318 Ga. 819 FINAL COPY
S24A0013. PITTMAN v. THE STATE.
BOGGS, Chief Justice.
Appellant Randy Leon Pittman, Jr., challenges his convictions
for malice murder and arson in connection with the shooting and
burning death of Natoshia Smith. Appellant contends that the
evidence was legally insufficient to support his convictions because
the evidence failed to sufficiently identify Smith’s skeletal remains;
that the trial court erred in denying his motion to disqualify the
District Attorney; that the trial court abused its discretion in
prohibiting him from asking witnesses about other fires that
occurred while he was incarcerated; and that the trial court erred in
denying a motion for mistrial. We conclude that the forensic
evidence and eyewitness testimony was sufficient to identify Smith
as the victim and that there was no error in refusing to disqualify
the District Attorney based on the District Attorney’s prior
representation of Appellant, where it was undisputed that the prior representation ended several years before, and was completely
unrelated to, the murder prosecution. We also conclude that the trial
court did not abuse its discretion in excluding evidence of other fires
because the evidence was not relevant. Finally, we conclude that
Appellant did not preserve for appeal his claim related to the denial
of his motion for mistrial. Accordingly, we affirm.1
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. Appellant and
Smith were dating prior to her death. On the afternoon of July 23,
1 The crimes occurred on July 24, 2015. On November 14, 2016, a Haralson County grand jury indicted Appellant for malice murder, felony murder, aggravated assault with a deadly weapon, arson in the first degree, and possession of a firearm by a convicted felon. The felon-in-possession count was bifurcated for trial and nolle prossed after trial. The indictment also charged Marie Southers with malice murder, felony murder and aggravated battery in connection with Smith’s death. Southers pled guilty to aggravated battery and testified against Appellant. At a trial from October 23 to November 1, 2017, the jury found Appellant guilty of the remaining charges. The trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder and a consecutive term of 20 years for arson. The felony murder verdict was vacated by operation of law, and the aggravated assault count merged into the malice murder conviction. On November 10, 2017, Appellant filed a motion for new trial, which he amended with new counsel on January 29, 2021. After an evidentiary hearing before a successor judge on February 22, 2023, the trial court entered an order denying the motion for new trial on March 17, 2023. Appellant filed a timely notice of appeal, and the case was docketed in this Court to the term beginning in December 2023 and submitted for a decision on the briefs. 2 2015, Appellant was at the home of his co-indictee Marie Southers
when he learned from other friends that Smith had stolen items
from the friends’ home. Appellant told Southers that he could not
take Smith anywhere without her “stealing, lying, or just
intentionally making him look bad.” At Appellant’s request,
Southers telephoned Smith to ask her to come over, and then
Appellant picked Smith up and brought her to Southers’s home at
about 3:30 p.m. When Smith arrived, she appeared to be high on
methamphetamine, and Southers asked Smith to go into a bedroom.
As Smith did so, she dropped a syringe full of methamphetamine on
the floor, which angered Southers because Southers’s children were
present. Southers told her children to go next door to their
grandparents’ home and then followed Smith into the bedroom, and
Appellant walked outside to take a phone call. Smith told Southers
that Appellant had “forced himself on her” and forced her to do
drugs. When Appellant returned to the bedroom, Southers told him
about Smith’s accusations. Smith accused Southers of lying, and the
two women got into a fist fight, with Southers punching Smith three
3 times in the face and then telling Smith to leave. As Appellant and
Smith left in Appellant’s car, Appellant told Smith to lie down in the
back seat so no one would see her with him.
Sometime after midnight, Appellant called Southers and said
he was at his father’s house and needed gas. Southers and her
husband took a one-gallon can of gas to Appellant’s father’s house,
saw Appellant and Smith in Appellant’s car, left the gas can by the
car, and then returned home. Several hours later, Appellant called
Southers and said there was an issue that they needed to discuss,
but he did not say what it was. Appellant asked her to come to a
location on Coppermine Road and provided directions. Southers
arrived at that location about 5:00 or 6:00 a.m. and saw Appellant’s
car parked in front of an unoccupied and dilapidated house.
Appellant was standing by the open front passenger door; he was
holding a gun and trying to force Smith out of the car. The gun was
a “little 22” with a pearl-colored handle that Southers had seen
Appellant carry before. Appellant appeared angry and told Smith
that he did not know why she had to make him look bad all the time,
4 that he had done nothing but try to be good to her, and that he could
not take her anywhere. While pointing the gun at Smith, Appellant
forced her to remove her belongings from the car and to walk into
the house. Southers followed and remained in the doorway of the
house. Appellant was carrying a gas can that appeared to be the one
Southers and her husband had taken to Appellant. Smith pleaded,
“Please don’t do this. You don’t have to do this,” and Appellant
responded that he had made her a promise, she knew what the
promise was, and she knew that he was a man of his word. Appellant
put the gun in his boot, grabbed Smith’s arm when she tried to walk
out of the house, taped her arms behind her, put her on the floor,
taped her legs, dragged her across the floor, and yanked her to her
knees. Smith again pleaded, “Please don’t do this.” Appellant then
walked behind Smith, and Southers heard the gun cock, saw
Appellant point the gun at the back of Smith’s head, and heard the
gun fire. Smith fell face first onto the floor. Appellant told Southers
to leave, and Southers drove home. About three hours later,
Appellant called Southers, said “she’s dead,” and then hung up.
5 A few days later, Appellant came to Southers’s home and told
Southers that he had put Smith’s belongings on top of her and set
Smith and her possessions on fire; that Smith was alive when he set
her on fire; and that he threw the gun into Morgan Lake. He also
told Southers, “The more you kill the easier it gets.” In a later
conversation, Appellant told Southers that he returned to the
abandoned house two times; that a pill bottle that he had placed in
the fire had not burned; that the bottle contained a prescription label
for Smith’s former boyfriend, Matthew Hurston, and could point
police toward Hurston instead of him as a suspect; and that he put
Smith’s phone in Hurston’s house. Appellant also said that he was
worried the police would find his DNA in Smith’s body.
The crime scene was not discovered until August 29, 2015,
when a man who had been looking for scrap wood found a skull and
other bones in front of the home; he called 911. During the ensuing
investigation, law enforcement officers collected multiple human
bones spread on the ground outside of the house, including a
jawbone with a metal plate in it and a skull with what appeared to
6 be a bullet hole in it. Several of the bones had charring on them. The
officers also discovered evidence of a fire that had burned through
the floor in one room of the house. Officers collected a partially
burned medicine bottle for a prescription for Matthew Hurston from
that room. An investigator with the Haralson County fire
department concluded that the fire was intentionally set using a
flammable liquid that had been poured between the entryway of the
room and the interior of the room. During his investigation, he
searched the ground under the hole in the floor and recovered
human bones and hair, a necklace, and a piece of wire that appeared
to come from an underwire bra. A forensic chemist testified that
testing completed on wood and carpet samples taken from the scene
of the fire indicated the presence of gasoline.
Smith’s remains were initially identified by a dentist who
treated Smith in 2012 after her jaw had been surgically repaired
after Hurston had hit her and broke her jaw. At trial, the dentist
testified that the jawbone with the metal plate found on August 29
was Smith’s. The medical examiner testified that she compared
7 ante-mortem dental x-rays of Smith with post-mortem x-rays of the
jawbone found at the scene and concluded that the jawbone found at
the scene was Smith’s. The medical examiner also testified that the
skull had a hole in it that was consistent with a gunshot wound, and
she recovered a bullet from the right side of the skull. The medical
examiner determined that the cause of death was a gunshot to the
skull “with burning.” A firearms expert testified that the bullet
recovered from the skull was a .22-caliber. The gun that fired the
bullet was never found.
In addition to Southers’s testimony, the State presented
several witnesses who testified to inculpatory statements made by
Appellant before the details of the crime scene were made public.
One of those witnesses was Adrian Williamson, who was
incarcerated with Appellant in the Carroll County jail before
Appellant was arrested for Smith’s murder and who testified about
statements Appellant made to him in December 2015 or January
2016. According to Williamson, Appellant related a story about a
murder in which an unnamed man shot a woman in the back of the
8 head with a pearl-handled .22-caliber gun and burned her.
Appellant said that the woman had an ex-boyfriend who had broken
her jaw previously, but the ex-boyfriend had been in jail at the time
of the murder, and police cleared him. In connection with telling this
story, Appellant asked Williamson how long DNA would stay in a
body if the body had been scattered by animals. He also said that “a
guy” had thrown a pearl-handled .22-caliber gun into a lake and that
if the gun was ever found, “I’m f**ked.”
Investigator Bernie Reece III of the Haralson County sheriff’s
office interviewed Appellant at the Carroll County jail. He testified
that Appellant said that he and Smith had dated until the end of
June 2015 and that the last time Appellant saw her was July 4 when
she and a friend dropped him off at his father’s house. Appellant also
said that Hurston had told him that the police had cleared Hurston
as a possible suspect.
2. Appellant contends that the evidence was insufficient to
support his convictions because the skeletal remains found on
August 29, 2015, were not sufficiently identified as Smith’s
9 remains.2 His argument implicates an essential element the State
must prove in a murder prosecution — “that the person alleged to
have been killed is actually dead.” Gude v. State, 313 Ga. 859, 865
(874 SE2d 84) (2022) (cleaned up); Reddick v. State, 202 Ga. 209, 209
(42 SE2d 742) (1947) (discussing element of “corpus delicti”). See
also OCGA § 16-5-1 (a) (“A person commits the offense of murder
when he unlawfully and with malice aforethought, either express or
implied, causes the death of another human being.”). Here, the State
presented forensic identification testimony by two experts, as well
as Southers’s testimony about Appellant’s actions on July 24 and
July 25. This evidence, viewed in the light most favorable to the
verdicts, was clearly sufficient to authorize a rational jury to
2 Appellant summarily states that the evidence was insufficient to prove
beyond a reasonable doubt that “he was involved in any of the charged crimes.” However, the only substantive argument he makes relates to the identification of the victim. Because we no longer automatically review sua sponte the sufficiency of the evidence, except that of murder convictions resulting in the death penalty, see Davenport v. State, 309 Ga. 385, 398-399 (846 SE2d 83) (2020), we limit our consideration to the one argument that Appellant makes in challenging the sufficiency of the evidence. See Scoggins v. State, 317 Ga. 832, 837 n.6 (896 SE2d 476) (2023). See also former Supreme Court Rule 22 (2023) (“Any enumerated error not supported by argument or citation of authority in the brief shall be deemed abandoned.”). 10 conclude that the skeletal remains found at the vacant house on
Coppermine Road on August 29, 2015, were Smith’s. See Jackson v.
Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See
also Lowe v. State, 288 Ga. 662, 662-663 (706 SE2d 449) (2011)
(evidence constitutionally sufficient to find appellant guilty of
malice murder in the death of her housemate where identity of
housemate, whose badly decomposed body was discovered in the
woods by hunters, was established by dental records and where
appellant told a friend that she had fought with housemate, hit her
with truck, and watched her body fly into the brush on the side of
the road).
3. Appellant contends that the trial court abused its
discretion in denying his motion to disqualify the Haralson County
District Attorney because the District Attorney previously
represented Appellant in several cases when the District Attorney
had been a public defender. Appellant acknowledges that at a
pretrial hearing the District Attorney testified without contradiction
that the prior representations ended before 2013 and were
11 completely unrelated to the murder prosecution,3 but Appellant
nevertheless argues that he need not show that an actual conflict of
interest existed under these circumstances. We disagree.
Appellant has cited no authority, and we have found none,
supporting the argument that a prosecutor’s prior representation of
a criminal defendant in a completely unrelated matter requires his
disqualification. Instead, in such cases, our precedent requires more
than the fact of a prior representation to mandate the
disqualification of a prosecutor. See Lyons v. State, 271 Ga. 639, 640
(522 SE2d 225) (1999) (conflict sufficient to require disqualification
of district attorney’s office after defendant’s former lawyers were
hired by district attorney must be more than “theoretical or
speculative” (cleaned up)). Such a conflict exists when “the
prosecutor previously has represented the defendant with respect to
the offense charged, or has consulted with the defendant in a
3 One of the matters in which the District Attorney represented Appellant resulted in Appellant’s conviction for theft by receiving. The State agreed that this conviction would not be used against Appellant for any purpose in this case. 12 professional capacity with regard thereto.” Reed v. State, 314 Ga.
534, 545 (878 SE2d 217) (2022) (cleaned up). See also Rules 1.9
(“Conflict of Interest: Former Client”) and 1.11 (“Successive
Government and Private Employment”) of the Georgia Rules of
Professional Conduct found in Bar Rule 4-102 (d).4 Although
Appellant relies on Lemming v. State, 292 Ga. App. 138 (663 SE2d
375) (2008), nothing in Lemming suggests that disqualification is
mandated where a prosecutor’s prior representation of a defendant
4 Rule 1.9 (c) provides:
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as Rule 1.6 [Confidentiality of Information] or Rule 3.3 [Candor Toward the Tribunal] would permit or require with respect to a client. Rule 1.11 (c) provides, in part: Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: (1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter[.] 13 is completely unrelated to the charges at issue. Rather, in Lemming,
the Court of Appeals rejected the argument that members of the
district attorney’s office should have been disqualified from
prosecuting the case after the district attorney, who had previously
represented the defendant in unrelated matters, recused herself
voluntarily. See id. at 139-142.
Here, the trial court found that the District Attorney’s prior
representations of Appellant were “indisputably unrelated” to the
murder prosecution and that Appellant failed to show that any
information the District Attorney may have obtained during his
prior representation “could be used in any manner to the
disadvantage of [Appellant] in the instant case.” Our review of the
record shows that the trial court’s findings are amply supported by
the evidence presented at the pretrial hearing, and accordingly, we
conclude that the trial court did not abuse its discretion in denying
the motion to disqualify. See Neuman v. State, 311 Ga. 83, 88 (856
SE2d 289) (2021) (an appellate court reviews a ruling on a motion to
disqualify a prosecutor for an abuse of discretion, accepting the trial
14 court’s factual findings if there is any evidence to support them).
4. Appellant next contends that the trial court abused its
discretion in prohibiting him from questioning witnesses about
other fires that occurred in 2017, arguing that such evidence would
suggest that another person killed Smith. This issue arose when
Appellant was cross-examining the fire investigator, and Appellant
started to ask about two fires that had occurred at the homes of
Southers and a defense witness after Appellant had been arrested
for Smith’s murder and remained incarcerated. Following the
State’s objection and outside the presence of the jury, the fire
investigator testified that the fires were still under investigation
and that no cause had been ruled out. Following this proffer, the
trial court sustained the State’s objection that the evidence was not
relevant and ruled that Appellant could not question the fire
investigator or other witnesses about these fires.
Appellant argues that the evidence was relevant because both
homes had a connection to Smith, with Smith having been present
in Southers’s home the day before Smith died and Smith’s cell phone
15 being found in the other home. Appellant asserts that because the
State’s theory of the case was that Appellant set the fire to cover up
the murder of Smith, Appellant should have been able to ask about
fires that occurred while he was incarcerated in order to suggest that
another person was the actual perpetrator of the crimes for which
Appellant was on trial. For the reasons we explain below, this claim
fails.
Evidence that a person other than the defendant committed
the crime is generally relevant under OCGA § 24-4-401 (“Rule 401”)
(defining “relevant evidence” as 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.”). And relevant evidence is generally
admissible. See OCGA § 24-4-402. In cases decided under the former
Evidence Code, we held that for such third-party guilt evidence to
be admissible, it “must raise a reasonable inference of the
defendant’s innocence, and must directly connect the other person
with the corpus delicti, or show that the other person has recently
16 committed a crime of the same or similar nature.” Klinect v. State,
269 Ga. 570, 573 (501 SE2d 810) (1998) (addressing claim that
curtailment of cross-examination of witness about violent nature of
co-defendant precluded defendant from showing that the co-
defendant committed the murder). Since the enactment of the
current Evidence Code, we have applied a reasonable-inference-of-
innocence standard of admissibility when considering the relevance
of such evidence under Rule 401. For example, in Roberts v. State,
305 Ga. 257, 260 (824 SE2d 326) (2019), we explained that we have
“followed the general rule that, before testimony can be introduced
that another person committed the charged crime, the proffered
evidence must raise a reasonable inference of the defendant’s
innocence.” In Roberts, we held that the appellant failed to show that
evidence he sought to admit to establish that a third person had a
motive to kill the victim was relevant under Rule 401 where the
appellant did not identify the third person at trial and “offered
nothing more than speculation and conjecture” that a third person
17 could have been involved in the murder. Id. at 260-262.5 See also
Payne v. State, 314 Ga. 322, 333-334 (877 SE2d 202) (2022) (rejecting
claim that trial counsel was deficient in failing to investigate and
present evidence that another person was the perpetrator, on the
ground that proffered evidence was not relevant because it did not
raise reasonable inference of appellant’s innocence); Goins v. State,
310 Ga. 199, 207-209 (850 SE2d 68) (2020) (applying reasonable-
inference-of-innocence standard and laying out Rule-401 relevance
5 Neither Appellant nor the State asserts that Roberts and subsequent
case law improperly utilized the reasonable-inference-of-innocence standard as a specialized relevance test under Rule 401 in the context of third-party guilt. Nor has either party argued that OCGA § 24-4-404 (b) (“Rule 404 (b)”)applies to third-party guilt evidence, an issue we pretermitted in Roberts, 305 Ga. at 260. We recognize that there is not a consensus view among federal courts about whether Federal Rule of Evidence 404 (b) is applicable to the consideration of the admissibility of third-party guilt evidence. See Michael H. Graham, 3 Handbook of Federal Evidence § 404:5 (9th ed. Nov. 2023 update) (noting in context of evidence of third-party guilt that “the federal courts are in conflict as to whether [Federal Rule of Evidence] 404 (b) applies to a ‘person’ who is not also the defendant” and describing the various approaches taken by federal courts). See also State v. Almanza, 304 Ga. 553, 556-559 (820 SE2d 1) (2018) (explaining circumstances in which Georgia courts consider federal case law construing Federal Rules of Evidence in considering the meaning of our current Evidence Code). Given that neither Appellant nor the State has argued that we should change course in addressing third-party guilt evidence or that such evidence is governed by Rule 404 (b), we need not consider in this case whether Rule 404 (b) applies to third-party guilt evidence or whether the reasonable-inference-of-innocence standard for determining the relevance of such evidence is an appropriate standard under the current Evidence Code. 18 standard in addressing whether proffered third-party guilt was
admissible).6
Here, the testimony that Appellant sought to elicit from the fire
investigator and other witnesses does not raise a reasonable
inference of Appellant’s innocence. Rather, the proffered evidence —
that two years after Smith’s murder, some unidentified person set
fire to two occupied dwellings, which dwellings had a tangential
connection to Smith’s murder — offered nothing more than
“speculation and conjecture” that this unidentified person may have
done so to hide evidence of that person’s involvement in Smith’s
murder and the arson committed at the scene of the murder.
Roberts, 305 Ga. at 261-262. The proffered evidence did not establish
that arson was the cause of the 2017 fires, did not identify any
6 In addressing the admissibility of evidence of third-party guilt, Goins
and other cases have cited OCGA § 24-4-403 (“Rule 403”), which authorizes a trial court to exclude such evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” In those cases, however, we were not asked to review a trial court’s reliance on Rule 403 to exclude such evidence. See Palmer v. State, 318 Ga. 511 (899 SE2d 192) (2024); Goins, 310 Ga. at 207-208; Moss v. State, 298 Ga. 613, 616 (783 SE2d 652) (2016). We note here that the trial court did not address Rule 403’s balancing test. 19 person who may have started the fires, and did not connect any
specific person to the murder or arson charged in this case. In the
absence of any nexus between the 2017 fires and a third party, the
evidence does not raise a reasonable inference of Appellant’s
innocence. Thus, applying our precedent, the evidence was not
admissible under Rule 401 to show another person committed the
crimes for which Appellant was on trial. See Goins, 310 Ga. at 207-
209 (no abuse of discretion in exclusion of evidence that appellant
claimed was relevant to show that other people could have had
motive to kill victim, where proffered evidence did not link any other
person to the murder or raise a reasonable inference of appellant’s
innocence and thus failed to meet basic requirements for
admissibility under current Evidence Code, including Rule 401);
Roberts, 305 Ga. at 261-262. Accordingly, the trial court did not
abuse its discretion in precluding Appellant from questioning the
fire investigator and other witnesses about fires that occurred while
Appellant was incarcerated.
5. Appellant’s final enumeration of error states that the trial
20 court abused its discretion in denying his motion for mistrial.
However, Appellant failed to make his motion for mistrial
contemporaneously with the complained-of testimony, and thus, this
claim is not preserved for appeal.
Before trial, the State filed a notice of intent to present certain
“bad-character” evidence, including evidence that Appellant boasted
that he had committed murder in 1994 and had been found not
guilty of that murder. The admissibility of this evidence was
discussed at two pretrial hearings. During the second hearing, the
trial court ruled, and Appellant agreed, that a witness’s testimony
about Appellant’s own statements would be admissible under Rule
801 (d) (2) (A). See OCGA § 24-8-801 (d) (2) (A) (“Admissions by
party-opponent. Admissions shall not be excluded by the hearsay
rule. An admission is a statement offered against a party which is .
. . [t]he party’s own statement . . . [.]”). Appellant, however, indicated
he would object if a witness testified as to a belief that Appellant
previously “got away” with murder.
During the direct examination of Williamson, who had been
21 incarcerated with Appellant, the prosecutor asked, “Did Mr.
Pittman ever brag about anything concerning the crime?” Appellant
did not object, and Williamson testified that Appellant had told him
that Appellant had committed a murder in 1994 and had been found
not guilty. According to Williamson, Appellant also said, “If you ever
want to kill somebody and get away with it, go to Haralson County.”
Appellant did not object to or move to strike the testimony, nor did
he move for a mistrial at that point. Instead, after the State
concluded the direct examination, Appellant stated he needed to
make a motion outside the presence of the jury. After the jury exited
the courtroom, Appellant moved for a mistrial, contending that
Williamson’s testimony that Appellant said he had committed
murder and been found not guilty violated the trial court’s pretrial
ruling and was “highly prejudicial.” The State argued that the
testimony was not in violation of the pretrial ruling, and the trial
court denied the motion. The trial court later clarified that the basis
for its ruling was that Williamson’s testimony was admissible under
Rule 801 (d) (2) (A).
22 (a) It is well settled that a motion for mistrial must be made as
soon as the party is aware of the matter giving rise to the motion,
and that the failure to promptly move for a mistrial fails to preserve
the issue for appellate review. See, e.g., Lee v. State, 317 Ga. 880,
884-885 (896 SE2d 524) (2023) (holding that “it is well established
that a motion for a mistrial must be promptly made as soon as the
party is aware of the matter giving rise to the motion” and
concluding that the denial of the mistrial motion was not preserved
for appeal where motion was not made until day after witness had
finished testifying (cleaned up)); Coley v. State, 305 Ga. 658, 661-662
(827 SE2d 241) (2019) (claim of error related to denial of mistrial
following admission of bad-character evidence was not preserved for
appeal where the motion was not made contemporaneously with the
testimony at issue); Burrell v. State, 301 Ga. 21, 26 (799 SE2d 181)
(2017) (where State’s witness had emotional outburst on direct
examination, defendant’s motion for mistrial made after the
defendant had completed the cross-examination failed to preserve
the issue for review). Because Appellant did not object to the State’s
23 question, which clearly was intended to elicit the testimony
discussed at the pretrial hearings, and did not move to strike
Williamson’s answer, and then waited until after the prosecutor
completed the direct examination to make a motion for mistrial, the
claim that the trial court abused its discretion in denying a mistrial
presents nothing for our review. See Coley, 305 Ga. at 662.
(b) Appellant also asserts summarily that the trial court
abused its discretion in admitting Appellant’s statement to
Williamson because his statement about the 1994 murder did not
relate to any of the charges in this case. However, Appellant failed
to offer a contemporaneous objection to Williamson’s testimony. And
even during argument regarding the motion for mistrial, Appellant
asserted a different ground as the reason the testimony was
improper. At trial, Appellant argued that a mistrial should be
granted because Williamson’s testimony was “in direct contradiction
with what the Court ordered earlier.” However, as discussed above,
the trial court’s pretrial ruling was that any such statement made
24 by Appellant to a witness was admissible.7 Under these
circumstances, where the basis for the objection at trial and
argument on appeal are different, this evidentiary claim is not
preserved for ordinary appellate review. See OCGA § 24-1-103 (a)
(1) (a trial court’s ruling admitting evidence is ordinarily reviewable
only when “a timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific ground was not
apparent from the context”). Compare OCGA § 24-1-103 (a) (“Once
the court makes a definitive ruling on the record admitting or
excluding any evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve such claim of error
for appeal.”); Williams v. Harvey, 311 Ga. 439, 447 (858 SE2d 479)
(2021) (to preserve for appeal the violation of a definitive ruling on
a motion in limine, a party must make a contemporaneous objection
at trial).
Even though Appellant does not argue that the admission of
7 Because Appellant does not argue on appeal that the trial court erred
in relying on Rule 801 (d) (2) (A), we need not address this issue. 25 this statement should be reviewed for plain error, we generally
review claims of evidentiary error under a plain error standard
when a party raises an evidentiary error but fails to recognize that
the error was not preserved for ordinary appellate review. See, e.g.,
State v. Kenney, 315 Ga. 408, 413 n.10 (883 SE2d 298) (2023) (noting
that “we ordinarily review forfeited evidentiary arguments for plain
error”); Gates v. State, 298 Ga. 324, 326-327 (781 SE2d 772) (2016)
(adopting federal plain-error standard for reviewing claims of
unpreserved evidentiary error under OCGA § 24-1-103 (d)).
Therefore, we consider whether the trial court’s decision not to
strike Williamson’s testimony about Appellant’s statement
constitutes plain error under the familiar standard set forth in
Gates, 298 Ga. at 327 (to show plain error, appellant bears burden
of showing error that is clear or obvious; that was not intentionally
waived; that affected appellant’s substantial rights, which generally
means it must have affected the outcome of the trial court
proceedings; and that seriously affected fairness, integrity, or public
reputation of judicial proceedings). Appellant argues on appeal only
26 that the “statement about a purported murder in 1994 had nothing
to do with the facts of this case” and that “the trial court should have
excluded this testimony under [an] OCGA § 24-4-403 balancing
analysis.” His argument omits any substantive discussion about
how the admission of this snippet of testimony affected the outcome
of the trial. Given Appellant’s cursory treatment of the claim of error
and the overwhelming evidence of his guilt, including his own
statements, we conclude that he has failed to meet his burden of
making “an affirmative showing that the error probably did affect
the outcome below.” Bozzie v. State, 302 Ga. 704, 708 (808 SE2d 671)
(2017) (cleaned up). Accordingly, there was no plain error. See
Williams v. State, 315 Ga. 490, 496 (883 SE2d 733) (2023) (we need
not analyze all prongs of plain error review where appellant fails to
establish one of them).
Judgment affirmed. All the Justices concur.
27 BOGGS, Chief Justice, concurring.
I obviously agree with all that is said in the opinion. I write
separately to note a concern I have with the Court’s current practice
of analyzing unpreserved evidentiary errors under the four-pronged
plain error standard when the appellant does not assert plain error.
We have not addressed whether the current Evidence Code requires
us to apply plain error review to unpreserved evidentiary errors, and
I am skeptical that it does. The source of plain error review of
evidentiary errors is OCGA § 24-1-103 (d), which contains no
command — but rather gives courts permission — to review
evidentiary errors for plain error, providing, “Nothing in this Code
section shall preclude a court from taking notice of plain errors
affecting substantial rights although such errors were not brought
to the attention of the court.” We have expressly concluded that
plain error review is statutorily required in the context of jury
instructions. See State v. Kelly, 290 Ga. 29, 32 (718 SE2d 232)
(2011). See also OCGA § 17-8-58 (b) (“Failure to object [to a charge
to the jury] in accordance with subsection (a) of this Code section
28 shall preclude appellate review of such portion of the jury charge,
unless such portion of the jury charge constitutes plain error which
affects substantial rights of the parties. Such plain error may be
considered on appeal even if it was not brought to the court’s
attention as provided in subsection (a) of this Code section.”); OCGA
§ 5-5-24 (c) (“[T]he appellate courts shall consider and review
erroneous charges where there has been a substantial error in the
charge which was harmful as a matter of law, regardless of whether
objection was made hereunder or not.”). I would welcome the
opportunity to consider, with briefing by the parties in an
appropriate case, whether our current practice of conducting plain
error review of unpreserved evidentiary issues when the appellant
does not argue plain error is mandated by jurisprudential or
statutory concerns.
I am authorized to state that Justice LaGrua joins this
concurrence.
29 PETERSON, Presiding Justice, concurring.
I join the Court’s opinion in full because it faithfully applies our
precedent regarding the admissibility of evidence that a third party
may have committed the crime with which the defendant is charged,
and that precedent is not challenged here. I write separately to point
out that at least some of that precedent may be wrong.
Division 4 of the Court’s opinion rejects Pittman’s claim that
the trial court erred by refusing to admit evidence that someone else
set fires in the relevant area while Pittman was in prison. Pittman
sought to use that evidence to argue that whoever set those fires
may have committed the arson-related crimes with which he was
charged here. In rejecting his argument, the Court applies a rule
developed under the old Evidence Code and that our precedent has
previously carried forward into the current Evidence Code. But I am
uncertain that this rule was correct even under the old code, and am
even more skeptical that we have properly imported it into our
current Evidence Code (and we have certainly never explained why
that old rule should still apply under the current code).
30 Under the old code, we summarized this rule as follows:
Certainly a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.
Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998) (citations
omitted). In setting out the test for admissibility, we cited only two
Court of Appeals decisions. See id. (citing Croom v. State, 217 Ga.
App. 596, 599 (3) (458 SE2d 679) (1995); Bradford v. State, 204 Ga.
App. 568 (420 SE2d 4) (1992)). Croom, in turn, cited only Bradford
on this point. See Croom, 217 Ga. App. at 599 (3). Bradford cited a
treatise and three decisions of this Court. See Bradford, 204 Ga.
App. at 569-570. But those decisions of this Court were all decisions
reversing convictions on the ground that evidence of third-party
guilt had been wrongfully excluded. See Walker v. State, 260 Ga.
737, 738-739 (1) (399 SE2d 199) (1991); Henderson v. State, 255 Ga.
687, 689 (1) (341 SE2d 439) (1986); Butler v. State, 254 Ga. 637, 639-
31 640 (332 SE2d 654) (1985). And none of those cases articulated a
rule like the one Bradford applied; rather, they appear to have
applied a lower bar to admission. See, e.g., Walker, 260 Ga. at 739
(1) (mere “evidence enough to raise a reasonable doubt as to the
defendant’s guilt in the minds of the jury, not evidence sufficient to
convict someone else, would be enough to change the outcome of the
case and to warrant reversal”); Henderson, 255 Ga. at 689 (1) (same);
Butler, 254 Ga. at 640 (“the evidence as to [the third party] did tend
to establish the possibility that [the third party] was responsible for
committing the crimes[,]” and, therefore, “this evidence was relevant
and admissible”) (emphasis added).8
In any event, the language Bradford quoted from its chosen
treatise began with language that may at first blush seem similar to
8 Later in the opinion, Bradford also cited Stephens v. State, 261 Ga. 467,
468 (6) (405 SE2d 483) (1991), which held that the trial court erred by admitting a certified copy of the defendant’s prior conviction because the State failed to offer evidence that established similarity and a logical connection between the independent crime and the crime for which the defendant was on trial. See Bradford, 204 Ga. App. at 570. But a case about the admissibility of evidence that the defendant had previously committed a different crime has no obvious relevance to whether the defendant can admit evidence that someone else committed the crime for which the defendant is being prosecuted. 32 our current OCGA § 24-4-403 (“Rule 403”): the “accused may
introduce evidence tending to show that another person committed
the crime with which he is charged . . . unless the probative value of
the evidence is substantially outweighed by actual risk of undue
delay, prejudice, or confusion.” Bradford, 204 Ga. App. at 569
(quoting 22A CJS Criminal Law, § 729). But our old code contained
no provision identical to our current Rule 403, and a leading Georgia
treatise has observed that our Rule 403-equivalent approach under
the old code was materially different and led to excluding more
evidence than the federal rule would. See Ronald L. Carlson &
Michael Scott Carlson, Carlson on Evidence: Comparing Georgia
and Federal Rules 121-122 (6th ed. 2018).9 In short, the only
authority that did any actual analysis and upon which we relied in
Klinect did not apply a rule of evidence that the General Assembly
carried forward into our current code. See Bradford, 204 Ga. App. at
9That same treatise observed that Georgia cases decided under the current code regarding admissibility of third-party culpability have applied Georgia old code standards, and stated that “[f]uture decisions will determine whether Georgia will rely upon federal standards on this issue.” Id. at 118-119. 33 569-570.
Nevertheless, we uncritically adopted Klinect as applicable
under the current code. See Moss v. State, 298 Ga. 613, 616-617 (4)
(783 SE2d 652) (2016) (citing the test in Klinect). And since then, it’s
been off to the races. See, e.g., Roberts v. State, 305 Ga. 257, 260-261
(3) (824 SE2d 326) (2019) (citing Moss and numerous old code cases
to apply rule from Klinect under current code); Palmer v. State, 318
Ga. 511, 529 (5) (899 SE2d 192) (2024) (citing Klinect, Moss, and
Roberts); Payne v. State, 314 Ga. 322, 333 (3) (g) (877 SE2d 202)
(2022) (citing Roberts and other cases);10 Goins v. State, 310 Ga. 199,
208 (6) (850 SE2d 68) (2020) (citing Roberts and Moss); Hills v. State,
306 Ga. 800, 803-804 (2) (a) & n.7 (833 SE2d 515) (2019) (citing
Roberts); and Elkins v. State, 306 Ga. 351, 358 (2) (b) (830 SE2d 217)
(2019) (citing Roberts, Moss, and old code cases).
In none of these cases did we do the kind of analysis that we
10 Even if Moss and its progeny are wrong, Payne’s holding and analysis
were correct, given that Payne was reviewing a claim of ineffective assistance of counsel, and the state of the law at the time (right or wrong) warranted rejection of that claim. See id. at 333 (3) (g). 34 have elsewhere held is required in determining whether an old code
rule carries forward. One case has at least suggested that the Klinect
rule is consistent with Rule 403. See Roberts, 305 Ga. at 260-261 (3).
But the rule as we regularly apply it does not resemble the careful
fact-specific, case-by-case determination that Rule 403 requires.
Instead, it appears to approximate a categorical rule that evidence
of third-party guilt must show a direct connection between the third
party and the crime in order to survive Rule 403, even if an indirect
connection could still show the possibility of third-party guilt.11
Categorical rules of that sort did not survive the passage of the
current Evidence Code; it is “clear that Rule 403 provides no
authority for an appellate court to direct the exclusion of entire
categories of evidence.” State v. Orr, 305 Ga. 729, 738 (3) (827 SE2d
892) (2019) (citing Olds v. State, 299 Ga. 65, 76 (2) (786 SE2d 633)
(2016) (explaining that the application of Rule 403 “calls for a
11 Some of our cases could be interpreted as speaking of this rule in terms
of Rule 401 relevance instead, which makes little sense. Of course evidence tending in an indirect way to show someone else might have committed the crime is relevant; it just might not have much probative value in the context of the case. 35 careful, case-by-case analysis, not a categorical approach”); Williams
v. State, 328 Ga. App. 876, 879-880 (1) (763 SE2d 261) (2014)
(discussing differences between Rule 403 and prior Georgia
precedent on excluding evidence based on its prejudice)).
In short, it appears to me that we’ve uncritically imported an
old code rule to the current code without the analysis we regularly
require, and the current code justifications that we have actually
suggested do not appear to match the rule’s actual application. In an
appropriate case, we should consider whether our case law is correct.
In that event, we would also need to consider what, if any, approach
federal courts and especially the Eleventh Circuit had taken as of
2011.12 See State v. Almanza, 304 Ga. 553, 555-557 (2) (820 SE2d 1)
12 This question is beyond the scope of this concurrence, but I’ll offer a
couple of observations. First, it’s not clear that the Eleventh Circuit has a pre- 2011 holding directly on point. See David S. Schwartz & Chelsey B. Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, 2016 Wis. L. Rev. 337, 409 (2016) (discussing approaches about third-party guilt evidence, citing for Eleventh Circuit approach only United States v. Johnson, 904 FSupp. 1303, 1307 (M.D. Ala. 1995) (“Evidence that a person other than the defendant committed the crime would certainly be admissible if it was exculpatory and if it complied with the requirements of Rules 401 and 403.”)). Other district courts within the Eleventh Circuit continued to cite Johnson as authority on this point after 2011. See, e.g., Dorsey v. Hetzel, 2013 U.S. Dist. LEXIS 154865
36 (2018).
I am authorized to state that Chief Justice Boggs, and Justice
Warren, Justice Bethel, Justice McMillian, and Justice Pinson join
in this concurrence.
at *33 (3) (a) (S.D. Ala. Sept. 6, 2013). Second, to the extent that our precedent has discussed Rule 404 (b) in the context of evidence of third-party guilt, the Eleventh Circuit has held that Rule 404 (b) does not apply to any person other than the defendant, such that evidence regarding the acts of other people are excludable only under Rule 403. See United States v. Morano, 697 F2d 923, 926 (11th Cir. 1983) (“Rule 404 (b) does not specifically apply to exclude this evidence because it involves an extraneous offense committed by someone other than the defendant.”); compare, e.g., Roberts, 305 Ga. at 260-261 (3) (excluding the victim’s character evidence on relevance grounds without deciding whether Rule 404 (b) applied); Palmer, 318 Ga. at 530 (5) (to the extent appellant attempted to show a third party’s “participation in the murders based solely on the fact that he had recently committed a crime of the same or similar nature, the testimony that he sought to elicit was inadmissible character evidence” under Rule 404 (b) (cleaned up)); Goins, 310 Ga. at 207- 208 (6) (discussing generally whether character evidence was admissible to support the defense theory that other people had a motive to kill the victim). Schwartz and Metcalf argue that the federal circuits are split on what rule to apply to evidence of third-party guilt, with some following a rule like ours, while others simply apply Rule 403 as they would to any other evidence. See Schwartz & Metcalf, supra, at 347-348, 358-359, 408-409. How we would go about deciding which conflicting line of caselaw to follow in the absence of Eleventh Circuit precedent is another open question on which I offer no thoughts today. 37 Decided April 30, 2024.
Murder. Haralson Superior Court. Before Judge Murphy.
David D. Marshall, for appellant.
Jack Browning, Jr., District Attorney; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Clint C.
Malcolm, Meghan H. Hill, Senior Assistant Attorneys General,
Matthew B. Crowder, Assistant Attorney General, for appellee.