O.C.G.A. § 24-6-621 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICATION 1. IN GENERAL 2. ALCOHOL AND DRUG OFFENSES 3. CRIMINAL MATTERS 4. CIVIL MATTERS INSTRUCTIONS General Consideration Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 3871, former Code 1882, § 3871, former Civil Code 1895, § 5291, former Penal Code 1895, § 1025, former Civil Code 1910, § 5880, former Penal Code 1910, § 1051, former Code 1933, § 38-1802, and former O.C.G.A. § 24-9-82 are included in the annotations for this Code section. In general. - Witness may be impeached by proving that the statements made by the witness in the witness’s testimony are not the truth. Middle Ga. & A. Ry. v. Barnett, 104 Ga. 582, 30 S.E. 771,

1898 Ga. LEXIS 369 (1898) (decided under former Civil Code 1895, § 5291). Criminal defendant is subject to impeachment, and defendant may be impeached by disproving the facts to which defendant testified. Laney v. State, 159 Ga. App. 609, 284 S.E.2d 114, 1981 Ga. App. LEXIS 2722 (1981) (decided under former Code 1933, § 38-1802). Witness can be impeached as to matters relevant to the witnesses testimony and to the case, and by disproving facts testified to by the witness. Morris v. State Farm Mut. Auto. Ins. Co., 203 Ga. App. 839, 418 S.E.2d 119, 1992 Ga. App. LEXIS 628 (1992) (decided under former O.C.G.A. § 24-9-82).

Defendant’s malice murder conviction was upheld because defendant did not identify any error and by testifying that defendant had never actually hurt anyone before, defendant invited state to crossexamine defendant on the matter in an attempt to contradict and discredit defendant’s testimony. Wynn v. State, 313 Ga. 827, 874 S.E.2d 42, 2022 Ga. LEXIS 160 (2022). Former statute applied whenever there was a conflict in testimony. Southern Ry. v. O’Bryan, 119 Ga. 147, 45 S.E. 1000, 1903 Ga. LEXIS 69 (1903) (decided under former Civil Code 1895, § 5291); Yaryan Rosin & Turpentine Co. v. Haskins, 29 Ga. App. 753, 116 S.E. 913, 1923 Ga. App. LEXIS 184 (1923) (decided under former Civil Code 1910, § 5880); Wilcox v. Wilcox, 31 Ga. App. 486, 119 S.E. 445, 1923 Ga. App. LEXIS 996 (1923) (decided under former Civil Code 1910, § 5880); Swift & Co. v. Lawson, 95 Ga. App. 35, 97 S.E.2d 168, 1957 Ga. App. LEXIS 708 (1957) (decided under former Code 1933, § 38-1802). Impeachment by unconstitutionally obtained evidence. - Even evidence which violates constitutional standards of due process, such as unlawfully obtained confessions, may be admitted for impeachment purposes. Ensley v. Jordan, 244 Ga. 435, 260 S.E.2d 480, 1979 Ga. LEXIS 1272 (1979) (decided under former Code 1933, § 38-1802). No foundation is required for impeachment. Deaton v. Swanson, 196 Ga. 833, 28 S.E.2d 126, 1943 Ga. LEXIS 445 (1943) (decided under former Code 1933, § 38-1802); Swift & Co. v. Lawson, 95 Ga. App. 35, 97 S.E.2d 168, 1957 Ga. App. LEXIS 708 (1957) (decided under former Code 1933, § 38-1802); Cartin v. Boles, 155 Ga. App. 248, 270 S.E.2d 799, 1980 Ga. App. LEXIS 2547 (1980) (decided under former Code 1933, § 38-1802). Challenge of witness on cross-examination is not required before the witness’s testimony could be impeached by another witness. Martin v. State, 205 Ga. App. 591, 422 S.E.2d 876, 1992 Ga. App. LEXIS 1264 (1992), cert. denied, No. S93C0201, 1993 Ga. LEXIS 47 (Ga. Jan. 7, 1993) (decided under former O.C.G.A. § 24-9-82).

Immaterial matter. - Witness is not to be discredited because of a discrepancy as to a wholly immaterial matter. Daniels v. Luton, 40 Ga. App. 741, 151 S.E. 659, 1930 Ga. App. LEXIS 680 (1930); Gilbert v. State, 159 Ga. App. 326, 283 S.E.2d 361, 1981 Ga. App. LEXIS 2592 (1981) (decided under former Code 1933, § 38-1802). While a witness may be impeached on a collateral issue which is indirectly material to the issue in the case, a witness may not be impeached because of a discrepancy as to a wholly immaterial matter. Strickland v. State, 166 Ga. App. 702, 305 S.E.2d 434, 1983 Ga. App. LEXIS 2300 (1983) (decided under former O.C.G.A. § 24-982). Witness may not be impeached because of a discrepancy as to a wholly immaterial matter. Thomas v. State, 168 Ga. App. 587, 309 S.E.2d 881, 1983 Ga. App. LEXIS 2859 (1983) (decided under former O.C.G.A. § 24-9-82). Although a witness may be impeached by disproving the facts testified to by the witness, a witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter. Brown v. State, 260 Ga. 153, 391 S.E.2d 108, 1990 Ga. LEXIS 172 (1990). Testimony that was properly excluded as irrelevant to the issues of the case was not admissible for impeachment purposes. Goss v. Total Chipping, Inc., 220 Ga. App. 643, 469 S.E.2d 855 (decided under former O.C.G.A. § 24-9-82). In a prosecution for rape, kidnapping, and sodomy, the defendant did not receive ineffective assistance of trial counsel merely because counsel failed to impeach the victim’s credibility with evidence concerning a 1996 drug arrest as: (1) the evidence was irrelevant to the circumstances surrounding the defendant’s attack on the victim; and (2) the victim never opened the door to an issue of good character. Pierce v. State, 281 Ga. App. 821, 637 S.E.2d 467, 2006 Ga. App. LEXIS 1269 (2006) (decided under former O.C.G.A. § 24-9-82). Trial court did not err when the court excluded extrinsic evidence to impeach a witness’s testimony about a rent dispute that the witness and the victim had with a prior landlord because the prior dispute

General Consideration (Cont’d) was not germane or material to whether the defendant was justified in shooting the victim. Corley v. State, 308 Ga. 321, 840 S.E.2d 391, 2020 Ga. LEXIS 172 (2020). In the defendant’s murder trial, the trial court erred in allowing the state to introduce an AK-47 rifle and ammunition found in the defendant’s home for impeachment purposes under O.C.G.A. § 24-6-621 after the defendant testified that the defendant’s spouse had removed the murder weapon from the home because the defendant “never wanted to see a gun in [her] life.” The evidence was not unduly prejudicial under O.C.G.A. § 24-4403 and was not emphasized by the state. Dunbar v. State, 309 Ga. 252, 845 S.E.2d 607, 2020 Ga. LEXIS 461 (2020). Testimony that facts are true. - State may introduce testimony to the effect that the facts stated by the state’s witness, whose character is under attack, are true, even though such corroboration involves information received from the witness. Stevenson v. State, 69 Ga. 68, 1882 Ga. LEXIS 180 (1882) (decided under former Code 1873, § 3871). Disproving facts only. - When police officer’s purported statement to plaintiff’s mother that the officer had found plaintiff not to be at fault would have, if at all, served only to rebut that portion of the officer’s own testimony wherein the officer tacitly opined the accident was due to plaintiff’s fault; such a purported statement did not rebut a fact to which the officer testified and was inadmissible. Campbell v. Cozad, 207 Ga. App. 175, 427 S.E.2d 515, 1993 Ga. App. LEXIS 118, amended, No. A92A1816 (Ga. Ct. App. 1993), cert. denied, No. S93C0713, 1993 Ga. LEXIS 424 (Ga. Apr. 8, 1993) (decided under former O.C.G.A. § 24-9-82). Trial court properly allowed a prosecutor to question defendant about any prior positive drug screens as the purpose was to impeach defendant’s unsolicited assertion that the drug screen that was the basis of defendant’s prosecution was defendant’s only positive drug screen; accordingly, although character and conduct in other transactions is generally irrel-

evant unless defendant first puts defendant’s character in issue, pursuant to former O.C.G.A. §§ 24-2-2 and 24-9-20(b) (see now O.C.G.A. §§ 24-4-404, 24-4-405, 24-4-413, and 24-5-506), evidence may be used for impeachment purposes in order to disprove facts testified to by defendant pursuant to former O.C.G.A. § 24-9-82. Lockaby v. State, 265 Ga. App. 527, 594 S.E.2d 729, 2004 Ga. App. LEXIS 174 (2004) (decided under former O.C.G.A. § 24-9-82). Trial court did not err by not disclosing a disciplinary report in a police officer’s personnel file as: (1) no attempt was made to impeach the officer by disproving the facts testified to by the officer under former O.C.G.A. § 24-9-82; (2) there was no showing that any of the documents disallowed contained any contradictory statements previously made by the officer as to matters relevant to the officer’s testimony and the case under former O.C.G.A. § 249-83 (see now O.C.G.A. §§ 24-6-608 and 24-6-613); (3) there was no contention that the officer had been convicted of a crime involving moral turpitude; and (4) the evidence was, at best, related solely to specific bad acts and not to the general bad character of the officer, which was not admissible as impeachment material under former O.C.G.A. § 24-9-84 (see now O.C.G.A. § 24-6-608). Lopez v. State, 267 Ga. App. 178, 598 S.E.2d 898, 2004 Ga. App. LEXIS 563 (2004) (decided under former O.C.G.A. § 24-9-82). In a criminal case, the trial court properly excluded impeachment testimony about the victim’s relationship with the victim’s employees; the evidence did not disprove facts to which the victim testified, but was evidence of prior specific acts or bad character. Jones v. State, 283 Ga. App. 631, 642 S.E.2d 331, 2007 Ga. App. LEXIS 149 (2007) (decided under former O.C.G.A. § 24-9-82). Alibi witnesses. - State was obligated to respond to defendants’ notification of their intention to rely upon alibi as a defense; neither the state’s general witness list nor the state’s entitlement to rebut or impeach a witness’s testimony with conflicting testimony or statements under former O.C.G.A. §§ 24-9-82 and 24-9-83 (see now O.C.G.A. §§ 24-6-608,

24-6-613, and 24-6-621) was a substitute for compliance with O.C.G.A. § 17-165(b). Hayes v. State, 249 Ga. App. 857, 549 S.E.2d 813, 2001 Ga. App. LEXIS 648 (2001), cert. denied, No. S01C1518, 2001 Ga. LEXIS 878 (Ga. Nov. 5, 2001), cert. denied, No. S01C1517, 2001 Ga. LEXIS 879 (Ga. Nov. 5, 2001) (decided under former O.C.G.A. § 24-9-82). Bias of witness. - Proffered testimony of a witness for the propounder of a will, that bad feeling existed between the testator and one of the witnesses for the caveators, who testified that when the witness saw the testator on the day the will was executed the testator did not recognize the witness and did not speak to the witness, and who denied that the testator was unfriendly towards the witness because the witness had testified against the testator in a case in which the testator was a party, was admissible to explain why the testator did not speak to the caveators’ witness, and to impeach the witness as to the feeling existing between the witness and the testator. Orr v. Blalock, 195 Ga. 863, 25 S.E.2d 668, 1943 Ga. LEXIS 294 (1943) (decided under former Code 1933, § 38-1802). Character evidence. - Witness who is not impeached otherwise than by disproving the truth of the witness’s evidence cannot be supported by proof of the witness’s general good character. Miller v. Western & Atl. R.R., 93 Ga. 480, 21 S.E. 52, 1893 Ga. LEXIS 461 (1893) (decided under former Code 1882, § 3871); Bell v. State, 100 Ga. 78, 100 Ga. 98, 27 S.E. 669, 1896 Ga. LEXIS 552 (1896) (decided under former Penal Code 1895, § 1025); Surles v. State, 148 Ga. 537, 97 S.E. 538, 1918 Ga. LEXIS 428 (1918) (decided under former Code 1933, § 38-1802). Trial court did not err by allowing the state to cross-examine the defendant’s biological daughter about having previously worked as a stripper and having abused drugs because the evidence was offered by the state in rebuttal to the daughter’s testimony after the defendant intentionally elicited the testimony as to defendant’s and the daughter’s own good character; since the only conceivable purpose of the questions defense counsel asked the daughter was to elicit testimony concern-

ing the character of the defendant and the daughter, the trial court did not err when it held that the state could introduce rebuttal evidence on the same subject. Arnold v. State, 305 Ga. App. 45, 699 S.E.2d 77, 2010 Ga. App. LEXIS 650 (2010), cert. denied, No. S10C1898, 2011 Ga. LEXIS 84 (Ga. Jan. 13, 2011) (decided under former O.C.G.A. § 24-9-82). Effect of proof of own declaration. - Witness impeached by proof of contradictory statements cannot be sustained by proof of witness’s own declarations, consistent with witness’s evidence at the trial, made at other times and places, whether prior or subsequent to the time of making the contradictory statements imputed to the witness. Fussell v. State, 93 Ga. 450, 21 S.E. 97, 1893 Ga. LEXIS 457 (1893) (decided under former Code 1882, § 3871). Province of jury. - When a witness is sought to be impeached by disproving the facts testified to by the witness in such way that there results only a conflict between the witness’s testimony and the testimony of other witnesses, it is the province of the jury to determine which of the witnesses has spoken the truth even if in order to do so it is necessary to impute perjury to one or the other. Champion v. State, 84 Ga. App. 163, 65 S.E.2d 280, 1951 Ga. App. LEXIS 653 (1951) (decided under former Code 1933, § 38-1802). Disbelief of impeached witness. - When a witness has been successfully impeached, the witness ought not to be believed, and it is the duty of the trier of fact to disregard the witness’s testimony unless the testimony is corroborated, in which case the testimony may be believed. Pike v. Greyhound Bus Lines, 140 Ga. App. 863, 232 S.E.2d 143, 1977 Ga. App. LEXIS 2112 (1977) (decided under former Code 1933, § 38-1802). Impeachment as to certain facts does not necessarily exclude the jury from believing the witness as to other facts testified to. Elliot v. State, 138 Ga. 23, 74 S.E. 691, 1912 Ga. LEXIS 178 (1912) (decided under former Penal Code 1910, § 1051). In a condemnation proceeding, after a city’s witness not only directly supported the city’s main contention that a landown-

General Consideration (Cont’d) er’s property could not be developed or removed from the flood plain, but the city’s appraiser based a valuation on the witness’s representations to that effect, the witness’s testimony was critical, and the landowner had a right to interview the witness, check the facts to which the witness would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach the witnesses. Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 589 S.E.2d 640, 2003 Ga. App. LEXIS 1354 (2003) (decided under former O.C.G.A. § 24-9-82). Defendant was not unfairly denied impeachment because defendant was prohibited from asking an ambiguous and prolix question of a witness which, in effect, asked for the witness’s opinion concerning the witness’s own bad reputation for veracity. Sewell v. State, 244 Ga. App. 449, 536 S.E.2d 173, 2000 Ga. App. LEXIS 747 (2000) (decided under former O.C.G.A. § 24-9-82). Disregarding conflicting testimony. - Since there was a material conflict in the testimony of the plaintiff and that of the agent for the insurance company who procured the application, the jury was authorized under former Code 1933, §§ 38-1802 and 38-1806 (see O.C.G.A. §§ 24-6-620 and 24-6-621) to disregard the testimony of the agent. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 84 S.E.2d 696, 1954 Ga. App. LEXIS 816 (1954) (decided under former Code 1933, § 381802). Trial court erred in disallowing testimony of a defense witness offered to disprove facts testified to by a prosecution witness. Childress v. State, 266 Ga. 425, 467 S.E.2d 865 (decided under former O.C.G.A. § 24-9-82). Ineffective assistance of counsel claims based on impeachment of witnesses. - 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 misde-

meanor driving violations, and to attempt to rehabilitate the witness by showing the minor nature of one of the violations, were objectively reasonable; when the state broached the subject of the witness’s incarceration just before the night in question, it might have gone on to uncover proof of that fact, which would have been admissible as contradictory of the witness’s testimony that the witness was in the car with the defendant on the night before the defendant’s arrest. 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 Ga. App. LEXIS 582 (2009) (decided under former O.C.G.A. § 24-9-82). Counsel’s errors in opening door to damaging testimony. - Defendant’s convictions were reversed because the defendant showed the required prejudice to prevail on an ineffective assistance claim based on trial counsel’s errors of opening the door to damaging testimony that introduced evidence into the record that directly contradicted the defendant’s trial testimony and allowed the admission of other evidence that further challenged the defendant’s credibility, the combined effect of which was to severely undercut the defense’s case. Tran v. State, 340 Ga. App. 546, 798 S.E.2d 71, 2017 Ga. App. LEXIS 100 (2017). Erroneous consideration of impeachment evidence harmless error. - Although the defendant’s prior burglary conviction, admitted by stipulation of counsel for the purpose of establishing modus operandi, could not be considered by the jury for purposes of impeaching the defendant’s testimony, the error did not require reversal due to the overwhelming evidence of the defendant’s guilt. Howard v. State, 202 Ga. App. 574, 415 S.E.2d 45, 1992 Ga. App. LEXIS 96 (1992) (decided under former O.C.G.A. § 24-9-82). Application 1. In General Photographs. - In a prosecution for child molestation, photographs showing defendant naked in defendant’s home

were admissible to impeach the defendant’s testimony that the defendant never walked around the house nude. Kelley v. State, 233 Ga. App. 244, 503 S.E.2d 881 (decided under former O.C.G.A. § 24-982). 2. Alcohol and Drug Offenses Evidence of prior DUI admissible. - Defendant’s testimony that defendant had never taken a breath alcohol test opened the door for the state to impeach defendant with the defendant’s previous DUI conviction. Renn v. State, 234 Ga. App. 790, 508 S.E.2d 174 (decided under former O.C.G.A. § 24-9-82). Introduction of prior alcohol-related accident. - There is no error in allowing the state to produce evidence of a prior alcohol-related motorcycle accident by the defendant for the purpose of impeaching the testimony of the defendant that the defendant did not ride the defendant’s motorcycle when the defendant had been drinking. Hammond v. State, 169 Ga. App. 97, 311 S.E.2d 523, 1983 Ga. App. LEXIS 2992 (1983) (decided under former O.C.G.A. § 24-9-82). Alco-sensor results. - Officer’s testimony that the numerical value of defendant’s alco-sensor test was .089 was properly admitted to impeach and rebut defendant’s testimony that the result was .06. Capps v. State, 273 Ga. App. 696, 615 S.E.2d 821, 2005 Ga. App. LEXIS 601 (2005) (decided under former O.C.G.A. § 24-9-82). Evidence of prior interest in drug trafficking admissible. - When a defendant was charged with marijuana trafficking, testimony that, two years prior to the subject sale of marijuana, the defendant expressed an interest in trafficking in illegal drugs logically tended to disprove defendant’s defense, and thus was clearly relevant as rebuttal, even though the testimony did not allege participation in the crime at bar and was inadmissible as impeachment testimony. Kraus v. State, 169 Ga. App. 54, 311 S.E.2d 493, 1983 Ga. App. LEXIS 2976 (1983) (decided under former O.C.G.A. § 24-9-82). Prior drug conviction admissible. - Defendant was properly impeached by defendant’s former contradictory state-

ment after defendant’s statement on the stand that the defendant did not “mess with dope” was construed as a denial by the defendant that the defendant had ever been involved with drugs. Thrasher v. State, 204 Ga. App. 413, 419 S.E.2d 516, 1992 Ga. App. LEXIS 866 (1992) (decided under former O.C.G.A. § 24-9-82). Admissibility of evidence initially excluded in DUI case. - In a prosecution for driving under the influence of alcohol, results of a breath test which had been excluded because the arresting officer had failed to advise defendant of defendant’s right to an additional test were admissible to rebut the testimony of defendant’s expert witness. Charlton v. State, 217 Ga. App. 842, 459 S.E.2d 455, 1995 Ga. App. LEXIS 620 (1995) (decided under former O.C.G.A. § 24-9-82). Evidence on drinking habits admissible. - Once defendant testified that the defendant always stopped after one drink if the defendant was going to drive, the state was properly allowed to impeach this testimony by questioning appellant about defendant’s prior DUI convictions. Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387, 1986 Ga. App. LEXIS 1891 (1986) (decided under former O.C.G.A. § 24-9-82). Breath test evidence admissible. - In a prosecution for driving under the influence, evidence offered by the state concerning defendant’s breath test was admissible to rebut defendant’s testimony on direct examination that defendant had consumed two and one-half beers on the night of defendant’s arrest. Goodwin v. State, 222 Ga. App. 285, 474 S.E.2d 84 (decided under former O.C.G.A. § 24-982). Drug evidence admissible. - In a prosecution for rape and kidnapping, the trial court should have permitted defendant to impeach the victim by calling witnesses to show that the victim used crack cocaine on the day of the incident, before encountering defendant, because the victim’s consumption of drugs shortly before the incident occurred was not immaterial, inasmuch as it might have affected the victim’s recollection of events. Curry v. State, 243 Ga. App. 712, 534 S.E.2d 168, 2000 Ga. App. LEXIS 546

2. Alcohol and Drug Offenses (Cont’d) (2000) (decided under former O.C.G.A. § 24-9-82). Impeachment for large quantity of marijuana. - Testimony which showed the defendant had been in possession of a large quantity of marijuana was not admissible as impeachment evidence of the defendant’s character in a prosecution for trafficking in cocaine because the fact that defendant at some time in the past possessed a substantial amount of marijuana did not contradict defendant’s assertion that the defendant did not deal in cocaine. Seabrooks v. State, 164 Ga. App. 747, 297 S.E.2d 745, 1982 Ga. App. LEXIS 2930 (1982), aff’d, 251 Ga. 564, 308 S.E.2d 160, 1983 Ga. LEXIS 916 (1983) (decided under former O.C.G.A. § 24-9-82). 3. Criminal Matters Evidence of prior crimes or bad acts can be admitted when such evidence is necessary and relevant to impeach defendant’s specific testimony. Lucas v. State, 215 Ga. App. 293, 450 S.E.2d 313, 1994 Ga. App. LEXIS 1216 (1994) (decided under former O.C.G.A. § 24-9-82). Certified record of a prior conviction allegedly of a witness for obstruction and giving false information was properly excluded because: (1) the witness testified that the signature on the certified record was not the witness’s signature; (2) the witness opined that the person named in the record of conviction was the witness’s cousin, who had the same name, and explained that the defendant and defendant’s cousin were only a few months apart and that the cousin also had a criminal record; (3) the witness testified unequivocally that defendant was never indicted, tried, convicted, or sentenced for the offenses charged in the certified record; and (4) defendant offered no further proof that the person named in the exhibit was in fact the witness. Payne v. State, 273 Ga. App. 483, 615 S.E.2d 564, 2005 Ga. App. LEXIS 544 (2005) (decided under former O.C.G.A. § 24-9-82). It was proper to admit evidence of driving under the influence and suspended license convictions to impeach the defendant, who had denied having a Georgia

driver’s license or ever having been convicted of driving with a suspended license. Walsh v. State, 283 Ga. App. 817, 642 S.E.2d 879, 2007 Ga. App. LEXIS 203 (2007) (decided under former O.C.G.A. § 24-9-82). Trial court did not err by allowing the state to place the defendant’s character in issue by introducing evidence of defendant’s prior arrest for possession of marijuana through the police sergeant because the defendant opened the door to the sergeant’s testimony; since the defendant testified that the defendant’s prior marijuana charge only involved “a couple of joints behind the seat” of which the defendant was unaware and that the charge had been dismissed because the defendant was not guilty, it was not error to allow the state to attempt to impeach the defendant through the rebuttal testimony of the sergeant. Martinez v. State, 303 Ga. App. 166, 692 S.E.2d 766, 2010 Ga. App. LEXIS 316 (2010) (decided under former O.C.G.A. § 24-9-82). While a criminal defendant was not subject to impeachment by proof of general bad character or prior convictions, when defense counsel opened the door to asking about the defendant’s being in trouble before, the prosecutor could then impeach the defendant with other convictions that the defendant neglected to mention. Scruggs v. State, 309 Ga. App. 569, 711 S.E.2d 86, 2011 Ga. App. LEXIS 399 (2011) (decided under former O.C.G.A. § 24-9-82). Person charged with crime remaining silent. - Plaintiff having testified that a third person stated in the hearing of defendant that the defendant committed a crime, to which the defendant made no response, and this third person when examined in behalf of defendant having denied making the statement, it was error not to allow the plaintiff, in reply, to prove by another witness that the defendant was present and heard the defendant’s witness make the statement at the time and place mentioned by the plaintiff in plaintiff’s testimony. Bray v. Latham, 81 Ga. 640, 8 S.E. 64, 1888 Ga. LEXIS 297 (1888) (decided under former Code 1882, § 3871). Mere commission, arrest, or confinement for crime insufficient to impeach. - Witness may be impeached by

proof of a crime involving moral turpitude, but not by showing that the witness has committed, been arrested for, confined for, or even indicted for such an offense. Strickland v. State, 166 Ga. App. 702, 305 S.E.2d 434, 1983 Ga. App. LEXIS 2300 (1983) (decided under former O.C.G.A. § 24-9-82). Showing of mere accusation of offense. - Prosecutor’s cross-examination of defendant about recently having been charged with pointing a pistol at someone was an improper line of questioning, although defendant had denied using a gun during the previous year; competent evidence disproving that testimony would have been proper impeachment but merely showing an accusation of the misdemeanor offense was insufficient for that purpose. Williams v. State, 181 Ga. App. 693, 353 S.E.2d 563, 1987 Ga. App. LEXIS 1523 (1987) (decided under former O.C.G.A. § 24-9-82). Question as to prior arrest. - It is not error to allow a witness to be questioned as to a prior arrest to impeach the witness’s testimony that the witness had “never been in a situation dealing with the law.” Parker v. State, 169 Ga. App. 557, 313 S.E.2d 751, 1984 Ga. App. LEXIS 2784 (1984) (decided under former O.C.G.A. § 24-9-82). Prior adjudication of delinquency admissible. - Any error in admitting impeaching evidence of defendant’s prior adjudication of delinquency was harmless because, at the time it was admitted pursuant to former O.C.G.A. § 24-9-82, the trial court instructed the jury that the evidence was admitted for the limited purpose of refuting defendant’s testimony that defendant was not familiar with criminal cases, and that it could not be considered for any other purpose; it was highly probable that admission of the evidence did not contribute to the jury’s finding of guilt. Emberson v. State, 271 Ga. App. 773, 611 S.E.2d 83, 2005 Ga. App. LEXIS 172 (2005) (decided under former O.C.G.A. § 24-9-82). Criminal defendant. - While a criminal defendant is not subject to impeachment by proof of general bad character or prior convictions until the defendant put defendant’s general good character in evi-

dence, the defendant is subject to impeachment the same as any other witness. Favors v. State, 145 Ga. App. 864, 244 S.E.2d 902, 1978 Ga. App. LEXIS 2295 (1978) (decided under former O.C.G.A. § 24-9-82). Prosecution for rape. - Former Code 1933, § 38-202.1 (see now O.C.G.A. § 244-412) provided the exclusive means for admitting evidence relating to the past sexual behavior of the complaining witness in prosecutions for rape; the res gestae rule, impeachment techniques, and other traditional means for introducing evidence which is otherwise inadmissible are inapplicable. Johnson v. State, 146 Ga. App. 277, 246 S.E.2d 363, 1978 Ga. App. LEXIS 2319 (1978) (decided under former Code 1933, § 38-1802). Trial court did not err in refusing to permit defendant to cross-examine prosecutor. Gresham v. State, 169 Ga. App. 525, 314 S.E.2d 111, 1984 Ga. App. LEXIS 1623 (1984) (decided under former O.C.G.A. § 24-9-82). Evidence of prior incident of sex with a minor. - In the defendant’s child molestation trial, pursuant to O.C.G.A. § 24-6-621, the trial court properly allowed a rebuttal witness to testify that the defendant had sex with her when she was 14, because the defendant opened the door by testifying that the defendant’s prior guilty plea to molestation was an isolated incident and that no other incidents had occurred. Harris v. State, 333 Ga. App. 118, 775 S.E.2d 602, 2015 Ga. App. LEXIS 436 (2015). Evidence of prior killing. - There is no error in allowing the district attorney to present evidence of a prior killing by defendant for the purpose of impeaching the testimony of the defendant that defendant had never killed anyone in defendant’s whole life. Lumpkin v. State, 151 Ga. App. 896, 262 S.E.2d 208, 1979 Ga. App. LEXIS 2732 (1979) (decided under former Code 1933, § 38-1802). Admission of photographs and texts sent to others. - In the murder trial of defendants, husband and wife, for the killing of a 13-month-old girl, the wife’s testimony about her relationship with and fear of the husband opened the door for the state to rebut her claims with

3. Criminal Matters (Cont’d) evidence that she was pursuing other men, pursuant to O.C.G.A. § 24-6-621; admitting the state’s evidence that she had sent photographs and texts of herself to other men was not error. Virger v. State, 305 Ga. 281, 824 S.E.2d 346, 2019 Ga. LEXIS 111 (2019). Evidence found admissible. - In an action for battery, a witness should have been allowed to impeach defendant’s statement that defendant had never ordered defendant’s bodyguard or anyone else to strike another person. Williams v. Knight, 211 Ga. App. 420, 439 S.E.2d 507, 1993 Ga. App. LEXIS 1510 (1993), cert. denied, No. S94C0503, 1994 Ga. LEXIS 258 (Ga. Jan. 28, 1994) (decided under former O.C.G.A. § 24-9-82). State was entitled to question defendant as to whether defendant changed defendant’s name because the authorities in North Carolina were looking for defendant because defendant had been accused of rape in that state after defendant introduced this area of inquiry by offering another reason for leaving North Carolina to explain having two sets of identification in defendant’s possession when the defendant was arrested. Vehaun v. State, 244 Ga. App. 136, 534 S.E.2d 873, 2000 Ga. App. LEXIS 653 (2000) (decided under former O.C.G.A. § 24-9-82). Trial court did not err in denying defendant’s motion for a mistrial made as to a testifying officer’s rebuttal testimony as that testimony was admissible as impeachment going to defendant’s veracity, pursuant to former O.C.G.A. § 24-9-82. Cox v. State, 263 Ga. App. 266, 587 S.E.2d 205, 2003 Ga. App. LEXIS 1083 (2003) (decided under former O.C.G.A. § 24-982). Evidence that defendant knew defendant would be incarcerated for 90 days beginning one week after the offense charged contradicted the testimony that defendant expected to be steadily employed in the weeks following the offense; accordingly, the trial court did not abuse the court’s discretion in allowing the evidence to impeach defendant’s testimony. Cooper v. State, 272 Ga. App. 209, 612 S.E.2d 42, 2005 Ga. App. LEXIS 247

(2005) (decided under former O.C.G.A. § 24-9-82). Since, at trial, the defendant’s girlfriend testified that the girlfriend was certain that the defendant’s mother had never told the girlfriend about her son’s statement of regret about the victim’s murder, but, the girlfriend had earlier told detectives that the conversation had, in fact, happened, and since the defendant’s mother also took the witness stand and testified both specifically that the defendant had never told the mother that the defendant had any regret about the crime and more generally that the mother never discussed the crime with the defendant at all, the statement the defendant’s girlfriend made to police directly contradicted the facts as recounted by both the defendant’s mother and the girlfriend; as such, the girlfriend’s prior statement was admissible to impeach both. Williams v. State, 280 Ga. 539, 630 S.E.2d 410, 2006 Ga. LEXIS 350 (2006) (decided under former O.C.G.A. § 24-9-82). Trial court did not err in overruling the defendant’s objection to an officer’s testimony that the officer and another officer recovered a 9 mm handgun from the defendant when the officers arrested the defendant because there was no basis for concluding that either officer committed perjury, but rather, it appeared that the memory of one of the officers could have faded as to that detail during the two years that elapsed between the defendant’s arrest and trial; although the discrepancy could have given the defendant the opportunity to impeach the credibility of the officer who testified at trial by disproving a fact to which the officer testified, the fact that the officer’s recollection of the events differed from the other officer’s pretrial testimony did not render the testimony about the gun inadmissible, but rather, the matter was one of credibility for the jury to resolve. Willis v. State, 309 Ga. App. 414, 710 S.E.2d 616, 2011 Ga. App. LEXIS 351 (2011), cert. denied, No. S11C1356, 2012 Ga. LEXIS 70 (Ga. Jan. 9, 2012) (decided under former O.C.G.A. § 24-9-82). Trial court did not abuse the court’s discretion in allowing a railroad to crossexamine an employee and in admitting

the testimony of supervisors for purposes of disproving certain facts to which the railroad had testified because the circumstances surrounding the employee’s dispute with the supervisors was at least indirectly material to the matters at issue in the case; the employee opened the door to being impeached with evidence that tended to disprove the employee’s testimony. CSX Transp., Inc. v. Smith, 289 Ga. 903, 717 S.E.2d 209, 2011 Ga. LEXIS 813 (2011), superseded by statute as stated in Williams v. Harvey, 311 Ga. 439, 858 S.E.2d 479, 2021 Ga. LEXIS 256 (2021) (decided under former O.C.G.A. § 24-982). Trial court did not err when the court allowed the state to cross-examine the defendant about an altercation with the defendant’s girlfriend because evidence about the nature of the altercation was admissible for purposes of impeachment inasmuch as the defendant testified dishonestly about the reasons why the defendant had been ejected from the girlfriend’s car. Taylor v. State, 302 Ga. 176, 805 S.E.2d 851, 2017 Ga. LEXIS 813 (2017). Evidence of prior offense admissible. - When defendant implied on direct examination that defendant had only one prior conviction for a weapons offense, defendant’s testimony in this regard was subject to rebuttal proof of other weapons offenses defendant had committed. Francis v. State, 266 Ga. 69, 463 S.E.2d 859, 1995 Ga. LEXIS 886 (1995) (decided under former O.C.G.A. § 24-9-82). Portion of defendant’s pre-trial statement to police in which the defendant admitted to another robbery was properly admitted, even though it reflected negatively on the defendant’s character, because it rebutted the defendant’s prior testimony. Jones v. State, 270 Ga. App. 233, 606 S.E.2d 288, 2004 Ga. App. LEXIS 1400 (2004) (decided under former O.C.G.A. § 24-9-82). Trial court did not err in allowing the prosecutor to read defendant’s entire criminal history into evidence because the basis for admitting the evidence pursuant to former O.C.G.A. § 24-9-82 was to disprove defendant’s lie by omission in response to a question at trial involving the defendant’s previous encounters with law

enforcement. McNeal v. State, 289 Ga. 711, 715 S.E.2d 95, 2011 Ga. LEXIS 672 (2011) (decided under former O.C.G.A. § 24-9-82). State was allowed to disprove the fact the defendant testified to, that the defendant had not been in a situation like this before, by impeaching the defendant with a prior charge for aggravated assault, even though that charge resulted in a conviction on a lesser offense. Parker v. State, 339 Ga. App. 285, 793 S.E.2d 173, 2016 Ga. App. LEXIS 613 (2016). Testimony on the number of times pulled over. - State had no basis for impeaching the testimony of a witness by the witness’s driving record after the witness immediately revised the witness’s testimony that the witness had been “pulled over” three or four times to state that the witness did not know the exact number of times the witness had been pulled over. Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44, 1993 Ga. App. LEXIS 1185 (1993) (decided under former O.C.G.A. § 24-9-82). Impeachment on nonviolent character not allowed. - In a prosecution for aggravated assault, carrying a concealed weapon, and possession of cocaine, when defendant’s prior conviction was for misdemeanor obstruction of a law enforcement officer, which offense did not involve the element of violence, neither a conviction thereof nor an indictment charging a greater offense was admissible to impeach a defense witness’s testimony as to defendant’s nonviolent character. Daniel v. State, 211 Ga. App. 455, 439 S.E.2d 720, 1993 Ga. App. LEXIS 1559 (1993), cert. denied, No. S94C0526, 1994 Ga. LEXIS 610 (Ga. Feb. 18, 1994) (decided under former O.C.G.A. § 24-9-82). Evidence from video sharing channel. - In a case in which the defendant was convicted of incest, rape, aggravated child molestation, child molestation, and reckless conduct, as the connection between the victim’s sexual assault allegations and the victim’s testimony regarding the victim’s purported video sharing channel was extremely attenuated, the trial court did not abuse its discretion in excluding the defendant’s extrinsic evidence on that issue as irrelevant and on a mat-

3. Criminal Matters (Cont’d) ter collateral to the issues at trial. Campbell v. State, 362 Ga. App. 337, 868 S.E.2d 471, 2022 Ga. App. LEXIS 34 (2022). 4. Civil Matters In action for fraud and breach of warranties, oral testimony concerning other lawsuits would be incompetent for impeachment purposes unless it contradicted the witness’s testimony at trial; it cannot be used merely to expose the witness’s intelligence, memory, accuracy, judgment, and veracity. Haley v. Oaks Apts., Ltd., 173 Ga. App. 44, 325 S.E.2d 602, 1984 Ga. App. LEXIS 2723 (1984) (decided under former O.C.G.A. § 24-982). Railroad engineer. - If the jury believed that the horse and colt crossed the track in front of the train immediately before the train struck plaintiff’s mule, as testified to by two witnesses, the witnesses would be authorized to infer that the engineer was not keeping a proper lookout ahead, although the engineer swore that the engineer was. Atlantic Coast Line R.R. v. Hodges, 90 Ga. App. 870, 84 S.E.2d 711, 1954 Ga. App. LEXIS 838 (1954) (decided under former Code 1933, § 38-1802). Admission of evidence initially excluded in accident case. In an action for physical injuries allegedly received in a rear-end collision, the defendant was allowed to show that plaintiff had settled a lawsuit arising from an earlier accident in order to impeach plaintiff’s testimony that the complaint had been dismissed. Bischoff v. Payne, 239 Ga. App. 824, 522 S.E.2d 257 (decided under former O.C.G.A. § 24-9-82). Although a trial court granted an employee’s motion in limine to exclude evidence that the employee had been taken out of service several hours prior to a workplace accident, once the employee submitted to questioning on the issue without seeking to enforce the limine ruling, the employee opened the door to being impeached by the employee’s supervisors’ depositions that the employee had been taken out of service due to a safety violation. Smith v. CSX Transp., Inc., 306 Ga.

App. 897, 703 S.E.2d 671, 2010 Ga. App. LEXIS 991 (2010), aff’d, 289 Ga. 903, 717 S.E.2d 209, 2011 Ga. LEXIS 813 (2011) (decided under former O.C.G.A. § 24-982). Evidence of assets admissible. - Fact that one brother had considerable assets and another brother had none is admissible to impeach testimony that the two brothers had shared the benefit of real property equally, and it is not error to admit such evidence. Fletcher v. Fletcher, 242 Ga. 158, 249 S.E.2d 530, 1978 Ga. LEXIS 1128 (1978) (decided under former Code 1933, § 38-1802). Medical evidence admissible. - In a personal injury action, since plaintiff specifically denied any prior back, neck, or leg pain at trial, plaintiff’s medical records showing otherwise were admissible under former O.C.G.A. § 24-9-82. Barone v. Law, 242 Ga. App. 102, 527 S.E.2d 898, 2000 Ga. App. LEXIS 39 (2000) (decided under former O.C.G.A. § 24-9-82). In a personal injury action filed by a couple, including an injured wife, against a tractor-trailer’s owner and its driver, the trial court did not err in admitting doctors’ reports outlining that the wife “passed out” before the collision: (1) as substantive evidence, given that the wife was present at trial and subject to cross-examination; and (2) as prior inconsistent statements to impeach the wife based upon earlier testimony that the wife never lost consciousness. Collins v. Mitchell, 282 Ga. App. 860, 640 S.E.2d 364, 2006 Ga. App. LEXIS 1536 (2006) (decided under former O.C.G.A. § 24-9-82). Admission of threatening letter. - In a homeowner’s suit against a construction company for failing to remedy a defect in the homeowner’s house, when the company’s representative claimed remorse in the phase of the trial in which the amount of punitive damages was being determined, a letter from the company to the homeowner threatening to sue the homeowner for abusive litigation if the homeowner pursued a claim was properly admitted. Bowen & Bowen Constr. Co. v. Fowler, 265 Ga. App. 274, 593 S.E.2d 668, 2004 Ga. App. LEXIS 2 (2004), cert. denied, No. S04C0965, 2004 Ga. LEXIS 385 (Ga. May 3, 2004) (decided under former O.C.G.A. § 24-9-82).

Employer drug test admissible. - It was error under former O.C.G.A. § 249-82 (see now O.C.G.A. § 24-6-621) not to allow a defendant to introduce witness testimony and evidence of negative employer drug tests to rebut an officer’s testimony that the defendant admitted using drugs. Doyal v. State, 287 Ga. App. 667, 653 S.E.2d 52, 2007 Ga. App. LEXIS 894 (2007) (decided under former O.C.G.A. § 24-9-82). Evidence of medical license admissible. - In a medical malpractice action, the trial court did not abuse the court’s discretion by permitting the plaintiff to cross-examine the defendant doctor with regard to the status of the doctor’s medical license from another state for impeachment purposes; the limited investigation by the plaintiff into whether the out-ofstate license was renewed or not was permissible after the doctor testified that the doctor had allowed the license to expire. Barngrover v. Hins, 289 Ga. App. 410, 657 S.E.2d 14, 2008 Ga. App. LEXIS 28 (2008) (decided under former O.C.G.A. § 24-9-82). Admission of printouts from medical devices. - Trial court abused the court’s discretion in excluding printouts from a medical device like the one used on the patient, which showed that the device had been used on other patients despite the doctor’s prior claim to the contrary, to impeach the doctor as the court’s ruling authorized the exclusion of relevant impeaching evidence and allowed the credibility of a crucial witness to go unchallenged. Hand v. S. Ga. Urology Ctr., P.C., 332 Ga. App. 148, 769 S.E.2d 814, 2015 Ga. App. LEXIS 265 (2015), cert. denied, No. S15C1304, 2015 Ga. LEXIS 594 (Ga. Sept. 8, 2015), overruled in part, Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596, 2015 Ga. LEXIS 485 (2015). Evidence from medical device should have been admitted. - Trial court abused the court’s discretion in excluding printouts from a medical device like the one used on the patient, which showed that the device had been used on other patients despite the doctor’s prior claim to the contrary, to impeach the doctor as the court’s ruling authorized the exclusion of relevant impeaching evidence

and allowed the credibility of a crucial witness to go unchallenged. Hand v. S. Ga. Urology Ctr., P.C., 2015 Ga. App. LEXIS 121. Contradictory testimony of physician allowed. - When a physician testified on cross-examination that the physician had never written a history and physical examination in a chart for a patient when the physician had not performed the history and physical examination, the physician’s testimony was subject to impeachment by calling the widow of a former patient who testified that the physician had not performed the physical examinations and history on the widow’s late husband contrary to the physician’s written entry on the medical chart. Weaver v. Ross, 192 Ga. App. 568, 386 S.E.2d 43, 1989 Ga. App. LEXIS 1082 (1989) (decided under former O.C.G.A. § 24-9-82). Instructions Instructions generally. - It is not error for the trial court, in the absence of request, to charge on the subject of impeachment of witnesses. Hand v. State, 90 Ga. App. 452, 83 S.E.2d 276, 1954 Ga. App. LEXIS 736 (1954) (decided under former Code 1933, § 38-1802). Defendant who wishes to have trial judge give limiting instructions for impeachment evidence used in the mode of disproving facts testified to, which incidentally injects character, must request such instructions; the judge is not required to give instructions on the judge’s own motion. Byrd v. State, 255 Ga. 665, 341 S.E.2d 455, 1986 Ga. LEXIS 634 (1986) (decided under former O.C.G.A. § 24-9-82). Conflict in testimony. - When there is a conflict between the testimony of the defendant and a state’s witness, a charge on impeachment is not improper. McNeill v. State, 135 Ga. App. 876, 219 S.E.2d 613, 1975 Ga. App. LEXIS 1856 (1975) (decided under former Code 1933, § 38-1802). Failure to charge all methods of impeachment. - When the judge having charged correctly upon one of the modes or methods of impeachment, to wit, impeachment by contradictory statements, the judge’s failure to charge also upon the

Instructions (Cont’d) other modes of impeachment of disproving facts testified to by the witness, and also on the method of impeachment when a witness’s testimony shall be disregarded entirely, is not reversible error in the absence of a request. Milwaukee Mechanics Ins. Co. v. Davis, 79 Ga. App. 70, 52 S.E.2d 643, 1949 Ga. App. LEXIS 588 (1949) (decided under former Code 1933, § 38-1802). Charging parts of sections. - Charge of the court was not error when part of the charge contained former Civil Code 1910, § 5880 (see O.C.G.A. § 24-6621) and a part of former Civil Code 1910, § 5881 (see O.C.G.A. § 24-6-608 and 246-613) and the parts of both of those sections charged which were excepted to were applicable to the case. Hall v. Burpee, 176 Ga. 270, 168 S.E. 39, 1933 Ga. LEXIS 59 (1933) (decided under former Civil Code 1910, § 5880). Contradiction of witness for jury consideration. - When no attempt was made during the trial of a case to impeach a witness by disproving the facts testified to by the witness, except insofar as different witnesses testify in a conflicting manner to their impression of a given state of facts, a charge of the court in the language of former Code 1933, § 38-1806 (see O.C.G.A. §§ 24-6-620 and 24-6-621) that when a witness shall be successfully contradicted as to a material matter the witness’s credit as to other matters was for the jury, included the substance of former Code 1933, § 38-1802 (see O.C.G.A. § 246-621). Aiken v. Glass, 95 Ga. App. 849, 99 S.E.2d 426, 1957 Ga. App. LEXIS 932 (1957) (decided under former Code 1933, § 38-1802). Charging on law of impeachment for bad character. - In charging upon the law of impeachment of witnesses, when the court charges as to impeachment by disproving facts testified to, and by contradictory statements, it is not error to omit to charge the law of impeachment by proof of general bad character, when there is no evidence seeking to impeach any witness upon that ground. Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28, 1945 Ga. LEXIS 301 (1945), overruled in part,

Milton v. State, 245 Ga. 20, 262 S.E.2d 789, 1980 Ga. LEXIS 672 (1980) (decided under former Code 1933, § 38-1802). Charging on good character. - When it was sought to impeach the sole witness for the defendant charged with murder, and no evidence of the good character of such witness was offered by the defendant, it was reversible error to state in the charge to the jury that when it is sought to impeach a witness, the witness may be sustained by proof of good character. Jones v. State, 193 Ga. 449, 18 S.E.2d 844, 1942 Ga. LEXIS 419 (1942) (decided under former Code 1933, § 38-1802). Instruction proper. - Charge of court was not subject to exceptions because of verbal inaccuracies. Bart v. Scheider, 39 Ga. App. 467, 147 S.E. 430, 1929 Ga. App. LEXIS 363 (1929) (decided under former Civil Code 1910, § 5880). Improper instruction not reversible error. - Charge on impeachment by proof of conviction was not reversible error even though defendant had not placed defendant’s character in issue because of the overwhelming evidence of the defendant’s guilt. Peterson v. State, 212 Ga. App. 147, 441 S.E.2d 481, 1994 Ga. App. LEXIS 191 (1994) (decided under former O.C.G.A. § 24-9-82). In a married couple’s personal injury case, the trial court did not err in not giving parts of the pattern charge on impeachment requested by an insurance carrier on the ground that the couple’s trial testimony contradicted their previous statements or actions. Because the carrier did not offer evidence that disproved the facts to which the couple testified, the portion of the charge that pertained to impeachment by disproving facts was not applicable, and the trial court was thus authorized to refuse the entire charge; furthermore, the trial court’s charge to the jury that the jury could consider the witnesses’ manner of testifying and demeanor as well as the probability or improbability of their testimony and their personal credibility adequately covered the necessary principles. Ga. Farm Bureau Mut. Ins. Co. v. Turpin, 294 Ga. App. 63, 668 S.E.2d 518, 2008 Ga. App. LEXIS 1106 (2008) (decided under former O.C.G.A. § 24-9-82).

RESEARCH REFERENCES ALR. Admissibility of affidavit to impeach witness, 14 A.L.R.4th 828. What constitutes crime involving “dis-

honesty or false statement” under Rule 609(a)(2) of the Uniform Rules of Evidence, 83 A.L.R.5th 277.