305 Ga. 366
Ga.2019Background
- In Oct. 2012, Demarcus Booker was shot and killed in his car; evidence showed multiple gunshots including a fatal shot to the back of the head. Dearies Favors was arrested and admitted shooting Booker and taking his property.
- Favors was indicted on malice murder, felony murder, aggravated assault, armed robbery, and possession of a firearm while on first-offender probation; convicted on all counts by a jury in June 2014 and sentenced to life without parole for malice murder (with other adjustments later).
- At trial the State introduced crime-scene photographs of Booker’s body and a 911 recording of a call placed by Booker’s friend Christopher Reese, who also testified live and became emotional during playback of the recording.
- Favors objected to admission of a photograph showing Booker after he had been shot, arguing it was unnecessarily graphic and did not accurately reflect the scene because the body had been turned before the photo was taken; he moved to exclude it under OCGA § 24-4-403.
- During Reese’s testimony he became emotional while a 911 recording played; the court paused the playback, excused the jury during Reese’s composure, and later declined to give an immediate sympathy instruction, instead giving a general instruction against sympathy in the final charge.
- Favors moved for a new trial asserting (1) erroneous admission of the photograph and (2) the court abused its discretion by not immediately charging the jury on sympathy; the trial court denied the motion and the Georgia Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Favors) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Admissibility of post-mortem photograph | Photo was unnecessarily graphic, prejudicial under OCGA § 24-4-403, and inaccurately depicted the scene because body position changed before photo | Photo was relevant to show nature/location of injuries and corroborate circumstances; no evidence wounds or appearance were altered; probative value outweighed prejudice | Court affirmed admission: photo was relevant and not excludable under Rule 403; gruesomeness alone insufficient to bar it |
| Immediate sympathy jury charge after witness cried | Trial court should have immediately instructed jurors to disregard sympathy after Reese became emotional, to cure prejudice | Court acted within discretion: stopped playback, excused jury, permitted witness to compose himself, and gave general anti-sympathy instruction in final charge which cures any prejudice | Court affirmed: no abuse of discretion; final instruction and curative measures adequate |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes sufficiency-of-the-evidence standard for convictions)
- Pike v. State, 302 Ga. 795 (photographs showing nature/location of injuries are probative)
- Moss v. State, 298 Ga. 613 (trial court discretion on admitting photographic evidence)
- Hood v. State, 299 Ga. 95 (Rule 403 excludes scant or cumulative evidence dragged in for prejudice)
- Olds v. State, 299 Ga. 65 (exclusion under Rule 403 is an extraordinary remedy)
- Plez v. State, 300 Ga. 505 (gruesome but accurate photographic evidence is not generally inadmissible under Rule 403)
- Anglin v. State, 302 Ga. 333 (review Rule 403 in light most favorable to admission)
- Williams v. State, 276 Ga. 384 (trial court discretion in responding to witness emotion)
- Todd v. State, 274 Ga. 98 (presumption jurors follow curative instructions)
- Brannan v. State, 275 Ga. 70 (witness emotional outburst does not automatically require mistrial absent prejudice)
- Dick v. State, 246 Ga. 697 (stopping trial to allow witness to compose himself mitigates prejudice)
- Allen v. State, 277 Ga. 502 (qualified jurors presumed to follow instructions)
- Tolver v. State, 269 Ga. 530 (overruled on other grounds; cited for context)