State v. Stephens

FINAL COPY

               S20A0714. THE STATE v. STEPHENS.


      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 she points a handgun at the camera and

Stephens in the background holding what the State describes as a

silver gun magazine (“Exhibit 2”). The trial court ruled that Exhibit

23 was inadmissible during Stephens’s first trial, and again found it



      1 See OCGA § 5-7-1 (a) (5) (granting the State the right to appeal from a

pretrial order “excluding any other evidence to be used by the state at trial”
under certain circumstances).
      2 Stephens’s first trial on charges arising from Starks’s murder ended in

a mistrial after the jury became “hopelessly deadlocked.”
      3 The photograph in Exhibit 2 was offered as State’s Exhibit 18 at the
to be inadmissible in denying the State’s motion to introduce Exhibit

2 at the second trial.4 Because we conclude that the trial court did

not abuse its discretion in determining that Exhibit 2 was

irrelevant, we affirm.

      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




first trial.
       4 The trial court reserved its ruling on the admissibility of Exhibit 1.
       5 Although the evidence at the second trial obviously could differ from

that presented in the first trial, we cite this evidence to provide context for the
State’s motion and because the trial court relied, in part, on its ruling from the
first trial to exclude the Exhibit 2 photograph.
                                        2
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 irrelevant 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

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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 superseding 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

found 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



     6 The wording   in some of the counts was slightly altered in the new
indictment.
                                    4
photographs were admissible under OCGA §§ 24-4-401 and 24-4-403

because the gun in the photographs matched the witnesses’

descriptions of the gun used to shoot Starks. The State also asserted

that the guns depicted in the two photographs appear to be

“strikingly similar” and the fact that Stephens had a large tattoo on

his arm in one picture and not in the other stood “for the proposition

that Stephens was in possession of or had access to the firearm over

some period of time which was more than a fleeting few days.”

According to the State, these factors demonstrated that the

photographs were relevant and that their probative impact was not

outweighed by prejudice.

     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

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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 OCGA § 24-4-401 (“Rule 401”), “relevant evidence” is

“evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Although

OCGA § 24-4-402 provides that, generally, “[a]ll relevant evidence

shall be admissible,” it also provides that “[e]vidence which is not

relevant shall not be admissible.” And even “[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.” OCGA § 24-4-403. It is well-

settled that “[q]uestions of relevance are within the sound discretion

of the trial court, and absent a clear abuse of discretion, a court’s

decision to exclude evidence on the grounds of a lack of relevance

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will not be disturbed on appeal.” Derrico v. State, 

(3) (

) (2019). A trial court “[does] not abuse its

discretion by excluding irrelevant evidence.” Jones v. State, 

 (2) (c) (

) (2019).

     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 of 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

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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, 

 (2) n.2 (

) (2015), it is not

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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 strained inferences to find it relevant to the issue

for which it was offered.7 See Jones, 

 (2) (c) (trial court

did not abuse its discretion in excluding as irrelevant a photograph

showing an individual named “Peanut” and a third party together;

even though the photograph established the two men knew each

other, it “did not help determine whether Peanut or [the defendant]

committed the murders” with that third party). See also United

States v. Reagan, 

 (5) (F) (2) (5th Cir. 2013) (trial

court did not abuse its discretion in determining that connection

between the evidence and the purpose for which it was offered was



     7 We note that the trial court told the prosecutor at the first trial that it

might be more inclined to accept his arguments regarding relevance if
Stephens were holding the gun in the Exhibit 2 photograph.

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too tenuous to establish relevance);8 United States v. Gabriel-

Martinez, 

 (I) (A) (11th Cir. 2008) (district

court did not plainly err in finding chain of inferences jury would be

required to make was too attenuated to cause the evidence to be

relevant); United States v. Hurn, 

 (III) (B) (11th

Cir. 2004) (“[T]here comes a point—and a [trial] court is perhaps in

the best position to judge this—when the chain of inferences linking

evidence and the legally relevant point to be proven is simply too

long, dubious, or attenuated to require that the evidence be

introduced.”)9

      2. The State also argues on appeal that the exclusion of the




      8 “Georgia’s Rule 403 mirrors Federal Rule of Evidence 403, and we have

accordingly interpreted our State’s new rule in light of the federal appellate
decisions interpreting the federal rule.” State v. Orr, 

, 737 (3) (

) (2019).
      9 An issue also arises as to whether any claimed probative value of this

evidence would be outweighed by the danger of unfair prejudice. See United
States v. Sellers, 906 F2d 597, 602 (II) (A) (1) (ii) (11th Cir. 1990) (where
claimed relevance “appears to rest on an exceedingly tenuous chain of
speculation,” any conceivable relevance would be outweighed by the potential
for unfair prejudice). However, because the State has failed to show that
Exhibit 2 is relevant, we need not consider the application of the balancing test
under OCGA § 24-4-403.

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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 proper 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 OCGA § 5-7-1, see State v. Cash, 

 (1) (b) (

) (2015), and the trial court’s rulings

and statements in the first trial are not part of a pretrial motion

excluding evidence under OCGA § 5-7-1 (a) (5). Moreover, to the

extent the arguments require this Court to anticipate or predict how


      10 Specifically, the State asserts that at the first trial, the trial court

made disparaging remarks about the prosecutor in front of the jury when it
excluded the photograph, so the State altered its trial strategy and did not call
several witnesses for fear that the trial court would make more disparaging
comments.
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witnesses might testify at the second trial, how the defense might

respond to such testimony, and what comments the trial court may

make, the arguments are premature. Finally, because our review is

limited to the trial court’s ruling on the State’s motion, and the State

did not raise any of these arguments below — instead arguing only

that the photographs were relevant because the guns depicted in

them matched witness descriptions of the murder weapon — we will

not consider them for the first time on appeal. See Turner v. State,

 (4) (

) (2016) (where contentions differ

from those raised in the trial court, they will not be considered for

the first time on appeal); Mangrum v. State, 

 (2)

(

) (2009) (appellant waived for appeal claims not raised

in his motion in limine); Kitchens v. State, 

 (1) (

) (1972) (“The Supreme Court is a court for the            . . .

correction of errors of law committed in the trial courts . . . and it

cannot decide questions raised for the first time after the case has




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been appealed to it.”).11

     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.




     11 This matter comes to this Court on a pretrial evidentiary motion, and

nothing in this opinion should be interpreted as preventing the State from
producing further evidence or argument to support the introduction of the
Exhibit 2 photograph at the second trial.
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     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 dissent in part.

     OCGA § 24-4-401 defines relevant evidence extremely broadly

as “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

(Emphasis supplied.) OCGA § 24-4-402, in turn, highlights the

equally broad admissibility of relevant evidence: “All relevant

evidence shall be admissible, except as limited by constitutional

requirements or as otherwise provided by law or by other rules, as

prescribed pursuant to constitutional or statutory authority,

applicable in the court in which the matter is pending. . . .”

     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


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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 determination 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 described 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

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has no tendency at all to prove an essential fact of this case.

     But not all relevant evidence is admissible. OCGA § 24-4-403

grants the trial court discretion to exclude relevant evidence “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 exclusion of evidence

under OCGA § 24-4-403 is “an extraordinary remedy” that “should

be used only sparingly” to exclude “matter of scant or cumulative

probative force, dragged in by the heels for the sake of its prejudicial

effect.” (Citation and punctuation omitted). Kirby v. State, 

 (4) (

) (2018). “The application of [OCGA § 24-

4-403] is a matter committed principally to the discretion of the trial

courts,” and reviewed at the appellate level only for abuse of that

discretion. Plez v. State, 

 (3) (

)

(2017).

     In considering evidence such as the exhibits at issue in this

case, it must be remembered that

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     [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 large 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, 

 (2) (

)

(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 the ultimate consequential fact
                                 17
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)

(“Another factor that bears on the probative worth of other crimes

evidence is the strength or weakness of the proof of that crime.”).

 (2) n. 14.

     I believe that it is under the OCGA § 24-4-403 balancing test

that the concerns expressed by the majority opinion would be

brought into play. In other words, the trial court might determine

that, though Exhibit 2 has some tendency to show Stephens’s

possible access to the murder weapon, the probative value of the

evidence was so diminished by the inferences listed in the majority

opinion that the exhibit failed the OCGA § 24-4-403 balancing test

and was inadmissible relevant evidence. And that determination

would be within the trial court’s discretion. Id.

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     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 OCGA § 24-4-401.

     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.




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