Baker v. State
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Opinion
318 Ga. 431 FINAL COPY
S23A0860. BAKER v. THE STATE.
WARREN, Justice.
Appellant Morgan Baker was convicted of malice murder in
connection with the shooting death of Tamarco Head.1 In his sole
enumeration of error, Baker contends that the trial court abused its
discretion under OCGA § 24-4-403 (“Rule 403”) by admitting into
evidence a portion of a rap music video. As explained below, we agree
that the trial court’s admission of the video was an abuse of
discretion. And because the State has not met its burden of showing
that the error was harmless, we reverse Baker’s conviction.
1 Head was killed on July 6, 2019. In February 2021, a Houston County
grand jury indicted Baker for malice murder, felony murder, and aggravated assault. At a trial from February 8 to 11, 2022, a jury found him guilty of all counts. The trial court sentenced him to serve life in prison for malice murder; the remaining counts were vacated by operation of law or merged. Baker filed a timely motion for new trial, which he later amended through new counsel. After a hearing, the trial court entered an order denying the motion in December 2022. In February 2023, Baker filed a motion to set aside that order for lack of notice. The trial court granted the motion, vacated its order, and re- entered it on March 7, 2023. Baker then filed a timely notice of appeal, and the case was docketed to the August 2023 term of this Court and orally argued on August 23, 2023. 1. (a) The Pretrial Ruling to Admit the Rap Music Video Into
Evidence
Before trial, Baker filed a motion to exclude from evidence a
music video of the rap song “Ghetto Angels” by Kobe Crawford (a rap
artist known as “NoCap”), which was “filmed in early 2019” and
showed Baker “holding a semi-automatic pistol with an extended
magazine.” The motion argued, among other things, that the video’s
probative value was substantially outweighed by the danger of
unfair prejudice under Rule 403. After a hearing on the motion, the
trial court ruled that a 33-second-long portion of the video was
admissible, concluding that it was relevant to establish Baker’s
“identity” and the relationship between Baker and Crawford. The
court also ruled, without explanation, that the “short clip [wa]s more
probative than prejudicial.”
(b) The Trial
The evidence presented at Baker’s trial showed the following.2
2 Because this case requires our assessment of whether an evidentiary
2 Baker was close friends with Crawford and worked as his road
manager, traveling with him to various concert venues to assist with
his performances. On the night of July 5, 2019, Crawford, Baker,
and several other members of Crawford’s “entourage”3 drove in a
black van to a nightclub in Warner Robins, where Crawford was
scheduled to perform.
According to Crawford’s music manager—Rodney Dunn—and
the owner of the nightclub, the van parked behind the nightclub, and
Crawford, Baker, and other members of the entourage hung out in
a “VIP” room in the nightclub until Crawford performed around 1:00
or 1:30 a.m. The performance ended around 2:00 a.m., when the
nightclub was scheduled to close, and Crawford and some of the
members of the entourage left through the rear exit and got back in
the van.
error was harmless, see Division 2 (d) below, “we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done.” Jivens v. State, 317 Ga. 859, 863 (896 SE2d 516) (2023).
3 Crawford’s brother, one of Crawford’s friends, and a man who was involved in the music industry and his friends were also part of the entourage. None of these people testified at trial. 3 Meanwhile, patrons left through the front door of the
nightclub, where several security guards stood. Baker went out the
front door with the crowd, but he then tried to go back inside the
nightclub. One of the security guards testified as follows. A man,
later identified as Baker, and another man who appeared to be with
Baker, tried to come back inside, but the guard said that the two
men could not come in because the nightclub was closed. An
argument ensued, and several security guards pushed the men out
the door. Baker and the other man then walked down the breezeway
of the strip mall where the nightclub was located, toward a pawn
shop. Several security guards, including Head, stood near the door
of the nightclub, talking. A few minutes later, gunfire rang out from
the direction of the pawn shop; it sounded as though there was more
than one shooter. Head was shot, and he fell to the ground, dead.4
More gunfire later erupted “right up the street.”
Video recordings from the surveillance cameras at the
4 The medical examiner who later performed Head’s autopsy testified
that she recovered no bullets or bullet fragments from Head’s body. 4 nightclub showed the following.5 At 2:04 a.m., a crowd of people filed
through the front door to exit the nightclub. Baker, who had a short
hairstyle and wore a white T-shirt with black writing on the front,
walked outside, followed by a taller man wearing a black shirt and
a camouflage ball cap. The two men stood near the door, briefly
talked to a woman, and then walked down the breezeway. At 2:06
a.m., Baker and the man in the camouflage cap walked back toward
the nightclub together and tried to go inside, but a few security
guards stopped them. Baker and one of the security guards argued
and then shoved each other, and the man in the cap lunged toward
the guards. Baker pulled him back as the security guards pushed
Baker and the other man out the door, and it appears that Baker
and some of the guards tried to hit each other. Baker then put his
arm around the man in the camouflage cap, and at 2:07 a.m., they
walked down the breezeway and out of view.6 Several of the security
5 The video recordings did not include audio. 6 It was undisputed at trial that Baker was the man in the white T-shirt
who was involved in the altercation with the security guards. Baker’s trial counsel mentioned this fact during his opening statement, and as discussed more below, Baker admitted it during his testimony. 5 guards, including Head, stood together talking in front of the door,
and approximately two minutes later, Head suddenly fell down as
blood spattered on the ground near him.
Dunn (Crawford’s music manager) testified that after the
performance that night, he got in his car, and he thought that
Crawford, Baker, and the rest of the entourage got in the van, which
was still parked behind the nightclub. As Dunn pulled out onto the
street, following the van, he heard gunshots. He did not see anyone
get into the van after he heard the shots. At some point, Dunn asked
Baker if he was involved in the shooting, and Baker denied it. Dunn
also testified that members of Crawford’s entourage typically did not
carry guns to Crawford’s performances.
In response to the prosecutor’s questions about the “Ghetto
Angels” rap music video, Dunn testified that the song was about the
death of Crawford’s cousin, who had been shot 17 times years
earlier; the video showed Baker and several other men waving guns;
Dunn did not know what kind of gun Baker held or whether any of
the guns were real or fake; and Dunn discouraged Crawford from
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318 Ga. 431 FINAL COPY
S23A0860. BAKER v. THE STATE.
WARREN, Justice.
Appellant Morgan Baker was convicted of malice murder in
connection with the shooting death of Tamarco Head.1 In his sole
enumeration of error, Baker contends that the trial court abused its
discretion under OCGA § 24-4-403 (“Rule 403”) by admitting into
evidence a portion of a rap music video. As explained below, we agree
that the trial court’s admission of the video was an abuse of
discretion. And because the State has not met its burden of showing
that the error was harmless, we reverse Baker’s conviction.
1 Head was killed on July 6, 2019. In February 2021, a Houston County
grand jury indicted Baker for malice murder, felony murder, and aggravated assault. At a trial from February 8 to 11, 2022, a jury found him guilty of all counts. The trial court sentenced him to serve life in prison for malice murder; the remaining counts were vacated by operation of law or merged. Baker filed a timely motion for new trial, which he later amended through new counsel. After a hearing, the trial court entered an order denying the motion in December 2022. In February 2023, Baker filed a motion to set aside that order for lack of notice. The trial court granted the motion, vacated its order, and re- entered it on March 7, 2023. Baker then filed a timely notice of appeal, and the case was docketed to the August 2023 term of this Court and orally argued on August 23, 2023. 1. (a) The Pretrial Ruling to Admit the Rap Music Video Into
Evidence
Before trial, Baker filed a motion to exclude from evidence a
music video of the rap song “Ghetto Angels” by Kobe Crawford (a rap
artist known as “NoCap”), which was “filmed in early 2019” and
showed Baker “holding a semi-automatic pistol with an extended
magazine.” The motion argued, among other things, that the video’s
probative value was substantially outweighed by the danger of
unfair prejudice under Rule 403. After a hearing on the motion, the
trial court ruled that a 33-second-long portion of the video was
admissible, concluding that it was relevant to establish Baker’s
“identity” and the relationship between Baker and Crawford. The
court also ruled, without explanation, that the “short clip [wa]s more
probative than prejudicial.”
(b) The Trial
The evidence presented at Baker’s trial showed the following.2
2 Because this case requires our assessment of whether an evidentiary
2 Baker was close friends with Crawford and worked as his road
manager, traveling with him to various concert venues to assist with
his performances. On the night of July 5, 2019, Crawford, Baker,
and several other members of Crawford’s “entourage”3 drove in a
black van to a nightclub in Warner Robins, where Crawford was
scheduled to perform.
According to Crawford’s music manager—Rodney Dunn—and
the owner of the nightclub, the van parked behind the nightclub, and
Crawford, Baker, and other members of the entourage hung out in
a “VIP” room in the nightclub until Crawford performed around 1:00
or 1:30 a.m. The performance ended around 2:00 a.m., when the
nightclub was scheduled to close, and Crawford and some of the
members of the entourage left through the rear exit and got back in
the van.
error was harmless, see Division 2 (d) below, “we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done.” Jivens v. State, 317 Ga. 859, 863 (896 SE2d 516) (2023).
3 Crawford’s brother, one of Crawford’s friends, and a man who was involved in the music industry and his friends were also part of the entourage. None of these people testified at trial. 3 Meanwhile, patrons left through the front door of the
nightclub, where several security guards stood. Baker went out the
front door with the crowd, but he then tried to go back inside the
nightclub. One of the security guards testified as follows. A man,
later identified as Baker, and another man who appeared to be with
Baker, tried to come back inside, but the guard said that the two
men could not come in because the nightclub was closed. An
argument ensued, and several security guards pushed the men out
the door. Baker and the other man then walked down the breezeway
of the strip mall where the nightclub was located, toward a pawn
shop. Several security guards, including Head, stood near the door
of the nightclub, talking. A few minutes later, gunfire rang out from
the direction of the pawn shop; it sounded as though there was more
than one shooter. Head was shot, and he fell to the ground, dead.4
More gunfire later erupted “right up the street.”
Video recordings from the surveillance cameras at the
4 The medical examiner who later performed Head’s autopsy testified
that she recovered no bullets or bullet fragments from Head’s body. 4 nightclub showed the following.5 At 2:04 a.m., a crowd of people filed
through the front door to exit the nightclub. Baker, who had a short
hairstyle and wore a white T-shirt with black writing on the front,
walked outside, followed by a taller man wearing a black shirt and
a camouflage ball cap. The two men stood near the door, briefly
talked to a woman, and then walked down the breezeway. At 2:06
a.m., Baker and the man in the camouflage cap walked back toward
the nightclub together and tried to go inside, but a few security
guards stopped them. Baker and one of the security guards argued
and then shoved each other, and the man in the cap lunged toward
the guards. Baker pulled him back as the security guards pushed
Baker and the other man out the door, and it appears that Baker
and some of the guards tried to hit each other. Baker then put his
arm around the man in the camouflage cap, and at 2:07 a.m., they
walked down the breezeway and out of view.6 Several of the security
5 The video recordings did not include audio. 6 It was undisputed at trial that Baker was the man in the white T-shirt
who was involved in the altercation with the security guards. Baker’s trial counsel mentioned this fact during his opening statement, and as discussed more below, Baker admitted it during his testimony. 5 guards, including Head, stood together talking in front of the door,
and approximately two minutes later, Head suddenly fell down as
blood spattered on the ground near him.
Dunn (Crawford’s music manager) testified that after the
performance that night, he got in his car, and he thought that
Crawford, Baker, and the rest of the entourage got in the van, which
was still parked behind the nightclub. As Dunn pulled out onto the
street, following the van, he heard gunshots. He did not see anyone
get into the van after he heard the shots. At some point, Dunn asked
Baker if he was involved in the shooting, and Baker denied it. Dunn
also testified that members of Crawford’s entourage typically did not
carry guns to Crawford’s performances.
In response to the prosecutor’s questions about the “Ghetto
Angels” rap music video, Dunn testified that the song was about the
death of Crawford’s cousin, who had been shot 17 times years
earlier; the video showed Baker and several other men waving guns;
Dunn did not know what kind of gun Baker held or whether any of
the guns were real or fake; and Dunn discouraged Crawford from
6 using guns in his music videos. During cross-examination, trial
counsel elicited Dunn’s testimony that rap artists often use guns in
their music videos “to portray that they are somebody deserving of
street cred” and that record labels encouraged the use of guns in
music videos.
On redirect, the prosecutor introduced the 33-second-long
portion of the rap music video, which the trial court admitted into
evidence over trial counsel’s renewed objection, and the prosecutor
played the video for the jury. The first few seconds of the video
showed Baker waving a black handgun, pointing it at the camera,
and motioning as if he was shooting the gun while three other men
rapped and made hand gestures. The video then showed Baker,
Crawford, and about a dozen other men singing and dancing on and
around a car; Baker waved the black handgun, sometimes pointing
it at the camera, while some of the men made hand gestures, held
bottles of what appears to be alcohol, and brandished guns. In
response to further questions from the prosecutor, Dunn identified
Baker as one of the men who was “flashing [a] firearm” and testified
7 that although Dunn did not condone guns, he could not control
whether Crawford’s entourage used guns in the music video or
whether they carried guns on the night of the shooting. The
prosecutor then asked why Crawford “promot[ed]” gun violence in
the video, and Dunn responded that Crawford was not promoting it
and that Crawford was simply “a rapper.”
Another security guard testified that there were no security
issues in the nightclub before the altercation with Baker, and that
after Baker and the man in the camouflage cap walked toward the
pawn shop, gunfire erupted from that direction. He did not see who
shot, but the gunfire sounded like it came from “multiple guns.”
A patron of the nightclub testified that shortly before the shots
were fired, she was standing in the breezeway with her sister when
two men walked past her toward the pawn shop. One of the men
wore a white shirt; the other man, who was taller, wore a black shirt
and had his arm around the man in the white shirt. She heard one
of them say something like, “[D]on’t worry about it; we gonna get
them.” She then got in a car with her sister and heard gunshots, but
8 she could not tell from which direction they came, and she did not
see a shooter. The sister similarly testified that two men walked past
her toward the pawn shop as she stood in the breezeway moments
before the shooting; one of the men wore a white shirt and the other
wore a black shirt.7
An off-duty police officer who was hired to provide security in
the parking lot of the nightclub testified that after the nightclub
closed, he heard gunshots that sounded like they were fired from
multiple guns, and he saw muzzle flashes near the pawn shop. A few
moments later, he heard another set of gunshots, which sounded as
if a shooter was driving around outside the nightclub. He told
investigators at the scene that he saw a shooter, who wore a light-
colored shirt and a ball cap, near the pawn shop. At trial, he testified
that he did not see a shooter or recall describing a shooter to
investigators, but he insisted that what he told investigators was
7 A third woman, who was with the sisters that night, testified that she
heard gunshots, followed by another set of gunshots, coming from the direction of the pawn shop; she thought the shots came from only one gun; and she did not see who shot. 9 “definitely the truth.”
Another patron, La’Destiny Orr-Oglesby, testified as follows.
She was standing near her car, which was parked in front of the
pawn shop, when two men in the breezeway by the shop began
shooting handguns in the direction of the nightclub. One of the
shooters was short; had short hair, “light” skin, and a tattoo on his
left arm; and wore a white shirt with writing on the front. The other
shooter was tall, had dark skin, and wore a dark shirt and a dark
hat. When the men stopped shooting, they ran to a dark van that
was parked on the side of the strip mall near the pawn shop. The
prosecutor played the surveillance recordings showing the
altercation among Baker, the man in the camouflage cap, and the
security guards, and Orr-Oglesby identified Baker and the man in
the camouflage cap as the shooters. She also testified that when the
lead detective for the case interviewed her and showed her the
surveillance recordings, she similarly identified Baker and the man
10 in the camouflage cap as the shooters.8
The lead detective testified that when Orr-Oglesby spoke to an
investigator on the day of the shooting, she “g[a]ve a description of
who . . . she saw shooting.” (The lead detective did not elaborate
further about that description.) Two days later, on July 8, the lead
detective showed Orr-Oglesby a photo lineup that did not include a
photo of Baker, and she did not identify any of the photos in the
lineup as a photo of the shooter. The lead detective interviewed Orr-
Oglesby again that day, and she said that she saw two shooters—
one of the shooters was short, had light skin and a tattoo on his left
arm, and wore a white T-shirt, and the other shooter wore a dark
shirt and a dark hat. When the detective interviewed her again on
August 21, he showed her the surveillance recordings from the
nightclub, and Orr-Oglesby identified the two men who fought with
security guards as the shooters.
8 Orr-Oglesby also testified that in the weeks before trial, she had been
arrested for a misdemeanor ticket, for driving on a suspended license, and for failing to report to her probation officer. The District Attorney’s office arranged for her release from jail so that she could prepare to testify. Her charges were still pending at the time of trial. 11 While reviewing social media posts associated with Crawford,
the lead detective found the “Ghetto Angels” rap music video; he
determined that one of the men in the video was the same man
shown on the surveillance recordings of the altercation with the
security guards; and he “eventually learned” that the man was
Baker. The prosecutor then played the rap music video for the jury
again. The detective identified Crawford and Baker in the video,
saying that Baker was “holding what appear[ed] to be a firearm.”
On cross-examination, defense counsel tendered into evidence and
played for the jury a video recording of Orr-Oglesby’s August 21
interview, and the detective acknowledged that Orr-Oglesby said
during that interview that she “d[id]n’t think the light-skinned guy
was shooting.”9
The prosecutor tendered into evidence a photo of Baker that
9 During the remainder of the interview, Orr-Oglesby repeatedly referred
to two shooters and gave descriptions of them that were consistent with the descriptions she gave at trial. Defense counsel asked Orr-Oglesby during cross- examination if she told the lead detective that she “d[id]n’t think the light- skinned guy was shooting,” and Orr-Oglesby stated that she did not remember saying that and that she “always said there w[ere] two people shooting.”
12 was taken while he was on stage with Crawford on the night of the
shooting; the photo showed that Baker had short hair and a tattoo
on his left arm and wore a white T-shirt with writing on it.10 Forensic
testing showed that Baker’s fingerprints were on two plastic cups
found in the “VIP” room of the nightclub.
A crime scene investigator found seven .45-caliber shell casings
and fifteen 9mm shell casings near the pawn shop. A firearms
examiner later determined that all of the .45-caliber shell casings
were fired from the same gun (although he could not determine the
make and model of the gun), and all of the 9mm shell casings were
fired from the same Smith & Wesson 9mm pistol. Investigators did
not recover the guns used in the shooting, nor did they determine
the identity of the man in the camouflage cap.11
10 The photo, which was admitted without objection, depicted Baker gesturing as if he was shooting a gun. 11 Investigators also found two .40-caliber shell casings in the nightclub
parking lot, three 9mm shell casings north of the nightclub, and two .223 shell casings in a store parking lot a couple of blocks away. The lead detective testified that he did not know whether any of these shell casings were related to the shooting in this case. The firearms examiner determined that the 9mm shell casings found north of the nightclub were not fired from the same gun that fired the 9mm shell casings found near the pawn shop.
13 The defense presented testimony from two witnesses who saw
shots fired in the area surrounding the nightclub around 2:00 a.m.—
near the time of the shooting in this case. One of the witnesses
testified that his truck was hit by a bullet as he was driving at the
corner down the street from the nightclub, but he could not tell
where the shots came from. The other witness testified that he saw
shots fired from three vehicles—a black truck, a white Toyota
Solara, and an SUV—about a block away from the nightclub.12 The
defense also presented a surveillance video recording from the
nightclub that showed that about 30 minutes before the shooting in
this case, a security guard escorted an unidentified man in a white
shirt out of the nightclub and into the parking lot.
Baker testified in his own defense as follows. After Crawford,
12 In connection with the gunshots that the witnesses described, the lead
detective testified that he learned that shortly after the shooting in this case, shots were fired at an intersection about a block away from the nightclub. Investigators found 11 .40-caliber and 9mm shell casings near the intersection. The firearms examiner determined that the .40-caliber shell casings near the intersection were fired from the same gun that fired the .40-caliber shell casings found in the nightclub parking lot; the 9mm shell casings from the intersection were not fired from the gun that fired the 9mm shell casings found north of the nightclub or the 9mm shell casings found near the pawn shop. 14 his close friend since childhood, performed on the night of the
shooting, Baker went out the front door of the nightclub to look for
a woman he had talked with earlier that night. The man in the
camouflage cap, whom Baker did not know but had seen in the “VIP”
room at the nightclub earlier, followed him outside and tried to
“latch on” to him because the man wanted to take a photo with
Crawford. Baker, with the man beside him, briefly spoke to the
woman, and then walked down the breezeway to look for someone
else; the man in the cap followed him. Baker eventually decided to
go to the van, which was parked behind the nightclub, so he tried to
go back inside, and the man again followed him. When a security
guard told Baker that he could not come in, Baker was angry and
asked what the problem was. The security guard pushed him, and
the man in the cap began yelling. Several security guards pushed
Baker and the man out the door, and the man ran past Baker to
fight with the guards. Baker pulled the man back and stepped
between the man and a security guard; a guard punched Baker in
the face as he tried to break up the fight. Baker and the man then
15 walked down the breezeway, and the man asked Baker if he was
alright. Baker replied that he was and then walked around the side
of the strip mall to the parking lot behind the nightclub, where the
van was parked, as the man in the cap walked in a different
direction. According to Baker, he wanted to distance himself from
the man because the man had escalated the situation with the
security guards. Baker then got in the van, which drove away
moments later. As the van turned onto the street in front of the
nightclub, Baker heard gunshots. The van then drove to Atlanta,
where Baker and others in the entourage stayed overnight.
Although Crawford was scheduled to perform in Tupelo, Mississippi
the next night, Baker did not travel there and did not continue
touring with Crawford, because Baker wanted to go home to see his
infant daughter. Baker squarely denied having a gun that night or
being involved in the shooting.
On cross-examination, Baker testified that he put his arm
around the man in the camouflage cap as they walked down the
breezeway because Baker was trying to “de-escalate the situation,”
16 since the man was still angry. The prosecutor asked whether the
entourage traveled with guns, and Baker responded, “Why would
we, though?” The prosecutor said, “Well, let’s see why” and then
played the rap music video again. In response to the prosecutor’s
questions about the video, Baker testified that he did not produce
the video, that it was about “losing loved ones,” that he thought he
had “a Glock” gun in the video, he did not know “what kind” of Glock
it was, it was not his gun, and he used it in the video because he was
“trying to look cool.” When the prosecutor asked why that made him
“look cool,” Baker responded, “[I]n the music industry in—in my age
group, you do whatever that you think will sell, such as if—if I was
to—say I was a country music artist, I probably don’t like cowboy
hats or cowboy boots, but I will wear it if I think it’s going to help
my country music sell.” The prosecutor asked why Baker was
“promoting” gun violence in the video, and he replied that he was
not promoting it and was “[j]ust trying to be cool.” The prosecutor
then rewound the video and paused it at a point where it depicted
Baker; she asked him if the shirt he was wearing said “Loyalty is
17 Love,” and he replied that he did not know. Later, the prosecutor
referenced the photo showing Baker on stage with Crawford,
gesturing as if he was pointing a gun, and asked if Baker was
“[p]ortraying a shooter” “[j]ust like in the video we just watched,
with a real gun?” Baker replied that he was “just trying to be cool.”
The State’s theory of the case was that the man in the
camouflage cap was part of Crawford’s entourage; the man and
Baker shot toward the security guards, killing Head, after the
altercation at the door of the nightclub; and they then fled in the van
with the rest of the entourage. During closing argument, defense
counsel argued that Orr-Oglesby’s testimony was not credible
because she told the lead detective that the “light-skinned” man did
not shoot and because she testified that the van was parked on the
side of the strip mall, whereas other witnesses testified that it was
parked behind the nightclub; and alternatively, that the shooter in
the white shirt was someone else, as the evidence showed that
shootings were frequent in that area. As to the rap music video,
defense counsel argued that the video was a performance that
18 merely showed Baker “wanting to act cool.”
The prosecutor argued in closing that Orr-Oglesby was
credible, that her testimony that there were two shooters was
supported by the ballistics evidence, that given the undisputed
evidence showing that Baker wore a white shirt that night and that
he fought with the security guards, it was improbable that the man
in the cap began shooting with a different person who also happened
to be wearing a white shirt, and that the evidence that Baker did
not continue touring with Crawford after the shooting allowed an
inference of guilt.
The prosecutor also asserted that Baker’s testimony that he did
not have a gun on the night of the shooting was not credible, because
“[t]hey don’t roll like that.” She went on:
Use your common sense. And you know why you can say they don’t roll like that? Go back to that Ghetto Angels video. Right? That’s all they know, the gun violence. They want to promote it. They want to live by the sword, but they don’t want to die by it, right? When it’s not convenient, they don’t want to act like they promote the shooting.
Near the end of her argument, she asserted that “[t]his gun violence
19 needs to stop,” saying that it was sad that the altercation at the front
door ended in Head’s murder. She then said, “We’re better than that.
We’re better than that. Your job is to return a verdict.” She closed
by saying: “The truth is it’s time to tell Morgan Baker that we’re
going to hold him accountable for exactly what he did that night.
That we’re going to h[o]ld him accountable for ending a human life.
That it’s not a game, it’s not about a rap video. It’s real.” As
mentioned above, the jury found Baker guilty of malice murder,
among other crimes, and he was sentenced to serve life in prison.
(c) The Denial of Baker’s Motion for New Trial
In his motion for new trial, Baker argued that the trial court
abused its discretion by admitting the rap music video into evidence,
asserting that the video was not relevant or probative because he
never disputed that he was close friends with Crawford or that he
was at the nightclub on the night of the shooting. In its order
denying the motion, the trial court ruled that the video was properly
admitted, because it was relevant to show that Baker was part of
the entourage, that he had a motive to shoot Head, and that the lead
20 detective was able to identify him through the video. The trial court
also concluded, apparently as part of its analysis under Rule 403,
that although the video showed Baker waving a gun, the video was
only about 30 seconds long and “the behavior in the video [was] not
in and of itself illegal and is relatively common in today’s music
videos.”
2. In his sole claim on appeal, Baker contends that the trial
court abused its discretion under Rule 403 by admitting the portion
of the rap music video into evidence. As discussed below, we agree.13
13 Baker also makes a bare-bones assertion that the rap music video
should have been excluded under the First Amendment to the United States Constitution. But given our conclusion that the video was not admissible under Rule 403 and that the error in admitting it was not harmless, we do not reach Baker’s argument that the video also was not admissible under the First Amendment. In addition, we note that the State contends that, although Baker preserved for ordinary appellate review his claim about the rap music video, he affirmatively waived any argument about the audio, i.e., the lyrics of the song featured in the video. But the lyrics in the rap music video are, for the most part, indecipherable, and Baker makes no specific arguments about why they should have been excluded. Thus, we need not address the State’s contention, because the lyrics have no bearing on our conclusion that the rap music video was improperly admitted. We note that the dissenting opinion appears to argue that the unintelligibility of the lyrics in the rap music video “further diminish[ ] any danger of unfair prejudice” under Rule 403, but the lyrics’ unintelligibility would only mitigate any unfair prejudice flowing from the lyrics themselves—not any unfair prejudice from the images in the video, to which we have limited our review here. 21 (a) The Applicable Law
We begin with a review of the law that applies to Baker’s claim.
Under OCGA § 24-4-401 (“Rule 401”), “relevant evidence” is
evidence that has “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.”
“The test for relevance is generally a liberal one, and [r]elevance is
a binary concept—evidence is relevant or it is not.” Harris v. State,
314 Ga. 238, 262 (875 SE2d 659) (2022) (citations and punctuation
omitted). Under OCGA § 24-4-402 (“Rule 402”), relevant evidence is
generally admissible, and evidence that is not relevant is not
admissible. Rule 402 also says, however, that the admissibility of
relevant evidence may be “limited by . . . law or by other rules.”
OCGA § 24-4-402. One such limiting rule is Rule 403, which says,
“Relevant 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
22 evidence.”
We have often reiterated that “the major function of Rule 403
is to exclude matter of scant or cumulative probative force, dragged
in by the heels for the sake of its prejudicial effect.” Harris, 314 Ga.
at 262-263 (citation and punctuation omitted). To that end, we have
explained probative value in this way:
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. Probative value also depends on the marginal worth of the evidence—how much it adds, in other words, to the other proof available to establish the fact for which it is offered. The stronger the other proof, the less the marginal value of the evidence in question. And probative value depends as well upon the need for the evidence. When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence.
Olds v. State, 299 Ga. 65, 75-76 (786 SE2d 633) (2016) (citations and
footnotes omitted).
As to the evaluation of prejudice under Rule 403, we have said
that “in a criminal trial, inculpatory evidence is inherently
23 prejudicial; it is only when unfair prejudice substantially outweighs
probative value that the rule permits exclusion.” Harris, 314 Ga. at
263 (citation and punctuation omitted; emphasis in original). The
term “unfair prejudice,” as it is used in Rule 403, refers to “the
capacity of some concededly relevant evidence to lure the factfinder
into declaring guilt on an improper basis rather than on proof
specific to the offense charged.” Old Chief v. United States, 519 U.S.
172 (117 SCt 644, 136 LE2d 574) (1997).14 Generally, such improper
bases for a finding of guilt include a criminal defendant’s bad
character or his propensity for violence. See, e.g., id. at 181-182
(explaining that the risk that a jury will reach a guilty verdict
“‘because a bad person deserves punishment’” creates a substantial
prejudicial effect) (citation omitted); Harris, 314 Ga. at 271 (noting
that “‘[i]t does not follow because an accused person may have a bad
character that he is guilty of the particular offense for which he is
being tried’”) (citation omitted).
14 Because OCGA § 24-4-403 is “materially identical” to Federal Rule of
Evidence 403, we look to federal appellate cases for guidance in interpreting the rule. See State v. Almanza, 304 Ga. 553, 556-558, 560 (820 SE2d 1) (2018). 24 In all, however, “the exclusion of evidence under Rule 403 is an
extraordinary remedy which should be used only sparingly.” Harris,
314 Ga. at 262 (citation and punctuation omitted).
(b) Relevance of the Rap Music Video
As an initial matter, we note that Baker does not argue that
the rap music video was not relevant evidence under Rules 401 and
402. Indeed, as the trial court indicated in its orders regarding the
admission of the rap music video, the video tended to prove that
Baker was involved in Crawford’s rap music business and was part
of his “entourage,” making it more likely that Baker was present at
the nightclub just after Crawford’s performance, around the time of
the shooting. Thus, the video was relevant in that respect and
satisfies Rule 401.
The State argues that the video was also relevant with respect
to four other purposes. First, the State asserts that the video was
relevant as “intrinsic evidence” to complete the story of the crime.
Second, the State claims that the video was relevant to identity
because the lead detective testified that during his investigation, he
25 reviewed the video, determined that one of the men in the video was
the same man shown on the surveillance recordings of the
altercation with the security guards, and “eventually learned” that
the man was Baker. The State also asserts that the video was
relevant to establish Baker’s motive to shoot toward the security
guards—that Baker’s involvement in the entourage caused him to
believe he was “a big shot” and become enraged when the security
guards “disrespected” him. Finally, the State argues that the video
was relevant to show that Baker had access to the guns used during
the shooting. Because Baker does not argue that the video was not
relevant, and particularly because “[t]he test for relevance is
generally a liberal one,” we will assume without deciding that the
video was relevant for these purposes as well. See Harris, 314 Ga.
at 262, 272 (assuming without deciding that evidence of the
appellant’s sexual messages and conduct was relevant under Rule
401 to prove his motive to murder the victim before ultimately
concluding that much of the evidence was not admissible under Rule
403).
26 (c) Admissibility of the Rap Music Video under Rule 403
Turning to Rule 403, the rap music video had little, if any,
probative value in proving the points discussed above. First, the
video’s probative force to show that Baker was part of Crawford’s
entourage and was present at the nightclub around the time of the
shooting was minimal. That is because at trial, Baker did not
dispute—and in fact admitted—that he was close friends with
Crawford; he was Crawford’s road manager; he toured with
Crawford as part of his entourage; he traveled in the van with
Crawford to the nightclub; he hung out in the “VIP” room; and when
security guards refused to let him back inside the nightclub, he and
the man in the camouflage cap fought with them.15 In addition, the
15 In particular, defense counsel told the jury during his opening statement that Baker and Crawford had been “friends since adolescence”; Baker “was working for [Crawford] as his road manager”; Baker toured the country with Crawford to assist with “dozens of shows”; Baker traveled with Crawford in the van to the nightclub in Warner Robins; they “were directed to this VIP area”; after the show, security guards prevented Baker from re- entering the nightclub, and Baker (along with the unknown man in the camouflage cap) got into an altercation with the guards. And Baker admitted during his direct examination that Crawford was a “very close friend”; the two had known each other since Baker was “four years old”; he worked as Crawford’s road manager and toured with him; he traveled in the van with
27 State presented other substantial evidence to establish Baker’s
relationship with Crawford and his presence at the nightclub,
including Dunn’s testimony on those points, the surveillance
recordings from the nightclub showing Baker fighting with security
guards, a photo of Baker and Crawford on stage at the nightclub,
and evidence that Baker’s fingerprints were on two plastic cups in
the “VIP” room. Put simply, given the extensive, definitive, and
undisputed evidence that Baker worked for and traveled with
Crawford and that Baker was at the nightclub near the time of the
shooting, it was not necessary to show the rap music video—which
supported only the inference that Baker was part of Crawford’s
entourage. Thus, the rap music video was minimally probative to
establish those points. See Olds, 299 Ga. at 76 & n.15 (explaining
that if a point is proved by other strong evidence, “the marginal
value of the evidence in question” is decreased and that “‘[i]f the
Crawford to the nightclub in Warner Robins; they went to the “VIP” room; he sometimes performed on stage with Crawford; he was on stage during Crawford’s performance at the nightclub; and he and the man in the camouflage cap fought with security guards. 28 evidence . . . is cumulative of evidence already introduced, exclusion
is more likely’”) (citation omitted).
For similar reasons, the rap music video lacked any significant
probative value to complete the story of the crime (and thus had
little, if any, value as intrinsic evidence) or to establish identity by
proving how the lead detective determined that Baker was the man
shown in the surveillance recordings of the fight at the nightclub. As
we explained above, Baker admitted—and other evidence
established—the aspects of the “story of the crime” that the State
asserts the rap music video proved. And the lead detective’s
determination that Baker was the man shown in the surveillance
recordings was a detail of the investigation that was of little
consequence, particularly in light of Baker’s admission and the other
undisputed evidence proving that he was in fact the man shown on
the recordings. See Olds, 299 Ga. at 76 & n.15.
The probative value of the rap music video to show Baker’s
motive was also negligible, at best. In this respect, the State failed
to show a “logical and necessary link” between Baker’s waving and
29 pointing a gun during his performance of a rap song and his
motivation to shoot toward the security guards at the nightclub. If
anything, the alleged “link” between the video and Baker’s motive
appears to be the video’s portrayal of Baker as a violent gunman—a
link that essentially amounts to impermissible propensity evidence.
Kirby v. State, 304 Ga. 472, 486-487 (819 SE2d 468) (2018)
(explaining that “[m]otive is the reason that nudges the will and
prods the mind to indulge the criminal intent” and that evidence of
motive “must be logically relevant and necessary to prove something
other than the accused’s propensity to commit the crime charged”)
(citations and punctuation omitted). See also Harris, 314 Ga. at 270
(noting that evidence of an alleged motive that lacks a specific,
logical link to the alleged crimes often supports only improper
propensity arguments). Moreover, the State presented evidence
apart from the rap video—the surveillance recordings and testimony
from two security guards—to establish Baker’s alleged motive to
shoot toward the security guards because he believed that they had
“disrespected” him. See Olds, 299 Ga. at 76 & n.15.
30 Finally, the rap music video’s probative value to prove that
Baker had access to the guns used during the shooting was, at most,
trivial. We acknowledge that because there was no proof connecting
Baker to the guns used in the shooting, which the evidence indicated
were a .45-caliber gun of an undetermined make and model and a
Smith & Wesson 9mm pistol, the State had a real need to tie Baker
to those guns. But the rap music video tended to prove little, if
anything, about Baker’s access to those types of guns near the time
of the shooting. First, although Baker claimed in his pretrial motion
to exclude the video that it was “filmed in early 2019,” the State
offered no evidence at trial about when the performance was
recorded, which reduced the video’s probative force to prove that
Baker had access to guns near the time of the shooting in July 2019.
And the State did not argue at trial or present any evidence showing
that the gun Baker waved around in the rap music video was used,
or even could have been used, in the shooting. The only evidence
presented at trial about the gun Baker held in the rap music video
was Dunn’s testimony that he did not know the gun’s type (or even
31 whether it was real or fake) and Baker’s similar testimony that the
gun was not his, he did not know its type, he thought it was “a
Glock,” and he used it in the performance “to look cool.” Thus, the
rap video established only that at some unidentified point in time,
Baker held what may have been a Glock handgun during a rap
music performance. See Olds, 299 Ga. at 75 (explaining that
“‘[p]robative value refers to the strength of the connection between
the evidence and what it is offered to prove’”) (citation omitted).
Compare Wilson v. State, 315 Ga. 728, 739-740 (883 SE2d 802)
(2023) (holding that the trial court did not abuse its discretion under
Rule 403 by admitting into evidence a rap music video that was
filmed 11 days after the victim’s murder and showed the appellant’s
co-defendants “flash[ing]” a handgun that two witnesses testified
was the murder weapon); United States v. Smith, 967 F3d 1196,
1204-1206 (11th Cir. 2020) (holding that the trial court did not abuse
its discretion under Federal Rule of Evidence 403 by admitting
evidence of the appellant’s rap music video, which showed him
holding a pistol that the robbery victim testified was similar to the
32 one he used to strike her).16
In contrast to the exceedingly low probative value of the rap
music video, the prejudice flowing from the evidence the State
presented that Baker waved a handgun, pointed it directly at the
camera, and mimicked shooting the gun while rapping on a street
with a large group of men, some of whom also brandished guns and
made hand signs, was high. As the trial court noted in discussing
the rap music video at trial (outside the presence of the jury), “the
video [was] . . . glorifying of violence and gun violence and a sort of
street life, glamorizing it.”
16 We note that the probative value of the rap music video was further
diminished by the State’s failure to present any evidence that Baker’s performance of Crawford’s rap song was not wholly theatric. See United States v. Gamory, 635 F3d 480, 493 (11th Cir. 2011) (explaining that a rap video was minimally probative under Federal Rule of Evidence 403 because there was no proof that the appellant “authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by [the appellant]”); State v. Skinner, 218 N.J. 496, 521 (95 A3d 236) (2014) (“The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.”); Commonwealth v. Gray, 463 Mass. 731, 753-755 (978 NE2d 543) (2012) (explaining that a rap music video was “minimally if at all probative” because there was no evidence that the rap lyrics were biographical or indicative of the appellant’s motive). 33 Yet the record shows that the trial court’s failure to recognize
the danger of unfair prejudice from the video when it ruled on its
admissibility enabled the State’s improper use of the video
throughout the trial. In particular, the trial court allowed the
prosecutor to capitalize on the video’s prejudicial impact by
emphasizing the video not to prove the purposes for which the State
now asserts the video was probative (i.e., to complete the story of the
crime, to establish Baker’s identity, to show Baker’s motive, or to
prove that Baker had access to the guns used in the shooting), but
for the purpose of showing Baker’s alleged propensity for violence
based on the theory that he was associated with a rap artist. For
example, when examining Dunn, the lead detective, and Baker, the
prosecutor emphasized the portion of the rap video in which Baker
waved a handgun, and she asked Dunn and Baker about the video’s
“promoting” gun violence—even though she did not offer argument,
let alone evidence, that the gun shown in the video was the gun used
in the shooting. And when the prosecutor asked Baker whether the
entourage traveled with guns and he responded, “Why would we,
34 though,” she again used the video to exaggerate Baker’s violent
nature, saying “Well, let’s see why,” before she played the video for
the jury a third time. Even worse, during closing argument, the
prosecutor expressly asserted that the rap music video proved that
those who participate in making rap music, such as Baker, had a
propensity for violence, saying, “Go back to that Ghetto Angels
video. Right? That’s all they know, the gun violence. They want to
promote it.” The prosecutor then drew a comparison between the
shooting and the rap music video, stating, “[I]t’s not a game, it’s not
about a rap video. It’s real.” See, e.g., Brown v. State, 303 Ga. 158,
162-163 (810 SE2d 145) (2018) (explaining that the probative value
of evidence that the appellant committed a prior aggravated assault
was “extremely low at best” and was “‘substantially outweighed by
its danger of creating prejudice,’” because the evidence had “‘no
purpose other than to show appellant’s propensity toward violence’”)
(citation omitted).17
17 The dissenting opinion says in passing that it does “not condone the
prosecutor’s potential misuse of the video to make a propensity argument.” But
35 The unfair prejudice from the evidence of the rap music video
substantially outweighed its minimal probative value, making this
evidence the sort that Rule 403 was meant to exclude: “matter of
scant or cumulative probative force, dragged in by the heels for the
sake of its prejudicial effect.” Harris, 314 Ga. at 277 (citation and
punctuation omitted). The trial court therefore abused its discretion
under Rule 403 by admitting the rap music video into evidence. See
id. at 274-280 (holding that the trial court abused its discretion
under Rule 403 by admitting evidence of the appellant’s sexual
activities on the day before the victim’s death, which had “trivial
probative value” and was “very prejudicial”); Jackson v. State, 306
Ga. 69, 79-80 (829 SE2d 142) (2019) (holding that the trial court
abused its discretion under the Rule 403 part of the test pursuant to
OCGA § 24-4-404 (b) by admitting evidence that the appellant was
involved in a prior shooting, because the probative value of the
evidence was “minimal at best”; it was “undoubtedly prejudicial”;
it undermines that disavowal by focusing on the amount of time the rap music video was shown to the jurors instead of on the significantly harmful ways the prosecutor used the video even when it was not being played. 36 and the prosecutor enhanced the prejudice by extensively
questioning the appellant about the prior shooting to try to establish
that he was “someone with a violent character”). See also United
States v. Gamory, 635 F3d 480, 493 (11th Cir. 2011) (holding that
the trial court abused its discretion under Federal Rule of Evidence
403 by admitting evidence of a rap music video and explaining that
“the probative value of the rap video was minimal at best,” partly
because any facts that the video made more probable “were not
seriously contested at the time the video was introduced” and there
was no evidence that the appellant adopted the “views and values
reflected in the video,” while “the substance of the rap video was
heavily prejudicial,” as the lyrics “could reasonably be understood as
promoting a violent and unlawful lifestyle”).18
18 The dissenting opinion concludes that the admission of the rap music
video was not an abuse of discretion under Rule 403, asserting that we have overestimated the unfair prejudice from the video and downplayed its probative value. In determining that the video was not overly prejudicial, the dissenting opinion ignores the prosecutor’s repeated questions and arguments about the video’s (and Baker’s) “promoting” gun violence, which improperly emphasized Baker’s alleged propensity for violence. And the dissent’s assertion that, by considering the prosecutor’s improper closing arguments about the rap music video in assessing unfair prejudice, we have “conflate[d] the question of
37 unfair prejudice under Rule 403 with the question of whether the video, in the context of the entire trial, was harmful or harmless,” is simply incorrect. In weighing probative value and unfair prejudice under Rule 403, a trial court should consider how the evidence at issue might be used within the context of the evidence and arguments presented at trial, including how a prosecutor could capitalize on the prejudicial effect of the evidence during closing argument. And in reviewing whether a trial court abused its discretion in conducting Rule 403’s balancing test, an appellate court may properly consider whether the risk of unfair prejudice was actualized at trial. See, e.g., Whited v. State, 315 Ga. 598, 605-606 (883 SE2d 342) (2023) (noting, in considering unfair prejudice under Rule 403, that the State’s opening statements and closing arguments did not focus on the evidence at issue); Harris, 314 Ga. at 273-280 (noting the trial court’s pretrial ruling admitting evidence of the appellant’s sexual messages and conduct under Rule 403 and then, in concluding that the court abused its discretion, considering all of the evidence presented at trial—including the State’s theory at trial of the appellant’s motive; whether the evidence at issue was needlessly cumulative of other evidence presented at trial; the probative value of the evidence, in light of the other strong evidence presented at trial that proved the same point; and the unfair prejudice flowing from the evidence at trial, which was “compound[ed]” by the fact that the prosecutor hinted during his closing argument that the appellant had not been charged with any crimes related to the evidence that he sent sexual messages to a child); Jackson, 306 Ga. at 78-79 (holding that the trial court abused its discretion under the Rule 403 part of the test pursuant to OCGA § 24-4-404 (b) by admitting evidence that the appellant was involved in a prior shooting, and evaluating as part of that analysis the State’s need for the evidence—given the other evidence presented at trial—and its prejudicial effect—which was “enhanced” by the prosecutor’s extensively questioning the appellant about the shooting for the purpose of “establish[ing the appellant] as someone with a violent character”); Kirby, 304 Ga. at 486 (concluding that the trial court abused its discretion under the Rule 403 part of the test pursuant to OCGA § 24-4-404 (b) by admitting evidence that the appellant committed a prior armed robbery and aggravated assault, and discussing as part of that analysis its low probative value in light of the other strong evidence presented at trial to prove the same point and its prejudicial effect, which was “reduced” because the jury was presented with other evidence that the appellant had committed another assault and robbery). As to the dissenting opinion’s assessment that the video’s probative value was more significant than we acknowledge because the video “showed
38 (d) Harm
Having concluded that the trial court abused its discretion
under Rule 403 by admitting the excerpt of the rap video into
evidence, we must now assess whether that error caused harm that
warrants a reversal of Baker’s conviction. “‘The test for determining
nonconstitutional harmless error is whether it is highly probable
that the error did not contribute to the verdict.’” Jivens v. State, 317
Ga. 859, 863 (896 SE2d 516) (2023) (citation omitted). Accordingly,
the error in admitting the rap music video into evidence may be
deemed harmless only if “‘it is highly probable that the error did not
contribute to the verdict.’” Id. (citation omitted). Applying that
that Baker was familiar and comfortable with handguns,” we have explained time and again that when evidence is not particularly strong to prove the point for which it is offered, the probative value of the evidence is diminished, not increased. See, e.g., Olds, 299 Ga. at 75-76. Here, the State did not use the video to connect the gun used in the crimes to the gun Baker held in the video, so the video was not strong evidence and had little probative value in that respect. In sum, the dissent misses the point: the contents of the video, standing alone, were not particularly prejudicial. But the video’s exceedingly low probative value, compared to its outsized risk of unfair prejudice, made its admission an abuse of discretion under Rule 403. And indeed, that risk—which was apparent at the time the trial court had to decide whether to admit the video—was actualized by the prosecutor’s improper use of the video to show Baker’s propensity for gun violence. 39 standard, we conclude that the trial court’s error in this case was
not harmless.
As discussed above, the rap music video was highly prejudicial.
It allowed the State to introduce impermissible propensity evidence
by portraying Baker as a threatening gunman, and the prosecutor
severely exacerbated the video’s prejudicial impact by emphasizing
that it showed Baker’s predisposition to gun violence. Although the
video excerpt was relatively brief—it was only about 30 seconds long
(as the trial court pointed out in its order denying Baker’s motion
for new trial)—the prosecutor made it a focal point of the trial. She
played the video for the jury three times at three different points
during the trial; questioned three witnesses about the video
(specifically highlighting that the video advocated gun violence); and
then emphasized during her closing argument that Baker and other
rap artists “promote[d]” gun violence, because “[t]hat’s all they
know,” a pointed argument that reinforced to the jury Baker’s
alleged violent character. See, e.g., Strong v. State, 309 Ga. 295, 317
(845 SE2d 653) (2020) (noting, in reversing the appellant’s
40 convictions on the ground that an evidentiary error was not
harmless, that the State “emphasized” the evidence during closing
argument); Thompson v. State, 302 Ga. 533, 542 (807 SE2d 899)
(2017) (explaining, in reversing the appellant’s convictions due to
the improper admission of evidence that was not harmless, that the
prosecution emphasized during closing argument that the evidence
showed that the appellant had a propensity to commit crimes).19
19 We note that the trial court instructed the jury during the final charge
that the lawyers’ closing arguments were not evidence, but under these circumstances, that generalized instruction was not sufficient to cure the prejudicial impact of the prosecutor’s improper propensity argument. Cf. Jones v. State, 292 Ga. 656, 662 (740 SE2d 590) (2013) (explaining that the standard instruction that closing arguments are not evidence was insufficient to cure the prosecutor’s “highly prejudicial” improper argument that the appellant was involved in another shooting, which was not supported by any evidence at trial, in violation of OCGA § 17-8-75). In addition, the State contends that other aspects of the trial mitigated any harm from the admission of the video: namely, that in response to the prosecutor’s questions during jury selection about whether potential jurors had heard about rap artists committing crimes and whether that would “color [their] perception” of the case, no jurors expressed any bias, and that defense counsel elicited testimony indicating, and asserted during closing argument, that the video was a performance that merely showed Baker “wanting to act cool.” We disagree. The jurors’ general attitudes toward rap artists at the time of jury selection says little, if anything, about how they responded to the prosecutor’s belaboring of the improperly admitted evidence of the rap music video at trial. See Hill v. State, 308 Ga. 638, 648 (842 SE2d 853) (2020) (explaining that although the jurors stated during jury selection that they could remain impartial even though the appellant was visibly shackled during the trial, at that point in the proceedings, they could “only speculate” as to how
41 Moreover, other than the improperly admitted evidence of the
rap music video, the State offered no connection between Baker and
guns. The State introduced no evidence showing that Baker carried
or had access to guns regularly, much less that he was carrying a
gun on the night of the shooting or that the gun displayed in the rap
video was used in the shooting. In short, the way in which the rap
music video was used at trial aggrandized a connection between
Baker and gun violence that was not properly established by any
other evidence. Under these circumstances, the evidence of the rap
music video was not “‘relatively benign’ or merely cumulative, as we
often have concluded in cases deeming improperly admitted
evidence harmless.” Harris, 314 Ga. at 284 (citation omitted).
Compare Jivens, 317 Ga. at 864 (explaining that the allegedly
improper admission of photographs of the appellant with firearms
they would feel after being exposed to the practice; accordingly, the jurors’ statements did not render the trial court’s error in requiring the appellant to be shackled at trial harmless). As to the testimony and argument that the video simply showed Baker’s attempt “to act cool,” we acknowledge that defense counsel’s response to the video reduced its harmful effect, but that slight mitigation was outweighed by the prosecutor’s repeated and improper use of the video to show Baker’s alleged propensity for gun violence. 42 was harmless, partly because “any prejudicial effect these
photographs may have had was minimized by properly admitted
evidence that [the appellant], in fact, had access to guns”).
By contrast, the other evidence showing that Baker
participated in shooting Head was not especially compelling,
especially given the equivocation of multiple witnesses. See Harris,
314 Ga. at 284 (explaining that “‘compelling properly admitted
evidence of guilt’” may offset a high risk of prejudice from improperly
admitted evidence) (citation omitted). See also OCGA §§ 16-5-1 (a)
(defining malice murder); 16-2-20 (defining parties to a crime). As
we recounted in Division 1 above, only one eyewitness—Orr-
Oglesby—identified Baker as a shooter, and although she said
during her interviews with the lead detective that she saw two
shooters, provided a description of one of the shooters that matched
Baker, and then identified Baker during her interview with the
detective in August 2019 and again at trial, she also said during her
August 2019 interview that she “d[id]n’t think the light-skinned
guy” (referring to Baker) was a shooter. Moreover, evidence was
43 presented that after that interview and at the time of trial, Orr-
Oglesby had a motive to testify against Baker, because she had
recently been arrested on several criminal charges that were still
pending, which authorized the jury to make additional inferences
that might undermine Orr-Oglesby’s credibility.
The State points out that Orr-Oglesby’s account at trial was
supported by other evidence—including the surveillance recordings
showing Baker (in a white shirt) and the man in the camouflage cap
(in a black shirt) walking together toward the pawn shop; testimony
that patrons saw a man in a white shirt walking with a man in a
black shirt toward the pawn shop, saying something like, “we gonna
get them,” moments before the shooting; and the shell casings near
the pawn shop, which indicated that two guns were used in the
shooting. Notably, however, Orr-Oglesby’s account was also
contradicted by other evidence. Orr-Oglesby testified that Baker and
the man in the camouflage cap shot and then fled in a van that was
parked on the side of the strip mall, but Dunn testified that he did
not see anyone get into the entourage’s van, which had been parked
44 behind the strip mall, after he heard gunshots. Moreover, in contrast
to Orr-Oglesby’s testimony, the off-duty police officer told
investigators at the crime scene that he saw a shooter (with no
mention of a second shooter) wearing a light shirt and a ball cap.
And although the ballistics evidence showed that two guns were shot
near the pawn shop, witnesses testified that they also heard another
set of gunshots; the defense presented evidence that shots were fired
from three vehicles (the descriptions of which did not match the
entourage’s van) near the nightclub around the time of the shooting;
investigators found several additional shell casings in that area; and
the State presented no evidence of the type of bullet that killed
Head.
To be sure, the State presented substantial evidence of Baker’s
motive to participate in the shooting: namely, that he and the man
in the camouflage cap were angry with the security guards after the
fight. But Baker did not dispute that he and the man in the cap
fought with the guards or that he was angry. And to rebut the State’s
theory that his anger motivated him to perpetrate a shooting with
45 the man in the cap, Baker provided a not-implausible account: after
the fight, he simply parted ways with the man—whom he did not
know and whose presence he wanted to leave, given that the man
had escalated the fight—and got in the van, where he then heard
gunshots.20
Given all of this evidence, we cannot say that it is “highly
probable” that the trial court’s improper admission of the evidence
of the rap music video did not contribute to the guilty verdict, and
thus the State has not met its burden of showing that the error was
harmless. We therefore reverse Baker’s malice murder conviction.
20 The dissenting opinion contends that our harmless-error analysis is
“incomplete because it fails to account for the fact that Baker elected to testify at his trial,” which it suggests would diminish the harm of the error in admitting the rap video because “the jury did not find [Baker] credible.” But we have accounted for Baker’s testimony above, concluding that his version of the events on the night of the shooting was not implausible. Although the jury was authorized to disbelieve Baker’s account, we would expect that the prosecutor’s repeated use of the video to emphasize Baker’s alleged propensity for gun violence would have significantly undermined his credibility with the jurors. In other words, the prosecutor’s use of the video to emphatically cast Baker as a violent gunman before the jury had an opportunity to listen to Baker’s own account and assess his credibility made it more likely that the jury would disbelieve Baker’s testimony not because it was unworthy of belief, but because he had been portrayed as the sort of person who would commit a crime like the one with which he was charged. 46 See, e.g., Harris, 314 Ga. at 288-289 (reversing the appellant’s
convictions due to the improper admission of evidence under Rule
403, which was not harmless, because the evidence was highly
prejudicial and the proof of the appellant’s guilt “was not
‘overwhelming,’ ‘compelling,’ or even strong”); Strong, 309 Ga. at
316-318 (reversing the appellant’s convictions on the ground that
improperly admitted evidence was not harmless, because the
evidence was highly prejudicial and not cumulative of other,
properly admitted evidence; the State emphasized the evidence at
trial; and the other evidence of the appellant’s guilt was “not
overwhelming,” particularly given that the State’s two eyewitnesses
gave somewhat inconsistent accounts of the murder and the
appellant “provided a not-outlandish account of the incident”);
Heard v. State, 309 Ga. 76, 91 (844 SE2d 791) (2020) (reversing the
appellant’s convictions based on improperly admitted evidence that
was not harmless, because the evidence was “highly prejudicial and
not at all cumulative . . . and the evidence that [the appellant]
47 committed the charged crimes was not compelling”).21
Judgment reversed. All the Justices concur, except Boggs, C. J., and LaGrua, J., who dissent.
LAGRUA, Justice, dissenting.
The majority opinion holds that the trial court abused its
discretion by admitting the 33-second clip from a rap music video
into evidence because the video’s “probative value [was]
substantially outweighed by the danger of unfair prejudice[.]” OCGA
§ 24-4-403 (“Rule 403”). Under such circumstances, reversal is only
necessary if the error was harmful, which the majority opinion also
21 Although the evidence presented at trial was not especially strong,
when viewed in the light most favorable to the verdicts, it was constitutionally sufficient to sustain the jury’s guilty verdicts. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979); Hamilton v. State, 317 Ga. 337, 340 (893 SE2d 54) (2023) (concluding that the evidence, which showed that the appellant initiated a dispute with the victim and then participated with his co- defendant in shooting him, was constitutionally sufficient to support the appellant’s conviction for felony murder based on aggravated assault); Draughn v. State, 311 Ga. 378, 381-382 (858 SE2d 8) (2021) (holding that the evidence supporting the appellants’ convictions for malice murder was constitutionally sufficient, partly because an eyewitness identified them as the assailants, and explaining that although there was conflicting evidence as to their involvement, “‘[i]t is the jury’s role to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient’”) (citation omitted). Thus, the State may retry Baker if it so chooses. See Harris, 314 Ga. at 289; Strong, 309 Ga. at 318 n.25. 48 holds. I disagree as to both. The trial court did not err in admitting
the video, but, even if it did, any error was harmless. Because I
would affirm the judgment of the trial court, I respectfully dissent.
It is uncontested—even admitted by Baker and captured on
camera—that Baker and a man in a camouflage cap attempted to
reenter the nightclub shortly after 2:00 a.m., but they were denied
reentry after a brief argument and physical struggle with the
security guards. Baker and the man in the camouflage cap walked
away in the direction of a pawn shop, with Baker placing his arm
around the man in the camouflage cap. Uncontested evidence also
shows that one of those security guards near the door was shot and
killed minutes later. At least five witnesses testified that the gunfire
came from the direction of the pawn shop, where shell casings were
also found. Surveillance footage did not capture the shooting, but
Orr-Oglesby testified that she saw two men matching the
descriptions of Baker and the man in the camouflage cap both
shooting guns toward the nightclub from the direction of the pawn
shop. Another nightclub patron testified that she saw two men
49 walking toward the pawn shop, one with his arm around the other,
and she heard one say, “we gonna get them,” followed shortly by
gunfire. Baker testified that, by the time the shooting started, he
had already parted with the man in the camouflage cap and boarded
the van. However, no other witnesses, including Dunn, could
corroborate that Baker was in the van before the shooting.
Accordingly, the majority opinion concludes that this evidence was
constitutionally sufficient to support Baker’s conviction. Majority
Op. at 452 n.21.
But the majority opinion also holds that all this evidence “was
not especially compelling.” Majority Op. at 450. I do not agree;
rather, the evidence against Baker was substantial. To support its
contrary holding, the majority opinion undermines Orr-Oglesby’s
identification of Baker as the shooter by listing multiple instances
in which she identified Baker as the shooter but one instance where
she equivocated. However, the majority opinion also acknowledges
that the core of her testimony was largely consistent with other
uncontested evidence. She heard some commotion at the front door
50 of the nightclub and then saw two men near the pawn shop shooting
toward the nightclub—two men that were identified at trial as
Baker and the man in the camouflage cap. The inconsistencies
highlighted by the majority opinion generally do not contradict that
narrative, except for the testimony of an off-duty police officer at the
scene, who testified that he “couldn’t get a good sight of any
shooters” and could barely remember what he saw. The majority
opinion also explains that Orr-Oglesby had a motive to lie because
she was on probation and was recently arrested on a bench warrant
for a completely unrelated misdemeanor in a separate county, a
motive which I find weak and irrelevant considering that she was
not facing those charges during her prior identification of Baker.
Now to the question on appeal: did the trial court abuse its
discretion by admitting the video under Rule 403, and, if so, was it
harmful error? The majority opinion answers “yes” to both questions
for roughly the same reason: “the rap music video was highly
prejudicial.” Majority Op. at 448. I disagree.
I do not agree that the danger of unfair prejudice substantially
51 outweighed the video’s probative value, which is the difficult test
that Rule 403 sets out. The video was not as prejudicial as the
majority opinion holds. “[I]n reviewing issues under Rule 403, we
look at the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue
prejudicial impact.” Lee v. State, 318 Ga. 412, 419 (4) (c) (897 SE2d
856) (2024) (citation and punctuation omitted). The 33-second clip
simply shows Baker and others singing, smiling, dancing on a car,
and waving around handguns, with Baker removing and inserting
an extended magazine. The video was not particularly offensive or
unusual. “A defendant’s appearance in a rap video . . . is not per se
prejudicial.” Wilson v. State, 315 Ga. 728, 739 (8) (a) (883 SE2d 802)
(2023). This is true even when the video is “replete with obscenities
and racial slurs.” Id. But here, the lyrics were largely
indecipherable, see Majority Op. at 440 n.13, further diminishing
any danger of unfair prejudice. Cf. United States v. Gamory, 635 F3d
480, 493 (II) (B) (11th Cir. 2011) (holding that the “substance of the
rap video was heavily prejudicial” because the lyrics “could
52 reasonably be understood as promoting a violent and unlawful
lifestyle”).
The real issue garnering the majority opinion’s focus is the
State’s use of the video once admitted. The video was played three
times: first during Dunn’s testimony, second during the lead
detective’s testimony, and last during Baker’s testimony. However,
each time, the video was used for a permitted purpose. In context,
Dunn’s and Baker’s testimony regarding the video focused on gun
ownership, and the detective’s testimony focused on how he
identified Baker as the shooter.
The prosecutor also briefly referenced the video twice in her
closing argument, with one reference merely in passing. Baker did
not object to either reference and does not raise the closing
argument’s impropriety on appeal. Baker has thus waived his right
to raise an independent claim that the prosecutor made an improper
propensity argument in closing. See Gates v. State, 298 Ga. 324, 328-
329 (4) (781 SE2d 772) (2016). Moreover, when the trial court ruled
on the admissibility of the video, it could not possibly have factored
53 the prosecutor’s later closing argument into its evaluation of
prejudice under Rule 403. While trial courts certainly must consider
the danger of unfair prejudice inherent to the contested evidence, we
should not fault the trial court for failing to predict that the State
will turn around and openly and intentionally use that evidence for
improper purposes. The trial court should be able to make rulings
with the understanding that the State will later follow the rules of
evidence. I still disagree with the majority opinion on how much
danger of unfair prejudice the video presented. But I do not calculate
in how the State’s eventual and actual use of the video impacted the
verdict. That is more appropriately—and more commonly—a part of
the harmless-error analysis. See, e.g., Morrell v. State, 313 Ga. 247,
261-262 (2) (869 SE2d 447) (2022) (considering State’s mentions of
prior act evidence in closing arguments when assessing harmless
error).
But by focusing on the State’s closing argument in the unfair
prejudice analysis, the majority opinion appears to conflate the
question of unfair prejudice under Rule 403 with the question of
54 whether the video, in the context of the entire trial, was harmful or
harmless. Perhaps we have not been so careful to maintain this
division in our past decisions regarding Rule 403 prejudice. See, e.g.,
Whited v. State, 315 Ga. 598, 606 (3) (883 SE2d 342) (2023)
(affirming trial court’s admission of evidence under Rule 403, in part
by explaining “it is noteworthy in considering the extent of any
unfair prejudice that the State’s opening and closing statements did
not focus” on the evidence in question, but, in support, only citing
cases doing the same in their harmless-error analyses). But we have
always maintained that exclusion under Rule 403 is an
“extraordinary remedy which should be used only sparingly . . . .” Id.
at 605 (3) (citation and punctuation omitted). The initial admission
or exclusion of the evidence itself, often done before the trial even
begins, is its own consideration. Here, when the trial court made its
ruling to admit the video, it was properly focused on the video
itself—not what the State might argue in closing. See Wilson, 315
Ga. at 739 (8) (a) (explaining that the question is “what specifically
about this video might cause unfair prejudice”) (emphasis in
55 original).
I also disagree with the majority opinion’s holding regarding
the video’s probative value. For example, I do not agree that the
video’s probative value to prove access to the guns was “trivial.”
Majority Op. at 444. The State offered no connection between Baker
and guns other than the video. The video showed that Baker was
familiar and comfortable with handguns, which was probative to a
critical part of the State’s case. Regarding the other permissible uses
of the video, the majority opinion only notes other trial evidence,
including Baker’s testimony, that served a similar purpose as the
video, potentially diminishing its probity. However, I do not agree
that the video lost its probative value to the degree that the majority
opinion holds. Accordingly, the danger of unfair prejudice did not
substantially outweigh the video’s probative value here. The video
was more probative and less prejudicial than the majority opinion
holds.
Like the Rule 403 standard, the test for harmless error is also
difficult to meet, as we must determine “whether it is highly
56 probable that the error did not contribute to the verdict.” Jivens v.
State, 317 Ga. at 859, 863 (2) (896 SE2d 516) (2023) (citation and
punctuation omitted; emphasis supplied). I do not condone the
prosecutor’s potential misuse of the video to make a propensity
argument, but she did not make “it a focal point of the trial.”
Majority Op. at 448. Ultimately, this case involved 19 witnesses—
including Baker himself and someone who actually saw the
shooting—and the trial transcript spans over 800 pages. The video
was played for a total of 99 seconds, and discussion of the video took
up only a few minutes of the four-day trial—a trial, as I have
explained, in which substantial evidence of Baker’s guilt was
presented to the jury. Further, testimony by Baker and Dunn put
the video in a performative context and explained that it was made
in memory of a family member lost to gun violence. This helped
mitigate whatever harm the video may have caused.
The majority opinion’s harmless error analysis is also
incomplete because it fails to account for the fact that Baker elected
to testify at his trial, and the jury did not find him credible. See
57 United States v. Phyfier, 842 Fed. Appx. 333, 338 (III) (11th Cir.
2021) (per curiam) (explaining that, in the harmless error context,
“it is well established that when a defendant testifies in his own
defense, the jury may disbelieve his testimony, conclude that the
opposite of his testimony is true, and consider it as substantive
evidence of his guilt”). See also Fitts v. State, 312 Ga. 134, 143 (3)
n.9 (859 SE2d 79) (2021) (“If disbelieved by the jury, [defendant’s]
testimony denying her involvement in the crime could have served
as direct evidence of the opposite proposition.”). For example, the
jury was entitled to find that, contrary to his trial testimony, Baker
was not in the van at the time of the shooting, but instead remained
with the man in the camouflage cap, and that Baker did have a gun
that night and was involved in the shooting. Cf. Majority Op. at 438.
Thus, even if Rule 403 did merit exclusion, it is “highly
probable” that the video’s admission did not contribute to the
verdict. See Ash v. State, 312 Ga. 771, 782-783 (2) (865 SE2d 150)
(2021) (holding that, if the prosecutor improperly used a prior
conviction to show defendant’s propensity for violence, its admission
58 was harmless when “neither the prosecutor nor [defense] counsel
devoted much attention to this evidence in closing arguments” and
the other evidence against defendant was “strong”). Therefore, I
respectfully dissent.
I am authorized to state that Chief Justice Boggs joins in this
dissent.
Decided March 5, 2024.
Murder. Houston Superior Court. Before Judge Lumsden.
Garland Samuel & Loeb, Donald F. Samuel; Hogue Hogue
Fitzgerald & Griffin, James T. Griffin, for appellant.
William M. Kendall, District Attorney, Rodrigo L. Silva,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Ashleigh D. Headrick, Assistant
Attorney General, for appellee.
Related
Cite This Page — Counsel Stack
899 S.E.2d 139, 318 Ga. 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-state-ga-2024.