Baughns v. the State

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

February 5, 2016

In the Court of Appeals of Georgia
A15A2242. BAUGHNS v. THE STATE. JE-082C

ELLINGTON, Presiding Judge.

A Clarke County jury found Justin Baughns guilty beyond a reasonable doubt

of aggravated assault, OCGA § 16-5-21 (b) (2) (with a deadly weapon); and four

counts of burglary in the first degree, OCGA § 16-7-1 (b). Following the denial of his

motion for a new trial, Baughns appeals, contending that the trial court erred in

admitting evidence of other acts and in admitting a custodial statement.1 For the

reasons explained below, we affirm.

1
Because this case was tried after January 1, 2013, Georgia’s new Evidence
Code applies. See Ga. L. 2011, pp. 99, 214, § 101.
 Viewed in the light most favorable to support the verdict,2 the evidence shows

the following. In the last two weeks of November 2012, Baughns and two other

young men committed a string of burglaries in Athens-Clarke County. In most of

them, the burglars gained entry by using a tool to pry around a rear door or window,

sometimes kicking in the door, and stole computers, televisions, and jewelry.

Baughns participated in the burglaries primarily as the driver, and he sold items stolen

in the earlier burglaries to a pawn shop. From one burglary on November 26, the

thieves obtained the victim’s handgun. One of Baughns’ accomplices carried that

handgun during another burglary that same day, and, when the homeowner

confronted the burglars with a knife, he shot and killed the man. The burglars left

behind a tire iron that was consistent with the pry marks from several of the earlier

burglaries.

The State charged the three men in a single indictment, which included six

counts of burglary that named Baughns as a perpetrator3 and five counts of burglary

2
See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
This recitation of facts is based in part on the evidence which Baughns contends the
trial court erroneously admitted. We have rejected his evidentiary challenges for the
reasons discussed below.
3
Specifically, these burglaries were of 295 Old Monroe Road on November 14
, 170 Vaughn Road, Apartment 2, on November 19 , 2006 South Milledge Avenue

2
that did not name Baughns as a perpetrator.4 At Baughns’ separate trial, the State,

over Baughns’ objection, introduced evidence of all eleven burglaries. Also over

Baughns’ objection, the State offered evidence of an inculpatory statement Baughns

gave while in custody on December 12, 2012, and the State played a videorecording

of the interview for the jury. In that statement, Baughns admitted picking up one of

his co-defendants in his car and dropping him off at the time and location of one of

the burglaries and, in a borrowed car, driving both of his co-defendants to the location

of the last burglary and waiting for them in the car.

1. Baughns contends that the five burglaries charged in the indictment that did

not name him as a perpetrator were extrinsic acts that were irrelevant to his guilt as

to the six counts of burglary that did name him. He argues that the evidence had at

best a very slight probative value in explaining how one of his co-defendants came

into custody, which value was substantially outweighed by the prejudicial effect of

on November 20-21, and 502 Rustwood Drive, 130 Fair Oaks Drive, and 400
Jefferson River Road on November 26. Note: the jury found Baughns not guilty of
the Rustwood Drive and Fair Oaks Drive burglaries.
4
Specifically, these burglaries were of 212 Sleepy Creek Drive on November
16-23, 125 Cardinal Creek Place on November 20-21, 200 Timothy Road on
November 23-25, 263 Arch Street on November 24, and 195 Pepperidge Lane on
November 25-26.

3
the evidence, and that the evidence was therefore inadmissible under OCGA §§ 24-4-

4035 and 24-4-404 (b).6 “Evidentiary rulings are reviewed under an abuse of

discretion standard[.]” (Citation omitted.) Reeves v. State, 294 Ga. 673, 676 (2) (755

SE2d 695) (2014).

In response to Baughns’ objection at trial, the State argued that Baughns and

his co-defendants were indicted as co-conspirators in “a burglary spree” and that the

evidence would show that for each of the burglaries Baughns would drive the others

to the residences to be burgled. The trial court determined that, even if the evidence

of the uncharged burglaries did not directly implicate Baughns, those burglaries arose

out of the same burglary spree as the charged burglaries and therefore the evidence

was admissible as being intrinsic to the charged offenses.

Under longstanding Georgia law, all the acts and circumstances surrounding

and constituting the res gestae are admissible, despite the fact that they may reflect

5
OCGA § 24-4-403 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.”
6
OCGA § 24-4-404 (b) provides, except as otherwise provided, “[e]vidence
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.”

4
poorly on a defendant’s character.7 This rule carried forward to the new Evidence

Code under the concept of “intrinsic facts” evidence, as compared to evidence of

7
See, e.g., Nash v. State, 285 Ga. 753, 754 (2) (a) (683 SE2d 591) (2009)
(“Even though a defendant is not charged with every crime committed during a
criminal transaction, every aspect of it relevant to the crime charged may be presented
at trial.”) (citation and punctuation omitted); Roberts v. State, 282 Ga. 548, 551 (6)
(651 SE2d 689) (2007) (Evidence that, prior to shooting the victim, the defendant
purchased marijuana from him was admissible as part of the res gestae because the
defendant learned from that transaction that the victim was carrying money.); Igidi
v. State, 251 Ga. App. 581, 583 (1) (554 SE2d 773) (2001) (“[T]he state is entitled to
present evidence of the entire res gestae of the crime. Even though a defendant is not
charged with every crime committed during a criminal transaction, every aspect of it
relevant to the crime charged may be presented at trial. This is true even if the
defendant’s character is incidentally placed in issue.”) (punctuation and footnote
omitted); see also Paul S. Milich, Ga. Rules of Evidence, § 11:3 (database updated
October 2015) (“[A]ll the acts and circumstances surrounding and constituting the res
gestae were admissible [under the old Evidence Code], despite the fact that they may
reflect poorly on a party’s character.”) (footnote omitted).

5
“extrinsic acts” which are generally inadmissible pursuant to OCGA § 24-4-404 (b).8

Under relevant federal authority,9

evidence is intrinsic to the charged offense, and thus does not fall within
Rule 404 (b)’s ambit, if it (1) arose out of the same transaction or series
of transactions as the charged offense; (2) is necessary to complete the
story of the crime; or (3) is inextricably intertwined with the evidence
regarding the charged offense.

8
As Professor Milich explained:
The Federal Rules of evidence retired the term “res gestae” in . . . [the]
character rule context[ ] and the new 2013 Georgia rules do so as well.
However, the essence of the doctrine in the context of the character rule
remains the same with new terminology. Facts that are “intrinsic” to or
“inextricably intertwined” with the events at issue at trial are generally
admissible to give the factfinder a truer, contextual view of the material
facts in the case. All of the facts and circumstances surrounding the
crime for which the accused is charged are admissible as “intrinsic”
despite the fact that the evidence may incidentally reflect poorly on the
accused’s character. . . . [For example,] when the crime charged is part
of a crime spree or “rampage” the entire chain of crimes can be proved
at trial, even if they were not all charged, as they are all intrinsic to the
offense.
(Footnotes omitted.) Paul S. Milich, Ga. Rules of Evidence, § 11:3.
9
See State v. Brown, 333 Ga. App. 643, n. 21 (777 SE2d 27) (2015)
(explaining extent to which Georgia’s courts look to federal evidence jurisprudence
in applying our new Evidence Code).

6
(Citation and punctuation omitted.) United States v. Nowak, 370 Fed. Appx. 39, 41

(I) (11th Cir. 2010). See also United States v. Edouard, 485 F3d 1324, 1344 (II) (C)

(11th Cir. 2007) (accord). Moreover,

evidence, not part of the crime charged but pertaining to the chain of
events explaining the context, motive, and set-up of the crime, is
properly admitted if linked in time and circumstances with the charged
crime, or forms an integral and natural part of an account of the crime,
or is necessary to complete the story of the crime for the jury.

(Citations omitted.) Id.

In this case, the uncharged offenses were part of a crime spree committed by

a burglary crew of which Baughns was a part, even if there was no evidence that he

directly participated in those offenses. All of the offenses were committed in a similar

way, within a two-week period and in the same area of Athens-Clarke County, and

included overlapping participants. Consequently, the trial court did not abuse its

discretion in admitting evidence of the uncharged burglaries. Carter v. State, 269 Ga.

891, 892 (3), (4) (506 SE2d 124) (1998); Rust v. State, 264 Ga. App. 893, 897 (1)

(592 SE2d 525) (2003); Sullivan v. State, 242 Ga. App. 839, 840-841 (3) (531 SE2d

367) (2000); Vick v. State, 211 Ga. App. 735, 737 (2) (440 SE2d 508) (1994); Baird

v. State, 207 Ga. App. 44, 44-45 (1) (427 SE2d 37) (1993).

7
 2. Baughns contends that the record shows that his December 12, 2012

custodial confession was induced by a hope of benefit and, therefore, that the trial

court abused its discretion in admitting that confession.

“No person shall be compelled to give testimony tending in any manner to be

self-incriminating.” Ga. Const. 1983, Art. 1, § 1, ¶ XVI. OCGA § 24-8-824 provides:

“To make a confession admissible, it shall have been made voluntarily, without being

induced by another by the slightest hope of benefit or remotest fear of injury.” The

following Code section, OCGA § 24-8-825, provides: “The fact that a confession has

been made under a spiritual exhortation, a promise of secrecy, or a promise of

collateral benefit shall not exclude it.” The rules set out in OCGA §§ 24-8-824 and

24-8-825 “have appeared together since Georgia’s first code, see Code of 1863, §§

3716-3717, and they are carried forward without any substantive change in the new

Georgia evidence code that [took] effect on January 1, 2013.” (Citations omitted.)

Brown v. State, 290 Ga. 865, 868, n. 1 (725 SE2d 320) (2012).10 Our appellate

decisions have established that the phrase “the slightest hope of benefit” in OCGA

§ 24-8-824 is a term of art which must be understood in conjunction with the

limitations set out in OCGA § 24-8-825 and “does not encompass every conceivable

10
See also State v. Chulpayev, 296 Ga. 764, 771 (2) (770 SE2d 808) (2015).

8
benefit that the police may offer a suspect in an effort to induce him to confess.”

Brown v. State, 290 Ga. at 868 (2) (b). “It has also long been understood that

‘slightest hope of benefit’ refers to promises related to reduced criminal punishment

– a shorter sentence, lesser charges, or no charges at all.” (Citations and punctuation

omitted.) State v. Chulpayev, 296 Ga. 764, 771 (2) (770 SE2d 808) (2015).11 “The

promise of a benefit that will render a confession involuntary under [OCGA § 24-8-

824 (former] OCGA § 24-3-50[)] must relate to the charge or sentence facing the

11
State v. Ray, 272 Ga. 450, 451-452 (2) (531 SE2d 705) (2000) (Where
interrogators “posited a ‘hypothetical’ to [the defendant] indicating that when a
murder is committed by two individuals, the party willing to testify against the other
would have the possibility of not facing the death penalty . . . [and] intimated that [he]
could save himself from execution by telling the officers truthfully about the
crimes[,]” and when the defendant asked, “what would I get if I give the other guy
up?”, an officer replied, “Possibly – here’s what I can tell you. Years of freedom[,]”
the defendant’s ensuing confession was inadmissible as having been induced by a
hope of benefit.); State v. Robinson, 326 Ga. App. 63, 66 (755 SE2d 869) (2014)
(Where an interrogator told a suspect, who knew that his alleged accomplices were
also being interviewed, “[t]he person that cooperates is the person that gets help[,]”
that statement, viewed under the totality of the circumstances, did appear to offer the
defendant “some hope of benefit – i.e., it indicates that if [he] cooperated truthfully
with police, he would get a lighter sentence than his accomplices.”); Askea v. State,
153 Ga. App. 849, 851-852 (3) (267 SE2d 279) (1980) (“[T]he interrogating officer’s
remark that ‘it (i.e., telling the truth) would probably help him in court’ [held] out at
least some hope for reward by special consideration if the suspect cooperate[d]” and
rendered the confession inadmissible.).

9
suspect.” (Footnote omitted, emphasis supplied.) White v. State, 266 Ga. 134, 135 (3)

(465 SE2d 277) (1996).

Thus, our courts have held that it is not a promise that relates to the charge or

sentence facing the suspect under OCGA § 24-8-824 (and its predecessor statutes)

where an interrogator merely promises to tell the prosecutor or the court that the

suspect cooperated, accepted responsibility, was justified in connection with the

offenses at issue, etc. This is so regardless whether the interrogator’s promise to relate

such information might encourage the suspect to hope that, ultimately, other actors

in the criminal justice system will be inclined to be more lenient – the prosecutor in

drawing up charges, the finder of fact in determining guilt, the judge in imposing

sentence, etc.12 “Whether a statement was made voluntarily is to be determined by

12
Turner v. State, 296 Ga. 394, 395-396 (2) (768 SE2d 458) (2015) (no hope
of benefit where an interrogator told the suspect that she should tell him how her baby
received the injuries discovered on her body because it would be more difficult for
her to explain them later to a jury or judge and that the court would drill her on such
issues); Taylor v. State, 274 Ga. 269, 273-274 (2) (553 SE2d 598) (2001) (no hope
of a benefit where an investigator told the suspect, in the context of her concerns
about custody of her children, that he would help her in every way he could, that it
might look good to the judge if she admitted her role in the crimes rather than lying,
and that she had a golden opportunity to help herself), overruled in part on other
grounds, State v. Chulpayev, 296 Ga. at 783 (3) (b); Gilliam v. State, 268 Ga. 690,
692 (3) (492 SE2d 185) (1997) (no hope of a benefit where interrogator told the
suspect that it would help if he told the truth and that the judge would know that he
confessed); State v. Jackson, 332 Ga. App. 356, 357 (772 SE2d 804) (2015) (no hope

10
assessing the totality of the circumstances. Where the facts surrounding a police

interview are undisputed because the recorded interview is part of the appellate

record, our review of the trial court’s admissibility ruling is de novo.” (Citations and

punctuation omitted.) Johnson v. State, 295 Ga. 421, 424 (2) (761 SE2d 13) (2014).

In arguing that his confession is inadmissible as having been induced by a hope

of benefit, Baughns points to the following exchanges that occurred during the

December 12, 2012 interview, before he admitted that he drove his two co-defendants

to the deceased victim’s home :

Investigator: You had nothing to gain when we first spoke. You had
nothing. You didn’t have warrants signed on you for
murder when we first spoke. You have it now. OK? It’s a
real thing. It’s not like it’s made up. . . .

To me this is the saddest part, OK? Your daughter is gonna
grow up without a father. Pretty much the same way you
grew up without a father. Which is horrible. And I’ve got

of a benefit where an investigator told the suspect that, if he were not honest with the
police, he would not be helping his child, who was going to need both parents, and
that the only way out of jail and to look to the future was to be honest); Cooper v.
State, 257 Ga. App. 896, 898 (1) (572 SE2d 417) (2002) (no hope of benefit where
an investigator told the suspect that he was going to be the prosecuting officer and
that he would like to be able to tell the judge that the suspect was honest and
cooperated with him); Frei v. State, 252 Ga. App. 535, 537-538 (2) (b) (557 SE2d 49)
(2001) (no hope of a benefit where an investigator told the suspect that he would let
the district attorney know that he had cooperated and that he would do what he could
to help the suspect).

11
 to live with myself to be the person that’s making that
happen. . . .

I have to be the one to tell your mom that her baby is going
to prison. For life. I have to be the one to do that. . . .

I want to be able to say that [Baughns] was honest with me.
He cooperated with me and he helped out. And he tried to
get justice for [the deceased victim’s] family so that
[Baughns] can give his family peace of mind knowing that
he did the right thing and that he’ll be with them soon. As
opposed to saying that [Baughns is] a hardcore mother
fucker that’s going to prison for the rest of his life. . . .

Baughns: I hope [me talking will] change something, man.

Investigator: It’s gonna change something! . . .

Baughns: I don’t want to go to jail for the rest of my life, but they
said I did something. . . .

Baughns: But [the other two perpetrators are] gonna get the same
amount of time and they killed [the victim].13

Investigator: Bullshit! Bullshit! That’s total bullshit! You’re gonna try
and tell me that somebody [who is] sorry for what [he] did
is gonna get the same time as a cold-blooded killer?!

In other exchanges throughout the interview, investigators repeatedly framed their

inquiries in terms of what they wanted to be able to tell the judge. Any suggestions

13
The trial court transcribed this response, which occurred after an investigator
began explaining about the liability of parties to a crime, slightly differently, as “But
that gets the same amount of time that gets for the killing.”

12
of a possible benefit were either completely nonspecific (e.g., “help yourself” ) or

along the lines of allowing Baughns to have more credibility with the jury for having

been honest early. Under the totality of the circumstances, we conclude that any

benefits promised by the investigators to induce Baughns’ confession did not relate

to the charges or sentence he was facing in such a way as to render the confession

inadmissible under OCGA § 24-8-824.14

Judgment affirmed. Dillard and McFadden, JJ., concur.

14
See cases cited in footnote 10, supra.

13