307 Ga. 889 FINAL COPY
S19A1261. MORGAN v. THE STATE.
ELLINGTON, Justice.
A Chatham County jury found Jokeera Morgan guilty but
mentally ill of murdering her two infant daughters by drowning
them.1 Morgan confessed to drowning her daughters, but she argued
at trial that she was not guilty of murdering them because she was
legally insane at the time. Morgan appeals from the order denying
her motion for a new trial, contending that the trial court erred by
(1) excluding expert opinion testimony concerning her ability to
1 The crimes occurred on October 6, 2015. On December 29, 2015, a Chatham County grand jury indicted Morgan for two counts of malice murder, two counts of felony murder (each predicated on an act of aggravated assault), and two counts of aggravated assault. Following a trial ending on October 6, 2017, the jury found Morgan guilty but mentally ill on all counts. She was sentenced to life in prison for each count of malice murder, with the sentences to run concurrently. The remaining counts were either vacated by operation of law or merged. Morgan filed a timely motion for a new trial on October 23, 2017, which she later amended on January 2, 2019. Following a hearing, the trial court denied the motion on March 29, 2019. The trial court filed an amended order denying the motion for a new trial on April 3, 2019. Morgan timely appealed from the amended order, and her case was docketed in this Court for the August 2019 term and orally argued on September 10, 2019. discern right from wrong, (2) admitting police body-camera video-
recordings of her children’s bodies, and (3) giving an incorrect charge
on whether the jury could consider punishment during its
deliberations on the issue of her guilt.2 For the following reasons, we
affirm.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial shows the following. On October 6, 2015,
Morgan drowned her daughters in her Chatham County home. She
immediately called 911 to report what she had done. The responding
officers found the children’s bodies where Morgan had told the
dispatcher they would be. Morgan confessed to the homicides in a
police interview, telling the officers that “while she was [drowning
her daughters], she was thinking that she couldn’t believe that she
was doing it.” The medical examiner confirmed that the children had
drowned and that their manner of death was consistent with
Morgan’s description of how she had killed them.
2 In light of this Court’s recent opinion in Foster v. State, 306 Ga. 587,
590 (2) (832 SE2d 346) (2019), Morgan withdrew her third claim of error, conceding that Foster conclusively resolves that claim against Morgan. 2 In support of her special plea of insanity, Morgan introduced
evidence of her history of mental illness, which included severe
bipolar-I disorder, schizoaffective disorder, major depressive
disorder, personality disorder, and polysubstance abuse. She also
presented evidence of her strained relationship with the children’s
father, the circumstances preceding the homicides that she argued
negatively affected her mental health, her lack of proper psychiatric
treatment and medication, and, through expert testimony, her
mental disorders and their effect on her behavior and thought
processes. Morgan’s experts, as well as the State’s expert, testified
that Morgan was experiencing a depressive episode of her bipolar-I
disorder at the time of the homicides. Morgan’s experts concluded
that her symptoms were consistent with those of mothers who had
committed “altruistic filicide,” a homicide that results from a belief
that a child is better off dead.
The State presented expert testimony that Morgan’s bipolar
disorder was “moderate,” instead of severe; that malingering could
not be ruled out; and that mentally ill people are often capable of
3 having ordinary criminal motives for committing crimes. With
respect to that motive, the State presented the following evidence:
Morgan lived in squalid conditions with the children’s father, who
was neglectful of the children and abusive and unfaithful to Morgan.
Morgan once poured a pot of boiling oil on the children’s father after
she caught him in bed in their home with another woman. Morgan
also had fantasized about stabbing the children’s father with a hot
knife and had expressed a desire that he feel the same “burning pain
inside” that she did. Five days before the murders, the children’s
father told Morgan that he had never been in love with her, which
Morgan said had broken her heart.
1. Morgan does not challenge the legal sufficiency of the
evidence supporting her convictions. Nevertheless, in accordance
with this Court’s practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
above was sufficient to authorize a rational jury to find Morgan
guilty but mentally ill beyond a reasonable doubt of the crimes of
4 which she was convicted. See Jackson v. Virginia, 443 U. S. 307, 319
(99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga.
32, 33 (1) (673 SE2d 223) (2009) (“It was for the jury to determine
the credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.” (citation and punctuation omitted));
Foster v. State, 283 Ga. 47, 48 (1) (656 SE2d 838) (2008) (“A
defendant claiming insanity has the burden of proving this
affirmative defense by a preponderance of the evidence; unless the
evidence of insanity is overwhelming, a jury determination that the
defendant was sane at the time of the crime will be upheld.”).
2. In support of her insanity defense, Morgan sought to
introduce through one of her expert witnesses evidence that, two
years prior to the murders, a psychologist had released her from a
mental hospital after opining in a written discharge report that she
“now appears to be competent and knows right from wrong.” Morgan
argued that the jury could infer from the psychologist’s statement
that, at some point before or during her hospitalization, her mental
illness had rendered her legally incompetent and unable to
5 determine right from wrong. And, if Morgan’s mental illness had
rendered her unable to determine right from wrong in the past, then
the jury could reasonably infer that her mental illness rendered her
unable to determine right from wrong when she drowned her
children. Morgan argued that OCGA § 24-7-704 (b) (“Rule 704 (b)”),
which prohibits certain opinion testimony concerning a criminal
defendant’s mental state when that mental state constitutes “an
element of the crime charged or of a defense thereto,” did not bar the
admission of the opinion, asserting that Rule 704 (b) did not apply if
an expert’s opinion testimony was about whether a defendant knew
right from wrong at a time other than during the commission of the
crimes charged. The trial court disagreed, finding that the
psychologist’s statement of opinion “called for a legal conclusion”
that was “for the jury to determine” and that admitting the
statement would violate Rule 704 (b).3 Morgan asserts that the trial
3 During its lengthy colloquy with counsel, the trial court expressed doubt about whether the psychologist’s opinion that Morgan “knew right from wrong” at some point in the past was relevant to her mental state at the time of the crimes charged, especially since it was unclear whether Morgan had
6 court abused its discretion “by excluding expert opinion evidence
that Morgan’s bipolar-I disorder had deprived her [of her] ability to
distinguish right from wrong at a time other than that of the
homicides.”
We need not decide, however, whether the exclusion of the
psychologist’s statement of opinion was error because, even if it
were, any error was harmless and would not warrant reversal.4 The
psychologist’s statement was from two years prior to the commission
of the crimes charged. It was also a statement of opinion that
suffered from the same type of mental illness in the past. Nevertheless, without objection from the State, the trial court admitted into evidence a psychiatric evaluation from Morgan’s prior hospitalization, redacting only the statement of opinion that Morgan “now appears to be competent and knows right from wrong.” The court stated: “I don’t have any problem with letting the record of Dr. Doss’s assessment in. There’s no problem with that. I just don’t want the language to get in about his determination at the time he evaluated that she didn’t know the difference between right and wrong. It’s that simple. Everything else can come in. It’s that one portion that needs to be redacted.” 4 “The test for determining nonconstitutional harmless error is whether
it is highly probable that the error did not contribute to the verdict.” (Citation and punctuation omitted.) Kirby v. State, 304 Ga. 472, 478 (3) (c) (819 SE2d 468) (2018). See also OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]”). “In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so.” (Citation and punctuation omitted.) Kirby, 304 Ga. at 478 (3) (c). 7 Morgan did, in fact, know right from wrong when she was
discharged from the hospital. Therefore, any inference the jury may
have drawn from the psychologist’s statement of opinion concerning
Morgan’s past sanity would have been of marginal help to the
defense on the issue of whether she was insane at the time of the
crimes charged. It may have even been helpful to the State, as the
statement provided some evidence that Morgan was capable of
discerning right from wrong despite her mental illness. Further, the
psychologist’s statement was but one sentence omitted from a
written report that was admitted in evidence. Morgan offered that
report as well as hours of expert opinion testimony concerning her
history of mental illness, evidence from which the jury could have
inferred that Morgan was mentally ill and that her mental illness
rendered her incapable of determining right from wrong at the time
of the crimes charged. As such, any inference that the jury may have
drawn from the psychologist’s statement of opinion would have
added little to other more probative evidence of her insanity. Under
these circumstances, we are unconvinced that any error in the
8 exclusion of the psychologist’s statement had an effect on the
outcome of the trial. See Peterson v. State, 274 Ga. 165, 168 (2) (549
SE2d 387) (2001) (Given the strength of the other evidence of the
victim’s violent acts, it was highly probable that any additional
evidence of prior violent acts would not have affected the verdict,
and any erroneous exclusion of that evidence was harmless.).
3. Morgan contends that the trial court abused its discretion in
admitting into evidence video-recordings of the crime scene taken
from the body cameras of two police officers who responded to her
911 call. She argues that the prejudicial impact of the video-
recordings, each of which show the “discovery of and the
performance of CPR on the drowned infants,” substantially
outweighs their probative value and, therefore, that the recordings
should have been excluded under OCGA § 24-4-403 (“Rule 403”). For
the reasons explained below, we see no abuse of discretion in the
trial court’s decision to admit into evidence the first of the two video-
recordings. However, we conclude that the trial court abused its
discretion in admitting a portion of the second video-recording
9 because the danger of unfair prejudice substantially outweighed its
probative value. Nevertheless, error in the admission of that portion
of the second video-recording does not require reversal because,
under the circumstances of this case, it was harmless.
The record shows that Morgan objected to the admission of
both video-recordings at trial, arguing that they should be excluded
in their entirety. She did not suggest that specific portions of either
video-recording should be redacted. She did, however, argue that the
court had discretion to exclude from the video-recordings any
portion that was not relevant, including “that these officers did
everything they could to try and save the lives of those babies” by
performing CPR. Morgan argued that the recordings had marginal
probative value, given that she had admitted killing her children
and that the State had ample other evidence proving the cause of
their deaths. Morgan argued that the probative value of the
recordings, which were projected “larger than life” on a screen, was
substantially outweighed by the highly emotionally charged content
of the recordings, which showed the lifeless bodies of the drowned
10 children, the first responders’ vain efforts to revive them, and the
allegedly emotional reactions of the police officers and emergency
medical personnel. The State argued in opposition that the
probative value of both recordings outweighed any prejudice. In
support of that argument, the State asserted that it had no crime
scene photographs and that the recordings were the only visual
evidence of how the children had died. Further, the recordings
captured Morgan’s statements to the police, her demeanor
immediately after the crimes, and the dirty and disordered state of
her home.
After hearing arguments, the trial court admitted the video-
recordings into evidence, but ordered the State to mute them, with
the exception of any portion containing Morgan’s statements. When
the video-recordings were played for the jury, the prosecutor, on her
own initiative, stopped the second recording before it ended,
preventing the jury from seeing a portion of the recording showing
two officers hugging each other. Each recording was played only
once, during the State’s case-in-chief. On appeal, Morgan reiterates
11 the argument she made at trial that both video-recordings should
have been excluded in their entirety under OCGA § 24-4-403
because they were unnecessarily cumulative of other evidence
admitted at trial and were substantially more prejudicial than
probative.
The admissibility of crime scene photographs and video-
recordings is generally governed by OCGA § 24-4-401, which defines
“relevant evidence” as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence”; by OCGA § 24-4-402, which provides that “[a]ll
relevant evidence shall be admissible, except as limited by
constitutional requirements or as otherwise provided by law or by
other rules”; and by OCGA § 24-4-403, which provides that
“[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
12 evidence.” “Decisions regarding relevance are committed to the
sound discretion of the trial court and the exclusion of relevant
evidence under Rule 403 is an extraordinary remedy that should be
used only sparingly.” (Citations and punctuation omitted.)
Venturino v. State, 306 Ga. 391, 395 (2) (b) (830 SE2d 110) (2019)
(discussing the admissibility of autopsy photographs).
The video-recordings were made at roughly the same time, and
both show what transpired within the first minutes of the police
officers’ arrival in response to Morgan’s 911 call. The State’s first
recording is less than four minutes long; the second, about six-and-
a-half minutes long. In the first recording, Morgan can be seen
standing in the doorway, talking on her cell phone, when the officer
wearing the body camera arrives. Morgan appears responsive,
though somewhat subdued. This recording shows the interior of the
home, brief glimpses of the children’s bodies and a police officer
attempting to perform CPR on one of the children, and a female
officer escorting Morgan from the residence. In this recording, views
of the children’s bodies are often blocked by other officers. As the
13 officer wearing the body camera moved through Morgan’s home, his
body camera captured scenes of a home that appears dark, dirty, and
in disrepair. Although the recording shows the faces of some officers
and responding medical personnel, it is difficult to see them in much
detail because of the dim lighting. To the extent their faces can be
seen, they appear focused and professional, displaying little
emotion.
The second video-recording is from the perspective of the police
officer who performed CPR on one of the children while inside the
home. At about 11 seconds into the recording, the children’s bodies
are visible, though the dim lighting obscures some detail. As the
officer wearing the body camera moves closer to the children’s
bodies, the recording reveals that the children are unclothed and
unresponsive. They show no sign of external physical injury, such as
cuts or bruises. One child can be seen lying on the hallway floor. The
other is briefly seen floating face-up in a plastic tub full of water.
After the child is removed from the tub, the officer wearing the body
camera attempts to revive the child with CPR, which causes some
14 water and foam to emerge from the child’s mouth and nose. During
this four-minute period, the officer’s body camera is mostly focused
on the child’s body, but the recording also shows images of the floor
and walls as the officer changes his position over the body. When the
ambulance arrives, the officers quickly take the children to it, where
emergency medical personnel begin their efforts to revive them.
Again, the officers and medical personnel appear calm, focused, and
professional. There are no overt displays of emotional distress. The
video-recording thereafter shows the officer walking from the
ambulance to his patrol car. Although the recordings are in color,
the low light makes them appear to be in black and white most of
the time.
(a) Relevance. Although those portions of the video-recordings
showing the officers performing CPR on the children’s lifeless bodies
are certainly disturbing to see — as are many images from crime
scenes — those portions and both video-recordings as a whole were
relevant to show the children’s manner of death, the state of the
home and where the children were found, Morgan’s condition and
15 demeanor as she spoke to the responding officers, as well as to
corroborate testimony concerning these matters from the State’s lay
and expert witnesses. See Varner v. State, 306 Ga. 726, 729 (2) (a)
(832 SE2d 792) (2019) (The trial court did not abuse its discretion in
admitting a police body-camera recording that depicted the victim
with his blood pooling on the ground and flowing from his head and
face as he waited for an ambulance, because although it was
disturbing, it was relevant to show the crime scene.); see also Davis
v. State, 306 Ga. 140, 145 (3) (b) (829 SE2d 321) (2019) (holding that
“gruesome” video and photographic evidence depicting the crime
scene and the victim’s body were “relevant to the victim’s identity
and his manner of death, as well as to corroborate [witnesses’]
testimony”); Plez v. State, 300 Ga. 505, 508 (796 SE2d 704) (2017)
(explaining that “photographic evidence that fairly and accurately
depicts a body or crime scene and is offered for a relevant purpose is
not generally inadmissible under Rule 403 merely because it is
gruesome”).
(b) Probative value. Although Morgan concedes that the video-
16 recordings are relevant, she argues that they were of minimal
probative value because they were needlessly cumulative of other
evidence, given that she had admitted the children’s cause of death
and the only issue remaining for the jury to determine was whether
she was criminally responsible for her acts.
Although Morgan confessed that she had drowned her
children, the video-recordings were not needlessly cumulative of the
manner of death because the State was not required to stipulate to
the cause of death and the circumstances surrounding the murders.
Generally, “a criminal defendant may not stipulate or admit his way
out of the full evidentiary force of the case as the State chooses to
present it.” (Citation and punctuation omitted.) Ross v. State, 279
Ga. 365, 367 (2) (614 SE2d 31) (2005). Additionally, the video-
recordings were probative of matters other than the children’s
manner of death. In this case, the State needed to rebut Morgan’s
insanity defense and to prove beyond a reasonable doubt all of the
elements of the crimes charged in the indictment. To those ends, the
video-recordings from the officer’s body cameras helped illustrate
17 the State’s prosecution theory that Morgan had killed her children
in a manner that showed deliberation and an awareness of the
wrongness of her actions: Morgan chose to drown her children one
after another in a tub of water without inflicting cuts or bruises,
calmly report her crimes to the police, and then wait for them to take
her into custody.
By contrast, the last four minutes of the second video-recording
showed little of the home, nothing of Morgan, and focused primarily
on the officer’s efforts to revive one of the children. Particularly, with
the first recording in evidence, the State had scant, if any, need for
this last portion of the second video-recording, a factor which
significantly diminished its probative value. See Olds v. State, 299
Ga. 65, 75-76 (2) (786 SE2d 633) (2016) (probative value rests,
among other things, on the marginal worth of the evidence and on
the need for that evidence).
(c) Prejudicial impact. Morgan argued below and on appeal
that those portions of the video-recordings showing the officers
performing CPR on the children were unfairly prejudicial. The first
18 video-recording shows only brief glimpses of the officer in the
background performing CPR. However, the second video-recording
shows from the officer’s perspective his efforts to revive one of the
children by performing CPR. This portion of the recording lasts for
about four minutes of the recording’s six-and-a-half-minute length.
Morgan argues that this portion of the video served no purpose other
than to inflame the emotions of the jury.
We agree with Morgan that the last portion of the second video-
recording showing the officer’s effort to revive one of the children
was unfairly prejudicial. Prejudice is not “unfair” simply because it
tends to inculpate the defendant in an awful crime. See Worthen v.
State, 306 Ga. 600, 606 (2) (832 SE2d 335) (2019) (“In a criminal
trial, inculpatory evidence is inherently prejudicial; it is only when
unfair prejudice substantially outweighs probative value that [Rule
403] permits exclusion.” (citation and punctuation omitted;
emphasis in original)). Rather, as the United States Supreme Court
has explained, “unfair prejudice” is that which “speaks to the
capacity of some concededly relevant evidence to lure the factfinder
19 into declaring guilt on a ground different from proof specific to the
offense charged” or of an “‘undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional
one.’” (Citations omitted.) Old Chief v. United States, 519 U. S. 172,
180 (II) (B) (1) (117 SCt 644, 136 LE2d 574) (1997). See also Pierce
v. State, 302 Ga. 389, 394-395 (1) (d) (807 SE2d 425) (2017) (same).
In this case, the four-minute-long portion of the second video-
recording depicted, from the officer’s close-up perspective, a dead
baby girl sprawled on a dark hallway floor with water and foam
oozing from her nose as the officer futilely tries to pump life back
into her tiny, naked body. Such a video-recording, especially when
shown on a large screen, is likely to incite feelings of revulsion,
disbelief, shock, sadness, and anger. Under these circumstances, we
conclude that this portion of the second video-recording had an
undue tendency to suggest that the jury render its decision on an
improper basis. Given this undue tendency, the prejudicial impact
of this portion of the recording was unfair. See Pierce, 302 Ga. at 395
(1) (d).
20 (d) Rule 403 balancing. Applying the Rule 403 balancing test
set forth above, we find no abuse of discretion in the trial court’s
admission of the first video-recording or the first part of the second
video-recording. The prejudice inherent in those recordings was not
unfair, nor did it substantially outweigh the recordings’ probative
value in showing the crime scene, the cause of the children’s deaths,
Morgan’s demeanor, and other factors pertinent to the State’s theory
of the case. See Varner, 306 Ga. at 728-729 (2) (a). However, the trial
court should have excluded the four-minute portion of the second
recording showing the officer performing CPR on the dead child. We
recognize that Rule 403 is an extraordinary remedy, and that in
reviewing the admission of evidence 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. See
Anglin v. State, 302 Ga. 333, 337 (3) (806 SE2d 573) (2017).
Nevertheless, so viewed, it is clear to us that the scant probative
value of the last four minutes of the second video-recording was
substantially outweighed by the danger of unfair prejudice from its
21 emotionally charged content and that admitting that portion of the
recording was an abuse of discretion.
(e) Harmless error. Although the trial court erred in admitting
a portion of the second video-recording, the error was harmless.5 Our
review of the trial transcript reveals that the video-recordings
played a minor role in both the State’s case and Morgan’s theory of
defense given that both the State and Morgan relied predominantly
on expert testimony. Because Morgan admitted that she drowned
her children, the paramount issue for the jury to decide was whether
Morgan was criminally responsible for those actions. Both defense
counsel and the prosecutor briefly described the crimes as “horrific”
during their closing arguments, but each then spent the bulk of their
time discussing the extensive lay and expert testimony bearing on
the issue of Morgan’s mental state and motivation at the time of the
crimes. Morgan’s counsel asserted during closing argument that
Morgan sincerely believed “that drowning her two children was the
only way to save them, the right way to save them,” but that making
5 See footnote 4, above.
22 that choice was “insane. It’s absurd. It’s not normal. She’s not. And
it’s shocking, is what it is.” And, to the extent that the four minutes
of CPR in the second video showed how “horrific” the crime was,
Morgan’s defense counsel made use of the inherent horror of the
crimes to argue that Morgan had to be insane to do what she did.
Given the evidence presented, we see no likelihood that the jury
would have weighed the case differently had the trial court excluded
the last portion of the second video-recording. Considering the trial
record as a whole, we conclude that it is highly probable that any
erroneous evidentiary ruling by the trial court with regard to the
admission of the second video-recording did not contribute to the
jury’s verdict.
(f) Body-camera Recordings. Although we have not found
reversible error in the admission of the police officer body-camera
recordings in this case or in Varner, 306 Ga. at 728-729 (2), it is
important to note our concern about the use of this sort of evidence
at trial. Body cameras are increasingly being used by law
enforcement officers in Georgia and throughout the country. Body-
23 camera recordings can provide important benefits, including the
creation of an objective record of interactions between officers and
citizens.6
While body cameras are generally conceptualized as a check on police power, they also present a rich opportunity for police officers to generate evidence in criminal prosecutions. As body cameras become a routine part of a police officer’s equipment, video from those cameras will become virtually ubiquitous at trial.
Jeffrey Bellin and Shevarma Pemberton, Policing the Admissibility
of Body Camera Evidence, 87 Fordham L. Rev. 1425, 1427 (2019).
When used as evidence in a criminal trial, body-camera recordings
may provide clear proof of pertinent facts – but they also may pose
significant risks to the defendant’s right to a fair trial.
A major concern is that a body camera records everything
within its range. Some of the recorded images and sounds will likely
6 See Howard M. Wasserman, Moral Panics and Body Cameras, 92 Wash. U. L. Rev. 831, 832-833 (2015) (“Expansive use of body cameras appears, on balance, to be good policy. It has overwhelming support from every stakeholder in the controversy — the public, the White House, federal legislators, police officials, police unions, and the American Civil Liberties Union.”). See also Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 396 (2016) (describing the use of police body cameras as “a practice hailed of late by scholars, politicians, and activists alike”). 24 be relevant to the matter the officer was there to investigate, but
some may be entirely irrelevant, even recognizing the need to
provide context for the relevant portions. See OCGA § 24-4-401. The
audio-recorded statements of the officer, those with whom he or she
interacts, and those of people simply talking in the background may
be inadmissible hearsay. See OCGA § 24-8-802.7 In addition, video
and audio of an event is often much more emotionally powerful than
testimony or even still photographs, so the prejudicial impact of
relevant body-camera evidence may substantially outweigh its
probative value, particularly in cases involving violent crimes. See
OCGA § 24-4-403. Finally, a video recording is the equivalent of a
series of still images, so the playing of a length of body-camera video
may be needlessly cumulative. See id.
For these reasons, simply playing a full body-camera recording
for a jury will often create unnecessary risks of reversible
7 OCGA § 24-8-802 provides: “Hearsay shall not be admissible except as
provided by this article; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.” 25 evidentiary errors. Although it requires more work for the parties
and the court before trial, efforts should be made to identify the
specific segments of a body-camera recording (which may be only the
video or audio component of certain portions) that are properly
admissible under the Evidence Code, so that only those segments
are admitted into evidence and presented to the jury. This pretrial
work can eliminate the need to resolve objections during trial and
can preclude post-trial challenges to aspects of a body-camera
recording that — had more attention been paid to the recording —
would not have been deemed necessary to present as evidence.
Judgment affirmed. All the Justices concur, except Peterson
and Warren, JJ., who concur in the judgment and in all Divisions
except for Division 3 (f).
DECIDED FEBRUARY 10, 2020. Murder. Chatham Superior Court. Before Judge Bass. Jackie L. Tyo, Brandon A. Bullard, for appellant. Meg E. Heap, District Attorney, Emily C. Puhala, Jennifer L. Parker, Assistant District Attorneys; Christopher M. Carr, Attorney 26 General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.