d 925 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Trial counsel was not ineffective for failing to object when the prosecuting attorney offered certified copies of the defendant's prior felony conviction to impeach the defendant's testimony under former O.C.G.A. § 24-9-84.1(a) because the trial court properly could have concluded that the probative value of the conviction substantially outweighed any prejudicial effect so the failure to object was not unreasonable; the prior conviction was recent, probative of the defendant's credibility as a testifying witness, and involved conduct dissimilar to the burglary for which the defendant was on trial. Robinson v. State, 312 Ga. App. 110, 717 S.E.2d 694 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Counsel was not ineffective in failing to move to exclude the defendant's statement to police because counsel's strategy was to put the defendant's version of the events forward without calling the defendant to the stand where the defendant would have been impeached with several prior felony convictions. Welch v. State, 298 Ga. 320, 781 S.E.2d 768 (2016)(decided under former O.C.G.A. § 24-9-84.1(a)(2)).

Trial counsel was not ineffective for failing to impeach a neighbor with a prior murder conviction because the prior conviction was beyond the 10-year time limit. Williams v. State, 302 Ga. 474, 807 S.E.2d 350 (2017).

Counsel not ineffective.

- While trial counsel might have been deficient by failing to contend that the probative value of admitting the defendant's prior convictions for impeachment purposes did not substantially outweigh the prejudicial effect of the evidence, given that the defendant failed to show prejudice, this claim failed. Miller v. State, 283 Ga. 412, 658 S.E.2d 765 (2008) (decided under former O.C.G.A. § 24-9-84.1)

Defense counsel properly advised a defendant in the defendant's prosecution for, inter alia, malice murder that, if the defendant testified at trial, the state could attempt to introduce prior convictions into evidence as the state was permitted to do so under former O.C.G.A. § 24-9-84.1(a)(2), even if the defendant's character was not placed in issue, so long as the probative value of admitting the evidence substantially outweighed the prejudicial effect of the evidence. Brooks v. State, 285 Ga. 246, 674 S.E.2d 871 (2009) (decided under former O.C.G.A. § 24-9-84.1)

Defendant failed to demonstrate ineffective assistance of counsel in the defendant's prosecution for, inter alia, robbery by force because it was a reasonable strategy to agree to the admission under former O.C.G.A. § 24-9-84.1(b) of a prior 1992 Texas conviction for possession of cocaine, even though the conviction was over 10 years old, as the defendant testified on the defendant's own behalf and wanted to put it all out there. Everett v. State, 297 Ga. App. 351, 677 S.E.2d 394 (2009) (decided under former O.C.G.A. § 24-9-84.1)

Limiting instruction on prior convictions not required.

- In a defendant's prosecution for malice murder and armed robbery, the trial court did not err in failing to instruct the jury without request that the jurors limit their consideration of the defendant's prior convictions to the purpose of impeachment only under former O.C.G.A. § 24-9-84.1(a) as information regarding the defendant's prior convictions was not obtained in violation of the defendant's constitutional rights against self-incrimination under U.S. Const., amend. 5. Phillips v. State, 285 Ga. 213, 675 S.E.2d 1 (2009) (decided under former O.C.G.A. § 24-9-84.1)

Jury charge not required if impeached witness was not primary witness.

- Trial court did not err in refusing a defendant's requested charge on impeachment of an accomplice witness by proof of a crime of moral turpitude pursuant to former O.C.G.A. § 24-9-84.1(a)(1), although an instruction on impeachment by proof of a prior conviction was warranted. Any failure to give such an instruction was harmless because the witnesses were not "primary" witnesses; the defendant was the primary witness. Stewart v. State, 286 Ga. 669, 690 S.E.2d 811 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Issue waived on appeal.

- Defendant waived for purposes of appeal defendant's claim that the defendant did not have to provide advance written notice to the state of defendant's intent to introduce the victim's prior conviction to impeach the victim since the conviction was not more than ten years old for purposes of former O.C.G.A. § 24-9-84.1 because the defendant's trial counsel did not present that argument to the trial court but told the trial court that the defendant filed the notice of intent for the reason that the conviction was more than ten years in age; counsel then argued that defendant's advance written notice to the state was sufficient, but the defendant did not argue that the notice did not need to be given under former § 24-9-84.1(b), and in light of trial counsel's actions, the defendant could not claim on appeal that the trial court erred in considering the sufficiency of the advance notice to the state for purposes of former § 24-9-84.1(b). Crowder v. State, 305 Ga. App. 647, 700 S.E.2d 642 (2010) (decided under former O.C.G.A. § 24-9-84.1)

Supreme court was precluded from reviewing on appeal the defendant's claim that the trial court violated former O.C.G.A. § 24-9-84.1 by admitting into evidence the defendant's prior convictions for drug offenses and by failing to enter express findings in the record because although the defendant testified and admitted the drug convictions on direct examination, the record did not contain any previous motion in limine, objection, hearing, or ruling regarding the admissibility of those prior convictions; those omissions were not cured by trial counsel's testimony that, although counsel was not looking at the transcripts and was speaking strictly from memory, counsel had been under the impression that the prior convictions would come in, and even if the defendant had previously moved for exclusion of the prior convictions and a hearing had been held, the absence of any ruling on the record would take the case out of the usual rule that the record was preserved and the defendant was not required to object to the evidence during trial. Collier v. State, 288 Ga. 756, 707 S.E.2d 102 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Defendant could not claim on appeal that the trial court erred in considering the sufficiency of the advance notice to the state for purposes of former O.C.G.A. § 24-9-84.1(b) because the trial court held that evidence of the victim's three older convictions was inadmissible since the convictions were more than ten years old, and the defendant had not provided written notice within ten days of trial; no objection was made to the trial court's ruling, and the defendant did not at any point argue that the convictions were less than ten years old. Askew v. State, 310 Ga. App. 746, 713 S.E.2d 925 (2011) (decided under former O.C.G.A. § 24-9-84.1)

Cited in Buchanan v. State of Ga., 319 Ga. App. 525, 737 S.E.2d 321 (2013); Gilmer v. State, 339 Ga. App. 593, 794 S.E.2d 653 (2016).

ALR.

- Propriety and prejudicial effect of witness testifying while in prison attire, 1 A.L.R.7th 5.