THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 30, 2015
In the Court of Appeals of Georgia
A15A0456, A15A0457. THE STATE v. BROWN, et al. JE-017
JE-018
ELLINGTON, Presiding Judge.
The Superior Court of Fulton County entered directed verdicts of acquittal in
favor of Javaris Brown, Meyetta King, and Kevin Rouse on charges of trafficking in
cocaine, OCGA § 16-13-31 (a) (1) (A); possession of marijuana with intent to
distribute, OCGA § 16-13-30 (j) (1); and other violations of the Georgia Controlled
Substances Act. In Case No. A15A0457, the State appeals, contending, inter alia, that
the judgments must be vacated as having been entered when jurisdiction lay in this
Court and not in the trial court. In addition, in Case No. A15A0456, the State appeals
from two interlocutory rulings, contending that the trial court abused its discretion in
granting the defendants’ motions to exclude certain evidence as a sanction for
discovery violations and in granting the defendants’ motions to exclude evidence of
other crimes. For the reasons explained below, we vacate the judgments of acquittal,
reverse the exclusion of evidence as a sanction for discovery violations, vacate the
exclusion of evidence of other crimes, and remand.
Case No. A15A0457
1. The trial court directed verdicts of acquittal on all counts. As a threshold
matter, therefore, we must determine whether the State has any right to appeal.
Ordinarily, the State
may not appeal a trial court’s grant to a criminal defendant of a directed
verdict of acquittal based on an insufficiency of the evidence to support
a conviction, in that a new trial would be barred by the double jeopardy
clause of the Fifth Amendment. The government cannot appeal such a
directed verdict of acquittal, even if it is erroneously granted.
(Citations omitted.) State v. Williams, 246 Ga. 788-789 (1) (272 SE2d 725) (1980).1
In this regard, the State contends that, when the trial court called the case for trial, it
1
See Tolbert v. Toole, _ Ga. _ (767 SE2d 24) (2014); State v. Vansant, 208 Ga.
App. 772, 776 (2) (431 SE2d 708) (1993), reversed in part on other grounds, Vansant
v. State, 264 Ga. 319 (443 SE2d 474) (1994); State v. Fly, 193 Ga. App. 190, 191 (2)
(387 SE2d 347) (1989); State v. Warren, 133 Ga. App. 793, 795-796 (213 SE2d 53)
(1975). See also State v. Caffee, 291 Ga. 31, 33 (2) (728 SE2d 171) (2012) (“The
State does not have the right to appeal decisions in criminal cases unless there is a
specific statutory provision granting the right.”) (citation omitted).
2
lacked the authority to do so. Specifically, the State contends that it was authorized
pursuant to OCGA § 5-7-1 (a) (5) to appeal from certain evidentiary rulings entered
by the trial court a few days before the scheduled trial, that it filed a notice of appeal
that was sufficient to divest the trial court of jurisdiction of the case and invest this
Court with jurisdiction (Case No. A15A0456), and that the trial court will be
reinvested with jurisdiction only after this Court disposes of the pending appeal, when
we issue a remittitur and the same is filed in the trial court. Because the trial court
lacked jurisdiction when it called the instant case for trial, the State contends, the
judgments of acquittal must be vacated.
The record shows the following proceedings. The defendants were arrested and
indicted in April 2014. On July 3, 2014, the State filed pursuant to OCGA § 24-4-404
(b) notice of intent to introduce evidence of other acts of Brown and Rouse.2 On
August 4, 2014, Brown filed a motion to suppress evidence seized pursuant to a
search warrant executed on April 23, 2014. On August 18, 2014, Rouse filed a motion
to suppress evidence seized on April 23, 2014, when he was detained outside the
searched premises.3
2
See Division 3, infra.
3
See Division 2, infra.
3
The trial court conducted a hearing on the evidentiary issues on August 7,
September 9, and September 10, 2014. On September 11, 2014, the trial judge signed
an order excluding certain evidence as a sanction for discovery violations and
excluding the other-acts evidence, and the clerk of court stamped the order “filed” on
September 12, 2014. The court placed the case on a trial calendar for September 17,
2014.
On September 12, 2014, the State filed a notice of appeal in the trial court
pursuant to OCGA § 5-7-1 (a) (5). That Code section provides that in criminal cases
the State may appeal “[f]rom an order, decision, or judgment excluding any . . .
evidence to be used by the state at trial on any motion filed by the state or defendant
at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the
defendant being put in jeopardy, whichever occurs first[.]” To take such an appeal,
the State must file “the notice of appeal . . . within two days of such order, decision,
or judgment[,]” and the prosecuting attorney must “certif[y] to the trial court that such
appeal is not taken for purpose of delay and that the evidence is a substantial proof
of a material fact in the proceeding[.]” Id. On September 12, 2014, the State also filed
a separate “Certificate of Purpose” in which the prosecuting attorney stated, “I hereby
certify that the State’s appeal of this Court’s order excluding evidence as a sanction
4
for discovery violations and excluding OCGA § 24-4-404 (b) evidence is not taken
for purpose of delay, and the evidence is a substantial proof of a material fact in the
proceedings.”
The trial court called the case for trial on September 17, 2014. The State
notified the court that it had filed a notice of appeal from the September 12, 2014
rulings and argued that its notice of appeal had divested the trial court of jurisdiction
to try the case. The defendants disputed this, arguing that the State failed to comply
with the procedural requirements of OCGA § 5-7-1 (a) (5) (B). Specifically, they
argued that the Statute requires the State to serve the trial judge directly with the
required certification, that is, the State’s filing of its Certificate of Purpose in the
office of the clerk of the trial court was insufficient to certify to the trial court that
such appeal was not taken for purpose of delay and that the excluded evidence was
substantial proof of a material fact. They also argued that the State’s appeal was in
fact for purpose of delay. They argued that, given the abuse of discretion standard of
review that would be applied by this Court, the State could not prevail on appeal. The
prosecuting attorney reiterated that the appeal was not taken for purpose of delay and
stated that it was necessary to appeal the court’s evidentiary rulings because, without
the excluded evidence, the State could not carry its burden of proof at trial. The trial
5
court found that, although “[t]he State filed a document purporting to be . . . [the]
certification” required by OCGA § 5-7-1 (a) (5), the State did not provide it “to the
trial court” as required. The trial court also found that the State’s purpose in appealing
was delay. The trial court ruled that the State’s appeal was invalid and that the court
would proceed with the trial.
The defendants all announced ready for trial. The State declined to participate,
on the basis that the pending appeal divested the trial court of jurisdiction. The trial
court then impaneled a jury. The State having failed to adduce any evidence, the
defendants each moved for a directed verdict, and the trial court entered a directed
verdict of acquittal as to each defendant.
If, contrary to the trial court’s ruling, the State’s September 12, 2014 notice of
appeal was effective under OCGA § 5-7-1 (a) (5), then that notice of appeal deprived
the trial court of jurisdiction to try the defendants until the State’s appeal was
resolved and the trial court received the remittitur from this Court. Chambers v. State,
262 Ga. 200, 201-202 (1), (2), (3) (415 SE2d 643) (1992) (holding that the State’s
appeal of an order suppressing evidence deprived the trial court of jurisdiction to try
the accused and any proceeding so conducted in the trial court was coram non judice
and vacating the resulting judgment and that the return of the remittitur reinvests the
6
trial court with jurisdiction).4 Although a notice of appeal must be filed in the trial
court, the appellate court “alone has the authority to determine whether such filing is
sufficient to invoke its jurisdiction.” (Citation and punctuation omitted.) Hughes v.
Sikes, 273 Ga. 804, 805 (1) (546 SE2d 518) (2001). Thus, we owe no deference to the
trial court’s analysis of whether the State’s notice of appeal from the court’s
evidentiary rulings was effective.
In this case, it is undisputed that the State filed its notice of appeal from the
trial court’s evidentiary ruling within two days after the ruling was entered, that is,
the date a written judgment was received and stamped “filed” by the clerk of the trial
court. See OCGA § 5-6-31 (“The filing with the clerk of a judgment, signed by the
judge, constitutes the entry of a judgment within the meaning of [the Appellate
Practice Act].”); In the Interest of K. D., 272 Ga. App. 803, 805 (613 SE2d 239)
(2005); Brown v. Webb, 224 Ga. App. 856, 857 (482 SE2d 382) (1997).5 Further, it
is undisputed that the State filed with the clerk of the trial court a certification
4
See also Styles v. State, 245 Ga. App. 90, 92 (537 SE2d 377) (2000)
(Blackburn, P.J., specially concurring) (explaining that the supersedeas resulting from
an appeal in a criminal case applies to all “proceedings which either require a ruling
on the matters on appeal or directly or indirectly affect such matters”).
5
See also Christopher J. McFadden et al., Ga. Appellate Practice, § 10.3
(updated November 2014).
7
executed by the prosecuting attorney, who is an officer of the court, that the appeal
was not taken for purpose of delay and that the evidence excluded in the appealed
rulings was material. We conclude that this was sufficient to invoke the jurisdiction
of this Court.6 We find no basis for concluding that the prosecuting attorney’s
certification of purpose and necessity “to the trial court” can only be satisfied by
personally serving the judge presiding over a case.7 When the General Assembly has
intended that certain communications be made personally to a judge – as compared
to matters that are to be submitted to a trial court as a governmental entity and made
part of the official court records by filing in the office of the clerk of court – it has so
provided.8 Moreover, it is undisputed that, before the trial judge moved forward with
6
See OCGA § 5-7-2 (b) (1) (A certificate of immediate review shall not be
required to appeal from an order suppressing or excluding evidence under OCGA §
5-7-1 (a) (5).).
7
See OCGA § 5-7-6 (“This chapter[, that is, OCGA §§ 5-7-1 through 5-7-6,]
shall be liberally construed to effectuate the purposes stated in this chapter.”).
8
See OCGA §§ 17-7-170 (“[A] demand for speedy trial shall be filed with the
clerk of court and served upon the prosecutor and upon the judge to whom the case
is assigned or, if the case is not assigned, upon the chief judge of the court in which
the case is pending.”); 44-14-161 (a) (“When any real estate is sold on [nonjudicial]
foreclosure. . . , no action may be taken to obtain a deficiency judgment unless the
person instituting the foreclosure proceedings shall, within 30 days after the sale,
report the sale to the judge of the superior court of the county in which the land is
located for confirmation and approval and shall obtain an order of confirmation and
8
impaneling a jury in this case, the prosecuting attorney personally informed the judge
of the pending appeal, on the record and in open court. There is no issue of any lack
of actual notice. Finally, even if this Court were inclined to question the prosecuting
attorney’s representation that the State did not file its appeal from the trial court’s
evidentiary rulings for purpose of delay, we find no support in the record for finding
that delay was the State’s purpose, especially in light of the fact that the trial court’s
pretrial rulings excluded virtually all of the inculpatory evidence that the State
planned to offer9 and effectively doomed the entire prosecution.
For the foregoing reasons, we conclude that the State’s pretrial notice of appeal
was effective and deprived the trial court of jurisdiction to try the defendants pending
resolution of the appeal. State v. Vansant, 208 Ga. App. at 776 (2), affirmed in
relevant part, Vansant v. State, 264 Ga. at 319 (3). Because the trial court lacked
jurisdiction to proceed with a trial of the defendants, such proceedings were without
approval thereon.”). See also Uniform Superior Court Rules 16.1 (A notice of an
attorney’s leave of absence shall be submitted to the clerk of the court and, in
addition, “[a] copy of the notice shall be sent, contemporaneously, to the judge before
whom an action is pending and all opposing counsel.”); 17.1 (B) (A written notice of
an attorney’s conflict shall be given “to opposing counsel, to the clerk of each court
and to the judge before whom each action is set for hearing (or, to an appropriate
judge if there has been no designation of a presiding judge).”).
9
See Divisions 2 and 3, infra.
9
legal effect and the directed verdicts of acquittal are void. Chambers v. State, 262 Ga.
at 201-202 (2). The final order of acquittal of all defendants is hereby vacated, and
we turn to the underlying appeal.
Case No. A15A0456
2. The State contends that the trial court abused its discretion in granting the
defendants’ motion to exclude certain evidence, which was seized when investigators
executed a search warrant, based on the court’s finding that the State violated its
reciprocal discovery obligations.
When a criminal defendant elects to engage in reciprocal discovery under
Georgia’s Criminal Procedure Discovery Act, the State and the defendant are required
to produce certain types of evidence and information. See OCGA § 17-16-1 et seq.
If it comes to the attention of the trial court that either the State or the defendant has
failed to comply with the requirements of the Act, the court has wide latitude in
fashioning a remedy for such violation. OCGA § 17-6-6; Wilkins v. State, 291 Ga.
483, 486-487 (5) (731 SE2d 346) (2012); Leger v. State, 291 Ga. 584, 588 (2) (b)
(732 SE2d 53) (2012); Jones v. State, 290 Ga. 576, 577-578 (2) (722 SE2d 853)
(2012). As we have noted, this broad discretion allows such remedy as is warranted
“to ensure a fair trial.” (Citation omitted.) Blankenship v. State, 229 Ga. App. 793,
10
794 (494 SE2d 758) (1997). See Burton v. State, - Ga. App. - (Case No. A14A1864,
decided December 18, 2014) (accord). For example, when the State violates the Act
by failing to timely identify a witness, “[i]t is usually a sufficient remedy for the
defense to be afforded an opportunity to interview the witness.” (Citation and
punctuation omitted.) Leger v. State, 291 Ga. at 588 (2) (b). Although the Act
authorizes a trial court to prohibit the State from introducing evidence that it failed
to disclose as required, “[e]xclusion of evidence is a particularly harsh sanction and
should be imposed only where there is a showing of prejudice to the defendant and
bad faith by the State.” (Citation and punctuation omitted.) Id. at 586 (2). “[T]he
remedy a trial court fashions to cure a discovery violation is reviewed on appeal only
for abuse of discretion.” (Citation omitted.) Jones v. State, 290 Ga. at 578 (2).
The record shows the following. In early 2014, the Atlanta Police Department
received information that illegal drugs were being sold out of 1808 Brewer
Boulevard, a single-family house. An investigator arranged for a confidential source
to buy cocaine and marijuana there, on April 7 and April 16. After the second
controlled buy, the investigator obtained a search warrant for the premises. A team
executed the search warrant on April 23, 2014. When the team arrived, Rouse was
beside his car in the driveway, and Brown and King were inside the house. Brown
11
jumped out of a window and was immediately captured. Officers found a total of over
50 grams of cocaine, 9.72 grams of marijuana, and three scales in the kitchen and
10.27 grams of cocaine in one of the bedrooms. Officers arrested Brown and King.
In a search incident to that arrest, officers found 11.51 grams of a Schedule 1
controlled substance10 in Brown’s sock. King told officers that Rouse had been selling
drugs from the house. Officers then searched Rouse and seized a large quantity of
cash that he had in his pocket and 16.81 grams of heroin that was concealed in his
underwear.
In their motions to suppress all evidence seized as a result of the search, the
defendants argued that the issuance of the search warrant was not supported by
probable cause, that they were merely present in the house at the execution of the
warrant, and that there was not probable cause to arrest them. Before the hearing on
the motions to suppress, the State represented to the trial court that it had provided
discovery to the defendants. At the motions hearing on August 7, 2014, the State
advised the court that investigators had recorded the execution of the search warrant,
but the State had not produced the recording to the defendants. The court suspended
10
See OCGA § 16-13-25 (3) (DDD) (ethylone).
12
the hearing to allow the State to make a supplemental discovery response and to allow
the defendants an opportunity to review the recording.
The hearing resumed on September 9, 2014. During the State’s direct
examination of the investigator who obtained the search warrant, the prosecutor asked
whether the investigator had conducted surveillance on 1808 Brewer Boulevard
before arranging for controlled purchases by her confidential source. The investigator
replied that she had gone to the house twice in the weeks before the controlled buys.
She saw some people going in and out of the house but could not determine what they
were doing there. When asked whether she included information about the
surveillance in her affidavit in support of her application for a warrant, the
investigator responded, “I think I just have it in my . . . personal notes,” but testified
that she had discussed the surveillance with the magistrate who handled the warrant
application. Defense counsel cross-examined the investigator about her surveillance
and whether she had written down information about the surveillance and turned it
over to the State. The investigator responded that she had written it down but had not
turned it over to the State. At this point, the trial court asked where the investigator
“maintain[ed] a log about the surveillance[,]” and the investigator replied, “on the
computer. We just type our own notes.” The trial court asked whether defense counsel
13
wanted “time with [those] notes” before proceeding with the hearing and, when they
said they did, suspended the hearing to allow the State to “get the notes off the
computer” and produce them to the defendants.
When the hearing reconvened the following day, the prosecuting attorney
reported that the investigator had searched her computer and her files and had
prepared a narrative summary of everything she could remember about the
surveillance. The investigator testified that she had used the wrong terminology in
referring to a “log” or “personal notes” and that the only thing that she had typed on
the computer was her investigative summary, which she created and then added to as
her investigation progressed. She had provided that document to the State, and the
prosecuting attorney had previously produced it to the defendants. According to the
investigator, the only notes that she had ever created in connection with the case that
she had not provided to the State were handwritten on scraps of paper and were
limited to a description of the house and “what [she] saw that day,” which was
information she needed to include in her warrant application and affidavit. After she
had transcribed this information verbatim into her warrant application, the
investigator had discarded those scraps of paper; they were not part of the State’s
discovery production.
14
The trial court stated to the prosecuting attorney, “the State is responsible for
everything that law enforcement has. So it is the State’s obligation to get it, determine
whether it is discoverable, determine whether it is Brady material, and produce it. .
. . When law enforcement has [information], the State has it.”11 The trial court then
instructed the investigator “for future reference,” that
when a case gets indicted . . . everything counts[.] Your scrap notes,
your personal notes, everything associated with that case . . . is subject
to discovery[.] And[,] when you don’t produce it, it puts everyone,
including the State, because they’re responsible for producing it, in a
position where folks start [wondering], [“]well, what are they hiding . .
. , what got covered up, what else don’t we know[?”] . . . It puts me in
a position where I have to decide whether there’s been intentional
misconduct[.] And if there’s been intentional misconduct, [evidence]
gets thrown out[,] because the Constitution pretty much says that’s what
happens when there’s intentional misconduct[:] it gets held against the
State. So when you testify under oath there are notes on the computer
and then[,] the next day, there are no notes on the computer, that’s a
problem.
The court found that “the failure to preserve notes pertinent to the case . . . raise[d]
an issue of spoliation.” Taking this together with the delayed production of the
11
See Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1962).
15
recording of the execution of the search, the trial court found a “pattern of failure [of
the State] to provide full discovery.” The court found that this pattern of behavior was
“grossly unfair” and “violate[d] these folks’ rights.” On this basis, the trial court
granted the motions to suppress everything seized in executing the search warrant.
The trial court expressly found, however, that the warrant was supported by probable
cause and was properly executed and ruled that the suppression was “for reasons
independent of the validity of the warrant itself.”
Although, as posited by the trial court, when law enforcement has information,
the State is deemed to have it for purposes of the reciprocal discovery Act,12 this does
not mean, as the trial court went on to conclude, that “everything associated with [a]
case . . . is subject to discovery.” The Act specifies materials that must be produced,
including statements attributable to the defendant;13 pictures, documents, and tangible
evidence “intended for use by the prosecuting attorney as evidence” at trial;14 results
12
See OCGA § 17-16-1 (a) (“‘Possession, custody, or control of the state or
prosecution’ means an item which is within the possession, custody, or control of the
prosecuting attorney or any law enforcement agency involved in the investigation of
the case being prosecuted.”).
13
OCGA § 17-16-4 (a) (1).
14
OCGA § 17-16-4 (a) (3).
16
or reports of physical or mental examinations and of scientific tests or experiments,
again, if intended for use by the prosecuting attorney at trial;15 and any statement of
any witness that the prosecuting attorney intends to call as a witness at trial and that
relates to the subject matter of the witness’s testimony.16 See White v. State, 271 Ga.
130 (518 SE2d 113) (1999). The purpose of the Act is to promote fairness and
efficiency in criminal proceedings and to prevent so-called “trial by ambush.”17 We
find no basis for concluding that the Act requires every member of law enforcement
to preserve “everything associated with [every] case,” including informal notes
created by an investigator only for the purpose of helping the investigator include
15
OCGA § 17-16-4 (a) (4).
16
OCGA § 17-16-7.
17
State v. Dickerson, 273 Ga. 408, 410 (1) (542 SE2d 487) (2001) (“The
purpose of the Act is to establish a closely symmetrical scheme of discovery in
criminal cases that maximizes the presentation of reliable evidence, minimizes the
risk that a judgment will be predicated on incomplete or misleading evidence, and
fosters fairness and efficiency in criminal proceedings.”) (citation and punctuation
omitted); White v. State, 271 Ga. at 130 (“The purpose of the act is to prevent surprise
and trial by ambush[.]”) (footnote omitted). See also Jones v. State, 276 Ga. 171, 174-
175 (575 SE2d 456) (2003) (“Contrary to the view of some, our legal system is not
simply an elaborate game of ‘Gotcha!’ This Court does not endorse acquittal by
ambush on the part of a defendant any more than it does trial by ambush on the part
of the State. Nor do we condone induced error. The object of all legal investigation
is the truth, and procedural rules are in place to further such goal in an orderly
fashion.”) (citation and punctuation omitted).
17
accurate information in a warrant application.18 The record does not show that the
investigator’s informal notes, which the State could not produce, were subject to
discovery under any of the provisions of the Act.19 We conclude, therefore, that the
trial court abused its discretion in imposing the extreme sanction of evidence
exclusion for the State’s failure to produce the investigator’s notes.
3. The State contends that the trial court erred in ruling that the State’s intended
evidence of other crimes was not relevant for a proper purpose and abused its
discretion in granting the defendants’ motion to exclude the evidence on that basis.
18
Cf. OCGA §§ 17-5-55 (retention of property that is introduced into evidence
during the pendency of a criminal case); 17-5-56 (a) (preservation of physical
evidence collected at the time of a crime that contains biological material relating to
the identity of the perpetrator of the crime).
19
To the extent the appellees suggest that the notes may have been exculpatory,
they have not articulated how the investigator’s description of the activity she
observed during her surveillance could have been exculpatory. A finding of a Brady
violation, that is, that the State failed to disclose evidence that is both favorable to the
accused and material either to guilt or to punishment, Brady v. Maryland, 373 U. S.
at 87, cannot be based on mere speculation. Williams v. State, 251 Ga. 749, 789 (7)
(312 SE2d 40) (1983); Jones v. State, 276 Ga. App. 728, 730-731 (624 SE2d 275)
(2005); Pinson v. State, 266 Ga. App. 254, 263-264 (8) (596 SE2d 734) (2004);
Nikitin v. State, 257 Ga. App. 852, 854 (1) (a) (572 SE2d 377) (2002); Merritt v.
State, 248 Ga. App. 709, 713-714 (3) (548 SE2d 427) (2001).
18
Georgia’s new Evidence Code governs this contention.20 OCGA § 24-4-404 (b)
addresses the admissibility of evidence of a person’s crimes or acts other than those
directly at issue in a particular proceeding. That section provides:
Evidence of other crimes, wrongs, or acts shall not be admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
20
See Ga. L. 2011, p. 99, §§ 2, 101 (Georgia’s new Evidence Code, OCGA §
24-1-1 et seq., applies to any motion, hearing or trial commenced on or after January
1, 2013.).
19
This section tracks Rule 404 (b) of the Federal Rules of Evidence,21 and as such it
embodies the longstanding and fundamental principle that evidence of a person’s
other acts is inadmissible for the purpose of showing that the person has a criminal
disposition or a propensity for certain conduct because of the risks inherent in such
evidence in compromising the presumption of innocence and the reasonable doubt
standard.22 Like the Eleventh Circuit Court of Appeals, Georgia’s courts apply a
21
Our new Evidence Code was based in large part on the Federal Rules of
Evidence. And where the new Georgia rules mirror their federal
counterparts, it is clear that the General Assembly intended for Georgia
courts to look to the federal rules and how federal appellate courts have
interpreted those rules for guidance. Thus, the uncodified first section
of the statute enacting the new Evidence Code explains: It is the intent
of the General Assembly in enacting this Act to adopt the Federal Rules
of Evidence, as interpreted by the Supreme Court of the United States
and the United States circuit courts of appeal as of January 1, 2013, to
the extent that such interpretation is consistent with the Constitution of
Georgia. Where conflicts were found to exist among the decisions of the
various circuit courts of appeal interpreting the federal rules of evidence,
the General Assembly considered the decisions of the 11th Circuit Court
of Appeals. It is the intent of the General Assembly to revise, modernize,
and reenact the general laws of this state relating to evidence while
adopting, in large measure, the Federal Rules of Evidence.
(Citations and punctuation omitted.) Parker v. State, 296 Ga. 586, 592 (3) (769 SE2d
329) (2015). See Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015)
(OCGA § 24-4-404 (b) tracks Rule 404 (b) of the Federal Rules of Evidence.).
22
As the United States Supreme Court explained more than half a century ago:
The State may not show defendant’s prior trouble with the law, specific
criminal acts, or ill name among his neighbors, even though such facts might
20
three-part test to determine admissibility of evidence of other crimes and acts under
Rule 404 (b): “(1) the evidence must be relevant[23] to an issue other than defendant’s
character; (2) the probative value must not be substantially outweighed by its undue
prejudice; (3) the government must offer sufficient proof so that the jury could find
logically be persuasive that he is by propensity a probable perpetrator of the
crime. The inquiry is not rejected because character is irrelevant; on the
contrary, it is said to weigh too much with the jury and to so overpersuade
them as to prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge. The overriding policy of
excluding such evidence, despite its admitted probative value, is the practical
experience that its disallowance tends to prevent confusion of issues, unfair
surprise and undue prejudice.
(Footnotes omitted.) Michelson v. United States, 335 U. S. 469, 475-476 (69 SCt 213,
93 LEd 168) (1948). See also Amey v. State, 331 Ga. App. 244, 248-249 (1) (770
SE2d 321) (2015) (accord).
23
See OCGA § 24-4-401 (“As used in [OCGA §§ 24-4-401 through 24-4-417],
the term ‘relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”); State v. Jones, -
Ga. -, n. 2 (Case No. S14G1061, decided June 1, 2015) (“[T]he relevance standard
codified in [OCGA § 24-4-401] is a liberal one.”) (citations omitted); Ashley v. State,
331 Ga. App. 794, 799 (2) (771 SE2d 462) (2015) (“[E]vidence is relevant if it
logically tends to prove or disprove any material fact at issue in the case.”) (citations
omitted).
21
that defendant committed the act.” (Citation, punctuation, and footnote omitted.)
Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).24
Even when a trial court determines that all three prongs of the test for
admissibility under OCGA § 24-4-404 (b) are satisfied, the trial court may still
exclude the evidence pursuant to OCGA § 24-4-403. That Code section, which also
tracks its federal counterpart,25 provides: “[r]elevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” See State v. Jones, -
Ga. -, - (3) (Case No. S14G1061, decided June 1, 2015) (Evidence of other acts is not
24
See Curry v. State, 330 Ga. App. 610 (1) (768 SE2d 791) (2015) (accord);
see also United States v. Lamons, 532 F3d 1251, 1265-1266 (II) (B) (11th Cir. 2008).
We note that a somewhat different three-part test applied under prior law, but that test
also required the State to show that the evidence was relevant to an issue other than
the defendant’s character. See Peoples v. State, 295 Ga. 44, 54 (4) (b) (757 SE2d 646)
(2014) (Under prior law, the State bore the burden of showing that “the independent
offense or act [was] offered not to raise an improper inference as to the accused’s
character, but for some appropriate purpose which has been deemed to be an
exception to the general rule of inadmissibility[.]” In addition, the State was required
to show that the accused committed the independent offense or act and that there was
a sufficient connection or similarity between the independent offense or act and the
crime charged so that proof of the former tends to prove the latter.) (citation and
punctuation omitted).
25
Bradshaw v. State, 296 Ga. at 655 (3).
22
necessarily admissible in every criminal prosecution even when it is relevant to prove
intent and knowledge, because such evidence may be deemed inadmissible on the
basis of those considerations set out in OCGA § 24-4-403.).
A trial court’s decision under OCGA §§ 24-4-403 and 24-4-404 (b) to exclude
or admit other acts evidence will be overturned only where there is a clear abuse of
discretion. State v. Jones, - Ga. at - (1); Bradshaw v. State, 296 Ga. at 656 (3). See
also Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014) (“Evidentiary
rulings are reviewed under an abuse of discretion standard[.]”) (citation omitted).
In this case, the record shows that the State filed its notice of intent to introduce
evidence of other acts pursuant to OCGA § 24-4-404 (b) as proof of intent, motive,
plan, and absence of mistake or accident. Specifically, the State identified the
following acts: a 2005 charge against Brown and Rouse for trafficking in cocaine and
a 2009 charge against Brown for possession of marijuana with intent to distribute.
As to the 2005 incident, a police officer testified that he received information
from a concerned citizen that drugs were being “bagged” at a house in Fulton County.
Upon arriving at the house, the officer observed through one of the windows three
men, including Brown and Rouse, cutting and packaging crack cocaine and marijuana
in the kitchen of the house. The team of officers forced entry and found the men
23
hiding in a bedroom closet. The house, which was in an area where most of the
houses were vacant, had little furniture, but there was a TV with some cameras
hooked to it. The officers seized 137 grams of crack cocaine and 11 grams of
marijuana.
As to the 2009 incident, a patrol officer testified that he received a call that
several men were selling and using drugs at a food mart in Fulton County. The officer
went to that location, where he saw six men including Brown. The officer and his
partner obtained the mens’ consent to search their persons. Brown had on his person
11 bags of marijuana, collectively weighing 8.1 grams.
After hearing this evidence, the trial court noted that the State intended to
adduce proof at trial that, when officers arrived to execute a warrant to search the
house where the cocaine and marijuana was found, Rouse was in the driveway getting
into a car and Brown was jumping out of a window. The trial court found that
evidence of the 2005 incident, when Rouse was seen cutting and packaging cocaine
and marijuana in a nearly vacant house, “would absolutely be nothing more than
propensity evidence and is more prejudicial than probative.” The court ruled that, as
to Rouse, the evidence was not admissible for any purpose. As to the same 2005
incident, when Brown was also seen cutting drugs, the court found that
24
cutting drugs in a house, is, unfortunately, in this community and in this
society, a common occurrence. It does not purport anything other than
that one does that sort of thing. Insofar as that is the case, the court finds
that admission of the evidence would be more prejudicial than probative.
Insofar as [the evidence] might be offered for purposes of establishing
that there was no mistake, that there was a plan or scheme, those
purposes are actually in the court’s view more consistent with
[rebutting] a potential defense which might be raised,
and the evidence would therefore not be admitted during the State’s case-in-chief. As
to the 2009 incident, the trial court found that evidence that Brown had packets of
drugs on his person was “not pertinent in terms of proving mistake, intent, plan, or
scheme, and it will not be admitted for any purpose.”
With regard to intent, the Supreme Court of Georgia recently explained that
a defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent,
which it may prove by qualifying [OCGA § 24-4-404 (b)] evidence
absent affirmative steps by the defendant to remove intent as an issue.
Where the extrinsic offense is offered to prove intent, its relevance is
determined by comparing the defendant’s state of mind in perpetrating
both the extrinsic and charged offenses. Thus, where the state of mind
required for the charged and extrinsic offenses is the same, the first
prong of the [OCGA § 24-4-404 (b)] test is satisfied.
25
(Citation and punctuation omitted.) Bradshaw v. State, 296 Ga. at 656-657 (3).26
In this case, we cannot discern from the existing record whether the trial court
considered whether Brown and Rouse, having entered pleas of not guilty to the
charged offenses, had taken affirmative steps to withdraw intent as an element to be
proved by the State.27 Further, it is not clear from the record whether the trial court
26
See also State v. Jones, - Ga. -, n. 4 (Case No. S14G1061, decided June 1,
2015) (“[A] defendant puts his intent in issue when he pleads not guilty unless he
takes affirmative steps to withdraw intent as an element to be proved by the State.”)
(citations omitted). See also Mathews v. United States, 485 U. S. 58, 64-65 (108 SCt.
883, 99 LEd2d 54) (1988) (“A simple plea of not guilty puts the prosecution to its
proof as to all elements of the crime charged.”) (citation omitted); United States v.
Edouard, 485 F3d 1324, 1345 (C) (1) (11th Cir. 2007) (“Where the extrinsic offense
is offered to prove intent, its relevance is determined by comparing the defendant’s
state of mind in perpetrating both the extrinsic and charged offenses.”) (citation and
punctuation omitted); United States v. Costa, 947 F2d 919, 925 (III) (B) (11th
Cir.1991) (Where defendants did not “affirmatively take the issue of intent out of
contention by stipulating that they possessed the requisite intent,” the trial court did
not abuse its discretion in admitting evidence of unindicted extrinsic bad acts.)
(citation omitted). But see Chynoweth v. State, 331 Ga. App. 123, 128 (3) (768 SE2d
536) (2015), cert. denied, (To determine whether intent is actually in issue in a case,
“[t]he test is to ask: under the facts of the case, is there any danger that a rational jury
could find that although the defendant committed the objective, charged acts, he did
not intend to do so?”) (citation and punctuation omitted). See also Amey v. State, 331
Ga. App. at 250 (1) (b) (discussing use of other-acts evidence to show a defendant’s
motive to commit the charged offense).
27
Our review is complicated by the unique procedural posture presented,
where, as noted above, the trial court acquitted the defendants after the State declined
to present its evidence or otherwise participate in the trial, and where our decision to
vacate the judgments of acquittal in Division 1, supra, effectively returns the
26
compared the state of mind involved in the extrinsic offenses with that involved in
the charged offenses before finding that the other-acts evidence constituted nothing
more than inadmissible propensity evidence.28 To the extent the trial court discounted
prosecution to a pretrial status.
28
See State v. Jones, - Ga. at - (2) (The same state of mind was required for
committing the prior act of DUI and the charged DUI offenses, “i.e., the general
intent to drive while under the influence of alcohol,” and therefore the defendant’s
previous DUI conviction was relevant under OCGA § 24-4-404 (b).); Bradshaw v.
State, 296 Ga. at 656-658 (3) (Where the defendant was charged with murdering a
drug buyer who balked at paying for drugs the defendant had delivered, another
incident, six months earlier, when the defendant murdered another drug buyer who
refused to pay for drugs his brother had delivered involved the same mental state and
showed the defendant’s willingness to use violence when he or someone close to him
was cheated in a drug deal. Consequently, the trial court did not abuse its discretion
in admitting evidence of the earlier murder for the purpose of showing the
defendant’s intent and motive to commit the later crime.); Chynoweth v. State, 331
Ga. App. at 127-128 (3) (Where the defendant was charged with riot in a penal
institution and obstruction of a law enforcement officer, based on his attack on two
law enforcement officers who were transporting him to a hearing, there was evidence
that the defendant had been prescribed antipsychotic medication, and the defendant
raised defenses concerning lack of mental capacity and mental illness, there was a
disputed issue concerning the defendant’s state of mind and a danger that “a jury
could have concluded that[,] while he committed the charged act, he did not intend
to do so.” Consequently, the trial court did not abuse its discretion in permitting
other-acts evidence of the defendant’s unprovoked attack on a cellmate for the
purpose of showing his intent and the absence of mistake or accident.) (citation
omitted); Curry v. State, 330 Ga. App. at (1) (Where the defendant was charged with
trafficking persons for sexual servitude and related offenses, he squarely challenged
the element of intent by arguing that he intended only to help the victims, but not to
commit any criminal offenses; under the circumstances, evidence that he acted as a
pimp, for whom a witness earned money as a prostitute against her will, was
27
the propriety of the evidence for the State’s stated purpose of proving intent without
considering these issues, the trial court failed to exercise its discretion. Because this
uncertainty thwarts our review of the trial court’s analysis of the first prong of the
three-part test (that is, relevance of the evidence to an issue other than the defendants’
character), we cannot meaningfully review the trial court’s analysis of the second
prong (that is, weighing the probative value of the evidence, which flows from that
relevance determination, against any undue prejudice). In State v. Jones, the Supreme
Court of Georgia
caution[ed] that the potential for prejudice caused by the introduction of
other acts evidence is great and the often subtle distinctions between the
permissible purposes of intent and knowledge and the impermissible
purpose of proving character may sometimes be difficult to discern. The
danger of the subtlety of this distinction is that a jury could consider
prior acts evidence for an impermissible purpose, thus elevating the
importance of [OCGA § 24-4-403’s] balancing of the need for other acts
evidence against the dangers of its introduction. Unfortunately, there is
no mechanical solution for this balancing test. Instead, a trial court must
undertake in each case a considered evaluation of the proffered
justification for the admission of such evidence and make an
independent determination of whether the probative value of the
admissible for a purpose other than his character, and the trial court did not err in
finding that the first prong of the three-part test was satisfied.).
28
evidence is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence.
(Citation and punctuation omitted.) Id. at - (3). As an appellate court, we afford great
deference to a trial court’s decision in this regard,29 but we cannot properly review a
decision to exclude or admit other-acts evidence where, as in this case, the trial court
stopped short of considering the proffered evidence under the applicable standard.
For all of the foregoing reasons, the trial court’s ruling that the other-acts
evidence will not be admitted is vacated, and we remand this case for the trial court
to reconsider the appellees’ motion to exclude such evidence under the applicable
standard. Id. at - (3).
29
Harris v. State, 330 Ga. App. 267, 271 (1) (765 SE2d 369) (2014), cert.
denied (decided under comparable provisions of the former Evidence Code). See also
United States v. Doe, 216 Fed. Appx. 874, 877 (II) (11th Cir. 2007) (“When
employing an abuse-of-discretion standard, we must affirm unless we find that the
district court has made a clear error of judgment, or has applied the wrong legal
standard.”) (citation and punctuation omitted); United States v. Brown, 415 F3d 1257
(11th Cir. 2005) (explaining reasons an appellate court gives a trial court’s rulings on
the admissibility of evidence “considerable deference” under the abuse-of-discretion
standard of review).
29
Judgment in Case No. A15A0456 reversed in part and vacated in part and case
remanded. Judgment vacated in Case No. A15A0457. Dillard, J., concurs, and
McFadden, J., concurs fully and specially.
30
A15A0456, A15A0457. THE STATE v. BROWN, et al.
MCFADDEN, Judge, concurring.
I concur fully in the majority opinion. I write separately to lament the ease with
which this spectacle - an unauthorized criminal trial that the prosecutor was
compelled to boycott leading to ineffective acquittals that an appellate court must
unwind - could have been avoided.
When this case was called for trial, the state told the trial court that it had
appealed her suppression order. The trial court erroneously replied that the state’s
notice of appeal was ineffective. At noon that same day, the state filed an emergency
motion with this court. Less than four-and-a-half hours later, we granted the
emergency motion and stayed the trial. But by that time, the purported trial had taken
place and the purported acquittals had been entered.
State v. Javaris Brown
Court: Court of Appeals of Georgia
Date filed: 2015-08-10
Citations: 333 Ga. App. 643, 777 S.E.2d 27
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