¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2 In the Supreme Court of Georgia
¶3 Decided: April 18, 2023
¶4 S23A0109. PRIESTER v. THE STATE
¶5 COLVIN, Justice.
¶6 Appellant Joseph Priester was convicted of malice murder and
¶7related offenses in connection with the May 2017 shooting death of
¶8Genaro Rojas-Martinez. 1 On appeal, Appellant contends that (1) the
¶9 1The crimes were committed on May 15, 2017. On August 25, 2017 a Cobb County grand jury indicted Appellant for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault (Count 3), possession of a firearm during the commission of a felony (Count 4), and possession of a firearm by a convicted felon (Count 5). A bifurcated jury trial commenced on September 14, 2018. In the second portion of the bifurcated trial on the felony firearm possession charge, the State tendered a certified copy of Appellant’s prior felony conviction for aggravated assault from Upson County. The jury found Appellant guilty of all counts. The trial court imposed a sentence of life in prison without the possibility of parole for malice murder (Count 1), plus a consecutive five-year term for the possession of a firearm during the commission of a felony (Count 4). The trial court also imposed five years on probation for the possession of a firearm by a convicted felon count, to be served consecutively to Count 1 and concurrently with Count 4. The other counts were either merged for sentencing purposes or vacated by operation of law. On September 17, 2018, Appellant’s trial counsel timely filed a motion for new trial, which was amended through new counsel on March 28, 2022. The trial court held a hearing on the amended motion on June 6, 2022, and denied trial court erred in admitting evidence of an armed robbery and
¶10shooting Appellant allegedly committed the day before the murder,
¶11pursuant to OCGA § 24-4-404 (b) (“Rule 404 (b)”); and (2) the trial
¶12court erred in instructing the jury that it could consider the prior
¶13armed-robbery and shooting evidence for the purposes of
¶14opportunity, intent, knowledge, and lack of mistake or accident.
¶15Seeing no reversible error, we affirm.
¶16 1. The evidence at trial showed the following. 2 On May 15,
¶172017, at 10:55 p.m., Smyrna Police Department officers were
¶18dispatched to a gas station located in Cobb County after multiple
¶19911 calls reported a shooting. When officers arrived on the scene,
¶20they found Rojas-Martinez lying in “a large amount of blood”
¶21between his red 2006 Ford F150 truck and a gas pump. Medical
¶22the amended motion on July 1, 2022. Appellant filed a timely notice of appeal. The case was docketed to our term of court beginning in December 2022 and submitted for a decision on the briefs.
¶23 2 In light of the harmless-error analysis we undertake in Divisions 2 and 3 of this opinion, “we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.” Moore v. State, 315 Ga. 263, 264 n.2 (1) (882 SE2d 227) (2022) (citation and punctuation omitted). 2 personnel pronounced him dead at the scene, and the medical
¶24examiner later determined that the cause of death was a gunshot
¶25wound to the back of the head. During their investigation, officers
¶26learned that Rojas-Martinez had stopped at the gas station on his
¶27way home from the restaurant where he worked as a waiter.
¶28 Officers obtained the restaurant’s video surveillance footage
¶29from the night of the shooting. Entering the parking lot at 8:26 p.m.
¶30was a green 2002 Chevrolet Avalanche, with faded paint and various
¶31yard and cleaning equipment in the bed of the truck. The Avalanche
¶32remained in a parked position until 10:02 p.m. The Avalanche left
¶33the parking lot and returned at 10:27 p.m. The Avalanche exited
¶34the parking lot for the final time at 10:34 p.m. No one entered or
¶35exited the vehicle at any point during this timeframe.
¶36 Officers also viewed the gas station surveillance video, which
¶37showed that Rojas-Martinez entered the parking lot at
¶38approximately 10:53 p.m., parked in front of a gas pump, and then
¶39walked inside the gas station store. Thereafter, the green Avalanche
¶40entered the parking lot and parked on the opposite side of the pump
¶41 3 as Rojas-Martinez’s truck. When Rojas-Martinez returned to his
¶42vehicle, a male wearing dark clothes and a hat exited the Avalanche.
¶43The man then ran up behind Rojas-Martinez, pointed a silver
¶44revolver at the back of his head, and fired. The revolver initially
¶45misfired, and the shooter quickly readjusted the gun and fired again.
¶46Rojas-Martinez immediately fell to the ground after the second shot.
¶47The shooter returned to the Avalanche and sped away from the gas
¶48station.
¶49 Investigators released images of the shooter and the Avalanche
¶50to local news outlets. The next day, Eddie Holland and Erikk
¶51Slaughter arrived at the Henry County Police Department with the
¶52Avalanche. In speaking with Holland and Slaughter, 3 officers
¶53learned that the Avalanche was titled in Slaughter’s name and that
¶54Holland was in possession of the vehicle and in the process of buying
¶55it for his mobile pressure washing business. Holland stated that, on
¶56the night of the shooting, he lent the Avalanche to Appellant, who
¶57had worked a job for Holland earlier that day. Appellant planned to
¶58 3 Both Holland and Slaughter testified for the State at trial. 4 spend the night at Holland’s house in McDonough to work another
¶59job the following day, and had asked to borrow the truck to drive to
¶60his mother’s house to pick up some clothes. At the time Holland went
¶61to bed on May 15, Appellant had not returned with the truck.
¶62However, when Holland woke up the next day, Appellant was asleep
¶63on Holland’s couch and the Avalanche was parked outside Holland’s
¶64home. Later that morning, Appellant informed Holland that he was
¶65no longer interested in working the job Holland had previously
¶66offered to him. Both Holland and Slaughter identified the green
¶67Avalanche in the surveillance videos as the vehicle that Holland was
¶68in the process of buying from Slaughter.
¶69 Officers applied for and received a search warrant for the
¶70Avalanche and Appellant’s cell phone records. Officers did not lift
¶71any fingerprints from the Avalanche. However, the cell phone
¶72records revealed that Appellant’s phone pinged off a cell tower
¶73located in McDonough in the approximate vicinity of Holland’s
¶74house around 7:40 p.m. on the night of the shooting. Between 8:42
¶75p.m. and 10:16 p.m., Appellant’s cell phone pinged off a tower located
¶76 5 in Smyrna approximately 40 miles away from Holland’s house and
¶774 miles from the restaurant at which Rojas-Martinez was working.
¶78Then, at 10:56 p.m., approximately one minute after the Smyrna
¶79Police Department received its first 911 call to report the shooting,
¶80Appellant’s cell phone made an outgoing call to a cell phone number
¶81associated with a man named Byron Scott. This call pinged off a cell
¶82tower located less than 1.2 miles from the gas station. The cell site
¶83location data indicated that, after Appellant made the 10:56 p.m.
¶84call to Scott, he traveled toward the east side of Atlanta. Within the
¶85next hour, Appellant called Scott four additional times, and
¶86Appellant’s last known location on that evening was in the general
¶87area of Scott’s address.
¶88 Officers obtained a warrant for Appellant’s arrest on May 18,
¶892017. Appellant was located and arrested by the U.S. Marshals
¶90Service in New Jersey on June 3.
¶91 At trial, defense counsel argued that Appellant was not the
¶92person who shot Rojas-Martinez. To support this theory, defense
¶93counsel presented evidence that officers initially apprehended a
¶94 6 different person immediately after the shooting, and further
¶95questioned officers about what Appellant characterized as an
¶96incomplete investigation into Scott’s potential involvement in the
¶97shooting. However, the investigating officer testified that the wrong
¶98person was apprehended because a 911 caller had misreported the
¶99shooter’s vehicle and that he had interviewed Scott shortly after
¶100obtaining Appellant’s cell-phone records and had completed a report
¶101detailing this investigation.
¶102 2. In addition to the evidence described in Division 1, the State
¶103introduced evidence pursuant to Rule 404 (b) 4 that Appellant had
¶104committed an armed robbery and shot at a car during a drug deal on
¶105the day before Rojas-Martinez’s murder. At trial, the State called
¶106Zack Kelly, who testified that, on the day prior to Rojas-Martinez’s
¶107death, he and his friend, Danny Farmer, went with Appellant to an
¶108apartment complex “to purchase some drugs.” Upon their arrival,
¶109 4 Under Rule 404 (b), “[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,” but may 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.” OCGA § 24-4-404 (b). 7 Appellant pulled out a large, silver .44 magnum revolver that was
¶110about 15 inches in length, “stuck the gun to [Kelly’s] head,” and
¶111demanded Kelly’s money. Appellant also pointed the gun at Farmer
¶112and demanded his money as well. When Farmer threw his money
¶113onto the ground, Appellant “picked the money up and walked around
¶114to the front of the car, fired a round into the car, and . . . just walked
¶115away.”
¶116 Appellant objected to the admission of this evidence on
¶117multiple grounds, including that the evidence was not relevant to
¶118any issue other than Appellant’s bad character and that any
¶119probative value was substantially outweighed by its prejudicial
¶120effect. The trial court overruled the objection, finding that the
¶121evidence was admissible under Rule 404 (b) to show opportunity,
¶122intent, knowledge, and absence of mistake or accident. In doing so,
¶123the trial court determined that the evidence showed that Appellant
¶124had a gun similar to the one shown in the gas station footage, knew
¶125about handguns, had previously fired a handgun, and was in
¶126Georgia when the crime was committed. The trial court then
¶127 8 instructed the jury before Kelly’s testimony and again during the
¶128final charge on the permissible purposes for which it could consider
¶129the evidence, informed the jury that it could not use the evidence to
¶130conclude that Appellant had a propensity to commit crimes, and
¶131reminded the jury that Appellant was on trial for the offenses
¶132charged in the indictment and not for any other acts.
¶133 Appellant asserts that this ruling was error. The State
¶134concedes that the trial court erred by admitting the Rule 404 (b)
¶135evidence for the purposes of intent, knowledge, and lack of mistake
¶136or accident. However, the State maintains that the evidence was
¶137admissible for the purpose of proving opportunity under Rule 404
¶138(b). Assuming without deciding that the trial court erred in
¶139admitting this evidence, the error was harmless and, therefore, does
¶140not require reversal.
¶141 “The test for determining nonconstitutional harmless error is
¶142whether it is highly probable that the error did not contribute to the
¶143verdict.” Henry v. State, 307 Ga. 140, 146 (2) (c) (834 SE2d 861)
¶144(2019) (citation and punctuation omitted). When determining
¶145 9 whether the error was harmless, “we review the record de novo and
¶146weigh the evidence as we would expect reasonable jurors to have
¶147done.” Saxton v. State, 313 Ga. 48, 51 (2) (b) (867 SE2d 130) (2021)
¶148(citation and punctuation omitted). We have previously concluded
¶149that erroneously admitted Rule 404 (b) evidence was not harmful
¶150where the properly admitted “evidence against [the defendant] was
¶151strong,” see Allen v. State, 310 Ga. 411, 415 (2) (851 SE2d 541)
¶152(2020), and where “the trial court instructed the jury that it could
¶153consider the other acts evidence only for the limited [Rule 404 (b)]
¶154purpose[s],” see Edwards v. State, 308 Ga. 176, 184 (3) (839 SE2d
¶155599) (2020).
¶156 Here, the evidence against Appellant was strong. Although
¶157Appellant argued at trial that someone else shot the victim, the jury
¶158was shown the gas station surveillance video, which captured the
¶159shooter’s face, profile, and distinctive car; heard unrebutted
¶160testimony that, on the night of the shooting, Appellant was in
¶161possession of the green Avalanche shown in the surveillance videos;
¶162and heard testimony that the cell site location data from Appellant’s
¶163 10 phone placed him near the restaurant during Rojas-Martinez’s shift
¶164shortly before the shooting, and approximately one mile away from
¶165the gas station immediately after the shooting. Moreover, the jury
¶166heard testimony that, on the morning after Rojas-Martinez’s
¶167murder, Appellant informed Holland that he was no longer
¶168interested in working for him, and that, at some point afterward, he
¶169fled the state. Additionally, the defense’s theory that someone else
¶170had shot the victim was undermined by the investigating officer’s
¶171testimony that he had completed an investigation into Scott’s
¶172potential involvement with the shooting and that officers had
¶173originally apprehended the wrong person because a 911 caller
¶174misreported the shooter’s vehicle.
¶175 Further, the trial court twice instructed the jury that it could
¶176only consider the other-act evidence for the limited Rule 404 (b)
¶177purposes and that it could not conclude from the evidence that
¶178Appellant had a propensity to commit crimes, and the court
¶179reminded the jury that Appellant was on trial only for the charges
¶180listed in the indictment. Because we presume that jurors follow the
¶181 11 trial court’s instructions, any harm caused by the Rule 404 (b)
¶182evidence was mitigated by the trial court’s instructions limiting the
¶183jury’s consideration of the evidence. See Williams v. State, 313 Ga.
¶184443, 449-450 (1) (870 SE2d 397) (2022) (“Because we ordinarily
¶185presume that jurors follow [the trial court’s instructions], any unfair
¶186prejudice from the admission of the [Rule 404 (b)] evidence was
¶187reduced.” (citation and punctuation omitted)). Moreover, although
¶188the trial court instructed the jury that it could consider the other-
¶189act evidence for the purposes of intent, knowledge, and absence of
¶190mistake or accident, which the State concedes were not permissible
¶191purposes, the instructions, as a whole, reduced the likelihood that
¶192any error in admitting the armed-robbery and shooting evidence
¶193contributed to the verdict, as “they did, at least, tell the jury what it
¶194could not do,” namely, that the jury could not consider the evidence
¶195as proof of Appellant’s propensity to commit crimes. Nundra v.
¶196State, __Ga. __, __ (2) (__ SE2d __) (2023) (emphasis in original)
¶197(although the limiting instructions “did not meaningfully explain for
¶198which permissible purpose the [Rule 404 (b)] evidence was relevant,”
¶199 12 the trial court’s “admonition that the jury may not infer from such
¶200evidence that the accused is of a character that would commit such
¶201crimes reduce[d] the likelihood that the evidence of [the defendant’s]
¶202past crimes influenced the verdict” (punctuation omitted)).
¶203 Therefore, given the strength of the evidence against Appellant
¶204and the trial court’s limiting instructions, we conclude that it is
¶205highly probable that the admission of the armed-robbery and
¶206shooting evidence did not contribute to the verdict. See Howell v.
¶207State, 307 Ga. 865, 875-876 (3) (838 SE2d 839) (2020) (admission of
¶208Rule 404 (b) evidence harmless where evidence of Appellant’s guilt
¶209was strong and the trial court instructed the jury that it could
¶210consider the other-act evidence only for the limited Rule 404 (b)
¶211purpose, that Appellant was on trial only for the offenses charged in
¶212the current case, and that the other-act evidence, by itself, could not
¶213be a basis for conviction). Accordingly, Appellant’s claim fails.
¶214 3. Appellant next contends that the trial court erred by
¶215instructing the jury that it could consider the armed-robbery and
¶216shooting as Rule 404 (b) evidence for the limited purposes of
¶217 13 opportunity, intent, knowledge, and absence of mistake or accident,
¶218because the evidence itself was improper. We again identify no
¶219reversible error.
¶220 Because trial counsel did not object to the jury instructions, we
¶221review the trial court’s jury instructions under the plain-error
¶222standard. See State v. Williams, 308 Ga. 228, 231 (1) (838 SE2d 764)
¶223(2020). To satisfy plain error review, Appellant must show that “the
¶224alleged instructional error was not affirmatively waived; was clear
¶225and obvious, rather than subject to reasonable dispute; likely
¶226affected the outcome of the trial; and seriously affected the fairness,
¶227integrity, or public reputation of judicial proceedings.” Walker v.
¶228State, 311 Ga. 719, 724 (3) (859 SE2d 25) (2021) (citation and
¶229punctuation omitted).
¶230 Appellant’s claim fails because he cannot satisfy plain error
¶231review. As explained in Division 2, the State has conceded that the
¶232admission of the armed-robbery and shooting evidence for the
¶233purposes of intent, knowledge, and absence of mistake or accident
¶234was erroneous. However, even assuming that the trial court clearly
¶235 14 erred by instructing the jury that the Rule 404 (b) evidence could be
¶236considered for those purposes and for the purpose of opportunity,
¶237Appellant has failed to satisfy the third prong of plain error review:
¶238that the challenged instructions likely affected the outcome of his
¶239trial.
¶240 When determining whether a jury instruction likely affected
¶241the outcome of the trial, this Court considers the jury instruction as
¶242a whole, rather than looking at the challenged instruction in
¶243isolation. See Carpenter v. State, 305 Ga. 725, 728 (3) (827 SE2d
¶244250) (2019). Here, the trial court instructed the jury that it could
¶245not use the other-act evidence to make an inference about
¶246Appellant’s character or as evidence that Appellant had a propensity
¶247to commit crimes. Moreover, the trial court reiterated to the jury
¶248that Appellant was “on trial for the offenses charged in this bill of
¶249indictment only and not for any other acts, even though such acts
¶250may incidentally be criminal”; that the State carried the burden “to
¶251prove every material allegation of the indictment and every
¶252essential element of the crimes charged beyond a reasonable doubt,”
¶253 15 which included the elements of intent and identity; and that the jury
¶254could not convict Appellant “of any crime unless and until each
¶255element of the crime as charged is proven beyond a reasonable
¶256doubt.” As discussed above, we assume that the jury followed the
¶257trial court’s instructions not to use the other-act evidence to make
¶258improper inferences about Appellant’s character or propensity to
¶259commit crimes. Further, although the trial court instructed the jury
¶260that it could consider the other-act evidence for the purposes of
¶261intent, knowledge, and absence of mistake or accident, such
¶262instructions did not likely affect the outcome of Appellant’s trial,
¶263even if the jury considered the evidence for such impermissible
¶264purposes, given the strength of the evidence of Appellant’s guilt. As
¶265discussed above, the jury was shown the gas station surveillance
¶266video of the shooting and heard unrebutted testimony that
¶267Appellant was in possession of the green Avalanche seen in the video
¶268and that the cell site location data from Appellant’s phone placed
¶269him approximately one mile from the gas station immediately after
¶270the shooting. Therefore, based on the trial court’s instructions as a
¶271 16 whole and the strong evidence of Appellant’s guilt, we cannot say
¶272that the challenged instructional error likely affected the outcome of
¶273his trial. 5 See Jones v. State, 302 Ga. 892, 897-898 (3) (810 SE2d
¶274140) (2018) (concluding any error in the jury instructions was
¶275harmless, given the court’s instruction as a whole and the very
¶276strong evidence of defendant’s guilt).
¶277 Judgment affirmed. All the Justices concur, except Peterson, P.J., disqualified.
¶278 5 Appellant has not raised a cumulative-error claim, and we discern no cumulative prejudice from the evidentiary and instructional errors we assume. See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808 (2020) (“[A] defendant who wishes to take advantage of the [cumulative-error] rule that we adopt today should explain to the reviewing court just how he was prejudiced by the cumulative effect of multiple errors.”). 17