THE STATE v. BATTLE.
A17A1753
In the Court of Appeals of Georgia
February 14, 2018
ANDREWS, Judge.
THIRD DIVISION; ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
Alexander Darelle Battle was indicted for fourteen criminal offenses arising out of a June 20, 2015 armed robbery.1 Prior to the trial of those offenses, the state filed this direct appeal pursuant to
1. We first address the state‘s right to bring a direct appeal pursuant to
order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if: (A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and (B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding.
(emphasis supplied).
Read in context with
suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first.
“Accordingly, one cannot properly determine that an appeal from an order excluding evidence must be brought pursuant to
The record shows that, pursuant to
Under
[e]vidence 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.
Evidence of other crimes, wrongs, or acts relevant under
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.
[I]n order to be admissible, the State must make a showing that: (1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant‘s character, see [
OCGA § 24-4-404 (b) ]; (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of [OCGA § 24-4-403 ]; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.
State v. Jones, 297 Ga. 156, 158-159 (773 SE2d 170) (2015). Because a pre-trial appeal from an order excluding evidence sought to be admitted pursuant to
As set forth above, the state‘s right to appeal under
and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first. . .” (emphasis supplied).3 This provides a right to appeal from an order excluding evidence on a written pre-trial motion filed by the state or the defendant. There is no evidence in the record that the state filed any pre-trial motion seeking an order on the admissibility of evidence pursuant to
filed by the state at least 30 days prior to trial seeking a pre-trial ruling on the admissibility of evidence under
After the hearing, the trial court entered an order which denied the state‘s motion brought pursuant to
[
OCGA § 24-4-404 (b) ] only relates to “other” crimes, wrongs, or acts that are “independent” of or “extrinsic” to the charged offense. If the other crime, wrong, or act is “intrinsic” to the charged offense or “inextricably intertwined” with it, it is admissible under [OCGA § 24-4-401 ]. Such evidence was called part of the res gestae of the offense under the [rules in effect prior the new Evidence Code adopted in 2013].
Paul Milich, Courtroom Handbook On Georgia Evidence, I8, Independent Crimes or Acts (2017 ed.), April 2017 update, available at Westlaw GAHANDEVIDI8. The trial court addressed the state‘s intrinsic evidence argument and ruled that the alleged others acts evidence was not admissible on this basis because the other acts were not intrinsic to the charged offenses. To the extent the state appealed pursuant to
2. The state contends the trial court erred by entering a pre-trial order excluding other crimes, wrongs, or acts the state sought to admit at trial pursuant to
When the pre-trial hearing commenced, the trial court informed the prosecutor that the court did not have a “404 (b)” motion and asked if one had been filed. The prosecutor informed the court that, although the court‘s calendar referred to a “404 (b) motion,” there was no such motion and that the state‘s position was that the other crimes, wrongs, or acts evidence was admissible because “it‘s intrinsic evidence in the case so that is not subject to a 404 (b) analysis.” Without any written motion filed, or any prior notice given to the defense, the trial court allowed the prosecutor to proceed on an oral motion for the admissibility of intrinsic evidence.
At that point, the prosecutor made a proffer in support of the state‘s oral intrinsic evidence motion by stating “in her place” the evidence that the state expected to introduce at the trial, as follows: The evidence was expected to show that the charged offenses arose from an armed robbery at a Domino‘s Pizza restaurant by two masked men, one of whom was carrying a sawed-off shotgun. The prosecutor stated that, the state “believe[s] that Mr. Battle was carrying and possessed [the shotgun.],” and that the shotgun had silver duct tape wrapped around the stock.
According to the prosecutor, other evidence was expected to show the following unindicted acts: Five days after the charged offenses, two masked men committed an armed robbery at a residence. One of the men was carrying a sawed-off shotgun matching the description of the shotgun used by the masked robbers in the charged offenses. One of the victims at the residence was expected to testify that, even though the robbers were wearing masks, the victim, who knew Battle from school, recognized Battle as one of the robbers by his eyes, his voice, and his physical build. Evidence was expected to show that a search of Battle‘s residence pursuant to warrant produced a matching shotgun found in a shed behind the residence. The state presented no witnesses in support of the proffer, and the defense made no objection to the prosecutor‘s statement “in her place” as the means to establish the proffer in support of the state‘s intrinsic evidence motion.
After the prosecutor concluded the proffer and made supporting argument, the trial court responded that evidence showing that a matching shotgun was found at Battle‘s residence
shotgun, the state would be required to file a pre-trial notice pursuant to 404 (b). The prosecutor then told the court that “I believe there is [a 404 (b) notice]. I wanted to go ahead and proceed since the Court had sounded the case; I didn‘t realize you didn‘t have it.” According to the prosecutor, she “thought that maybe I didn‘t have one here because I believe it to be intrinsic.” At that point, the prosecutor provided the trial court with a copy of a pre-trial notice pursuant to
At the prosecutor‘s request, the trial court then allowed the state to present argument to the court that other crimes, wrongs, or acts evidence was also admissible pursuant to
identify the masked perpetrator as being the Defendant for purposes of § 404 (b) analysis.”4
The trial court‘s pre-trial ruling that other acts evidence was not admissible at trial as extrinsic evidence pursuant to
place is prima facie true and needs no further verification unless the same is required by the court or the opposite party.” Anthony v. State, 298 Ga. 827, 830 (785 SE2d 277) (2016) (citations and punctuation omitted; emphasis in original). Nothing in the record shows that the trial court required any further verification. “Where counsel makes statements in [his or her] place, they may be received without verification unless the same is required by the opposing party at the time.” Rank v. Rank, 287 Ga. 147, 149 (695 SE2d 13) (2010) (quoting Caldwell v. McWilliams, 65 Ga. 100, 101 (1880)); In re Singleton, 323 Ga. App. 396, 406 (744 SE2d 912) (2013) (attorney‘s “in his place” proffer to the court at hearing taken to be prima facie true unless opposing counsel requires verification at the time the proffer is made). Accordingly, in the absence of a timely objection when the evidentiary proffer was made to the trial court, the prosecutor‘s “in her place” proffer during the hearing “will be treated on appeal as the equivalent of evidence.” Rank v. Rank, 287 Ga. 147, 149 (695 SE2d 13) (2010). Conversely, a timely objection when the proffer is made insisting that the state prove the admissibility of other acts under
For the above reasons, we conclude that the trial court erred by finding that the prosecutor‘s “in her place” proffer in support of the state‘s
expected to show in support of its motion for admission of the intrinsic evidence. Defense counsel made no objection to the prosecutor‘s proffer made for this purpose. Only after the state made the proffer and gave supporting argument did the prosecutor finally inform the trial court that the state also intended to use the proffer to support an additional motion for the admission of the other acts pursuant to
Judgment vacated in part and case remanded. Appeal dismissed in part.
Ellington, P. J., and Rickman, J., concur.