THE STATE v. STEPHENS
S20A0714
Supreme Court of Georgia
October 5, 2020
310 Ga. 57
McMILLIAN, Justice
The State appeals the trial court‘s order partially denying its “Motion to Include Relevant and Probative Evidence,”1 which sought a pretrial ruling on the admissibility of two photographs for use at Justin Devon Stephens‘s second trial for the murder of Christopher Starks.2 One of those photographs purportedly depicts Stephens with a gun in his hand (“Exhibit 1“). The other photograph depicts Stephens‘s girlfriend as shе points a handgun at the camera and Stephens in the
Starks was killed on August 27, 2015, at the Student Union located on the campus of Savannah State University. Stephens was first tried on the charges surrounding Starks‘s death from July 16 to July 19, 2019. As it relates to the State‘s motion, the evidence from the first trial5 shows that the shooting occurred after two groups of men, one including Starks and the other including Stephens, “faced off” against one another. Several witnesses testified that when a third party punched Stephens, Stephens hit Starks, and the witnesses heard a gunshot. In statements given to law enforcement near the time of the murder, several witnesses identified Stephens as the shooter or gave a description of the shooter that matched Stephens‘s height.
The firearm used to shoot Starks was never recovered, but the evidence at the first trial showed that during the law enforcement investigation into the shooting, one witness described the weapon as a “black pistol” and another witness described it as “big and black” and as a .40- or .45-caliber gun. Stephens‘s girlfriend testified that the only gun Stephens owned was a .22-caliber pistol he had purchased for himself. When the State attempted to introduce the Exhibit 2 photograph during the girlfriend‘s testimony, Stephens‘s counsel objected on the ground that it was irrelevаnt and impermissible character evidence. The trial court sustained the objection, stating that the photograph was irrelevant because there was nothing linking the gun in the photograph to Starks‘s murder and the photograph simply depicted Stephens with a gun magazine, not a weapon. After asking Stephens‘s girlfriend a few additional questions to elicit evidence that Stephens‘s girlfriend and he were not speaking at the time of the shooting, the prosecutor tried a second time to introduce the photograph into evidence, and the trial court again ruled that it was inadmissible.
Less than a month after the first trial ended in a mistrial, a Chatham County grand jury indicted Stephens on the same offenses in a superseding indictment.6 The State elected to proceed to trial on the supеrseding indictment and filed a motion seeking to introduce Exhibits 1 and 2 into evidence at that trial. In its motion, the State represented that during an interview with the GBI, Stephens had identified himself as the man holding the gun in Exhibit 1, and he identified the gun as belonging to his late brother. The State also represented that on September 3, 2015, a GBI special agent performed a search of Stephens‘s girlfriend‘s Twitter account and fоund the Exhibit 2 photograph posted to the account and that in a police interview, Stephens‘s girlfriend identified the man holding the gun magazine in Exhibit 2 as Stephens and identified herself as the woman pointing the gun. The State contended that the two photographs were admissible under
The trial court denied the motion without a hearing, finding that Exhibit 2 was not relevant and rejecting the State‘s contention that Exhibit 1, showing Stephens with a gun in his hand, made Exhibit 2 any more probative. The trial court concluded that Exhibit 2 was irrelevant and inadmissible and reserved ruling on Exhibit 1 “until trial to determine its potential relevance in context.”
1. The State argues on appeal that the trial court abused its discretion in excluding Exhibit 2 as it matched the witnesses’ descriptions of the murder weapon and was relevant to show that Stephens had access to a gun other than the .22-caliber gun his girlfriend described.
Under
The murder weapon in this case was never recovered. Although one witness originally identified the gun used in the murder as a .40- or .45-caliber weapon, the State has not pointed to any evidence identifying the caliber оf the firearm pictured in Exhibit 2. While witnesses also described the murder weapon as “a black pistol” and “big and black,” and the gun pictured in Exhibit 2 also appears to be a large black pistol, significantly, as the trial court noted, Stephens is not even holding the gun in Exhibit 2. Rather, Stephens‘s girlfriend is holding the gun.
Moreover, the State has not shown when this photograph was taken. Although the prosecutor asserted at the first trial that it was taken before the murder, the State‘s pretrial motion did not point to any evidence to show when the photograph was taken, nor did the State present evidence to establish the date of the social media post from which law enforcement obtained Exhibit 2. Therefore, the photograph merely demonstrates that Stephens, at some unidentified point in time, sat next to his girlfriend while she held what appears to be a large black gun. The State has not pointed to any evidence showing that Stephens‘s girlfriend had any involvement in Starks‘s murder, or that the silver object in Stephens‘s hand is even a gun magazine that would fit the gun his girlfriend was holding.
To find the Exhibit 2 photograph relevant to show that Stephens had access to the murder weapon used in this case, the jury would need to make not just one inference, but a series of them: (1) that the gun in the photograph was the murder weapon; (2) that because Stephens‘s girlfriend held the gun in the photograph, she had continued access to it; (3) that Stephens also had access to the gun to use it in a crime; and (4) most speculatively, that he had access to it at the time of the murder. Although we have recognized that the relevance standard under Rule 401 is a liberal one, see State v. Jones, 297 Ga. 156, 159 (2) n.2 (773 SE2d 170) (2015), it is not meaningless or without boundaries, and the determination of relevance remains within the trial court‘s discretion. We conclude that under these circumstances, without more information about the Exhibit 2 photograph, the trial court did not abuse its discretion in determining that the photograph would require the jury to stack too many increasingly strаined inferences to find it relevant to the issue for which it was
2. The State also argues on appeal that the exclusion of the evidence in the first trial negatively impacted the State‘s case;10 the Exhibit 2 photograph was proper evidence to impeach Stephens‘s girlfriend‘s testimony; and the photograph was relevant to counter defense arguments regarding the credibility of the State‘s witnesses and that another individual was the shooter.
To the extent that these arguments seek consideration of the trial court‘s ruling excluding the photograph during the first trial and the trial court‘s comments at the first trial, such arguments are not a propеr subject of this pretrial appeal by the State. Appeals by the State in criminal cases are limited to the issues listed and the circumstances identified under
Judgment affirmed. All the Justices concur, except Melton, C. J., and Boggs and Bethel, JJ., who dissent in part, Peterson, J., disqualified, and Warren, J., not participating.
MELTON, Chief Justice, dissenting in part.
Because I believe that State‘s Exhibit 2 was relevant under the liberal standard for the admission of evidence under Georgia‘s Evidence Code, I must respectfully dissеnt in part.
The fact of consequence at issue here, in its simplest form, is whether Stephens possibly had access to the murder weapon. Eyewitnesses to the shooting which forms the center of this prosecution identified Stephens as the shooter. Other eyewitnesses described the murder weapon in the following ways: a “black pistol“; “big and black“; and a .40- or .45-caliber handgun. The State presented two photographs: Exhibit 1, which shows Stephens holding a black pistol, and Exhibit 2, which shows Stephens‘s girlfriend holding a similar black pistol while Stephens sits behind her with a silver gun magazine. The decisive dеtermination here, then, is whether Exhibit 2 has any tendency to make the existence of Stephens‘s access to the described murder weapon more or less probable than it would be without the evidence. The answer is that it clearly does. Exhibit 2, especially when considered in context with Exhibit 1, has some tendency to indicate that Stephens could have had access to the gun describеd to be the murder weapon. Stephens was identified as the shooter, the shooter‘s weapon was identified as a “big and black” pistol, and the photograph depicts Stephens with his girlfriend holding such a pistol while Stephens has a gun magazine in his hand. I believe this evidence, therefore, is clearly relevant, and the majority opinion incorrectly finds that Exhibit 2 has no tendency at all to provе an essential fact of this case.
But not all relevant evidence is admissible.
In considering evidence such аs the exhibits at issue in this case, it must be remembered that
[r]elevance and probative value are related, but distinct, concepts. Relevance is a binary concept — evidence is relevant or it is not — but probative value is relative. Evidence is relevant if it has “any tendency” to prove or disprove a fact, whereas the probative value of evidence derives in lаrge part from the extent to which the evidence tends to make the existence of a fact more
or less probable. 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. See Milich, Georgia Rules of Evidence § 6.1 (2015) (“Probative value refers to the strength of the connection between the evidence and what it is offered to prove.“).
(Emphasis omitted.) Olds v. State, 299 Ga. 65, 75 (2) (786 SE2d 633) (2016). In Olds, we also recognized that this distinction between relevance and probative value is discussed in a number of additional treatises, including Carlson & Imwinkelried et al., Evidence: Teaching Materials for an Age of Science and Statutes, p. 274 (7th ed. 2012) (in determining probative value, a court may consider “patent flaws such as facial vagueness or uncertainty in the proposed testimony,” “the number of intermediate propositions between the item of evidence and thе ultimate consequential fact that the item is offered to prove,” and “the logical strength of the inference from the item to the consequential fact that it is offered to prove“); Mueller & Kirkpatrick, Evidence § 4.21 (1995) (“The strength of the evidence in establishing the point it is offered to prove is properly considered by courts in undertaking [Rule] 403 balancing.“); Graham, 22B Fed. Practice & Proc. Evid. § 5250 (2016) (“Anothеr factor that bears on the probative worth of other crimes evidence is the strength or weakness of the proof of that crime.“). Olds, supra, 299 Ga. at 75-76 (2) n. 14.
I believe that it is under the
In any event, I believe that the trial court erred by finding that Exhibit 2 had no relevance in this case and that the majority opinion improperly affirms this error. Both rulings are contrary to the broad definition of relevant evidence under
For these reasons, I respectfully dissent in part.
I am authorized to state that Justice Boggs and Justice Bethel join in this dissent.
Decided October 5, 2020.
Murder. Chatham Superior Court. Before Judge Morse.
Meg E. Heap, District Attorney, Noah J. Abrams, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant.
David M. Burns, Jr., for appellee.