922 S.E.2d 377
Ga.
2025
Stevenson v. State

waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403. “In reviewing the admission of evidence under Rule 403, we look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.” Salvesen v. State, 317 Ga. 314, 317 (2023) (quotation marks omitted). “Decisions regarding relevance are committed to the sound discretion of the trial court, and the exclusion of relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly.” Albury v. State, 314 Ga. 459, 461 (2022) (quotation marks omitted). “Autopsy photographs may be relevant and probative to show the nature and location of a victim‘s injuries, even if the cause of death is not disputed.” Id. (quotation marks omitted).

In this case, the post-incision photographs were relevant to illustrate Dr. Grandhi‘s testimony about Caleb‘s cause of death, as they showed areas of bleeding under the scalp, underlying brain tissue damage, and the extent of the skull fractures that were not visible pre-incision. Thus, the photographs were relevant to show the nature and location of the injuries and “corroborated the State‘s evidence of the circumstances of the killing.” Moore v. State, 307 Ga. 290, 295 (2019) (quotation marks omitted). See also Albury, 314 Ga. at 461. Moreover, the probative value of the photographs was high because they visually depicted some of the considerations the medical examiner made when determining the cause of death, and “although the photographs may have been graphic, we cannot say the trial court abused its discretion in concluding that their probative value was not substantially outweighed by the danger of unfair prejudice.” Johnson v. State, 316 Ga. 672, 683 (2023). See also Salvesen, 317 Ga. at 317 (“[T]he mere fact that the photographs were gruesome does not, as a general matter, render them inadmissible under Rule 403.“). The trial court did not abuse its discretion by admitting into evidence the post-incision autopsy photographs at issue here. See Flowers v. State, 307 Ga. 618, 624 (2020) (holding that the trial court did not abuse its discretion in admitting an autopsy photograph that showed “the underside of [the victim‘s] brain, to illustrate the extent of the bruising,” and that was relevant evidence of the severity of that immediately lethal injury).

4. Burks next contends that the trial court erred in providing the jury with an Allen charge instead of granting a mistrial when the jury informed the court it could not reach a unanimous decision. But because there was nothing coercive about the Allen charge provided, we disagree.

The jury began deliberations on February 13, 2018. On February 14 and again on February 15, jurors sent notes to the court indicating that one or more jurors were having trouble participating in deliberations. The court suggested providing a charge pursuant to Allen v. United States, 164 US 492 (1896), but the State suggested it may be too soon for an Allen charge. The foreman sent a note that stated “2 jurors suggests that we have reached an impasse. I do not agree,” and told the court that he believed the jury needed to keep deliberating. The court instructed them to keep deliberating. Later on February 15, the foreman told the court that the jury had reached a verdict on three counts. The State asked the court for the Allen charge for the others, but the court declined. At 4:10 p.m. on February 15, the jury sent a note that “reflect[ed] where [it stood] on the 10 counts,” and showed a tally of how jurors were leaning as to each count. The court told the parties that there was unanimity as to Counts 6, 7, and 8. The court instructed the parties to consider an Allen charge for the following day.

On February 16, the State argued that the jury may be at an impasse and that the court should give an Allen charge. Burks objected and stated that a mistrial might be more appropriate. At 9:45 a.m., the jury sent a note stating that it had taken a “final vote,” and provided to the court the breakdown of its vote on all counts. The court told the parties that the vote showed that there had been changes on two of the counts from the previous day‘s tally, but the foreman told the court that the jurors were at an impasse on all counts other than the three on which they had reached a unanimous verdict the day before. The court asked the foreman if he believed the jury was at an impasse as to the seven counts for which there was not already a unanimous verdict, and the foreman responded, “Sir, I believe we are at an impasse on all of them.”

The court then provided an Allen charge,6 to which Burks objected. See Suggested Pattern Jury Instructions (Criminal) § 1.70.70 (4th ed. 2007) (Jury (Hung)). At 4:10 p.m. on February 16,

the foreman sent another note with another breakdown of the votes, indicating a change in tally on five of the seven still-nonunanimous counts, and the foreman confirmed to the court that he thought further deliberation could be fruitful on some, but not all, of the remaining counts.

Following the weekend, the jury resumed its deliberations at 8:45 a.m. on February 19. At 10:16 a.m., the foreman informed the court that they were “making progress,” and at 11:02 a.m., the foreman sent another vote tally indicating movement on one count but nothing else. At 11:56 a.m., the jury sent another note that indicated there was unanimity as to Counts 6–12, and Burks‘s counsel argued that the trial court was “pressuring” the jury into a vote. Later in the afternoon, the foreman indicated that there had been no further movement. The court instructed the foreman to fill out the verdict form for only the counts as to which the jury had a unanimous verdict and to leave blank any count for which there was not a unanimous verdict. The jury found Burks guilty of Counts 6–10, and the court declared a mistrial as to Counts 1–5.

“The decision of whether to give an Allen charge is within the discretion of the trial court, and a trial court‘s instruction is not coercive simply because the instruction compelled the jury to continue deliberating after it reported a deadlock.” Hughs v. State, 312 Ga. 606, 613 (2021) (citation, punctuation and quotation marks omitted). “The central inquiry in reviewing an Allen charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” Scott v. State, 290 Ga. 883, 888 (2012) (quotation marks omitted). This Court considers various factors to determine whether requiring further deliberations was coercive, including:

the length of trial, the length of deliberations before the jury indicates that it is deadlocked, the language of the jury‘s notes, the progress of the jury, the language of the Allen charge and other instructions regarding deliberations, the length of additional deliberations after the alleged coercion, whether the jury found the defendant not guilty of any charges, and the polling of the jury.

Smith v. State, 302 Ga. 717, 721 (2017).

Here, the court did not abuse its discretion in charging the jury to continue deliberations because the ”Allen charge read by the trial court was an accurate statement of the law and not coercive.” See Hughs, 312 Ga. at 614 (approving the pattern Allen charge that is substantially identical to the Allen charge given in this case). As to the “language of the jury‘s notes” and the “progress of the jury” factors, after the first time the foreman volunteered the jury‘s numerical breakdown on some of the counts for which they did not have a verdict, the numerical breakdowns7 continued to shift on a few of the counts each time the court instructed the jury to continue its deliberations. See Smith, 302 Ga. at 721. The foreman reported

that he believed the jury could benefit from further deliberations. See id. (“[T]he jury did not simply announce that it was ‘deadlocked.’ Rather, the jury reported its numerical division and the lack of continued participation by one juror ... and described its position with the terms ‘stalemate’ and ‘dilemma.‘“).

As to “the language of the Allen charge and other instructions regarding deliberations” factors, see Smith, 302 Ga. at 721, the court here gave an instruction that largely mirrors the 2016 pattern jury instruction for a hung jury, and Burks has failed to identify any language in the charge amounting to impermissible coercion. See Scott, 290 Ga. at 888. See also Drayton v. State, 297 Ga. 743, 747–48 (2015). Burks specifically argues that the court‘s instruction suggested that, if any juror was the only one to hold a specific view, he or she should consider changing his opinion, and that the instruction gave the “exhausted jurors” the impression that if they did not reach a unanimous decision, they could not go home. We disagree.

To that end, in analyzing an instruction almost identical to the one at issue in this case, this Court has previously held that the modified pattern Allen charge would not have impermissibly suggested that the “jurors were absolutely required to reach agreement on each charge as opposed to deadlocking on one or more charges.” See Drayton, 297 Ga. at 749. In Drayton, the appellant alleged that the part of the pattern jury charge instructing that a unanimous verdict was required misled the jury into thinking there had to be either a guilty or a not guilty verdict as opposed to the third option of no verdict resulting in a mistrial. Id. at 748. But we held that that part of the instruction was a correct statement of the law and that the other language from the charge indicated there was a possibility of a third option. Id. at 749.

Specifically, language in the instruction such as “the desirability of agreement, if possible,” “this verdict must be the conclusion of each juror, and not a mere acquiescence,” and informing the jury that it was being sent back to the jury room “to try to arrive at a verdict” all worked together to keep the jurors from being misled by the part of the instruction that a verdict must be unanimous. Drayton, 297 Ga. at 749 (emphasis added). Each of those phrases from the charge given in Drayton was included in the instruction the trial court provided in Burks‘s case and, therefore, we cannot say that the instruction here misled the jurors into thinking that if they did not reach a unanimous verdict they could not go home. Accordingly, Burks has not shown that anything about the instruction given in this case was coercive, and the court did not abuse its discretion in giving the Allen charge.

5. Burks next contends that the trial court abused its discretion by denying his motion for a change of venue because the pretrial publicity created an “inherently prejudicial trial setting.” But because Burks has not shown how the pretrial publicity rendered his trial setting inherently prejudicial, the court did not abuse its discretion in denying his request for a change of venue.

In August 2016, Burks filed a motion for a change of venue pursuant to OCGA § 17-7-150,8 arguing that the crimes for which he was charged garnered “an extraordinary amount of pretrial publicity” in Muscogee County and the Chattahoochee Judicial Circuit and engendered “community sentiment” and prejudice due to their “heinous nature.” Over a year and a half later, he renewed the motion, arguing that the pretrial publicity had severely prejudiced him, as certain news articles contained inaccurate information and used sensational language. He listed 24 headlines of articles about the crimes and argued that the articles labeled Burks in unflattering terms like “suspect.” Following argument, the trial court denied Burks‘s motion.

“The trial court has the discretion to grant a change of venue and its discretion will not be disturbed absent an abuse of that discretion.” Powell v. State, 297 Ga. 352, 354 (2015). For a request of a change of venue to be granted, the movant must show either that the trial setting is “inherently prejudicial” or “that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” Garcia-Solis v. State, 320 Ga. 754, 762 (2025). To show that a trial setting is inherently prejudicial, “the record must establish that the publicity contained information that was unduly extensive, factually incorrect, inflammatory or reflective of an atmosphere of hostility.” Id. (quotation marks omitted). And “even in cases of widespread pretrial publicity, situations where such publicity has rendered a trial setting inherently prejudicial are extremely rare.” Clements v. State, 317 Ga. 772, 791 (2023) (quotation marks omitted).

Here, Burks has made no showing that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible and argues only that the setting of the trial was inherently prejudicial. Burks, however, has failed to demonstrate how pretrial publicity surrounding his case resulted in an inherently prejudicial trial setting. To support his claim, Burks points to a single comment from a member of the public posted online in response to an online news article about the case to support his claim.9 Even assuming that an online comment of this kind can be considered in evaluating pretrial publicity or community sentiment, Burks has failed to show that this solitary opinion from an online commenter rendered the publicity itself to be “unduly extensive, factually incorrect, inflammatory or reflective of an atmosphere of hostility.” See Garcia-Solis, 320 Ga. at 762 (quotation marks omitted). See also Clements, 317 Ga. at 791–92 (concluding that there was no inherent prejudice even where local newspaper with articles about the crimes had a print subscription base of 17,500 people and published articles on its Facebook account with 30,000 followers because none of the articles were unduly extensive, factually inaccurate, inflammatory, or reflective of an atmosphere of hostility). See also Taylor v. State, 303 Ga. 624, 628–30 (2018) (holding that press coverage did not create presumption of prejudice where one article discussed the victim‘s widow‘s dismay with the

defendant being retried but the article did not indicate that the public shared the widow‘s views and was not “otherwise hostile toward the defendant“). Burks has failed to show that the trial setting here was inherently prejudicial, and accordingly, the trial court did not abuse its discretion in denying the motion for a change of venue.

6. Finally, Burks contends that the trial court abused its discretion by denying his oral motion to impanel a new jury during jury selection on the ground that the venire of potential jurors was prejudiced because it initially saw Burks on trial with his co-defendants but, after Gibson and Tapley decided to plead guilty, Burks was the only remaining defendant on trial. We disagree.

After the jury selection process began, Burks‘s co-defendants indicated their intent to plead guilty and exited the case. Burks moved for a new jury panel, arguing that the panel would be prejudiced because it would only see Burks remaining at the defendants’ table. The court denied the motion because any concerns could be addressed through the court‘s instructions to the jury to consider only the case against Burks. The court later instructed the jury to decide the case based solely on the evidence presented in the courtroom, reminded the jury that Burks was the “only defendant on trial before [it],” and instructed that the jury was only concerned with guilt or innocence “of this defendant,” and the jurors affirmed by oath that they would try the issues formed by the indictment against Burks and according to the evidence presented.

We review a trial court‘s denial of a motion requesting that a jury panel be excused and another panel be made available for an abuse of discretion. Horton v. State, 310 Ga. 310, 318 (2020).“[T]he appropriate inquiry is whether the conduct in question was inherently prejudicial and deprived [the defendant] of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.” Id. (punctuation, quotation marks and emphasis omitted). “Of course, where the facts establish only gossamer possibilities of prejudice, prejudice is not inherent.” Id. (quotation marks omitted).

Here, the trial court did not abuse its discretion in denying Burks‘s motion to strike the jury panel. We cannot say that the jury‘s awareness that Burks‘s co-defendants were involved in the case at the beginning of jury selection10 but were ultimately not tried with Burks was “inherently prejudicial.” See Horton, 310 Ga. at 318. Nor did it deprive Burks of his right “to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.” Id.

Further, in its preliminary instructions to the jurors, the trial court instructed that the jurors must decide the case based solely on the evidence presented in the courtroom and must not do any research during the trial about the matters or the parties involved in the case. In its jury instructions at the conclusion of the trial, the court reminded the jury that “Mr. Burks is the only defendant on trial,” and that the jury was only to be “concerned with the guilt or the innocence of this defendant.” See Horton, 310 Ga. at 317, 319 (concluding that the court did not abuse its discretion when

countering the potential effects of an allegedly prejudicial event by inquiring whether the jurors could remain impartial and instructing them to disregard the incident and only decide the case based on the evidence presented). “We ordinarily presume that jurors follow such instructions without clear evidence to the contrary, which we do not have here.” Prickett v. State, 314 Ga. 435, 440 (2022).

Burks has provided no evidence to suggest that the change in composition at the defendants’ table from the beginning of jury selection to the start of trial prevented Burks from beginning “his trial with a jury free from even a suspicion of prejudgment or fixed opinion,” and because “the trial judge was in a better position than this Court to determine the nature of the [allegedly prejudicial event] and its likely effect, if any, upon the jury,” we will not disturb that determination absent an abuse of discretion. See Horton, 310 Ga. at 317–18 (punctuation and quotation marks omitted).

Judgment affirmed. All the Justices concur.

Decided October 21, 2025.

Murder. Muscogee Superior Court. Before Judge McBride.

Tina G. Stafford, Angela R. Morelock, for appellant.

Don Kelly, District Attorney, Daniel P. Bibler, Cynthia D. McDonald, Assistant District Attorneys; Christopher M. Carr, Attorney General, Beth A. Burton, Deputy Attorney General, Clint C. Malcolm, Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney General, for appellee.

Notes

6

The charge largely mirrored the 2016 pattern jury charge, as the court instructed the jury:

And at this time, I‘m going to remind you that your verdict must be unanimous. You have been deliberating this case for a considerable length of time and I do deem it proper to give you further instruction regarding the desirability of agreement if possible.

This case has been exhaustively and carefully tried by both sides. It has been submitted to you for decision and a verdict if possible rather than for disagreement. It is the law that a unanimous verdict is required. While this verdict must be the conclusion of each juror and not a mere acquiescence in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and the questions submitted with candor and fairness and with a proper regard for and deference to the opinion of the other jurors.

Each juror should listen to the arguments of the other jurors with a disposition to be convinced by them. If you differ in your views of the evidence, such difference of opinion should cause you to scrutinize the evidence more closely and to re-examine the grounds for your own opinion.

Your duty is to decide the issues of fact that have been submitted to you if you can do so conscientiously. In conferring, you should lay aside all mere pride of opinion and you should bear in mind that the jury room is no place to champion either side of a cause. As jurors, you should not be advocates. The aim to keep in mind is the truth as it appears from the evidence examined in light of the [c]ourt‘s instructions.

You will again retire to your jury room to resume your deliberations and examine your differences in a spirit of fairness and try to arrive at a verdict.

7

At one point during deliberations, the trial court suggested that it may not be appropriate for the parties to know the breakdown of the votes, and Burks agreed, arguing that “one reason that we don‘t engage in those discussions is because we have to make other decisions as far as moving for a mistrial, partial verdict, dismissing jurors for cause or, you know, anything that comes up. And that information would influence some of those decisions.”

Even though Burks does not raise a claim on appeal about the impropriety of the jury reporting votes or that it was error for the court to reveal the numerical breakdowns of the jurors’ votes, we note that, for the very reason argued during deliberations in his trial, “it would have been much better for the trial court to tell the jurors to stop revealing the nature of their numerical division, … and we again encourage trial judges to inform jurors not to reveal that information.” Smith, 302 Ga. at 722 (quotation marks omitted).

8

OCGA § 17-7-150 provides: “The defendant, in any criminal case in which a trial by jury is provided, may move in writing for a change of venue, whenever, in the defendant‘s or defense counsel‘s judgment, an impartial jury cannot be obtained in the county where the crime is alleged to have been committed.” OCGA § 17-7-150(a)(1)(A).

9

The online news article explained that police had identified Burks as the “15-year-old boy charged” with the deaths, and the online commenter responded that neither Burks nor the other two people charged were men but, rather, were “lower than animals!”

10

Albeit in a slightly different context than we have here, the Court of Appeals has held that it was reversible error for a co-defendant to take a guilty plea in the presence of the entire jury panel from which the jury was to be selected. See Hayes v. State, 136 Ga. App. 746, 746 (1975). We express no opinion as to the correctness of that holding.