State v. Stephens

310 Ga. 57

849 S.E.2d 459

The STATE

v.STEPHENS.

S20A0714

Supreme Court of Georgia.

Decided: October 5, 2020

Noah Jared Abrams, A.D.A., Office of the District Attorney Eastern Judicial Circuit, 133 Montgomery Street, Suite 600, Savannah, Georgia 31401, Margaret Ellen Heap, District Attorney, Office of the District Attorney Eastern Judicial Circuit, P. O. Box 2309, Savannah, Georgia 31402, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Attorneys for the Appellant.

David Michael Burns, Jr., The Law Office of David M. Burns, Jr., 102 East Liberty Street, 8th Floor, Savannah, Georgia 31401, Attorneys for the Appellee.

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 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 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 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 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 Stark. 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 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 will not be disturbed on appeal." Derrico v. State , 306 Ga. 634, 636 (3), 831 S.E.2d 794 (2019). A trial court "[does] not abuse its discretion by excluding irrelevant evidence." Jones v. State , 305 Ga. 750, 753 (2) (c), 827 S.E.2d 879 (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 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, 160 (2) n.2, 773 S.E.2d 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 strained inferences to find it relevant to the issue for which it was offered.⁷ See Jones , 305 Ga. at 753 (2) (c), 827 S.E.2d 879 (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 , 725 F.3d 471, 489 (5) (F) (2) (5th Cir. 2013) (trial court did not abuse...