THE STATE v. ATKINS
S18A0770
Supreme Court of Georgia
September 10, 2018
304 Ga. 413
FINAL COPY
Denzel Atkins has been charged with murder in connection with the shooting death of Elijah Wallace in December 2015. The State filed a pretrial notice of its intent to introduce other acts evidence under
Although the trial court has discretion in determining the admissibility of evidence, the requirements of Rule 404 (b) must guide that discretion. The trial court did not confine its analysis to the purposes for which the State sought to introduce the evidence, it applied a standard we now disapprove for determining whether sufficient proof existed to establish that Atkins committed the 2013 murder, and its reason for excluding the evidence — “an abundance of caution” — is not a permissible basis upon which the court may exclude evidence that is otherwise admissible under Rule 404 (b). We therefore vacate the trial court’s order and remand for further proceedings consistent with this opinion.
1. Background
(a) The proffered facts of this case.
According to the State’s factual proffer accepted by the trial court, Wallace’s body — shot 13 times — was discovered on the side of a Fulton County road. Wallace was last seen waiting to sell marijuana to someone and, when two men arrived in a grey Nissan
A day after Wallace’s body was found, the police recovered a grey Nissan Sentra that had been set on fire and had evidence that an individual had been shot inside. Police interviewed the registered owner of the car, Makayla Ivey; she stated that her boyfriend, Harold Foster, and his friend, Atkins, borrowed her car the evening of December 21. When they returned her car, she noticed a bullet hole in the rear passenger door. Atkins told Ivey that he shot someone in her car and that they dumped the person’s body on the side of a road. Atkins said he would burn the car and instructed Ivey to report her car as stolen.
Foster surrendered to police and reported that Atkins reached out to him with the prospect of making some money. Foster said that he and Atkins took Ivey’s car to meet Wallace, Atkins and Wallace got into an argument in the car, and Atkins shot Wallace. After driving around for a few blocks, Atkins stopped the car and dumped Wallace’s body on the side of the road. As Foster and Atkins drove back home, Atkins threw his gun, the victim’s gun, and the victim’s cell phone out of the window.
Atkins was arrested and charged in this case with murder, three counts of felony murder, armed robbery, aggravated assault with a deadly weapon, criminal attempt to purchase marijuana, and possession of a firearm during the commission of a felony. The State filed notice of its intent to present other acts evidence under Rule 404 (b) to prove, among other things, intent, motive, identity, and lack of accident or mistake.
(b) The relevant other acts evidence at issue.
The other acts evidence at issue relates to the shooting death of another man, Perry Herbert, and formed the basis of a 2013 Candler County indictment against Atkins.1
Jones and Atkins were subsequently charged with murder and other crimes related to Herbert’s death, and Jones pleaded guilty to voluntary manslaughter and armed robbery and agreed to testify at Atkins’s trial. At his trial, Atkins argued that he was not present for the crime. The jury acquitted Atkins of murder, felony murder, conspiracy to commit murder, and two counts of possession of a firearm during the commission of a felony. The court declared a mistrial on the remaining counts, which included armed robbery and kidnapping, after the jury was unable to reach a verdict on those counts.
(c) The trial court’s ruling on the State’s Rule 404 (b) motion.
In ruling on the State’s motion, the trial court considered the underlying facts of the Candler County case, including Atkins’s alibi defense, and ruled that the jury reasonably could have believed that Atkins was involved in the kidnapping and other charges for which the jury could not reach a verdict but not believed that Atkins was a party to Herbert’s murder. The trial court found that the other acts evidence was being offered for a legitimate purpose, including for reasons not asserted by the State, and that there was sufficient proof from which the jury could find by a preponderance of the evidence that Atkins “committed at least some, if not all, of the prior acts.” The trial court also concluded that the prejudicial impact of the other acts evidence did not substantially outweigh its probative value, noting that the Candler County incident was so similar to the present crime that it “almost qualifie[d] as a signature crime.” Based on these findings, the trial court permitted the introduction of evidence showing Atkins’s involvement in the drug deal with and kidnapping of Herbert but excluded evidence about Herbert’s murder “out of an abundance of caution.”
2. Analysis of the trial court’s ruling
The State argues on appeal that the trial court found that the evidence met each of the prongs of the Rule 404 (b) test for admissibility and was, therefore, without a legal basis to exclude the evidence that Herbert was murdered. The State is incorrect. The trial court found that there was not sufficient proof that Atkins participated in Herbert’s murder. But this ruling was based on our precedent that we now overrule, the trial court’s exclusion of the evidence “out of an abundance of caution” was not a proper basis to exclude otherwise admissible evidence, and the trial court did not confine its analysis to the purposes sought by the State. Such errors require that we vacate and remand for the trial court to reconsider the matter under the proper framework.
Rule 404 (b) provides in part:
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. . . .
For other acts evidence to be admissible, a three-part test must be satisfied. Jones v. State, 301 Ga. 544, 545 (802 SE2d 234) (2017). The trial court must find that: (1) the other acts evidence is relevant to an issue other than the defendant’s character, (2) the probative value is not substantially outweighed by undue prejudice under
We review a trial court’s decision regarding Rule 404 (b) evidence for an abuse of discretion. See State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015). But even where a trial court’s ultimate ruling is subject to only an abuse of discretion review, the deference owed the trial court’s ruling is diminished when the “trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree.” State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).
Here, the trial court articulated its analysis in terms of Rule 404 (b). But the trial court’s findings did not fully align with the requirements of that test. Although many of those findings are not directly challenged, as the State challenges only the court’s ultimate ruling and Atkins did not file a cross-appeal, we must nevertheless review them because they form the basis for the court’s ultimate judgment.
(a) The trial court’s analysis of relevance was inconsistent with the Rule 404 (b) test.
Neither party takes issue with the trial court’s analysis at step one of the Rule 404 (b) test, but we nevertheless start there,2 because determining relevance depends on the issue for which the evidence is offered, and the Rule 403 balancing of probative value versus unfair prejudice depends on the issue for which the evidence is relevant.3 “The threshold inquiry a court must make before admitting similar acts evidence under Rule 404 (b) is whether that evidence is probative of a material issue other than character.” Huddleston v. United States, 485 U. S. 681, 686 (108 SCt 1496, 99 LE2d 771) (1988); see also United States v. Veltmann, 6 F3d 1483, 1499 (11th Cir. 1993) (“The court must first assure that the [Rule 404 (b)] evidence is relevant to an issue other than defendant’s character[.]”).
Before the trial court, the State articulated, at most, a clear hypothesis only as to the issues of intent, knowledge, identity, and lack of accident.4 See
trial and appellate court to follow the Rule 404 (b) analysis mandated by [United States v. Beechum, 582 F2d 898 (5th Cir. 1978)]”).5
We need not decide whether this error was reversible, however, because the trial court’s relevance ruling is not challenged on appeal, and such a determination is unnecessary given that we are remanding the case for the trial court to redo the Rule 404 (b) test. The overly broad finding nevertheless diminishes the deference we are to give to the court’s ultimate ruling.
(b) We disapprove our precedent that the trial court was bound to follow in determining whether there is sufficient proof for a jury to find that Atkins committed the other acts.
Atkins argued that the collateral estoppel doctrine of the United States Constitution’s Double Jeopardy Clause precludes the State from relitigating his involvement in Herbert’s murder, because he presented an alibi defense in the Candler County case and that jury resolved the issue of his involvement in his favor by acquitting him of murder. The trial court rightly concluded that Atkins’s acquittal of certain charges in the Candler County case did not automatically preclude the State from using the incident for Rule 404 (b) purposes. The trial court followed binding case law in determining the second prong of the Rule 404 (b) test, but that case law is no longer good law, and we now disapprove it.
(i) The cases Atkins relies on in support of his collateral estoppel argument do not apply here.
In support of his collateral estoppel argument, Atkins relied primarily on Ashe v. Swenson, 397 U. S. 436 (90 SCt 1189, 25 LE2d 469) (1970) and its progeny, including this Court’s decision in Moore v. State, 254 Ga. 674 (333 SE2d 605) (1985). Ashe does not apply, and we disapprove Moore as in conflict with later United States Supreme Court precedent.
In Ashe, a group of masked men robbed six men playing poker. 397 U. S. at 437. The habeas petitioner was acquitted of robbing one of the men, but was convicted at a later trial of robbing a different poker player. Id. at 438-440. The United States Supreme Court ruled that the second trial was barred by the doctrine of collateral estoppel, which the court said was “embodied” in the Double Jeopardy Clause of the Fifth Amendment despite noting that the doctrine originally developed in civil litigation and had only been applied to criminal law about fifty years prior to Ashe. Id. at 443, 445-447. The Ashe Court stated that, when determining whether collateral estoppel applies where a previous judgment of acquittal was based on a general verdict, courts are to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444 (punctuation and footnote omitted).
We followed this instruction in Moore, where we considered whether collateral estoppel barred the admission into evidence of prior acts for which the defendant was previously acquitted.6 254 Ga. at 674.
Moore applied Ashe’s principles, but those principles do not govern the admissibility of other acts evidence. The United States Supreme Court made that clear five years after Moore in Dowling v. United States, 493 U. S. 342 (110 SCt 668, 107 LE2d 708) (1990). The defendant there argued that his prior acts were inadmissible pursuant to Ashe, but the Court expressly declined to extend Ashe “and the collateral-estoppel component of the Double Jeopardy Clause to exclude in all circumstances . . . relevant and probative evidence that is otherwise admissible under the Rules of Evidence simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” Id. at 348. The Court held that an acquittal in a criminal case does not bar the government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof. Id. at 348-349. Because the admissibility of evidence under Rule 404 (b) was governed by a lower standard (preponderance) than the question of guilt in the prior criminal prosecution (beyond a reasonable doubt), the Court found no error in admitting evidence of a defendant’s prior acts for which he was previously acquitted for Rule 404 (b) purposes, explaining that a jury might reasonably conclude by a preponderance of the evidence that the defendant committed the prior acts even though the jury was not convinced of that fact beyond a reasonable doubt. Id. at 348-350.7
Our decision in Moore cannot be squared with Dowling.8 Moore’s holding rests squarely on the principles laid out in Ashe. But Ashe’s foundation proves too weak to extend beyond the procedural context of that case. See Currier v. Virginia, ___ U. S. ___, ___ (138 SCt 2144, 201 LE2d 650) (2018) (noting arguments that Ashe “sits uneasily” with that Court’s double jeopardy precedent and the Constitution’s original meaning). Dowling’s express refusal to extend Ashe’s holding (and Ashe’s subsequent treatment by the United States Supreme
Court) show that Ashe’s holding does not extend here: the Double Jeopardy Clause bars a second trial only where, to convict the defendant, the second jury would have to reach a conclusion “directly contrary” to that reached by the first jury. Dowling, 493 U. S. at 347-348; see also Currier, 138 SCt at 2150 (“Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the first trial.”).9 Moore
(ii) The trial court erred by applying the principles of Moore.
The trial court did not cite Moore in its Rule 404 (b) order, but the court’s language reflects an understandable application of Moore’s principles to this case. The court reviewed “the underlying facts” to “determine whether those facts preclude” the admission of the murder evidence as other acts evidence, interpreted the Candler County jury’s verdict, taking into account Atkins’s alibi defense and the alleged participation of a co-defendant (Jones), and concluded that “[t]he jury could have reasonably believed that Defendant was involved in the kidnapping and other charges for which the jury could not reach a verdict, but still not have believed Defendant knew or was a party to the murder.” An examination of a prior proceeding to determine whether the other acts evidence is “precluded” is the hallmark of Moore’s collateral estoppel test. Although the trial court was bound by Moore at the time of its order and thus properly followed it, we nevertheless now conclude that Moore’s analysis is in error.
The trial court’s focus on the grounds for the Candler County jury’s verdict clouded its analysis on the second prong. Two sentences after the trial court determined what the Candler County jury believed, the court found that there was sufficient proof that the jury could find by a preponderance of the evidence that Atkins “committed at least some, if not all, of the prior acts.” These findings, and its ultimate ruling to exclude the murder evidence, suggest that the court did not believe there was sufficient evidence to show Atkins was involved in Herbert’s murder because he was acquitted of that offense. The trial court did not err in looking to results of the prior proceeding to determine the sufficiency of the proof; after all, these details were included in the State’s factual proffer in support of its Rule 404 (b) motion. But the trial court was precluded by Moore from recognizing that the Candler County jury could have reasonably believed that Atkins committed the murder yet not believed it beyond a reasonable doubt. See Dowling, 493 U. S. at 348-349 (“Because a jury might reasonably conclude that Dowling was the masked man who entered Henry’s home, even if it did not believe beyond a reasonable doubt that Dowling committed the crimes charged at the . . . trial [for that offense], the collateral-estoppel component of the Double Jeopardy Clause is inapposite.”). Because the court applied collateral estoppel principles to determine the admissibility of other acts evidence, the court erred at the second step of the Rule 404 (b) test.
(c) The trial court erred in excluding the evidence “out of an abundance of caution” because this is not a legal ground to exclude otherwise admissible evidence.
Even where a trial court makes an error of law, we may still affirm if we can conclude that, had the trial court applied the correct legal analysis, it would have no discretion to reach a different judgment. See State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). We cannot do so here, though.
For Rule 404 (b) evidence to be admitted, it must also meet the test of Rule 403. Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016). Rule 403 provides that “[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.”
The Rule 403 balancing test calls for the exercise of the trial court’s discretion. Bradshaw, 296 Ga. at 657-658 (3). This discretion is broad, but it is not unlimited. Such “discretion does not sanction exclusion of competent evidence without a sound, practical reason.” Ramos v. Liberty Mutual Ins. Co., 615 F2d 334, 340 (5th Cir. 1980) (citation omitted); see also Borden, Inc. v. Fla. E. Coast Ry. Co., 772 F2d 750, 754 (11th Cir. 1985); Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F2d 373, 378 (6th Cir. 1983); Anderson v. Malloy, 700 F2d 1208, 1212 (8th Cir. 1983). That is because “Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence[.]” Jones, 297 Ga. at 164 (3) (citation and punctuation omitted).
The trial court determined that the probative value of the evidence was not substantially outweighed by unfair prejudice. This language is generally understood as a shorthand to describe the Rule 403 balancing test. See, e.g., Smart v. State, 299 Ga. 414, 418 (2) (b) (788 SE2d 442) (2016) (“We . . . must address whether the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403.” (citation and punctuation omitted)). Although the trial court cited the requirements of the Rule 403 balancing test, a proper application of that test depends on the purpose for which it is offered. Setting aside whether the court’s Rule 403 balancing was correct in the absence of a purpose-by-purpose analysis — especially where the trial court’s order said the evidence was admissible for every purpose enumerated in Rule 404 (b), see Division 2 (a) — the trial court’s reason for excluding the evidence of the Candler County murder was not permissible.
The court excluded the evidence of the murder “out of an abundance of caution.” Rule 403 provides a list of reasons authorizing a trial court to exclude otherwise admissible and relevant reasons. “An abundance of caution” is not one of those enumerated grounds. Rule 404 (b) is a rule of inclusion and Rule 403 is an extraordinary exception to that inclusivity. See Jones, 297 Ga. at 159 (2), 164 (3). The court’s basis for excluding the murder was thus unsound. Given this legal error, along with its correct application of our now-disapproved decision in Moore and failure to align the purposes for which the State wants to use the Rule 404 (b) evidence with the purposes the trial court determined appropriate, we vacate and remand.
3. The doctrine of chances is not a separate purpose to admit other acts evidence.
The State also argues that the doctrine of chances is a legitimate, non character purpose of Rule 404 (b) evidence, and that we should instruct the trial court on remand to rule on the State’s argument that the other acts here are admissible for this purpose. We decline to do so, because the trial court would have no discretion to admit the evidence for this purpose.
“The doctrine of chances relies on objective observations about the probability of events and their relative frequency, and the improbability of multiple coincidences.” United States v. Henthorn, 864 F3d 1241, 1252 n.8 (10th Cir. 2017). The doctrine of chances explains, then, that “highly unusual events are highly unlikely to repeat themselves.” United States v. York, 933 F2d 1343, 1350 (7th Cir. 1991) (“The man who wins the lottery once is envied; the one who wins it twice is investigated.”), overruled on other grounds by Wilson v. Williams, 182 F3d 562 (7th Cir. 1999).
The State relies heavily on the analysis in York, but that case does not support its argument. In York, the defendant was convicted of, among other things, arson and mail fraud for setting fire to a bar that killed his business partner and then attempting to collect on insurance policies on the bar and on the partner’s life. 933 F3d at 1345-1348. He argued on appeal that the trial court erred in admitting other acts evidence related to his first wife’s murder. After concluding that the other acts evidence was relevant to show the defendant’s plan to commit the crimes, the York court cited the doctrine of chances in explaining why the evidence was also relevant to show the defendant’s intent and to rebut his innocent explanations for his conduct. Id. at 1349-1350 (“[T]he odds of the same individual reaping the benefits, within the space of three years, of two grisly murders of people he had reason to be hostile toward seem incredibly low, certainly low enough to support an inference that the windfalls were the product of design rather than the vagaries of chance.” (citation omitted)). York does not hold that the doctrine of chances is a separate ground of admissibility, but merely that it establishes the logical inferential chain that can be drawn from other acts to show intent or lack of accident. Because the doctrine of chances is not an independent ground to admit other acts evidence, the State may not introduce the other acts for this independent purpose.
Judgment vacated and case remanded. Melton, C. J., Nahmias, P. J., Benham, Hunstein, Blackwell, and Boggs, JJ., concur.
Decided September 10, 2018.
Murder. Fulton Superior Court. Before Judge LaGrua.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Scott F. McAfee, Kevin C. Armstrong, Linda J. Dunikoski, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant.
Tamara N. Crawford, Sandra K. Wolfe, for appellee.