Jones v. State

• Decision Date: 26 June 2017
• Docket Number: S16G0890
• Citation: 802 S.E.2d 234
• Parties: JONES v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 544

802 S.E.2d 234

JONES

v.The STATE.

S16G0890

Supreme Court of Georgia.

Decided: June 26, 2017

Jeffrey Robert Filipovits, Filipovits Law Firm, P.C., 2900 Chamblee-Tucker Road, Building 1, Atlanta, Georgia 30341, for Appellant.

David Edward Clark, Georgia Public Defender Standards Council Appellate Division, 104 Marietta Street NW, Suite 606, Atlanta, Georgia 30303, Brandon Alexander Bullard, Georgia Public Defender Council, 104 Marietta Street, NW, Suite 400, Atlanta, Georgia 30303, for Appellant.

Carlton Todd Hayes, Chief Assistant Solicitor General, Cherokee County Solicitor General's Office, 90 North Street, Canton, Georgia 30114, Jessica K. Moss, Solicitor-General, Cherokee County Solicitor General's Office, 100 North Street, Suite 390, Canton, Georgia 30114, for Appellee.

D. Victor Reynolds, District Attorney, Michael Scott Carlson, Deputy Chief A.D.A., Amelia Greeson Pray, A.D.A., John Stuart Melvin, A.D.A., John Richard Edwards, A.D.A., Cobb County District Attorney's Office, 70 Haynes Street, Marietta, Georgia 30090-9638, Andrew J. Ekonomou, The Lambros Firm, LLC, 2970 Clairmont Road, Suite 240, Atlanta, Georgia 30329, Jacquelyn Lee Johnson, District Attorney, Brunswick Judicial Circuit District Attorney's Office, P.O. Box 369, Woodbine, Georgia 31569, Matthew Carl Krull, Solicitor-General, David Holmes, Chief Assistant Solicitor General, Lindsay Doss Raynor, Douglas County Solicitor General's Office, 8700 Hospital Drive, 3rd Floor, Douglasville, Georgia 30134-2264, for Amicus Appellee.

BENHAM, Justice.

This is the second time this matter has appeared before this Court. Appellant Michael Jones was tried, convicted and sentenced for driving under the influence and he has sought appellate review of that conviction on the ground that evidence of a prior DUI conviction was wrongfully admitted at trial.¹ At the core of the dispute is the method by which the lower courts are to determine the admissibility of extrinsic act evidence, in this case the prior DUI, under OCGA §§ 24-4-404 (b) (Rule 404 (b)) and 24-4-403 (Rule 403) of the new Evidence Code.

Rule 404 (b) provides in pertinent part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 403 provides:

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 evidence.

Based on this statutory framework, extrinsic act evidence may be admitted if a three-part test is met: (1) the evidence is relevant² to an issue in the case other than the defendant's character, (2) the probative value is not substantially outweighed by the danger of unfair prejudice as required by Rule 403, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act.³ See Olds v. State , 299 Ga. 65 (2), 786 S.E.2d 633 (2016).

In this case, the trial court admitted appellant's prior DUI for the limited purpose of showing intent and knowledge, as permitted by Rule 404 (b), finding that all three standards for admissibility had been met. The Court of Appeals, however, determined the trial court erred because, it reasoned, the evidence in question was not relevant and, therefore, was inadmissible. Jones v. State , 326 Ga. App. 658, 757 S.E.2d 261 (2014) ( Jones I ). We granted the State's petition for certiorari and, in State v. Jones , 297 Ga. 156, 773 S.E.2d 170 (2015) ( Jones II ), we held that Jones's prior DUI conviction was relevant extrinsic act evidence as contemplated by Rule 404 (b) as to the issue of intent.⁴ Upon finding that the prior DUI conviction was relevant to show intent under Rule 404 (b), we vacated the Court of Appeals' judgment in Jones I and remanded the matter back to the Court of Appeals, instructing it to address the second prong of the three-part admissibility test by determining whether the trial court properly applied the balancing test required by Rule 403. As to Rule 403, we noted:

[A] trial court must undertake in each case a considered evaluation of the proffered justification for the admission of such evidence and make an independent determination of

whether the probative value of the evidence "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." [Cits.]

Jones II , supra, 297 Ga. at 163, 773 S.E.2d 170. On remand, the Court of Appeals affirmed the trial court's decision to admit the prior DUI conviction, stating, "[W]e cannot say that the trial court abused its discretion in finding that the probative value of evidence of Jones's prior conviction was not substantially outweighed by its prejudicial effect." Jones v. State , 335 Ga. App. 563, 565, 782 S.E.2d 466 (2016) ( Jones III ).

Since Jones III was decided, this Court has had more opportunities to clarify what is required when conducting a Rule 403 balancing test. See Olds v. State , supra ; Hood v. State , 299 Ga. 95, 786 S.E.2d 648 (2016) ; Brannon v. State , 298 Ga. 601, 783 S.E.2d 642 (2016). In light of these recent decisions, the parties agree, as do we, that the Court of Appeals in Jones III did not fully consider whether the trial court properly conducted the balancing test required by Rule 403. Furthermore, upon our review of the trial court's balancing of the evidence under Rule 403, we hold the trial court erred when it determined the probative value of appellant's prior DUI was not substantially outweighed by the danger of unfair prejudice. Nevertheless, for the reasons set forth below, the error in admitting the prior DUI-less safe evidence was harmless as to appellant's conviction and sentence for DUI-per se and so the Court of Appeals' judgment is affirmed as right for any reason.

1. Rule 403 states that relevant extrinsic act evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. This balancing test is "committed principally to the discretion of the trial courts ..." and exclusion of evidence under the test is "an extraordinary remedy which should be used only sparingly." (Citation and punctuation omitted.) Olds v. State , supra, 299 Ga. at 70, 786 S.E.2d 633. However, "an accurate assessment of probative value is an essential part of a proper application of Rule 403...." Id. at 75, 786 S.E.2d 633. To that end, in Olds , we carefully explained the difference between relevance and probative value, as well as the means by which probative value may be properly assessed under Rule 403:

Relevance and probative value are related, but distinct, concepts. Relevance is a binary concept—evidence is relevant or it is not—but probative value is relative. Evidence is relevant if it has "any tendency " to prove or disprove a fact, whereas the probative value of evidence derives in large part

from the extent to which the evidence tends to make the existence of a fact more or less probable. 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. [Cit.] 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. [Cit.] 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. [Cit.]

Id. at 75-76, 786 S.E.2d 633. In cases such as this one in which the defendant has placed intent at issue by pleading not guilty and in which the existence of a criminal conspiracy is not at issue, the Rule 403 balancing test is not usually susceptible to a categorical approach, but the extrinsic act evidence must be considered by the trial court on a case-by-case basis. Id. at 76, 786 S.E.2d 633. Specifically, the trial court, in exercising its discretion, is required to make "a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness." (Citation and punctuation omitted.) United States v. Perez , 443 F.3d 772, 780 (11^th Cir. 2006). See also Bradshaw v. State , 296 Ga. 650 (3), 769 S.E.2d 892 (2015) (citing Perez ). The appellate court will review whether the trial court clearly abused its discretion in admitting the Rule 404 (b) evidence. See Hood v. State , supra, 299 Ga. at 100-101, 786 S.E.2d 648 ("We will overturn a trial court's decision to admit other acts evidence only where it was a clear abuse of discretion.").

Here, it appears the Court of Appeals used this Court's analysis of the reasons why the evidence was relevant to conclude the prior DUI had significant probative value under Rule 403 (see Jones III , supra, 335 Ga. App. at 565, 782 S.E.2d 466 ),⁵ but then did not fully consider how...