State v. Battle, A17A1753

• Citation: 812 S.E.2d 1
• Decision Date: 14 February 2018
• Docket Number: A17A1753
• Parties: The STATE v. BATTLE.
• Court: Georgia Court of Appeals

344 Ga.App. 565

812 S.E.2d 1

The STATE

v.BATTLE.

A17A1753

Court of Appeals of Georgia.

February 14, 2018

Christian Lee Brown, Bradford Lee Rigby, Albany, for Appellant.

David E. Morgan III, Abbeville, for Appellee.

Andrews, Judge.

Alexander Darelle Battle was indicted for fourteen criminal offenses arising out of a June 20, 2015 armed robbery.¹ Prior to the trial of those offenses, the state filed this direct appeal pursuant to OCGA § 5-7-1 (a) (5) from the trial court's order excluding evidence the state sought to have admitted at trial showing that Battle committed crimes, wrongs, or acts other than the charged offenses. For the following reasons, we (1) vacate the trial court's order in part and remand, and (2) dismiss the appeal in part.

1. We first address the state's right to bring a direct appeal pursuant to OCGA § 5-7-1 (a) (5). Under OCGA § 5-7-1 (a) (5), the state is authorized in a criminal case to file a direct appeal from the trial court's

order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a

jury or the defendant being put in jeopardy, whichever occurs first, if: (A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and (B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding.

(emphasis supplied).

Read in context with OCGA § 5-7-1 (a) (4), the "other evidence" referred to in OCGA § 5-7-1 (a) (5)"is most naturally and reasonably understood to authorize appeals from orders excluding evidence other than the evidence with which OCGA § 5-7-1 (a) (4) is concerned." State v. Andrade , 298 Ga. 464, 466, 782 S.E.2d 665 (2016). Under OCGA § 5-7-1 (a) (4), the state is authorized to file a direct appeal from the trial court's order, decision, or judgment

suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first.

"Accordingly, one cannot properly determine that an appeal from an order excluding evidence must be brought pursuant to OCGA § 5-7-1 (a) (5) without first ascertaining that it could not be brought under OCGA § 5-7-1 (a) (4)." Andrade , 298 Ga. at 466, 782 S.E.2d 665.

The record shows that, pursuant to OCGA § 24-4-404 (b), the state filed a notice in advance of trial informing the defense of the general nature of evidence the State intended to introduce at trial showing "other crimes, wrongs or acts" committed by Battle: to wit, armed robbery, aggravated assault with intent to rob, and possession of a firearm during the commission of a crime, all occurring on or about June 25, 2015, five days after the charged offenses.² Under OCGA § 24-4-404 (b),

[e]vidence 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.

Evidence of other crimes, wrongs, or acts relevant under OCGA § 24-4-404 (b) may, nevertheless, be excluded by the court

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

OCGA § 24-4-403. To determine the admissibility of other acts evidence under OCGA §§ 24-4-404 (b) and 24-4-403, the trial court exercises its discretion under a three-part test:

[I]n order to be admissible, the State must make a showing that: (1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant's character, see [ OCGA § 24-4-404 (b) ]; (2) the probative value of the other acts evidence is not

substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of [ OCGA § 24-4-403 ]; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.

State v. Jones , 297 Ga. 156, 158-159, 773 S.E.2d 170 (2015). Because a pre-trial appeal from an order excluding evidence sought to be admitted pursuant to OCGA § 24-4-404 (b) could not be brought pursuant to the provisions of OCGA § 5-7-1 (a) (4), it follows that any such appeal must be brought pursuant to OCGA § 5-7-1 (a) (5). See Andrade , 298 Ga. at 466, 782 S.E.2d 665.

As set forth above, the state's right to appeal under OCGA § 5-7-1 (a) (5) is from an "order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first ..." (emphasis supplied).³ This provides a right to appeal from an order excluding evidence on a written pre-trial motion filed by the state or the defendant. There is no evidence in the record that the state filed any pre-trial motion seeking an order on the admissibility of evidence pursuant to OCGA § 24-4-404 (b). Rather, as set forth above, the state filed the pre-trial notice required by OCGA § 24-4-404 (b) notifying the defense that the state would seek at trial to introduce other crimes, wrongs, or acts independent of or extrinsic to the charged offenses. Prior to the adoption of OCGA § 24-4-404 (b) in the new Evidence Code, a pre-trial hearing to address the admissibility of this evidence was required under former Uniform Superior Court Rule 31.3. Everhart v. State , 337 Ga. App. 348, 351-352, 786 S.E.2d 866 (2016) ). But OCGA § 24-4-404 (b), which contains no provision for a mandatory pre-trial hearing, eliminated the former requirement for a pre-trial hearing. Id. Nevertheless, the record shows that a pre-trial hearing was scheduled, and that, at some point during the hearing, the trial court considered the state's notice as a motion filed by the state at least 30 days prior to trial seeking a pre-trial ruling on the admissibility of evidence under OCGA § 24-4-404 (b). Although the trial court was not required to treat the notice as a motion filed under OCGA § 5-7-1 (a) (5), we find under these circumstances that the state complied with the provisions of the statute requiring that any appeal be taken from an order on a motion filed by the state or the defendant.

After the hearing, the trial court entered an order which denied the state's motion brought pursuant to OCGA § 24-4-404 (b), and also ruled against the state's contention, asserted for the first time at the hearing, that the evidence of other crimes, wrongs, or acts was admissible because it was "intrinsic" to or "intertwined" with the charged offenses. Admissibility of evidence under OCGA § 24-4-404 (b) deals with other crimes, wrongs, or acts "extrinsic" to the charged offense. Jones , 297 Ga. at 158 n.1, 773 S.E.2d 170.

[ OCGA § 24-4-404 (b) ] only relates to ‘other’ crimes, wrongs, or acts that are ‘independent’ of or ‘extrinsic’ to the charged offense. If the other crime, wrong, or act is ‘intrinsic’ to the charged offense or ‘inextricably intertwined’ with it, it is admissible under [ OCGA § 24-4-401 ]. Such evidence was called part of the res gestae of the offense under the [rules in effect prior the new Evidence Code adopted in 2013].

Paul Milich, Courtroom Handbook On Georgia Evidence, I8, Independent Crimes or Acts (2017 ed.), April 2017 update, available at Westlaw GAHANDEVIDI8. The trial court addressed the state's intrinsic evidence argument and ruled that the alleged others acts evidence was not admissible on this basis because the other acts were not intrinsic to the charged offenses. To the extent the state appealed pursuant to OCGA § 5-7-1 (a) (5) from the court's ruling excluding intrinsic evidence, we dismiss the appeal. The state's pre-trial notice, considered by the trial court as a motion seeking admission of other acts evidence, was brought pursuant to OCGA § 24-4-404 (b) and related only to other crimes, wrongs, or acts independent of or extrinsic to the charged offenses. The state filed no pre-trial motion seeking admission of other acts evidence on the basis that they were intrinsic to or inextricably intertwined with the charged offenses. Under OCGA § 5-7-1 (a) (5), the state was authorized to appeal from the trial court's "order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial ..." (Emphasis supplied). Because no pre-trial motion was filed raising this evidentiary issue, the state was not authorized under OCGA § 5-7-1 (a) (5) to file a direct appeal from the trial court's ruling in response to the state's oral argument on the issue.

2. The state contends the trial court erred by entering a pre-trial order excluding other crimes, wrongs, or acts the state sought to admit at trial pursuant to OCGA § 24-4-404 (b).

When the pre-trial hearing commenced, the trial court informed the prosecutor that the court did not have a "404 (b)" motion and asked if one had been filed. The prosecutor informed the court that, although the court's calendar referred to a "404 (b) motion," there was no such motion and that the state's position was that the other crimes, wrongs, or acts evidence was admissible because "it's intrinsic evidence in the case so that is not subject to a 404 (b) analysis." Without any written motion filed, or any prior notice given to the defense, the trial court allowed the prosecutor to proceed on...