¶1concurring specially.
¶2The majority holds that
evidence as to the race, color, or nationality of a person whose act is in question is not admissible, where such evidence is introduced for [the] purpose [of appealing to prejudice] and is not relevant to any issue in the action. [Cits.]
¶3Id. at 200. I totally agree with this principle. Indeed, even evidence which does not appeal to prejudice is nevertheless inadmissible if it is not relevant to any issue in the action. OCGA § 24-2-1.
¶4Where I disagree with the majority is in its equation of one’s immigration status with one’s race, color, or nationality. Any prejudice directed against an individual solely because of his race, color, or nationality is based upon inherent factors which are totally beyond his control. An individual’s immigration status, on the other hand, is a factor which is totally within his control and is not a recognized source of inherent prejudice. One who voluntarily enters this country legally has committed no criminal act regardless of his race, color, or nationality and his legal presence in this country is not an inherently prejudicial factor. On the other hand, one who voluntarily enters this country illegally has committed a criminal act regardless of his race, color, or nationality and his illegal presence in this country is, for that reason, a prejudicial factor. Thus, the only prejudice which may attach to an individual because of his immigration status is that which is solely the consequence of his own conduct, not the result of his inherent race, color, or nationality.
¶5Since illegal immigration status relates to the defendant’s own personal character, the admission of evidence regarding that status is controlled by OCGA § 24-2-2, not by cases which discuss inherent prejudice based upon race, color, or nationality. That statute provides:
The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.
¶6As does the majority, I find no relevancy between appellant’s illegal immigration status and the murder for which he was being tried and agree that this character evidence was erroneously admitted. However, I likewise agree with the majority that, under the circumstances, the erroneous admission of this character evidence was harmless.