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DAVIS v. STATE

Supreme Court of Georgia.
Mar 2, 1998
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Davis v. The State, S97A1471 — Supreme Court of Georgia (Decided Mar. 2, 1998; Reconsideration denied Apr. 2, 1998)

Factual and Procedural Background

Appellant Donna Jean Davis was tried for the stabbing death of Danny Reid. The crime occurred March 16, 1993; a true bill of indictment charging malice murder and felony murder was returned August 26, 1993. Appellant was tried before a jury March 21-24, 1994, found guilty of felony murder, and sentenced to life imprisonment. Her motion for new trial (filed April 7, 1994 and amended April 29, 1996) was denied July 6, 1996. A timely notice of appeal was filed July 17, 1996; the appeal was docketed in this Court June 5, 1997, and oral argument was heard September 16, 1997.

The State's evidence described a household in a Cobb County mobile home shared by appellant, her four children, Darryl Reid (appellant's fiancé), and Danny Reid (Darryl's brother, who used crutches because of polio). On the day of the stabbing, Darryl brought a work colleague home, and later, after the visitor left, appellant pointed a knife at Darryl and threatened to "do it right now" if he did not stop holding their infant son. Darryl took the infant to another room; he later heard Danny fall in the kitchen and returned to find Danny on the floor in a pool of blood. The medical examiner testified Danny had suffered a knife wound that lacerated his aorta and pericardium and died almost immediately. The State also presented testimony by appellant's sister about a 1991 assault by appellant with a knife and introduced appellant's 1991 indictment and guilty plea for aggravated assault for which appellant had received treatment under the First Offender Act (first offender treatment).

Appellant testified that Darryl struck her in the kitchen, that Danny entered after Darryl left, and that Danny was stabbed by the knife appellant was holding when she turned from the counter while cutting onions. Appellant admitted she must have stabbed Danny but stated she could not recall seeing him stabbed or how the knife came to rest in his chest.

Legal Issues Presented

  1. Whether the evidence presented at trial was legally sufficient to sustain a conviction for felony murder.
  2. Whether the trial court erred in admitting into evidence appellant's 1991 guilty plea to aggravated assault after the plea had been treated under the First Offender Act (i.e., whether a first offender's guilty plea is admissible to establish a prior independent offense).
  3. Whether the trial court erred by refusing a jury instruction on the law of accident (an affirmative defense).
  4. Whether the trial court's jury instructions complied with the principles stated in Edge v. State and Russell v. State regarding sequencing and the relationship between provocation/passion and felony murder.

Arguments of the Parties

Appellant's Arguments

  • Admission into evidence of appellant's 1991 guilty plea (first offender treatment) was erroneous and should not have been allowed to establish a prior independent offense.
  • The trial court erred by refusing to give the jury a requested instruction on accident, because appellant testified that the stabbing was unintentional and an officer recounted an out-of-court statement by appellant that might support accident.
  • The trial court's instructions to the jury violated the principles set forth in Edge v. State and Russell v. State concerning sequencing of offenses and the effect of provocation/passion on felony murder.

State / Appellee

The opinion does not contain a detailed account of the appellee's point-by-point legal arguments beyond the State's presentation of evidence and the procedural posture. The Court's opinion addresses the appellant's contentions in the divisions summarized below.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Jackson v. Virginia, 443 U.S. 307 (1979) Standard for sufficiency of the evidence — whether a rational trier of fact could find guilt beyond a reasonable doubt. Used to conclude the State's evidence was sufficient to authorize a rational trier of fact to find appellant guilty of felony murder beyond a reasonable doubt (Division 1).
Matthews v. State, 268 Ga. 798 (1997) Describes the "underlying humanitarian purpose" of the First Offender Act and limits on use of first offender records for impeachment. Cited as support for the principle that the first offender record should not be used to treat a person as if adjudicated guilty and as guidance in evaluating admissibility of the 1991 first offender plea (Division 2).
Witcher v. Pender, 260 Ga. 248 (1990) Also recognizes the humanitarian purpose of the First Offender Act and limits on using first offender records to impeach credibility. Cited along with Matthews to support the conclusion that a first offender record should not be used when there is no adjudication of guilt (Division 2).
Jones v. State of Ga., 212 Ga. App. 682 (1994) Testimony/documents concerning entry of a guilty plea by a first offender have been ruled inadmissible when not used to impeach the first offender. Cited as authority that admission of first offender plea-related materials is disfavored where they are not being used to impeach (Division 8 discussion).
Priest v. State, 261 Ga. 651 (1991) First offender guilty plea does not constitute a "conviction" for statutory purposes. Used to support the proposition that a first offender plea is not a conviction and cannot be used as such (Division 8).
Hightower v. Gen. Motors Corp., 255 Ga. 349 (1986) First offender record admissible to impeach a first offender by disproving or contradicting the first offender's testimony to prevent misleading the jury. Cited to identify the limited circumstances in which a first offender record may be admitted (to contradict the first offender's testimony) (Division 8).
Weathersby v. State, 262 Ga. 126 (1992) Where a prior offense resulted in a conviction (after initial first offender treatment), that conviction was admissible as a prior bad act. Cited to distinguish situations where a first offender disposition later became a conviction from the present case where no adjudication existed (Division 9).
Tilley v. State, 197 Ga. App. 97 (1990) Admission of evidence of the circumstances of a defendant's prior conduct as similar transaction evidence; did not address admissibility of entry of a first offender guilty plea. Cited to show that courts have admitted testimony about prior conduct but have not necessarily resolved admissibility of the plea itself (Division 9).
Haywood v. State, 220 Ga. App. 182 (1996) Admission of evidence establishing a prior similar bad act for which the defendant had first offender treatment following a nolo contendere plea. Cited as an example of appellate decisions affirming admission of circumstances of prior conduct even where first offender treatment had been afforded (Division 9).
Williams v. State, 251 Ga. 749 (1983) Prior bad act need not result in a criminal conviction to be used as a similar transaction; similarity of facts is the critical element. Cited to support that similarity of facts, not an adjudication, is the critical element for admitting prior similar-act evidence (Division 10).
Braddock v. State, 208 Ga. App. 843 (1993) Authority reflecting that prior bad acts need not result in conviction to be used as similar transactions. Cited alongside other cases illustrating the principle that similarity, not conviction, controls admissibility (Division 10).
Green v. State, 178 Ga. App. 203 (1986) Same principle — prior bad act admissible as similar transaction even without conviction. Cited as part of the line of cases emphasizing similarity of facts (Division 10).
Stephens v. State, 261 Ga. 467 (1991) Proffer of a certified copy of a defendant's conviction for the prior act does not fulfill the prosecutor's duty to establish similarity and identity; testimonial evidence of similarity is critical. Cited to explain the prosecutor's duty to establish similarity and identity and to note that, where no adjudication exists, the documentary supplement ordinarily available is absent (Division 10).
Williams v. State, 258 Ga. 281 (1988) At sentencing (in a death penalty case), evidence in aggravation is not limited to convictions and reliable evidence of general bad character is admissible. Cited as a contrasting authority where admission of first offender record at sentencing was not deemed error for different purposes (Division 11).
Johnson v. State, 238 Ga. 59 (1976) Standard governing harmless error analysis. Cited to support the conclusion that admission of the first offender guilty plea, although error, was harmless in light of overwhelming evidence and the cumulative nature of the evidence (Division 12).
Koritta v. State, 263 Ga. 703 (1994) A slight amount of evidence is sufficient to authorize a jury instruction on a subject (standard for instructions). Cited to state the standard for when the court must give a requested jury instruction (Division 13).
Turner v. State, 262 Ga. 359 (1992) Whether the evidence presented is sufficient to authorize giving a charge is a question of law. Cited to explain that sufficiency to charge is a legal determination (Division 13).
Griffin v. State, 267 Ga. 586 (1997) "Accident" is an affirmative defense. Cited to support the proposition that accident is an affirmative defense and to frame the burden for an accident charge (Division 15).
New v. State, 260 Ga. 441 (1990) To establish accident the defendant must show lack of criminal intent and not being engaged in a criminal scheme; actions must not show utter disregard for safety of others. Cited for the definition and elements of the accident defense (Division 15).
Campbell v. State, 263 Ga. 824 (1994) Related authority on the accident defense and criminal negligence inquiry. Cited in support of the standard for accident as an affirmative defense (Division 15).
Scott v. State, 261 Ga. 611 (1991) Where a defendant admits causing the fatal wound but cannot recall how, the law will not infer the defendant acted without criminal negligence. Cited to reject appellant's claim that her testimony warranted an accident charge (Division 15).
Mansfield v. State, 214 Ga. App. 520 (1994) Consistent authority that lack of memory or denial of intent does not necessarily warrant an accident instruction. Used as supporting authority for the refusal to give an accident instruction where appellant admitted causing the wound but could not recall details (Division 15).
Brooks v. State, 262 Ga. 187 (1992) Testimony that the defendant did not intend to hurt anyone does not automatically warrant a charge on accident. Cited to support the conclusion that appellant's testimony that she had not intended to hurt anyone did not entitle her to an accident instruction (Division 15).
Miranda v. Arizona, 384 U.S. 436 (1966) Requirements for advising a suspect of rights prior to custodial interrogation. Cited to note the officer made appellant aware of her Miranda rights before the officer recounted appellant's initial statement (Division 16).
Scott v. State, 225 Ga. App. 729 (1997) Holding that intentional use of a knife to create reasonable apprehension, with an unintentional injury, constitutes at least criminal negligence (not an "accident"). Cited in Division 17 to state that where a knife was intentionally used to threaten someone and the victim is unintentionally injured, the intentional act constitutes criminal negligence and no accident instruction is warranted.
Johnson v. State, 223 Ga. App. 294 (1996) Similar holding: intentional use of a weapon to threaten that results in an unintended injury constitutes criminal negligence. Cited in Division 17 alongside other appellate authority to support refusal to give an accident instruction.
Keye v. State, 136 Ga. App. 707 (1975) Related authority on intentional use of a knife resulting in unintentional injury amounting to criminal negligence. Cited in Division 17 as additional authority for the proposition that intentional use of a knife that unintentionally injures is criminal negligence (not accident).
Allen v. State, 260 Ga. 147 (1990) Language suggesting an entitlement to an accident charge in a particular knife-at-throat fact pattern. The Court disapproved the language in Allen that suggested a defendant would be entitled to a charge on accident under the described facts (Division 17).
Edge v. State, 261 Ga. 865 (1992) Instructional precept disapproving giving a voluntary manslaughter instruction only after considering and finding the defendant not guilty of malice murder or felony murder. Cited in assessing whether the trial court's instructions mis-sequenced or limited the jury's consideration; the Court found the trial court's instructions did not violate Edge (Division 19).
Russell v. State, 265 Ga. 203 (1995) Held it is reversible error if the trial court fails to instruct the jury that felony murder cannot be found if the killing resulted from passion or provocation. Applied in Division 19: the Court concluded the trial court's instructions satisfied the Russell principle because jurors were told felony murder was not authorized if the act was the result of provocation and passion.

Court's Reasoning and Analysis

The Court's opinion is organized into four main divisions addressing sufficiency, admissibility of the First Offender plea, the requested accident instruction, and the jury instructions in light of Edge and Russell.

Division 1 — Sufficiency of the Evidence

The Court recited the State's evidence (household facts, appellant's threats with the knife, the subsequent stabbing, and the medical examiner's testimony that the wound caused immediate death). The Court held that this evidence, including the testimony regarding the prior aggravated assault, was sufficient under the Jackson v. Virginia standard to authorize a rational trier of fact to conclude appellant was guilty of felony murder beyond a reasonable doubt.

Division 2 — Admissibility of the 1991 First Offender Guilty Plea

The Court examined the First Offender Act and its stated humanitarian purpose (to avoid the stigma of a criminal record where no adjudication of guilt has been entered). The Court summarized prior authorities holding that a first offender record may not be used to impeach on general credibility grounds because a first offender has no adjudication of guilt. The Court recognized limited circumstances where a first offender record can be used to contradict the first offender's testimony.

The Court noted that Georgia appellate decisions had admitted testimony about the circumstances of prior conduct even when no conviction resulted, emphasizing that the critical element in similar-transaction evidence is similarity of facts rather than adjudication. However, when the State uses a first offender record where there is no adjudication (and thus no conviction), the documentary supplement normally available in similar-transaction cases is not present.

Applying the First Offender Act's humanitarian purpose and the fact that the victim's testimony about the 1991 assault already established the similarity and identity aspects of the prior offense, the Court concluded the 1991 guilty plea (the first offender plea) should not have been admitted into evidence. The Court treated the plea admission as error but concluded the error was harmless because the evidence of guilt was overwhelming and the plea evidence was cumulative.

Division 3 — Refusal to Give an Accident Instruction

The Court reviewed the standard for giving a requested instruction (even slight evidence can suffice) but then analyzed whether appellant produced sufficient evidence to warrant an accident charge. The Court explained that "accident" is an affirmative defense requiring the defendant to show lack of criminal intent and lack of criminal negligence. Where a defendant admits causing the wound but cannot recall how it occurred, the law does not infer the defendant acted without criminal negligence.

The Court rejected appellant's assertion that her testimony or the investigating officer's recounting of her initial statement necessarily supported an accident instruction. The officer had testified that after Miranda warnings appellant described pointing the knife at Darryl and, when Darryl lunged, she "followed through with the knife," striking Danny. The Court concluded that intentional use of a knife to create reasonable apprehension, which results in an unintentional injury, constitutes at least criminal negligence; thus an accident instruction was not warranted. The Court also expressly disapproved language in Allen v. State that suggested otherwise.

Division 4 — Jury Instructions and Edge / Russell

The Court considered appellant's contention that the trial court's instructions violated Edge and Russell. The trial court had instructed the jury on malice murder, felony murder, and the underlying felony (aggravated assault), then told the jury they must consider whether mitigating evidence reduced the crime to voluntary manslaughter before returning a guilty verdict on malice or felony murder. The court also instructed on voluntary and involuntary manslaughter and informed the jury that felony murder was not authorized if the act was the result of provocation and passion. The Supreme Court concluded the trial court's instructions did not violate Edge or Russell.

Holding and Implications

Holding: The Supreme Court of Georgia affirmed the judgment below. JUDGMENT AFFIRMED.

Core rulings:

  • The State presented legally sufficient evidence to support appellant's felony murder conviction under Jackson v. Virginia (Division 1).
  • The trial court erred in admitting appellant's 1991 guilty plea entered under First Offender treatment as evidence of a prior independent offense when there was no adjudication of guilt; however, that error was harmless given the overwhelming evidence and the cumulative nature of the admission (Division 2).
  • The trial court properly refused appellant's requested jury instruction on accident because the record did not establish the lack of criminal negligence required for that affirmative defense (Division 3).
  • The trial court's jury instructions complied with the principles of Edge and Russell and did not provide reversible error (Division 4).

Consequences: The direct effect is that appellant's conviction and life sentence were affirmed. The Court determined that the admission of the first offender guilty plea was erroneous but harmless in this case; the opinion therefore leaves the conviction intact. The opinion explains how the First Offender Act's humanitarian purpose limits use of first offender pleas in certain contexts and clarifies when an accident instruction is or is not warranted based on the facts asserted at trial.

Additional procedural notation: All Justices concurred except three Justices who concurred specially and one who concurred only in Division 3. A special concurrence (Carley, joined by Hunstein and Hines) disagreed with the majority's view that admission of the guilty plea was error; that concurrence would have held the guilty plea admissible as evidence of a prior similar offense given testimonial corroboration of the prior act.

Show all summary ...

BENHAM, Chief Justice.

Appellant Donna Jean Davis was found guilty of felony murder in connection with the stabbing death of Danny Reid, her fiance's brother.

The crime occurred on March 16, 1993. A true bill of indictment charging appellant with malice murder and felony murder was returned August 26, 1993, and she was tried before a jury March 21-24, 1994. Upon return of the jury's guilty verdict, the trial court sentenced appellant to life imprisonment. Her motion for new trial, filed April 7, 1994, and amended April 29, 1996, was denied July 6, 1996. A timely notice of appeal was filed on July 17, 1996, and the appeal was docketed in this court on June 5, 1997. Oral argument was heard on September 16, 1997.

1. The State presented evidence that appellant and her four children shared a Cobb County mobile home with Darryl Reid, appellant's fiance at the time of the homicide, and Darryl's brother, Danny, whose polio required him to use crutches. On the day of the fatal stabbing, Darryl, who worked nights, brought a colleague home from work, over appellant's objection. Darryl and his guest spent the day drinking beer and talking in the mobile home, and driving around. While appellant was in the kitchen preparing dinner after the visitor departed, she complained to Darryl and Danny about the lack of respect she was given in the household. She pointed the knife she was holding at Darryl, and told him she would "do it right now" if he were not holding their infant son. As Darryl took the child to a bedroom, he heard his brother fall in the kitchen. When Darryl returned to the kitchen to help his brother regain his footing, he found Danny lying on the floor in a pool of blood. The medical examiner testified that Danny had suffered a knife wound which lacerated his aorta and pericardium, causing him to die almost immediately. The State completed the presentation of its case in chief with evidence of a prior extrinsic act — the testimony of appellant's sister concerning the facts underlying appellant's 1991 assault of the witness with a knife, and the introduction into evidence of appellant's 1991 indictment and guilty plea for that aggravated assault, for which appellant received treatment under the First Offender Act. See OCGA §§ 42-8-60 et seq.

Appellant testified Darryl struck her several times while the two of them were in the kitchen, that Darryl left the room and Danny entered, and that Danny was stabbed by the knife appellant was holding when appellant turned from the counter top on which she was cutting onions. While appellant admitted that she must have stabbed Danny with the knife, she was unable to recall seeing him stabbed and could not remember the knife in her hand coming to rest in the victim's chest. The evidence summarized above was sufficient to authorize a rational trier of fact to conclude that appellant was guilty of felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.E.2d 560) (1979).

2. Appellant believes the trial court erred in admitting into evidence her 1991 guilty plea to the charge of aggravated assault with a knife, for which she received first offender treatment. She does not take issue with the admission of her sister's testimony about the assault, making the issue whether a first offender's entry of a guilty plea to a criminal charge is admissible to establish a prior independent offense in the trial of a subsequent indictment on another charge.

The series of statutes known as the First Offender Act deal with sentencing options for a person not previously convicted of a felony. Such an individual is permitted to enter a plea of guilty or nolo contendere, to serve the probationary sentence or term of imprisonment handed down, and to be discharged without court adjudication of guilt and without a record of a criminal conviction. OCGA §§ 42-8-60, 48-8-62(a). The "underlying humanitarian purpose" of the first offender statutes is to protect the first offender from the stigma of having a criminal record until an adjudication of guilt has been entered with regard to the crime for which the defendant was given first offender treatment. Matthews v. State, 268 Ga. 798 ( 493 S.E.2d 136) (1997); Witcher v. Pender, 260 Ga. 248, 249 ( 392 S.E.2d 6) (1990); Jones v. State of Ga., 212 Ga. App. 682 (1) ( 442 S.E.2d 880) (1994). To that end, the first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds (i.e., by establishing that the first offender has been convicted of a felony or crime of moral turpitude) because no adjudication of guilt has been entered. Matthews v. State, supra, Witcher v. Pender, supra, 260 Ga. 248. A first offender's guilty plea does not constitute a "conviction" as that term is defined in the Criminal Code of Georgia (OCGA § 16-1-3 (4)), and may not serve as the basis for a statutory suspension of a driver's license. Priest v. State, 261 Ga. 651 (2) ( 409 S.E.2d 657) (1991). In addition, testimony and documents concerning the entry of a guilty plea by a first offender have been ruled inadmissible when the questioned evidence was not used to impeach the first offender. Jones v. State of Ga., supra, 212 Ga. App. 682, cert dismissed 212 Ga. App. 897. However, "[t]o [e]nsure that in seeking the truth the jury is not misled by false or deceiving testimony," a first offender's record is admissible to impeach the first offender by disproving or contradicting facts testified to by the first offender. Hightower v. Gen. Motors Corp., 255 Ga. 349, 352 ( 338 S.E.2d 426) (1986).

This court has not addressed the propriety of using a first offender plea as evidence that the defendant committed a similar independent offense. Cf. Weathersby v. State, 262 Ga. 126 (2) ( 414 S.E.2d 200) (1992), where appellant's conviction of a crime for which he had initially received first offender treatment was admissible as a prior bad act. The Court of Appeals affirmed the trial court's decision to admit evidence of the circumstances of the defendant's prior conduct in Tilley v. State, 197 Ga. App. 97 ( 397 S.E.2d 506) (1990), but did not have to resolve whether evidence of the defendant's entry of a first offender guilty plea to the earlier charge was admissible. See also Haywood v. State, 220 Ga. App. 182 (1) ( 469 S.E.2d 206) (1996), where the Court of Appeals affirmed the admission of evidence establishing a similar prior bad act for which the defendant had been afforded first offender treatment after entering a plea of nolo contendere.

As the Court of Appeals noted in Tilley, a prior bad act need not result in a criminal conviction in order to be used as a similar transaction. See Williams v. State, 251 Ga. 749 (4) ( 312 S.E.2d 40) (1983); Braddock v. State, 208 Ga. App. 843 (2) ( 432 S.E.2d 264) (1993); Green v. State, 178 Ga. App. 203 (2) ( 342 S.E.2d 386) (1986). It is the similarity of the facts of the defendant's prior conduct to the facts of the case being tried that is the critical element of this type of evidence, not the adjudication of any charges which might have been brought as a result of the earlier conduct. See Stephens v. State, 261 Ga. 467 (6) ( 405 S.E.2d 483) (1991), where this court ruled that the proffer of a certified copy of the defendant's conviction for the prior act does not fulfill the prosecutor's duty to establish the similarity of the prior incident to the incident for which the defendant is being tried, and the defendant's identity as the perpetrator. That is not to say, however, that a certified copy of an indictment or conviction cannot be admitted, but only that such evidence is not critical to proving a prior similar offense and only supplements the critical testimonial evidence regarding similarity and identity. When, as here, the State uses a first offender record in which there is no adjudication of guilt, there is no conviction, so the supplemental evidence usually proffered in similar transaction cases is not available.

With the underlying humanitarian purpose of the First Offender Act as our lodestar and recognizing that no adjudication of guilt had been entered in appellant's 1991 first offender case at the time of appellant's murder trial, we conclude that appellant's guilty plea to the offense for which she received first offender treatment should not have been admitted into evidence. The testimony of the victim of the 1991 aggravated assault established the similarity of the prior offense to the charge being tried and appellant's identity as the perpetrator thereof, making additional evidence cumulative. Since the first offender statutory scheme was devised to prevent a first offender who had not had an adjudication of guilt entered being treated as if the offender had been convicted, the first offender's record should not be used if there is no adjudication of guilt. See Matthews v. State, supra; Witcher v. Pender, supra. But see Williams v. State, 258 Ga. 281 (7) ( 368 S.E.2d 742) (1988), where this court ruled that trial counsel was not ineffective for having failed to object to the admission of the defendant's first offender record at the sentencing phase of a subsequent death penalty trial since evidence in aggravation is not limited to convictions and reliable evidence showing general bad character is admissible.

While it was error to admit the evidence that appellant had entered a guilty plea to the earlier charge, that error does not constitute reversible error in light of the overwhelming evidence of appellant's guilt and the cumulative nature of the erroneously-admitted evidence. Johnson v. State, 238 Ga. 59 ( 230 S.E.2d 869) (1976).

3. Appellant next contends that the trial court erred when it failed to give the jury a requested instruction on the law of accident. To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Koritta v. State, 263 Ga. 703, 704 ( 438 S.E.2d 68) (1994). Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law. Turner v. State, 262 Ga. 359 (2) (c) ( 418 S.E.2d 52) (1992).

Appellant contends that the necessary evidence to support a charge on accident was provided by her testimony that she unintentionally stabbed Danny when she turned from the counter top with the knife in her hand, or by an investigating officer's testimony wherein the officer recounted appellant's initial statement concerning the stabbing. We disagree.

A person may not be found guilty of a crime committed by accident "where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." OCGA § 16-2-2. "Accident" is an affirmative defense ( Griffin v. State, 267 Ga. 586 (1) ( 481 S.E.2d 223) (1997)) whereby a defendant must establish that she acted without criminal intent and was not engaged in a criminal scheme, and that her actions did not show "`an utter disregard for the safety of others who might reasonably be expected to be injured thereby'." New v. State, 260 Ga. 441 (1) ( 396 S.E.2d 486) (1990). See also Campbell v. State, 263 Ga. 824 (3) ( 440 S.E.2d 5) (1994). Where, as here, the defendant admits she caused the victim's fatal wound but cannot recall how she came to inflict it, we cannot legally infer that the defendant was acting with regard for the safety of others, i.e., without criminal negligence. See Scott v. State, 261 Ga. 611 (1) ( 409 S.E.2d 511) (1991). See also Mansfield v. State, 214 Ga. App. 520 (1) ( 448 S.E.2d 490) (1994). Appellant's testimony that she had not intended to hurt anyone did not warrant a charge on accident. Brooks v. State, 262 Ga. 187 (3) ( 415 S.E.2d 903) (1992).

As for the officer's testimony, even if we assume arguendo that the officer's testimony concerning appellant's out-of-court statement could constitute evidence of the contents of that statement sufficient to authorize a jury instruction on an affirmative defense, appellant's initial statement, as recounted by the officer's testimony, did not authorize a charge on accident. The officer stated that appellant had told him, after he had made her aware of her rights under Miranda v. Arizona, 384 U.S. 436 ( 86 S.Ct. 1602, 16 L.Ed.2d 694) (1966), that Darryl had verbally abused her, she had picked up the knife, turned around to face Darryl, pointed the knife at him and told him to leave her alone. At that time, Danny joined his brother in verbally abusing appellant, and Darryl lunged at appellant, whereupon appellant "followed through with the knife," striking Danny.

An instruction to the jury on the law of accident is not warranted when a knife is used to place someone in reasonable apprehension of immediate bodily injury and the victim is unintentionally injured with the knife, since the intentional use of the knife constituted, at the least, criminal negligence. Scott v. State, 225 Ga. App. 729 (2) ( 484 S.E.2d 780) (1997); Johnson v. State, 223 Ga. App. 294 (2) ( 477 S.E.2d 439) (1996); Keye v. State, 136 Ga. App. 707 (1) ( 222 S.E.2d 172) (1975). In this regard, we must disapprove the language in Allen v. State, 260 Ga. 147 (5) (a) ( 390 S.E.2d 848) (1990), which suggests that a defendant would be entitled to a charge on accident where the defendant testified that he intentionally placed a knife to a person's throat, threatened the person, and the person's throat was accidentally pierced when the victim stepped against the knife.

We conclude that the trial court did not err in refusing to give appellant's requested charge on accident.

4. Lastly, appellant contends the trial court's instructions to the jury violated the principles set forth in Edge v. State, 261 Ga. 865 ( 414 S.E.2d 463) (1992), and Russell v. State, 265 Ga. 203 ( 455 S.E.2d 34) (1995). In Edge, we disapproved the trial court instructing the jury to consider voluntary manslaughter only after considering and finding the defendant not guilty of malice murder of felony murder. Id. at 867. In Russell, we held it was reversible error should the trial court fail to instruct the jury that they could not find a defendant guilty of felony murder if they found the act which caused the killing was the result of passion or provocation. See also Edge v. State, 261 Ga. at 867, fn. 3. In the case at bar, the trial court informed the jury of the law of malice murder, felony murder, and the underlying felony of aggravated assault, and then told them they must consider whether there was mitigating evidence that reduced the crime to voluntary manslaughter before they could return a guilty verdict on malice or felony murder. At that point, the jury was informed of the law of voluntary manslaughter and involuntary manslaughter. Thereafter, the jury was told that a verdict of felony murder was not authorized if the defendant's actions were the result of provocation and passion. The trial court's instructions did not violate the precepts of Edge and Russell.

Judgment affirmed. All the Justices concur, except Hunstein, Carley, and Hines, JJ., who concur specially, and Fletcher, P.J., who concurs in judgment only in Division 3.

BENHAM, Chief Justice.

DECIDED MARCH 2, 1998 — RECONSIDERATION DENIED APRIL 2, 1998.

CARLEY, Justice, concurring specially.

I concur fully in Divisions 1, 3 and 4 of the majority opinion, as well as in the affirmance of Ms. Davis' conviction and sentence. In Division 2, however, the majority concludes that the admission of Ms. Davis' 1991 guilty plea to a charge of aggravated assault with a knife, for which she received first offender treatment, was harmless error. In my opinion, the admission of the guilty plea was not error. Therefore, I concur specially.

Clearly, the guilty plea could not be used in connection with any issue requiring proof of Ms. Davis' conviction of the prior aggravated assault. OCGA § 42-8-62; Matthews v. State, 268 Ga. 798 (impeachment on general credibility grounds). Compare Hightower v. General Motors Corp., 255 Ga. 349 ( 338 S.E.2d 426) (1986) (impeachment by disproving and contradicting first offender's testimony). However, a defendant's commission of a prior offense need not have resulted in a conviction to be admissible as "other crimes" evidence in a subsequent criminal trial. Tilley v. State, 197 Ga. App. 97, 98 (2) ( 397 S.E.2d 506) (1990). The admissibility of "prior act" evidence is dependent only upon its similarity to the criminal charge for which the defendant is being tried and its relevance to proving the defendant's commission of that charge. Williams v. State, 251 Ga. 749, 755 (4) ( 312 S.E.2d 40) (1983).

Here, there was testimony concerning the prior aggravated assault, as well as the evidence of Ms. Davis' guilty plea. This testimony was certainly admissible to show the similarity of the prior aggravated assault to that for which Ms. Davis was being tried. Haywood v. State, 220 Ga. App. 182 (1) ( 469 S.E.2d 206) (1996); Tilley v. State, supra at 98 (2). In Stephens v. State, 261 Ga. 467, 468 (6) ( 405 S.E.2d 483) (1991), we held that it was error to admit a certified copy of a prior conviction withoutadditional evidence of similarity. Until today, we have never held that it is error to admit a defendant's guilty plea simply because there is additional evidence of similarity. Evidence of prior similar crimes is not limited to convictions, and such evidence can be admitted if illustrative of relevant issues in a subsequent criminal trial.

The underlying humanitarian purpose of the First Offender Act is completely served by prohibiting the State's use of a guilty plea in connection with any issue requiring proof of the defendant's prior conviction. Although Ms. Davis has no prior convictions, it does not follow that she did not commit a prior criminal offense. The First Offender Act was never intended to insulate the defendant from all of the consequences of violating the criminal laws of Georgia and to prohibit the State from using a first offender guilty plea, as distinguished from the first offender record, for a relevant evidentiary purpose should the defendant allegedly commit a subsequent similar offense. Here, the guilty plea was not offered to show Ms. Davis' prior conviction for any offense, but to show that she admitted commission of a previous aggravated assault with a knife. Unlike the majority, I believe that this evidence was admissible as part of the State's proof of Ms. Davis' commission of a prior aggravated assault which was similar to that for which she was now being tried. Since the trial court properly admitted the evidence, the question of harmless error never arises.

I am authorized to state that Justice Hunstein and Justice Hines join in this special concurrence.