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Docket Number

A95A2334

Attorney(S)

Clifford H. Hardwick, for appellant. Gerald N. Blane, Jr., Solicitor, Richard E. Thomas, Rosanna M. Szabo, Assistant Solicitors, for appellee.

Judges

Gary Blaylock Andrews

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McDaniel v. The State — Court of Appeals of Georgia (A95A2334)

Decided March 15, 1996; Reconsideration Denied March 29, 1996. Judge: Andrews (majority). Dissent by Presiding Judge McMurray (joined by Judge Ruffin).

Factual and Procedural Background

David Allen McDaniel was charged by accusation with obstruction of a law enforcement officer, specifically for allegedly refusing "to obey the lawful commands of Officer W.C. Pearson." McDaniel filed a demand for trial under OCGA § 17-7-170(a). The case was called for trial on January 30, 1995; on January 31, 1995, a mistrial was declared because the jury could not reach a verdict. The case was again called for trial the next day. Defense counsel announced he was not ready, explaining he had just learned at 8:30 a.m. that morning (via an answering-machine message) the case was being called and that he had been advised after the mistrial that he would receive at least 24 hours' notice. Defense counsel said he needed time to prepare evidence uncovered during the first trial and to subpoena witnesses who had been released. The trial court offered a continuance until the next day; defense counsel declined that short continuance and asked for more time. The court gave an option to proceed or request a continuance; defense counsel opted for a continuance and, in open court, affirmed that McDaniel waived his demand for a speedy trial.

The second jury trial began March 13, 1995. The evidence, viewed in favor of the verdict, established that on November 3, 1994, at about 1:00 a.m., McDaniel contacted police about alleged ongoing noise from a nearby food-storage facility. Officer Pearson responded, informed McDaniel he could not enforce the noise ordinance at that hour because no one was present to accept service, and declined to call the facility's emergency number. McDaniel asked for the officer's name and badge number; Officer Pearson asked McDaniel for identification. McDaniel went inside and his elderly mother approached the patrol car. McDaniel remained outside, at times yelling; Officer Pearson warned him to calm down and to go inside or be arrested for disorderly conduct. McDaniel allegedly approached the officer with a flashlight, turned it on in the officer's face and said "One more word," and the officer arrested him for disorderly conduct. A physical struggle followed; Officer Pearson activated his radio emergency signal, other officers responded, and McDaniel was taken into custody. McDaniel's mother sustained injuries (she bloodied the officer's nose and was later treated at a hospital). McDaniel was convicted of obstruction of a law enforcement officer for refusing to obey Officer Pearson's lawful commands.

Legal Issues Presented

Whether the trial court erred in forcing McDaniel to waive his demand for trial (i.e., whether the trial court improperly caused or accepted waiver of McDaniel's demand for trial after the mistrial and the scheduling events that followed).
Whether the trial court erred in granting the State's motion in limine to preclude introduction of nine categories of documents relating to Officer Pearson (internal affairs complaints, personnel evaluations, internal memoranda, training evaluations, and similar records).

Arguments of the Parties

Appellant's (McDaniel/Defense) Arguments

Defense counsel stated he was not ready for the second trial because he had received only last-minute telephone notice that the case was being called for trial, despite an earlier understanding (after the mistrial) that at least 24 hours' notice would be provided.
Because of the short notice, defense counsel asserted he lacked time to collect or prepare evidence revealed during the first trial and to re-issue subpoenas for witnesses who were released after the first trial.
Defense sought to introduce internal affairs complaints and related documents concerning Officer Pearson. The defense proffered these records to impeach the officer's credibility and, as articulated in the dissent, to show a pattern of conduct (that the officer had a propensity to overreact or abuse authority), which the defense claimed was relevant to McDaniel's theory that he did not obstruct the officer but that the officer overreacted.

Appellee's (The State) Position (as reflected in the record)

The State filed a motion in limine seeking to preclude introduction of or reference to nine categories of documents concerning Officer Pearson (internal affairs investigations, personnel evaluations, internal memoranda, training evaluations, and similar records). The specific arguments of the State are reflected in the motion's relief request; the opinion does not recite detailed factual or legal argumentation from the State beyond the filing and court consideration of the motion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thomason v. State, 215 Ga. App. 189, 190 (450 S.E.2d 283)	Appellate courts do not have jurisdiction to consider issues raised for the first time on appeal.	Majority relied on this to refuse review of McDaniel's claim that the trial court forced him to waive his demand for trial because the issue was not raised below.
Pope v. State, 214 Ga. App. 458, 459 (448 S.E.2d 54)	The proper remedy for a claim that a court forced a waiver of a demand for trial is a motion for discharge and acquittal; failure to file that motion below forecloses review.	Majority cited this to support its conclusion that McDaniel's failure to move for discharge and acquittal below leaves the claim without reviewable substance on appeal.
Cargill v. State, 255 Ga. 616, 638 (340 S.E.2d 891)	When defense seeks personnel files of an investigating law enforcement officer, a showing of need must be made.	Majority invoked Cargill to state that a showing of need is required before disclosure or use of officer personnel records.
Durden v. State, 187 Ga. App. 154, 158 (369 S.E.2d 764)	The "need" for discovery of personnel records is subject to general rules of evidence, including relevancy.	Majority cited Durden to emphasize that relevance under the rules of evidence must be shown for personnel records to be admissible.
Lockwood v. State, 184 Ga. App. 262, 264 (361 S.E.2d 195)	Relevancy principles govern whether personnel records are discoverable or admissible.	Majority used Lockwood alongside Durden to support the requirement that relevance be demonstrated.
Jones v. State, 257 Ga. 753, 759 (363 S.E.2d 529)	To impeach by prior statements, a showing must be made that the documents contain contradictory statements previously made by the witness on matters relevant to testimony.	Majority cited Jones for the proposition that no attempt was made to show the documents contained prior contradictory statements by Officer Pearson.
Campbell v. Cozad, 207 Ga. App. 175, 176 (427 S.E.2d 515)	Supports the requirement that impeachment by prior statements requires showing contradictions relevant to testimony.	Cited with Jones to show that McDaniel made no such showing that would permit use of the documents for impeachment.
Vincent v. State, 264 Ga. 234 (442 S.E.2d 748)	Convictions for crimes involving moral turpitude can be used for impeachment; absence of such convictions limits that route of impeachment.	Majority noted there was no contention that Officer Pearson had convictions involving moral turpitude, so impeachment under that category was not applicable.
Heaton v. State, 214 Ga. App. 460, 461 (448 S.E.2d 49)	Evidence related solely to specific bad acts is not admissible to prove general bad character for impeachment purposes.	Majority relied on Heaton to characterize the proffered internal records as showing only specific bad acts and therefore inadmissible as impeachment of general character.
Wetta v. State, 217 Ga. App. 128, 130 (456 S.E.2d 696)	Specific bad acts are not admissible as impeachment of a witness's general character.	Majority cited Wetta to reinforce that specific incidents in the records could not be used to impeach by general character evidence.
Davis v. State, 209 Ga. App. 187, 190 (433 S.E.2d 366)	Specific bad acts are inadmissible to prove general bad character for impeachment.	Majority cited Davis as additional support for excluding evidence of specific prior acts as improper for general-character impeachment.
Houston v. State, 217 Ga. App. 279, 280 (456 S.E.2d 766)	When defense seeks personnel files, some showing of need must be made (citing Cargill); distinction exists where defense offers independently obtained investigatory materials.	Quoted in the dissent to underscore that the present case differed because defense proffered materials from an independent investigation rather than a formal personnel-file demand; dissent used Houston to distinguish Cargill's discovery context.
Taylor v. State, 172 Ga. App. 827	Example case concerning limits on discovery/admissibility where specific proof was lacking (as discussed in the dissent).	Cited in the dissent as part of a group of cases distinguishing circumstances where the defense could not point to specific proof casting doubt on officer credibility.
Jinks v. State, 155 Ga. App. 925	Example case referenced by the dissent regarding limitations when the defense cannot identify specific proof to impeach.	Included by the dissent to distinguish the case at bar from prior cases where the defense lacked particular proof undermining credibility.
Milton v. State, 245 Ga. 20, 24-26 (262 S.E.2d 789)	Specific acts may be admissible to prove habit, course of conduct, or bent of mind (habit evidence is more probative than generalized character evidence).	The dissent relied on Milton to argue that internal complaints were admissible to show a pattern or habit of overreaction by Officer Pearson relevant to the defendant's theory.
Little v. State, 164 Ga. 509, 510 (139 S.E. 37)	Supports the proposition that habit or course of conduct evidence can be admissible to prove how an actor likely behaved on a particular occasion.	Cited by the dissent to support admission of prior-incident evidence as probative of habit or bent of mind.
Stripling v. Godfrey, 143 Ga. App. 742 (240 S.E.2d 145)	Illustrates admissibility of habit or course-of-conduct evidence in appropriate circumstances.	Dissent cited Stripling to support the view that prior acts can be admitted to prove habit or course of conduct rather than mere character impeachment.
Sams v. Gay, 161 Ga. App. 31, 32-33 (288 S.E.2d 822)	Further support for admissibility of habit or course-of-conduct evidence.	Used by the dissent to reinforce that specific prior acts may be admissible for showing propensity as habit or bent of mind.
Gibson v. State, 176 Ga. 384 (168 S.E. 47)	Referenced in the dissent in support of the principle that evidence shedding light on the principal transaction should not be excluded.	Dissent cited Gibson to buttress the argument for admitting prior-incident evidence relevant to the contested conduct on the night of the arrest.
Baker v. State, 142 Ga. 619, 623 (83 S.E. 531)	Expresses a principle favoring the admission of facts that may shed light on the transaction at issue and a reluctance to adopt exclusionary rules that shut relevant facts from the jury.	Dissent invoked Baker (via quotation in Milton) to argue against exclusionary tendencies and in favor of admitting evidence that may reflect upon the disputed events.

Court's Reasoning and Analysis

The opinion addresses the two main contentions in turn.

1. Forced waiver of demand for trial: The majority held that it could not consider McDaniel's claim that the trial court forced him to waive his demand for trial because the appellate court does not have jurisdiction to hear issues raised for the first time on appeal. The opinion identifies the appropriate remedy for such a claim as a motion for discharge and acquittal and observes that McDaniel did not file such a motion in the trial court. Citing precedent, the majority concluded that the enumeration of error on this ground therefore presents nothing for appellate review.

2. Motion in limine excluding officer's internal records: The trial court had considered and granted the State's motion in limine precluding introduction or reference to nine categories of documents concerning Officer Pearson (internal affairs investigations, personnel evaluations, department memoranda, training evaluations, and similar materials). The trial court explained it did not see how the officer's internal records or performance assessments were relevant "at this point in time" and reserved ruling if particular issues arose during trial; however, the court stated the internal records assessing the officer would not be admissible absent a showing that the officer's credibility was directly implicated by other evidence.

The majority analyzed admissibility under established principles:

When seeking personnel or internal records, the defense must show a need for disclosure and that the materials are relevant under the rules of evidence (citing Cargill, Durden, Lockwood).
To impeach a witness by contradicting "the facts testified to by him," the defense must attempt to disprove those facts or show prior contradictory statements in the documents (citing OCGA § 24-9-82 and OCGA § 24-9-83 and cases such as Jones and Campbell). The majority found McDaniel made no attempt to impeach Pearson on that basis and made no showing that the disallowed documents contained prior contradictory statements relevant to Pearson's testimony.
There was no contention that Pearson had convictions involving moral turpitude, eliminating that category of impeachment (citing Vincent).
The only remaining impeachment category would be evidence of the officer's general bad character (OCGA § 24-9-84). The court concluded the proffered internal records at best documented specific prior acts, not evidence of general bad character. The majority relied on Heaton, Wetta, and Davis to explain that specific bad acts are not admissible to prove general bad character for impeachment purposes.

Based on the foregoing, the majority concluded the proffered evidence was not admissible and that McDaniel was not thereby deprived of a full and sifting cross-examination. The majority found no error in the trial court's ruling excluding the documents.

Separate dissent: Presiding Judge McMurray (joined by Judge Ruffin) dissented, arguing the trial court erred in granting the motion in limine. The dissent contended the defense offered multiple internal affairs complaints to show a pattern of conduct by Officer Pearson (habit or course of conduct), and that at least some proffered incidents (for example, an alleged 1991 hospital incident) were relevant to rebut the State's case and to support the defense theory that the officer overreacted. The dissent cited cases (Milton, Little, Stripling, Sams, Gibson, Baker) to support admission of prior incidents as evidence of habit, course of conduct, or bent of mind and emphasized that the defense had independently gathered investigatory materials rather than making a direct personnel-file demand.

Holding and Implications

Holding:

Judgment affirmed.

Implications:

The appellate court affirmed the conviction for obstruction of an officer, concluding there was no reversible error in (a) the trial court's acceptance of waiver of the demand for trial issue as raised (given the lack of a motion for discharge and acquittal below), and (b) the trial court's grant of the State's motion in limine excluding internal personnel and internal affairs documents without a showing of relevancy or other admissible impeachment grounds.
The decision reiterates procedural requirements: (i) claims that a defendant was forced to waive a demand for trial must be raised below and appropriately pursued (e.g., by motion for discharge and acquittal) to be preserved for appeal; (ii) when seeking admission of officer personnel/internal records, defense must show need and relevancy consistent with the rules of evidence and the specific categories of permissible impeachment.
The majority did not announce a new rule of law; it applied existing evidentiary and procedural precedents to resolve the appeal. The dissent articulated a contrary view as to the admissibility of prior-incident evidence to show habit or pattern, but the majority's ruling stands for the disposition of this case.

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McDANIEL v. THE STATE

ANDREWS, Judge.

David Allen McDaniel, convicted of obstruction of an officer, appeals, contending the trial court erred by forcing him to waive his demand for trial and granting the State's Motion in Limine. We affirm.

McDaniel was charged, via accusation, with obstruction of a law enforcement officer in that he refused "to obey the lawful commands of Officer W.C. Pearson." He filed a demand for trial pursuant to OCGA § 17-7-170(a), and the case was called for trial on January 30, 1995, during the next succeeding regular term of court. On January 31, 1995, a mistrial was declared because the jury could not reach a verdict. The next day, the case was again called for trial, but defense counsel announced that he was not ready because he just learned at 8:30 that morning, via a message on his telephone answering machine, that the case was being called for trial. Defense counsel explained that he was surprised by this last-minute notice because he was advised (apparently by the trial court) after the mistrial that he would have at least 24-hours notice before the case would be called for trial; that he did not have time to collect or prepare evidence that was uncovered during the first trial, and that he would not have time to issue subpoenas for certain witnesses who were released after the first trial. The trial court responded by offering defense counsel a continuance until the next day, which defense counsel declined, explaining that he would need more time to prepare. The trial court gave defense counsel an option. He could either go forward with trial or ask for a continuance. Defense counsel opted for a continuance, after which he affirmed (in open court) that McDaniel waived his demand for trial.

On March 13, 1995, the second jury trial began. Viewed in favor of the verdict, the evidence revealed that McDaniel contacted police authorities about 1:00 a.m. on November 3, 1994, complaining about violations of a recently enacted noise abatement ordinance aimed at on-going noise from a food-storage facility near the McDaniels' home. Gwinnett Officer William C. Pearson responded to the call and found McDaniel standing in the driveway outside his home. Officer Pearson lowered the patrol car's window and McDaniel gave him a copy of the ordinance, complaining that the nearby food-storage facility was not in compliance. Officer Pearson was familiar with the ordinance and residents' complaints about late night noise at the food storage facility.

He advised McDaniel that he could not issue a citation because there was no one at the food-storage facility to accept service. Officer Pearson explained that he would report the matter to other law enforcement authorities in an effort to resolve the problem during normal business hours. Stymied and irate, McDaniel asked Officer Pearson to call the food-storage facilities' emergency number. He wanted the nuisance abated and the proprietor charged for violating the ordinance. Officer Pearson refused, explaining that violation of the noise-ordinance was not an emergency. McDaniel then indignantly asked for Officer Pearson's name and badge number, in response to which the officer ordered McDaniel to produce some identification. McDaniel advised Officer Pearson that "he didn't have any [and that] he'd have to go get his mother." Officer Pearson responded, "`Sure, fine.'" McDaniel went into the house and, moments later, an elderly woman emerged and approached the patrol car where Officer Pearson was still seated. McDaniel remained on "the stoop towards the house." The following testimony memorializes the events which ensued:

"[STATE'S ATTORNEY]. Q. Okay. And [did McDaniel] remain [at the stoop] when she came to your car? [OFFICER PEARSON]. A. For a little while. . . . Q. Okay. And what did she say when she came out to your car? A. She came out and . . . walked up to my window and my window was all the way down. She walked up to my car. I said, `How are you doing? I'm Officer Pearson. Can I help you?' She said, `Well, what's the problem with the noise thing?' I said, `Ms. McDaniel, . . . there's no way I can enforce this ordinance at this time of day. There's no one there.' And she again asked me, as [did] her son, about the emergency number. I explained to her the same thing I explained to him, that's not what that number is designed for. Our dispatchers will not call that number unless there is a valid emergency, an alarm or a break-in or a fire. That's their requirements. We cannot make them contact. We do not keep phones in the cars. Q. Okay. Was [McDaniel] listening to this? A. He heard part of it because he had started walking towards the car by that time. Q. And what did he say when he walked back to the car? A. He told his mother to make sure I go over there and do something and to make sure she got my name and badge number. Q. Okay. What did you say? A. I just continued to talk to his mother. I was continuing trying — I could — I can understand her problem. I sympathize with her. I did not hear [the noise that was allegedly emanating from] the trucks [at the food-storage facility] from my personal experience, but I can understand. If it was a violation, that I would do whatever I could. But if there was no one there, I couldn't do anything. Q. Could you hear the trucks from where you were in front of their house? A. Not from my observation. . . . Q. Did . . . you hear Mrs. McDaniel say anything to [McDaniel]? A. She turned around and told him that she was handling it, to go back in the house. Q. Okay. Did he? A. He did the first time, yes. Q. And did he come back? A. Yes, ma'am. Q. What did he do when he came back? A. He came back out and he still was yelling at his mom, `I want his name and badge number. Make sure he doesn't leave before he does something about those trucks.' And she turned around to him again and told him, `David, go in the house before you get in trouble.' Q. Then what happened? A. He just kept standing outside and just kept going on and I was talking to her and I said, `Mrs. McDaniel, excuse me,' and I stepped out of my [patrol] car. Q. Did you knock her over? A. I did not knock her over. She's an elderly lady, I could see that. There is no way in the world I'm going to jump out of that car and knock anyone over. Because there was no need for me to get out of the car in that area. If I wanted to be out of the car, I'd got out of the car when I arrived on the scene. I never got out of the car on purpose. Q. Okay. So why did you get out of the car then? A. To talk to [McDaniel], to explain to him that he needs to calm down, go in the house, and let his mother handle the situation. Q. Why did you prefer the mother to handle the situation [rather than] him? A. Because, obviously, she was civil about the situation. Q. Okay. Did you notice anything going on around and about the neighbors' houses as [McDaniel] continued to stand out front and yell towards you? A. I saw one house directly across the street from the McDaniel's residence, . . . the lights come on toward the front of the house. . . . Q. Well, did that . . . lead you to believe anything when you saw the neighbor['s] lights go on? A. Yes, ma'am. I just felt the neighbors were maybe being disturbed, that they were taking notice of the incident. Q. And what did you . . . do when you got out of the car? A. I went over to [McDaniel] and I told him, I said, `Sir, I've asked you several times to go in the house and let your mother deal with this situation. If you say another word, I'll arrest you for disorderly conduct.' Q. And what did he do then? A. He came over toward me with a flashlight, turned it on in his face and said, `One more word,' as if to mock me. Q. And what did you do then? A. I arrested him for disorderly conduct. . . . Q. . . . Okay. . . . And what did he do in response to your physically placing him under arrest? A. He said he wasn't going anywhere [and] a struggle ensued. We struggled for at least two to three minutes, me trying to get him under control. Q. Now [defense counsel] said . . . in his opening statement that you seized [McDaniel] or you grabbed him first. Is that right? A. Yes, ma'am. Q. Okay. Why did you seize or grab him? A. Well, I grab everybody I arrest."

Then, McDaniel's mother went to assist her son after her pleas for the men to stop fighting were not heeded. Neighbors responded to the elderly woman's call for help. In the meantime, Officer Pearson managed to activate the emergency signal on his portable radio. Other officers appeared and calmed the disruption. By then, McDaniel was then in police custody, his mother had bloodied Officer Pearson's nose, and the elderly woman was on the ground, complaining of injuries. She was later taken (via ambulance) to a hospital where she was treated and released.

McDaniel was found guilty of obstruction of a law enforcement officer in that he refused "to obey the lawful commands of Officer W.C. Pearson."

1. McDaniel claims the trial court erred in forcing him to waive his demand for trial.

This court is a court for the correction of legal errors and has no jurisdiction to address issues that are raised for the first time on appeal. Thomason v. State, 215 Ga. App. 189, 190(4) ( 450 S.E.2d 283). A motion for discharge and acquittal is the remedy for the claim that the court forced McDaniel to waive his demand for trial. McDaniel, however, did not file a motion for discharge and acquittal below. Accordingly, this enumeration presents nothing for our review. See Pope v. State, 214 Ga. App. 458, 459(1) ( 448 S.E.2d 54).

2. Prior to trial, the court considered and granted the motion in limine of the State to preclude introduction of, or reference to, nine different categories of documents, all of which involved internal affairs investigations of Officer Pearson, his personnel evaluations, internal department memorandums, training evaluations and other similar matters.

In granting the motion, the court held that "[a]t this point in time I don't see how the officer's internal records and assessment or the performance would be relevant to the trial of this case. . . . I don't know what will come up in the trial or what you propose to show by some of these witnesses later. I'll just have to reserve my ruling at the time the thing comes up. But at this point in time I don't believe the internal records assessing the officer would be admissible in court. . . . [I]f his credibility comes into play, if you have some evidence regarding his credibility, I'm not denying that. But I say that the internal records that you have they would not be admissible." (Emphasis supplied.)

As acknowledged by the dissent, "[w]hen the defense seeks to discover the personnel files of an investigating law enforcement officer, some showing of need must be made." Cargill v. State, 255 Ga. 616, 638(23a) ( 340 S.E.2d 891) (1986). The "need" which must be shown is also subject to the general rules of evidence, including a showing of relevancy. Durden v. State, 187 Ga. App. 154, 158(3) ( 369 S.E.2d 764) (1988); Lockwood v. State, 184 Ga. App. 262, 264(2) ( 361 S.E.2d 195) (1987).

In order to impeach a witness and thereby attack his credibility, one may disprove "the facts testified to by him." OCGA § 24-9-82. No attempt was made by McDaniel to so impeach Pearson. Neither was any showing made that any of the documents disallowed contained any contradictory statements "previously made by [Pearson] as to matters relevant to his testimony and to the case." OCGA § 24-9-83; Jones v. State, 257 Ga. 753, 759(1a) ( 363 S.E.2d 529) (1988); Campbell v. Cozad, 207 Ga. App. 175, 176(2) 178 ( 427 S.E.2d 515) (1993).

There is no contention that Officer Pearson had ever been convicted of a crime involving moral turpitude, Vincent v. State, 264 Ga. 234 ( 442 S.E.2d 748) (1994), leaving for consideration impeachment by "evidence as to his general bad character." OCGA § 24-9-84.

The latter category is the only one arguably applicable to the documentary evidence subject to the court's ruling. Even so considering it, however, the proffered information was, at best, "related solely to specific bad acts and not to the general bad character of the [witness]." Heaton v. State, 214 Ga. App. 460, 461(2) ( 448 S.E.2d 49) (1994). Such specific bad acts are not admissible as impeachment. Wetta v. State, 217 Ga. App. 128, 130(3) ( 456 S.E.2d 696) (1995); Heaton, supra; Davis v. State, 209 Ga. App. 187, 190(5) ( 433 S.E.2d 366) (1993).

Therefore, the proffered evidence was not admissible and McDaniel was not deprived, on this basis, of a full and sifting cross-examination. There was no error.

Judgment affirmed. Beasley, C.J., Birdsong, P.J., Pope, P.J., Johnson, Blackburn, and Smith, JJ., concur. McMurray, P.J., and Ruffin, J., dissent.

ANDREWS, Judge.

DECIDED MARCH 15, 1996 — RECONSIDERATION DENIED MARCH 29, 1996

McMURRAY, Presiding Judge, dissenting.

I, respectfully, dissent as I believe the trial court erred in granting the State's motion in limine, thereby preventing defendant from introducing evidence that Officer Pearson abused his authority during other incidents while performing his law enforcement duties.

The trial court refused to allow at least a dozen internal affairs' complaints against Officer Pearson indicating prior incidents where the officer was unable to exercise restraint while performing his duties. One of these reports reflects an incident at Shallowford Hospital in 1991 where Officer Pearson threatened to arrest an emergency room physician for obstruction of an officer because the doctor "didn't act as the officer thought he should. . . ." Defense counsel offered this proof not just for impeachment purposes (as inferred by the majority), but also to show "a pattern of conduct by the officer." It is my view, that the proffered evidence was relevant to defendant's sole defense, i.e., that defendant did not obstruct Officer Pearson, but that the officer overacted by exiting the patrol car, confronting defendant and threatening defendant with arrest if he uttered "another word."

"The Georgia Supreme Court held in Cargill v. State, 255 Ga. 616, 638(23a) ( 340 S.E.2d 891) (1986), that when the defense seeks to discover the personnel file of a law enforcement officer, some showing of need must be made." Houston v. State, 217 Ga. App. 279, 280(2), 281 ( 456 S.E.2d 766). In the case sub judice, defendant did not seek examination or disclosure of Officer Pearson's personnel file, he sought to introduce evidence collected during an independent investigation by defense counsel. These circumstances distinguish the case sub judice from cases where the defense was unable to point to specific proof casting doubt upon the officer's credibility. See Durden v. State, 187 Ga. App. 154, 158(3) ( 369 S.E.2d 764); Lockwood v. State, 184 Ga. App. 262 ( 361 S.E.2d 195) (reversed on other grounds, 257 Ga. 796 ( 364 S.E.2d 574)); Taylor v. State, 172 Ga. App. 827(1) ( 324 S.E.2d 788); and Jinks v. State, 155 Ga. App. 925(2) ( 274 S.E.2d 46).

While specific acts are generally not admissible to prove reputation or character, such evidence is admissible to prove habit, course of conduct or bent of mind. Milton v. State, 245 Ga. 20, 24-26 ( 262 S.E.2d 789); Little v. State, 164 Ga. 509, 510(1) ( 139 S.E. 37). See Stripling v. Godfrey, 143 Ga. App. 742(2) ( 240 S.E.2d 145); Sams v. Gay, 161 Ga. App. 31, 32(1), 33 ( 288 S.E.2d 822). The rationale is that "[h]abit in the usual sense is more probative of the doing of a particular act out of habit than is character, because habit is more specific." (Footnote omitted) Thomas F. Green, Jr.'s Georgia Law of Evidence, (4th edition), p. 136, § 67. In the case sub judice, I believe the evidence underlying prior complaints against Officer Pearson, particularly the incident at Shallowford hospital, was relevant because it tended to support defendant's claim that Officer Pearson was prone to overreact to volatile situations and abuse his police authority. See Milton v. State, 245 Ga. 20, 25, supra; Gibson v. State, 176 Ga. 384(3) 168 S.E. 47). I believe that holding otherwise is contrary to the well-worn principle that "`[t]his court stands pledged, by its past history, for the abolition, to the extent of its power, of all exclusionary rules which shut out facts from the jury which may serve, directly or remotely, to reflect light upon the transaction upon which they are called upon to pass.' Baker v. State, [ 142 Ga. 619, 623 ( 83 S.E. 531)]." Milton v. State, 245 Ga. 20, 25, supra.

I am authorized to state that Judge Ruffin joins in this dissent.

McDANIEL v. STATE