BAKER v. THE STATE.
S23A0860
In the Supreme Court of Georgia
March 5, 2024
WARREN, Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Appellant Morgan Baker was convicted of malice murder in connection with the shooting death of Tamarco Head.1 In his sole enumeration of error, Baker contends that the trial court abused its discretion under
1. (a) The Pretrial Ruling to Admit the Rap Music Video Into Evidence
Before trial, Baker filed a motion to exclude from evidence a music video of the rap song “Ghetto Angels” by Kobe Crawford (a rap artist known as “NoCap“), which was “filmed in early 2019” and showed Baker “holding a semi-automatic pistol with an extended magazine.” The motion argued, among other things, that the video‘s probative value was substantially outweighed by the danger of unfair prejudice under Rule 403. After a hearing on the motion, the trial court ruled that a 33-second-long portion of the video was admissible, concluding that it was relevant to establish Baker‘s “identity” and the relationship between Baker and Crawford. The court also ruled, without explanation, that the “short clip [wa]s more probative than prejudicial.”
(b) The Trial
The evidence presented at Baker‘s trial showed the following.2 Baker was close friends with Crawford and worked as his road manager, traveling with him to various concert venues to assist with his performances. On the night of July 5, 2019, Crawford, Baker, and several other members of
According to Crawford‘s music manager—Rodney Dunn—and the owner of the nightclub, the van parked behind the nightclub, and Crawford, Baker, and other members of the entourage hung out in a “VIP” room in the nightclub until Crawford performed around 1:00 or 1:30 a.m. The performance ended around 2:00 a.m., when the nightclub was scheduled to close, and Crawford and some of the members of the entourage left through the rear exit and got back in the van.
Meanwhile, patrons left through the front door of the nightclub, where several security guards stood. Baker went out the front door with the crowd, but he then tried to go back inside the nightclub. One of the security guards testified as follows. A man, later identified as Baker, and another man who appeared to be with Baker, tried to come back inside, but the guard said that the two men could not come in because the nightclub was closed. An argument ensued, and several security guards pushed the men out the door. Baker and the other man then walked down the breezeway of the strip mall where the nightclub was located, toward a pawn shop. Several security guards, including Head, stood near the door of the nightclub, talking. A few minutes later, gunfire rang out from the direction of the pawn shop; it sounded as though there was more than one shooter. Head was shot, and he fell to the ground, dead.4
More gunfire later erupted “right up the street.”
Video recordings from the surveillance cameras at the nightclub showed the following.5 At 2:04 a.m., a crowd of people filed through the front door to exit the nightclub. Baker, who had a short hairstyle and wore a white T-shirt with black writing on the front, walked outside, followed by a taller man wearing a black shirt and a camouflage ball cap. The two men stood near the door, briefly talked to a woman, and then walked down the breezeway. At 2:06 a.m., Baker and the man in the camouflage cap walked back toward the nightclub together and tried to go inside, but a few security guards stopped them. Baker and one of the security guards argued and then shoved each other, and the man in the cap lunged toward the guards. Baker pulled him back as the security guards pushed Baker and the other man out the door, and it appears that Baker and some of the guards tried to hit each other. Baker then put his arm around the man in the camouflage cap, and at 2:07 a.m., they walked down the breezeway and out of view.6 Several of the security guards, including Head, stood together talking in front of the door, and approximately two minutes later, Head suddenly fell down as blood spattered on the ground near him.
Dunn (Crawford‘s music manager) testified that after the performance that night, he got in his car, and he thought that Crawford, Baker, and the rest of the entourage got in the van, which was still parked behind the nightclub. As Dunn pulled out onto the street, following the van, he heard gunshots. He did not see anyone get into the van after he heard the shots. At some point, Dunn asked Baker if he was involved in the shooting, and Baker denied it. Dunn also testified that members of Crawford‘s entourage typically did not carry guns to Crawford‘s performances.
In response to the prosecutor‘s questions about the “Ghetto Angels” rap music video, Dunn testified that the song was about the death of Crawford‘s cousin, who had been shot 17 times years earlier; the video showed Baker and several other men waving guns; Dunn did not know what kind of gun Baker
On redirect, the prosecutor introduced the 33-second-long portion of the rap music video, which the trial court admitted into evidence over trial counsel‘s renewed objection, and the prosecutor played the video for the jury. The first few seconds of the video showed Baker waving a black handgun, pointing it at the camera, and motioning as if he was shooting the gun while three other men rapped and made hand gestures. The video then showed Baker, Crawford, and about a dozen other men singing and dancing on and around a car; Baker waved the black handgun, sometimes pointing it at the camera, while some of the men made hand gestures, held bottles of what appears to be alcohol, and brandished guns. In response to further questions from the prosecutor, Dunn identified Baker as one of the men who was “flashing [a] firearm” and testified that although Dunn did not condone guns, he could not control whether Crawford‘s entourage used guns in the music video or whether they carried guns on the night of the shooting. The prosecutor then asked why Crawford “promot[ed]” gun violence in the video, and Dunn responded that Crawford was not promoting it and that Crawford was simply “a rapper.”
Another security guard testified that there were no security issues in the nightclub before the altercation with Baker, and that after Baker and the man in the camouflage cap walked toward the pawn shop, gunfire erupted from that direction. He did not see who shot, but the gunfire sounded like it came from “multiple guns.”
A patron of the nightclub testified that shortly before the shots were fired, she was standing in the breezeway with her sister when two men walked past her toward the pawn shop. One of the men wore a white shirt; the other man, who was taller, wore a black shirt and had his arm around the man in the white shirt. She heard one of them say something like, “[D]on‘t worry about it; we gonna get them.” She then got in a car with her sister and heard gunshots, but she could not tell from which direction they came, and she did not see a shooter. The sister similarly testified that two men walked past her toward the pawn shop as she stood in the breezeway moments before the shooting; one of the men wore a white shirt and the other wore a black shirt.7
An off-duty police officer who was hired to provide security in the parking lot of the nightclub testified that after the nightclub closed, he heard gunshots that sounded like they were fired from multiple guns, and he saw muzzle flashes near the pawn shop. A few moments later, he heard another set of gunshots, which sounded as if a shooter was driving around outside the nightclub. He told investigators at the scene that he saw a shooter, who wore a light-colored shirt and a ball cap, near the pawn shop. At trial, he testified that he did not see a shooter or recall describing a shooter to investigators, but he insisted that what he told investigators was “definitely the truth.”
Another patron, La‘Destiny Orr-Oglesby, testified as follows. She was standing near her car, which was parked in front of the pawn shop, when two men in the breezeway by the shop began shooting handguns in the direction of the nightclub. One of the shooters was short; had short hair, “light” skin, and a tattoo on his left arm; and wore a white shirt with writing on the front. The other shooter was tall, had dark skin, and wore a dark shirt and dark hat. When the men stopped shooting, they ran to a dark van that was parked on the side of the strip mall near the pawn shop. The prosecutor played the surveillance recordings showing the altercation among Baker, the man in the camouflage cap, and the security guards, and Orr-Oglesby identified Baker and the man in the camouflage
The lead detective testified that when Orr-Oglesby spoke to an investigator on the day of the shooting, she “g[a]ve a description of who . . . she saw shooting.” (The lead detective did not elaborate further about that description.) Two days later, on July 8, the lead detective showed Orr-Oglesby a photo lineup that did not include a photo of Baker, and she did not identify any of the photos in the lineup as a photo of the shooter. The lead detective interviewed Orr-Oglesby again that day, and she said that she saw two shooters—one of the shooters was short, had light skin and a tattoo on his left arm, and wore a white T-shirt, and the other shooter wore a dark shirt and dark hat. When the detective interviewed her again on August 21, he showed her the surveillance recordings from the nightclub, and Orr-Oglesby identified the two men who fought with security guards as the shooters.
While reviewing social media posts associated with Crawford, the lead detective found the “Ghetto Angels” rap music video; he determined that one of the men in the video was the same man shown on the surveillance recordings of the altercation with the security guards; and he “eventually learned” that the man was Baker. The prosecutor then played the rap music video for the jury again. The detective identified Crawford and Baker in the video, saying that Baker was “holding what appear[ed] to be a firearm.” On cross-examination, defense counsel tendered into evidence and played for the jury a video recording of Orr-Oglesby‘s August 21 interview, and the detective acknowledged that Orr-Oglesby said during that interview that she “d[id]n‘t think the light-skinned guy was shooting.”9
The prosecutor tendered into evidence a photo of Baker that was taken while he was on stage with Crawford on the night of the shooting; the photo showed that Baker had short hair and a tattoo on his left arm and wore a white T-shirt with writing on it.10 Forensic testing showed that Baker‘s fingerprints were on two plastic cups found in the “VIP” room of the nightclub.
A crime scene investigator found seven .45-caliber shell casings and 15 9mm shell casings near the pawn shop. A firearms examiner later determined that all of the .45-caliber shell casings were fired from the same gun (although he could not determine the make and model of the gun), and all of the 9mm shell casings were fired from the same Smith & Wesson 9mm pistol. Investigators did not recover the guns used in the shooting, nor did they determine the identity of the man in the camouflage cap.11
The defense presented testimony from two witnesses who saw shots fired in the area surrounding the nightclub around 2:00 a.m.—near the time of the shooting in this case. One of the witnesses testified that his truck was hit by a bullet as he was driving at the
Baker testified in his own defense as follows. After Crawford, his close friend since childhood, performed on the night of the shooting, Baker went out the front door of the nightclub to look for a woman he had talked with earlier that night. The man in the camouflage cap, whom Baker did not know but had seen in the “VIP” room at the nightclub earlier, followed him outside and tried to “latch on” to him because the man wanted to take a photo with Crawford. Baker, with the man beside him, briefly spoke to the woman, and then walked down the breezeway to look for someone else; the man in the cap followed him. Baker eventually decided to go to the van, which was parked behind the nightclub, so he tried to go back inside, and the man again followed him. When a security guard told Baker that he could not come in, Baker was angry and asked what the problem was. The security guard pushed him, and the man in the cap began yelling. Several security guards pushed Baker and the man out the door, and the man ran past Baker to fight with the guards. Baker pulled the man back and stepped between the man and a security guard; a guard punched Baker in the face as he tried to break up the fight. Baker and the man then walked down the breezeway, and the man asked Baker if he was alright. Baker replied that he was and then walked around the side of the strip mall to the parking lot behind the nightclub, where the van was parked, as the man in the cap walked in a different direction. According to Baker, he wanted to distance himself from the man because the man had escalated the situation with the security guards. Baker then got in the van, which drove away moments later. As the van turned onto the street in front of the nightclub, Baker heard gunshots. The van then drove to Atlanta, where Baker and others in the entourage stayed overnight. Although Crawford was scheduled to perform in Tupelo, Mississippi the next night, Baker did not travel there and did not continue touring with Crawford, because Baker wanted to go home to see his infant daughter. Baker squarely denied having a gun that night or being involved in the shooting.
On cross-examination, Baker testified that he put his arm around the man in the camouflage cap as they walked down the breezeway because Baker was trying to “de-escalate the situation,” since the man was still angry. The prosecutor asked whether the entourage traveled with guns, and Baker responded, “Why would we, though?” The prosecutor said, “Well, let‘s see why” and then played the rap music video again. In response to the prosecutor‘s questions about the video, Baker testified that he did not produce the video, that it was about “losing loved ones,” that he thought he had “a Glock” gun in the video, he did not know “what kind” of Glock it was, it was not his gun, and he used it in the video because he was “trying to look cool.” When the prosecutor asked why that made him “look cool,” Baker responded, “[I]n the music industry in—in my age group, you do whatever that you think will sell, such as if—if I was to—say I was a country music artist, I probably don‘t like cowboy hats or cowboy boots, but I will wear it if I think it‘s going to help my country music sell.” The prosecutor asked why Baker was “promoting” gun violence in the video, and he replied that he was not promoting it and was “[j]ust trying to be cool.” The prosecutor then rewound the video
The State‘s theory of the case was that the man in the camouflage cap was part of Crawford‘s entourage; the man and Baker shot toward the security guards, killing Head, after the altercation at the door of the nightclub; and they then fled in the van with the rest of the entourage. During closing argument, defense counsel argued that Orr-Oglesby‘s testimony was not credible because she told the lead detective that the “light-skinned” man did not shoot and because she testified that the van was parked on the side of the strip mall, whereas other witnesses testified that it was parked behind the nightclub; and alternatively, that the shooter in the white shirt was someone else, as the evidence showed that shootings were frequent in that area. As to the rap music video, defense counsel argued that the video was a performance that merely showed Baker “wanting to act cool.”
The prosecutor argued in closing that Orr-Oglesby was credible, that her testimony that there were two shooters was supported by the ballistics evidence, that given the undisputed evidence showing that Baker wore a white shirt that night and that he fought with the security guards, it was improbable that the man in the cap began shooting with a different person who also happened to be wearing a white shirt, and that the evidence that Baker did not continue touring with Crawford after the shooting allowed an inference of guilt.
The prosecutor also asserted that Baker‘s testimony that he did not have a gun on the night of the shooting was not credible, because “[t]hey don‘t roll like that.” She went on:
Use your common sense. And you know why you can say they don‘t roll like that? Go back to that Ghetto Angels video. Right? That‘s all they know, the gun violence. They want to promote it. They want to live by the sword, but they don‘t want to die by it, right? When it‘s not convenient, they don‘t want to act like they promote the shooting.
Near the end of her argument, she asserted that “[t]his gun violence needs to stop,” saying that it was sad that the altercation at the front door ended in Head‘s murder. She then said, “We‘re better than that. We‘re better than that. Your job is to return a verdict.” She closed by saying: “The truth is it‘s time to tell Morgan Baker that we‘re going to hold him accountable for exactly what he did that night. That we‘re going to h[o]ld him accountable for ending a human life. That it‘s not a game, it‘s not about a rap video. It‘s real.” As mentioned above, the jury found Baker guilty of malice murder, among other crimes, and he was sentenced to serve life in prison.
(c) The Denial of Baker‘s Motion for New Trial
In his motion for new trial, Baker argued that the trial court abused its discretion by admitting the rap music video into evidence, asserting that the video was not relevant or probative because he never disputed that he was close friends with Crawford or that he
was at the nightclub on the night of the shooting. In its order denying the motion, the trial court ruled that the video was properly admitted, because it was relevant to show that Baker was part of the entourage, that he had a motive to shoot Head, and that the lead detective was able to identify him through the video. The trial court also concluded, apparently as part of its analysis under
2. In his sole claim on appeal, Baker contends that the trial court abused its discretion under
(a) The Applicable Law
We begin with a review of the law that applies to Baker‘s claim. Under
We have often reiterated that “[t]he major function of
Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered. Probative value also depends on the marginal worth of the evidence—how much it adds, in other words, to the other proof available to establish the fact for which it is offered. The stronger the other proof, the less the marginal value of the evidence in question. And probative value depends as well upon the need for the evidence. When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence.
Olds v. State, 299 Ga. 65, 75-76 (786 SE2d 633) (2016) (citations and footnotes omitted).
As to the evaluation of prejudice under
In all, however, “the exclusion of evidence under
(b) Relevance of the Rap Music Video
As an initial matter, we note that Baker does not argue that the rap music video was not relevant evidence under
The State argues that the video was also relevant with respect to four other purposes. First, the State asserts that the video was relevant as “intrinsic evidence” to complete the story of the crime. Second, the State claims that the video was relevant to identity because the lead detective testified that during his investigation, he reviewed the video, determined that one of the men in the video was the same man shown on the surveillance recordings of the altercation with the security guards, and “eventually learned” that the man was Baker. The State also asserts that the video was relevant to establish Baker‘s motive to shoot toward the security guards—that Baker‘s involvement in the entourage caused him to believe he was “a big shot” and become enraged when the security guards “disrespected” him. Finally, the State argues that the video was relevant to show that Baker had access to the guns used during the shooting. Because Baker does not argue that the video was not relevant, and particularly because “[t]he test for relevance is generally a liberal one,” we will assume without deciding that the video was relevant for these purposes as well. See Harris, 314 Ga. at 262, 272 (assuming without deciding that evidence of the appellant‘s sexual messages and conduct was relevant under
(c) Admissibility of the Rap Music Video under Rule 403
Turning to
For similar reasons, the rap music video lacked any significant probative value to complete the story of the crime (and thus had little, if any, value as intrinsic evidence) or to establish identity by proving how the lead detective determined that Baker was the man shown in the surveillance recordings of the fight at the nightclub. As we explained above, Baker admitted—and other evidence established—the aspects of the “story of the crime” that the State asserts the rap music video proved. And the lead detective‘s determination that Baker was the man shown in the surveillance recordings was a detail of the investigation that was of little consequence, particularly in light of Baker‘s admission and the other undisputed evidence proving that he was in fact the man shown on the recordings. See Olds, 299 Ga. at 76 & n.15.
The probative value of the rap music video to show Baker‘s motive was also negligible, at best. In this respect, the State failed to show a “logical and necessary link” between Baker‘s waving and pointing a gun during his performance of a rap song and his motivation to shoot toward the security guards at the nightclub. If anything, the alleged “link” between the video and Baker‘s motive appears to be the video‘s portrayal of Baker as a violent gunman—a link that essentially amounts to impermissible propensity evidence. Kirby v. State, 304 Ga. 472, 486-487 (819 SE2d 468) (2018) (explaining that “[m]otive is the reason that nudges the will and prods the mind to indulge the criminal intent” and that evidence of motive “must be logically relevant and necessary to prove something other than the accused‘s propensity to commit the crime charged“) (citation and punctuation omitted). See also Harris, 314 Ga. at 270 (noting that evidence of an alleged motive that lacks a specific, logical link to the alleged crimes often supports only improper propensity arguments). Moreover, the State presented evidence apart from the rap video—the surveillance recordings and testimony from two security guards—to establish Baker‘s alleged motive to shoot toward the security guards because he believed that they had “disrespected” him. See Olds, 299 Ga. at 76 & n.15.
Finally, the rap music video‘s probative value to prove that Baker had access to the guns used during the shooting was, at most, trivial. We acknowledge that because there was no proof connecting Baker to the guns used in the shooting, which the evidence indicated were a .45-caliber gun of an undetermined make and model and a Smith & Wesson 9mm pistol, the State had a real need to tie Baker to those guns. But the rap music video tended to prove little, if anything, about Baker‘s access to those types of guns near the time of the shooting. First, although Baker claimed in his pretrial motion to exclude the video that it was “filmed in early 2019,” the State offered no evidence at trial about when the performance was recorded, which reduced the video‘s probative force to prove that Baker had access to guns near the time of the shooting in July 2019. And the State did not argue at trial or present
In contrast to the exceedingly low probative value of the rap music video, the prejudice flowing from the evidence the State presented that Baker waved a handgun, pointed it directly at the camera, and mimicked shooting the gun while rapping on a street with a large group of men, some of whom also brandished guns and made hand signs, was high. As the trial court noted in discussing the rap music video at trial (outside the presence of the jury), “the video [was] . . . glorifying of violence and gun violence and a sort of street life, glamorizing it.”
Yet the record shows that the trial court‘s failure to recognize the danger of unfair prejudice from the video when it ruled on its admissibility enabled the State‘s improper use of the video throughout the trial. In particular, the trial court allowed the prosecutor to capitalize on the video‘s prejudicial impact by emphasizing the video not to prove the purposes for which the State now asserts the video was probative (i.e., to complete the story of the crime, to establish Baker‘s identity, to show Baker‘s motive, or to prove that Baker had access to the guns used in the shooting), but for the purpose of showing Baker‘s alleged propensity for violence based on the theory that he was associated with a rap artist. For example, when examining Dunn, the lead detective, and Baker, the prosecutor emphasized the portion of the rap video in which Baker waved a handgun, and she asked Dunn and Baker about the video‘s “promoting” gun violence—even though she did not offer argument, let alone evidence, that the gun shown in the video was the gun used in the shooting. And when the prosecutor asked Baker whether the entourage traveled with guns and he responded, “Why would we, though,” she again used the video to exaggerate Baker‘s violent nature, saying “Well, let‘s see why,” before she played the video for the jury a third time. Even worse, during closing argument, the prosecutor expressly asserted that the rap music video proved that those who participate in making rap music, such as Baker, had a propensity for violence, saying, “Go back to that Ghetto Angels video. Right? That‘s all they know,
The unfair prejudice from the evidence of the rap music video substantially outweighed its minimal probative value, making this evidence the sort that
Having concluded that the trial court abused its discretion under
As discussed above, the rap music video was highly prejudicial. It allowed the State to introduce impermissible propensity evidence by portraying Baker as a threatening gunman, and the prosecutor severely exacerbated the video‘s prejudicial impact by emphasizing that it showed Baker‘s predisposition to gun violence. Although the video excerpt was relatively brief—it was only about 30-seconds long (as the trial court pointed out in its order denying Baker‘s motion for new trial)—the prosecutor made it a focal point of the trial. She played the video for the jury three times at three different points during the trial; questioned three witnesses about the video (specifically highlighting that the video advocated gun violence); and
then emphasized during her closing argument that Baker and other rap artists “promote[d]” gun violence, because “[t]hat‘s all they know,” a pointed argument that reinforced to the jury Baker‘s alleged violent character. See, e.g., Strong v. State, 309 Ga. 295, 317 (845 SE2d 653) (2020) (noting, in reversing the appellant‘s convictions on the ground that an evidentiary error was not harmless, that the State “emphasized” the evidence during closing argument); Thompson v. State, 302 Ga. 533, 542 (807 SE2d 899) (2017) (explaining, in reversing the appellant‘s convictions due to the improper admission of evidence that was not harmless, that the prosecution emphasized during closing argument that the evidence showed that the appellant had a propensity to commit crimes).19In addition, the State contends that other aspects of the trial mitigated any harm from the admission of the video: namely, that in response to the prosecutor‘s questions during jury selection about whether potential jurors had heard about rap artists committing crimes and whether that would “color [their] perception” of the case, no jurors expressed any bias, and that defense counsel elicited testimony indicating, and asserted during closing argument, that the video was a performance that merely showed Baker “wanting to act cool.” We disagree. The jurors’ general attitudes toward rap artists at the time of jury selection says little, if anything, about how they responded to the prosecutor‘s belaboring of the improperly admitted evidence of the rap music video at trial. See Hill v. State, 308 Ga. 638, 648 (842 SE2d 853) (2020) (explaining that although the jurors stated during jury selection that they could remain impartial even though the appellant was visibly shackled during the trial, at that point in the proceedings, they could “only
Moreover, other than the improperly admitted evidence of the rap music video, the State offered no connection between Baker and guns. The State introduced no evidence showing that Baker carried or had access to guns regularly, much less that he was carrying a gun on the night of the shooting or that the gun displayed in the rap video was used in the shooting. In short, the way in which the rap music video was used at trial aggrandized a connection between Baker and gun violence that was not properly established by any other evidence. Under these circumstances, the evidence of the rap music video was not “relatively benign” or merely cumulative, as we often have concluded in cases deeming improperly admitted evidence harmless.” Harris, 314 Ga. at 284 (citation omitted). Compare Jivens, 2023 WL 8721065, at *5 (explaining that the allegedly improper admission of photographs of the appellant with firearms was harmless, partly because “any prejudicial effect these photographs may have had was minimized by properly admitted evidence that [the appellant], in fact, had access to guns“).
By contrast, the other evidence showing that Baker participated in shooting Head was not especially compelling, especially given the equivocation of multiple witnesses. See Harris, 314 Ga. at 284 (explaining that “compelling properly admitted evidence of guilt” may offset a high risk of prejudice from improperly admitted evidence) (citation omitted). See also
The State points out that Orr-Oglesby‘s account at trial was supported by other evidence—including the surveillance recordings showing Baker (in a white shirt) and the man in the camouflage cap (in a black shirt) walking together toward the pawn shop; testimony that patrons saw a man in a white shirt walking with a man in a black shirt toward the pawn shop, saying something like, “we gonna get them,” moments before the shooting; and the shell casings near the pawn shop, which indicated that two guns were used in the shooting. Notably, however, Orr-Oglesby‘s account was also contradicted by other evidence. Orr-Oglesby testified that Baker and the man in the camouflage cap shot and then fled in a van that was parked on the side of the strip mall, but Dunn
To be sure, the State presented substantial evidence of Baker‘s motive to participate in the shooting: namely, that he and the man in the camouflage cap were angry with the security guards after the fight. But Baker did not dispute that he and the man in the cap fought with the guards or that he was angry. And to rebut the State‘s theory that his anger motivated him to perpetrate a shooting with the man in the cap, Baker provided a not-implausible account: after the fight, he simply parted ways with the man—whom he did not know and whose presence he wanted to leave, given that the man had escalated the fight—and got in the van, where he then heard gunshots.20
Given all of this evidence, we cannot say that it is “highly probable” that the trial court‘s improper admission of the evidence of the rap music video did not contribute to the guilty verdict, and thus the State has not met its burden of showing that the error was harmless. We therefore reverse Baker‘s malice murder conviction. See, e.g., Harris, 314 Ga. at 288-289 (reversing the appellant‘s convictions due to the improper admission of evidence under Rule 403, which was not harmless, because the evidence was highly prejudicial and the proof of the appellant‘s guilt “was not ‘overwhelming,’ ‘compelling,’ or even strong“); Strong, 309 Ga. at 316-318 (reversing the appellant‘s convictions on the ground that improperly admitted evidence was not harmless, because the evidence was highly prejudicial and not cumulative of other, properly admitted evidence; the State emphasized the evidence at trial; and the other evidence of the appellant‘s guilt was “not overwhelming,” particularly given that the State‘s two eyewitnesses gave somewhat inconsistent accounts of the murder and the appellant “provided a not-outlandish account of the incident“);
Heard v. State, 309 Ga. 76, 91 (844 SE2d 791) (2020) (reversing the appellant‘s convictions based on improperly admitted evidence that was not harmless, because the evidence was “highly prejudicial and not at all cumulative . . . and the evidence that [the appellant] committed the charged crimes was not compelling“).21
Judgment reversed. All the Justices concur, except Boggs, C.J., and LaGrua, J., who dissent.
The majority opinion holds that the trial court abused its discretion by admitting the 33-second clip from a rap music video into evidence because the video‘s “probative value [was] substantially outweighed by the danger of unfair prejudice[.]”
It is uncontested—even admitted by Baker and captured on camera—that Baker and a man in a camouflage cap attempted to reenter the nightclub shortly after 2:00 a.m., but they were denied reentry after a brief argument and physical struggle with the security guards. Baker and the man in the camouflage cap walked away in the direction of a pawn shop, with Baker placing his arm around the man in the camouflage cap. Uncontested evidence also shows that one of those security guards near the door was shot and killed minutes later. At least five witnesses testified that the gunfire came from the direction of the pawn shop, where shell casings were also found. Surveillance footage did not capture the shooting, but Orr-Oglesby testified that she saw two men matching the descriptions of Baker and the man in the camouflage cap both shooting guns toward the nightclub from the direction of the pawn shop. Another nightclub patron testified that she saw two men walking toward the pawn shop, one with his arm around the other, and she heard one say, “We gonna get them,” followed shortly by gunfire. Baker testified that, by the time the shooting started, he had already parted with the man in the camouflage cap and boarded the van. However, no other witnesses, including Dunn, could corroborate that Baker was in the van before the shooting. Accordingly, the majority opinion concludes that this evidence was constitutionally sufficient to support Baker‘s conviction. Majority Op. at 48 n.21.
But the majority opinion also holds that all this evidence “was not especially compelling.” Majority Op. at 43. I do not agree; rather, the evidence against Baker was substantial. To support its contrary holding, the majority opinion undermines Orr-Oglesby‘s identification of Baker as the shooter by listing multiple instances in which she identified Baker as the shooter but one instance where she equivocated. However, the majority opinion also acknowledges that the core of her testimony was largely consistent with other uncontested evidence. She heard some commotion at the front door of the nightclub and then saw two men near the pawn shop shooting toward the nightclub—two men that were identified at trial as Baker and the man in the camouflage cap. The inconsistencies highlighted by the majority opinion generally do not contradict that narrative, except for the testimony of an off-duty police officer at the scene, who testified that he “couldn‘t get a good sight of any shooters” and could barely remember what he saw. The majority opinion also explains that Orr-Oglesby had a motive to lie because she was on probation and was recently arrested on a bench warrant for a completely unrelated misdemeanor in a separate county, a motive which I find weak and irrelevant considering that she was not facing those charges during her prior identification of Baker.
Now to the question on appeal: did the trial court abuse its discretion by admitting the video under Rule 403, and, if so, was it harmful error? The majority opinion answers “yes” to both questions for roughly the same reason: “the rap music video was highly prejudicial.” Majority Op. at 40. I disagree.
The real issue garnering the majority opinion‘s focus is the State‘s use of the video once admitted. The video was played three times: first during Dunn‘s testimony, second during the lead detective‘s testimony, and last during Baker‘s testimony. However, each time, the video was used for a permitted purpose. In context, Dunn and Baker‘s testimony regarding the video focused on gun ownership, and the detective‘s testimony focused on how he identified Baker as the shooter.
The prosecutor also briefly referenced the video twice in her closing argument, with one reference merely in passing. Baker did not object to either reference and does not raise the closing argument‘s impropriety on appeal. Baker has thus waived his right to raise an independent claim that the prosecutor made an improper propensity argument in closing. See Gates v. State, 298 Ga. 324, 328-329 (4) (781 SE2d 772) (2016). Moreover, when the trial court ruled on the admissibility of the video, it could not possibly have factored the prosecutor‘s later closing argument into its evaluation of prejudice under Rule 403. While trial courts certainly must consider the danger of unfair prejudice inherent to the contested evidence, we should not fault the trial court for failing to predict that the State will turn around and openly and intentionally use that evidence for improper purposes. The trial court should be able to make rulings with the understanding that the State will later follow the rules of evidence. I still disagree with the majority opinion on how much danger of unfair prejudice the video presented. But I do not calculate in how the State‘s eventual and actual use of the video impacted the verdict. That is more appropriately—and more commonly—a part of the harmless-error analysis. See, e.g., Morrell v. State, 313 Ga. 247, 261-262 (2) (869 SE2d 447) (2022) (considering State‘s mentions of prior act evidence in closing arguments when assessing harmless error).
But by focusing on the State‘s closing argument in the unfair prejudice analysis, the majority opinion appears to conflate the question of unfair prejudice under Rule 403 with the question of whether the video, in the context of the entire trial, was harmful or harmless. Perhaps we have not been so careful to maintain this division in our past decisions regarding Rule 403 prejudice. See, e.g., Whited v. State, 315 Ga. 598, 606 (3) (883 SE2d 342) (2023) (affirming trial court‘s admission of evidence under Rule 403, in part by explaining “it is noteworthy in considering the extent of any unfair prejudice that the State‘s opening and closing statements did not focus” on the evidence in question, but, in support, only citing cases doing the same in their harmless-error analyses). But we have always maintained that exclusion under Rule 403 is an “extraordinary remedy which should be used only sparingly . . . .” Id. at 605 (citation and punctuation omitted). The initial admission or exclusion of the evidence itself, often done before the trial even begins, is its own consideration. Here, when the trial court made its ruling to admit the video, it was properly focused on the video itself—not what the State might argue in closing. See Wilson, 315 Ga. at 739 (8) (a) (explaining that the question
I also disagree with the majority opinion‘s holding regarding the video‘s probative value. For example, I do not agree that the video‘s probative value to prove access to the guns was “trivial.” Majority Op. at 31. The State offered no connection between Baker and guns other than the video. The video showed that Baker was familiar and comfortable with handguns, which was probative to a critical part of the State‘s case. Regarding the other permissible uses of the video, the majority opinion only notes other trial evidence, including Baker‘s testimony, that served a similar purpose as the video, potentially diminishing its probity. However, I do not agree that the video lost its probative value to the degree that majority opinion holds. Accordingly, the danger of unfair prejudice did not substantially outweigh the video‘s probative value here. The video was more probative and less prejudicial than the majority opinion holds.
Like the Rule 403 standard, the test for harmless error is also difficult to meet, as we must determine “whether it is highly probable that the error did not contribute to the verdict.” Jivens, 318 Ga. at 230 (2) (citation omitted; emphasis supplied). I do not condone the prosecutor‘s potential misuse of the video to make a propensity argument, but she did not make “it a focal point of the trial.” Majority Op. at 40. Ultimately, this case involved 19 witnesses—including Baker himself and someone who actually saw the shooting—and the trial transcript spans over 800 pages. The video was played for a total of 99 seconds, and discussion of the video took up only a few minutes of the four-day trial—a trial, as I have explained, in which substantial evidence of Baker‘s guilt was presented to the jury. Further, testimony by Baker and Dunn put the video in a performative context and explained that it was made in memory of a family member lost to gun violence. This helped mitigate whatever harm the video may have caused.
The majority opinion‘s harmless error analysis is also incomplete because it fails to account for the fact that Baker elected to testify at his trial, and the jury did not find him credible. See United States v. Phyfier, 842 F. Appx. 333, 338 (11th Cir. 2021) (per curiam) (explaining that, in the harmless error context, “it is well established that when a defendant testifies in his own defense, the jury may disbelieve his testimony, conclude that the opposite of his testimony is true, and consider it as substantive evidence of his guilt“). See also Fitts v. State, 312 Ga. 134, 144 n.9 (859 SE2d 79) (2021) (“If disbelieved by the jury, [defendant‘s] testimony denying her involvement in the crime could have served as direct evidence of the opposite proposition.“). For example, the jury was entitled to find that, contrary to his trial testimony, Baker was not in the van at the time of the shooting, but instead remained with the man in the camouflage cap, and that Baker did have a gun that night and was involved in the shooting. Cf. Majority Opinion at 16.
Thus, even if Rule 403 did merit exclusion, it is “highly probable” that the video‘s admission did not contribute to the verdict. See Ash v. State, 312 Ga. 771, 782-783 (2) (865 SE2d 150) (2021) (holding that, if the prosecutor improperly used a prior conviction to show defendant‘s propensity for violence, its admission was harmless when “neither the prosecutor nor [defense] counsel devoted much attention to this evidence in closing arguments” and the other evidence against defendant was “strong“). Therefore, I respectfully dissent.
I am authorized to state that Chief Justice Boggs joins in this dissent.