SUPREME COURT OF GEORGIA
November 2, 2022
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
Upon consideration, the Court has revised the deadline for
motions for reconsideration in this matter. It is ordered that a
motion for reconsideration, if any, including motions submitted via
the Court’s electronic filing system, must be received in the
Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: November 2, 2022
S22A0420. ROBERTS v. THE STATE.
PINSON, Justice.
Melvin Roberts was convicted of malice murder and other
crimes in connection with the shooting death of Jabari Pettway. 1 On
appeal, Roberts contends that the trial court erred in admitting
evidence of an armed robbery he allegedly committed nine days
1The crimes were committed on November 1, 2016. Roberts was indicted
by a Gwinnett County grand jury on February 1, 2017 on one count each of
malice murder, felony murder, aggravated assault, and theft by taking.
Roberts was tried before a jury in May 2018. After the close of the State’s
evidence, the trial court granted a directed verdict as to felony-level theft by
taking because the State had failed to prove the value of the object of the
theft—Pettway’s car—and that count was converted to a misdemeanor. At the
conclusion of trial, the jury found Roberts guilty on all counts. On May 23,
2018, Roberts was sentenced to life in prison without the possibility of parole
for the malice murder, plus a concurrent 12-month term for the misdemeanor
theft by taking. The felony murder was vacated by operation of law, and the
aggravated assault merged into the malice murder. Roberts filed a timely
motion for new trial on May 25, 2018, which he amended in March and April
of 2021. The parties agreed to proceed on the motion without a hearing, and
the motion was denied on September 14, 2021. That same day, Roberts filed
his notice of appeal. The appeal was thereafter docketed to the April 2022 term
of this Court and was submitted for a decision on the briefs.
1
before the murder. That evidence included a shell casing that testing
showed was discharged from the same gun as casings from
Pettway’s murder, as well as testimony from the armed-robbery
victim identifying Roberts as the one who possessed, shot, and left
with the gun. The trial court admitted all of the armed-robbery
evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”) for the purpose
of proving Roberts’s identity as the murderer.
We affirm on a different legal basis. A limited portion of the
physical evidence and testimony from the armed robbery placed the
murder weapon in Roberts’s hands just nine days before Pettway’s
murder. That limited evidence was not subject to Rule 404 (b)
because it was admissible as evidence intrinsic to the charged crime.
The same cannot be said for the armed-robbery evidence as a whole,
but any error in admitting evidence of the robbery beyond the
intrinsic portion was harmless, because the evidence against
Roberts that was properly admitted was quite strong, and the court’s
limiting instruction about the armed-robbery evidence mitigated the
chance that the jury considered the extraneous details of the
2
robbery.
1. Facts
(a) Around 7:30 p.m. on November 1, 2016, 23-year-old Jabari
Pettway left the Duluth apartment he shared with his brother,
Marqueze Marshall, in his 2012 silver Dodge Avenger. Marshall
testified that his brother was going to meet a friend and that he left
carrying a red book bag, along with his wallet and cell phone. Later
that evening, around 9:55 p.m., Pettway called Marshall to tell him
he was on his way home. But Pettway never made it home. The next
morning, after trying to reach Pettway, Marshall called their
mother, Casandra Mosley, to let her know Pettway was missing.
Mosley testified that Marshall called her around noon on
November 2 and told her that Pettway had not come home the night
before and had not shown up for work or school that day. After
calling local hospitals, Mosley called Pettway’s cell phone carrier
and got a list of Pettway’s recent calls. Mosley and Pettway’s sister,
Renee Hunter, started calling the numbers on the list, and both
eventually spoke to Roberts, whom Pettway had known in high
3
school. Roberts told both Mosley and Hunter that he had seen
Pettway the evening before, that Pettway had planned to return to
Roberts’s home later that night but never did, and that he had not
been able to reach Pettway. Later that day, Roberts texted both
Mosley and Hunter to say he was “praying for” them.
In the meantime, Gwinnett County police had been called to
respond around 8:00 a.m. that morning after the body of an
unidentified male was discovered in Snellville on the edge of a
Gwinnett County farm abutting Lenora Road. The man was dead,
having been shot multiple times in the back. At the scene,
investigators recovered five .40-caliber shell casings and two
cigarette butts. The cigarette butts were distinctive because they
had been smoked past the filter. The victim’s left front pants pocket
was pulled out, and no car keys, wallet, or cell phone were found at
the scene.
The victim of the shooting was later identified as Pettway. The
medical examiner testified that he had suffered five gunshot
wounds, one to the arm and four to the back, and opined that the
4
manner of death was homicide.
Witness Jimmy Beaver testified that late in the evening on
November 1, he was watching the World Series on television at his
Snellville home on Lenora Road when he heard a car drive past,
heading in the direction of where the paved road turned to gravel. A
few minutes later, he heard a single gunshot, followed by a one- to
two-second pause, and then four rapid-fire shots. About two minutes
after that, he heard a car speed back up the gravel road, hit the
pavement, and drive away.
Based on Beaver’s report that the shots were fired during the
sixth inning of the World Series game, the lead investigator in the
case, Corporal Shannon Kulnis, determined that the shooting had
occurred between 10:00 and 10:30 p.m. Investigators became
interested in Roberts because of his apparent interactions with
Pettway just before the murder. Cell-tower records indicated that a
phone call Pettway placed at 9:49 p.m. “pinged” from the same cell
tower as a call Roberts placed at 9:38 p.m., indicating that they were
together shortly before the murder. This cell tower was near the site
5
where Pettway’s body was found.
Corporal Kulnis determined that Roberts had an outstanding
arrest warrant. After using cell-tower records to locate Roberts,
police made a traffic stop, took him into custody, and confiscated his
cell phone. An inventory search of his car turned up boxes of
Newport cigarettes and a Samsung Galaxy cell-phone box.
(b) At the police station, Roberts waived his rights under
Miranda 2 and agreed to speak with investigators. In the videorecorded interview, Roberts admitted that he had been with Pettway
earlier on the night of the murder, but he denied any involvement
in the shooting. He admitted that he and Pettway had been
intermittent sexual partners over the previous two years. On the
evening of the murder, Roberts said, Pettway had come to his home
in Lawrenceville, where they “did sexual things.” They then left to
buy cigarettes, and after that, Roberts said, they parted ways.
Roberts said he had expected Pettway to return later that evening,
but Pettway never showed up.
2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
6
Cell-tower records showed Roberts’s and Pettway’s phones
pinging off the same tower near Roberts’s Lawrenceville apartment
at 7:29 p.m. and at various times until 9:21 p.m. Surveillance video
from a Citgo gas station in Lawrenceville showed the pair arriving
there at 9:17 p.m., Roberts in his blue Hyundai Sonata and Pettway
in his silver Dodge Avenger. The video showed Roberts buying
Newport cigarettes and the men then leaving, each in his own car,
at 9:21 p.m., both heading in the direction of Snellville.
In his interview, Roberts first told the investigators that after
returning from the cigarette run, he had stayed at home the entire
evening. He also said he had his cell phone with him at all times
that night. Investigators then confronted him with evidence showing
that, after the time of the cigarette purchase, both his phone and
Pettway’s phone were in close proximity, near the crime scene. At
that point, Roberts claimed he had been at his grandmother’s home,
which was near the crime scene. He explained his earlier dishonesty
about his whereabouts by saying he just “didn’t want to get [himself]
involved” in the investigation.
7
(c) A forensic examination of Roberts’s cell phone showed that
Pettway’s phone number was listed in Roberts’s contacts. Also listed
in Roberts’s contacts was a phone number for a person designated
as “Bro”; this number matched the number to which numerous
outgoing calls were made from Roberts’s phone on the night of
November 1 and thereafter, through the early morning hours of
November 3. The first of these calls was placed at 10:17 p.m., from
a location near the crime scene. The call recipient was determined
to be Dawan Glover, who later testified for the State under an
immunity agreement.
Glover testified that Roberts called him late in the evening on
November 1 and asked to come see him. At the time, Glover was at
his girlfriend’s home in the Allen Hill apartment complex in
southwest Atlanta. Glover agreed, and Roberts drove to Allen Hill,
where he met Glover in the parking lot. Roberts told Glover he was
“trying to get rid of his car” and offered to pay Glover to help; Glover
agreed. Glover testified that he believed there was “an insurance
situation” and that Roberts was “just doing it for the money.”
8
Glover testified that Roberts wiped down the inside of the car
with cleaning solution, and the pair then left Allen Hill, Glover
driving his girlfriend’s Chevy Lumina and Roberts following behind.
They drove to a gas station, where Glover filled an antifreeze jug
with gasoline. The pair then drove to an abandoned lot off of
Chappell Road, in the Bankhead area. Glover doused the car with
gasoline, lit a T-shirt on fire, and threw the T-shirt inside the car.
Once the car began smoking, they drove off in Glover’s girlfriend’s
car and returned to Allen Hill, where Roberts stayed the night. Not
sure whether their plan to destroy the car had worked, the pair
returned to the Bankhead lot the next evening with more gasoline
and, finding the car still intact, successfully set it ablaze.
Glover’s girlfriend, Quaneshia Cleckley, also testified for the
State. She testified that, late on the night of November 1, Glover
asked to borrow her car, and she saw Glover leave the apartments
with a man—whom she identified at trial as Roberts—following in
a different car. When they returned about 30 minutes later, Glover
asked if Roberts could stay the night, and she agreed. She recalled
9
that Roberts had with him a red or pinkish book bag, which he kept
close to him while he slept, “[l]ike, if he wanted to get up and run,
he was grabbing that book bag and everything was going with him.”
Glover, too, testified that Roberts was in possession of a red
“backpack bag.”
(d) Investigators discovered that Roberts’s car had a GPS
tracking device that had been installed by a lienholder. They got the
GPS records, which showed the car’s location approximately every
24 hours. The records showed that, at 1:33 a.m. on November 2, the
car was located less than a mile from the crime scene, and at 2:33
a.m. on November 3, the car was in the area around Allen Hill.
The GPS tracking records, together with cell-tower records
showing that Roberts had traveled from the area around the crime
scene to the area around Allen Hill, led investigators to obtain
surveillance-video footage from the night of the murder from the
Allen Hill apartments. That recording shows a silver Dodge Avenger
pulling into the complex at 11:11 p.m. Cell-phone and tower records
show Roberts’s phone placing calls in that vicinity at 11:10 and 11:14
10
p.m., the latter call being placed to Glover’s number. The Allen Hill
video shows the Dodge Avenger and Cleckley’s Chevy Lumina
leaving the complex at 11:53 p.m. Cell-tower records show Roberts’s
phone in the vicinity of the Bankhead lot at 1:58 a.m. on November
2; by 2:12 a.m., the phone was back in the vicinity of Allen Hill.
Surveillance video shows the Chevy Lumina returning to the
apartment complex at 2:12 a.m., this time with a passenger wearing
the same clothes Roberts was wearing in the Citgo surveillance
video.
The Allen Hill surveillance video and cell-phone and tower
records also corroborated Glover’s account of the events of the
subsequent day and night. The cell records reflect that Roberts
placed calls to Glover on the afternoon and evening of November 2,
into the early hours of November 3, and that Roberts’s phone was in
the area of Allen Hill on November 3 around 2:30 a.m. The video
shows Roberts arriving at Allen Hill around 2:30 a.m. on November
3 in his blue Hyundai Sonata and Glover getting in the car.
On November 3 at around 4:30 a.m., firefighters responded to
11
a fire reported near Chappell Road in Atlanta and discovered the
burned shell of a car, which was later identified as Pettway’s.
Despite the evidence of his contacts with Glover, Roberts
insisted in a second custodial interview that he did not know Glover
and, when confronted with the cell records and other evidence, he
claimed this evidence was all “a lie.”
An examination of Pettway’s phone records revealed a series of
phone calls to Pettway on the evening of November 1 from a “Pinger
account,” an online application that can be used to place phone calls
anonymously, from a “ghost number,” which looks like a legitimate
phone number but is not the actual number from which the call is
placed. Records obtained from Pinger showed that the subscriber on
the account was Roberts, who had created the account at 6:55 p.m.
on November 1—52 seconds before the first call was placed to
Pettway.
DNA testing on the two cigarette butts recovered from the
crime scene showed that one had DNA consistent with that of
Pettway, while the other had DNA consistent with that of Roberts.
12
(e) The State also presented evidence of Roberts’s commission
of a prior crime, which the trial court admitted solely for the purpose
of proving identity. 3 Witness Monica Mendoza testified that on
October 23, 2016, Roberts attacked and robbed her at gunpoint after
the two had engaged in a brief sexual encounter. Mendoza testified
that she had connected with Roberts on a dating app. On the night
in question, he contacted her and arranged to come to her DeKalb
County apartment. Shortly after he arrived, the two began a sexual
encounter, which she stopped after Roberts tried to have intercourse
without a condom. At that point, she believed he was preparing to
leave, but when she turned away, Roberts put a gun to her head and
told her he was not leaving without the money in the house. They
struggled, and Roberts hit Mendoza with the gun and began choking
her. The gun discharged, and the bullet grazed her head. The
gunshot prompted a neighbor to knock on her door. Roberts fled, but
he grabbed Mendoza’s cell phone instead of his, leaving his at her
3 Both before this evidence was presented and in its instructions after
the close of all the evidence, the trial court instructed the jury that this
evidence was to be considered only for the purpose of establishing identity.
13
apartment. The responding police officer, DeKalb County police
detective J. W. Kim, observed furniture in disarray and blood stains
in the apartment, and he recovered a single .40-caliber shell casing
from the apartment floor. He later visited Mendoza in the hospital
and observed her injuries.
Although Mendoza did not know who Roberts was at that time
and could offer police only a description of her attacker, she saw a
social-media post about Pettway’s murder the next week and
immediately recognized Roberts, who was pictured in the post, as
her assailant. She told Detective Kim.
Detective Kim contacted Corporal Kulnis with this
information. Through her investigation, Corporal Kulnis had
learned that Roberts had pawned a cell phone on October 28, 2016,
and this cell phone was ultimately determined to have been
Mendoza’s. Further investigation showed that the cell phone
Roberts was using at the time of Pettway’s murder had been
activated on October 24, 2016—one day after the attack in which
Roberts had left his phone behind.
14
The shell casing recovered from Mendoza’s apartment was sent
for forensic testing along with the five .40-caliber shell casings from
the site where Pettway’s body was found. A GBI firearms examiner
testified that his testing showed that all six had all been fired from
the same Smith & Wesson .40-caliber pistol.
2. Analysis
In his only enumeration of error, Roberts contends that the
trial court erred by allowing the State to introduce evidence of the
armed robbery of Mendoza. The trial court allowed the State to
introduce that evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”)
to establish Roberts’s identity as the person who shot Pettway;
Roberts argues that the armed robbery was not similar enough to
the murder to qualify as evidence relevant to showing identity under
Rule 404 (b). We review the trial court’s decision to admit this
evidence for an abuse of discretion. Smith v. State, 307 Ga. 263, 270
(2) (c) (834 SE2d 1) (2019).
(a) Rule 404 (b) places specific limits on admitting “evidence of
. . . other crimes, wrongs, or acts.” Evidence of a defendant’s past
15
wrongdoing is treated with caution because it can lead the jury to
find the defendant guilty based on his past wrongs rather than the
strength of the evidence that he committed the crime at hand. See
generally State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015)
(noting that evidence of a defendant’s other bad acts cannot be
admitted simply to show bad character or propensity to commit
crimes). So, before evidence of other acts is admitted, the State has
to show that the other act helps prove something other than the
defendant’s character or propensity for wrongdoing, like “proof of
motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” OCGA § 24-4-404 (b).
But Rule 404 (b) applies only to “evidence of . . . other crimes,
wrongs, or acts”: in other words, evidence that is extrinsic to the
charged crime. Id. (emphasis added). “The limitations and
prohibition on ‘other acts’ evidence set out in OCGA § 24-4-404 (b) do
not apply to ‘intrinsic evidence.’” Williams v. State, 302 Ga. 474, 485
(IV) (d) (807 SE2d 350) (2017) (footnote omitted)). See also Harris v.
State, 314 Ga. 238, 264 (3) (a) (875 SE2d 659) (2022) (“Rule 404 (b)
16
is not applicable to ‘intrinsic evidence.’”).
The line between extrinsic and intrinsic evidence is not always
a bright one, see Harris v. State, 310 Ga. 372, 381 (2) (b) (850 SE2d
77) (2020), and courts have drawn that line using a number of
different (and sometimes overlapping) phrases meant to distinguish
“direct evidence of the charged crime” from evidence of other crimes
subject to Rule 404 (b). United States v. Shea, 159 F3d 37, 39 (1st
Cir. 1998). See also United States v. Roberts, 933 F2d 517, 520 (7th
Cir. 1991) (describing intrinsic evidence as “directly relevant to the
crimes with which [the defendant] was charged”).4 To this end, we
have said that evidence is considered intrinsic to the charged offense
when it is “(1) an uncharged offense arising from the same
transaction or series of transactions as the charged offense; (2)
necessary to complete the story of the crime; or (3) inextricably
4 As we have said before, we are guided by decisions of the federal
appellate courts, and the Eleventh Circuit in particular, when applying
provisions of our Evidence Code that are modeled after the Federal Rules of
Evidence. See Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016). Accord
Harris, 314 Ga. at 264 (3) (a) (noting applicability of federal precedent in
determining whether other-acts evidence is admissible either as intrinsic
evidence or under Rule 404 (b)).
17
intertwined with the evidence regarding the charged offense.”
Johnson v. State, 312 Ga. 481, 491 (4) (863 SE2d 137) (2021)
(punctuation omitted). Accord Williams, 302 Ga. at 485 (IV) (d)
(citing United States v. Edouard, 485 F3d 1324, 1344 (11th Cir.
2007)). And in applying this language, we have also said that
“evidence pertaining to the chain of events explaining the context,
motive, and set-up of the crime is properly admitted if it is linked in
time and circumstances with the charged crime, or forms an integral
and natural part of an account of the crime, or is necessary to
complete the story for the jury.” Id. (cleaned up). See also United
States v. Fortenberry, 971 F2d 717, 721 (11th Cir. 1992) (describing
intrinsic evidence as “an integral part of the circumstances
surrounding Fortenberry’s illegal possession of the shotgun”);
United States v. Battle, 774 F3d 504, 511 (8th Cir. 2014) (“When
evidence of other crimes tends logically to prove any element of the
crime charged, it is admissible as an integral part of the immediate
context of the crime charged and is not extrinsic and therefore is not
governed by Rule 404 (b).” (cleaned up)).
18
(b) Here, the armed robbery of Mendoza, as a whole, does not
fall on the intrinsic side of the line. The robbery of Mendoza itself
was not related to Pettway’s murder in any of the ways we have said
make a past crime intrinsic: that crime as a whole was neither a part
of a series of transactions related to that charged crime, nor part of
the story of that crime, nor “inextricably intertwined with the
evidence” of it. Indeed, many of the details of the armed robbery are
simply irrelevant to Pettway’s murder.
But a limited portion of the evidence of the armed robbery is
properly considered intrinsic. See Battle, 774 F3d at 512 (noting that
“limited evidence” about prior crime committed with the same gun—
including ballistics evidence and testimony identifying defendant as
shooter—was intrinsic); Roberts, 933 F2d at 519-20 (affirming
admission of evidence about police chase after crime committed two
days after charged offenses, in which officers seized from defendant
the weapon used in the charged offenses; although the later crime
was not intrinsic and was properly excluded, the “cautiously edited
testimony regarding the government’s recovery of [the] gun” was
19
intrinsic). The evidence from that incident included a .40-caliber
shell casing that testing showed was discharged from the same gun
as the casings from the scene of Pettway’s murder, and testimony
that Roberts possessed and shot that gun during the incident. This
physical evidence and testimony directly placing the murder weapon
in Roberts’s hands in the days leading up to Pettway’s murder was
“reasonably necessary to complete the story” of that charged crime.
See, e.g., Heade v. State, 312 Ga. 19, 24-26 (3) (860 SE2d 509) (2021)
(evidence of three incidents leading up to charged crimes was
“reasonably necessary to complete the story” because it explained
the relationship between the parties and the defendant’s motive in
committing the charged crimes); Abbott v. State, 311 Ga. 478, 483
(2) (858 SE2d 696) (2021) (evidence of prior theft was intrinsic when
it “offer[ed] insight into [defendant’s] motive” and “provid[ed]
evidence of premeditation” as to charged crimes); Smith, 307 Ga. at
272 (2) (c) (witness’s testimony about prior drug dealing by
defendants was necessary to complete the story of the crime because
it explained how the witness was able to identify the defendants and
20
also advanced the State’s theory of the case). See also United States
v. Fortenberry, 971 F2d 717, 719-21 (11th Cir. 1992) (evidence of
defendant’s involvement in a prior double murder was admissible as
to charge of unlawful firearm possession where the possession
charge involved the weapon used in the murders); Battle, 774 F3d at
511 (in prosecution for unlawful firearm possession where gun was
discovered on the floor of a car occupied by defendant and two others,
concluding that evidence of prior crime committed by defendant with
same gun was intrinsic evidence that established defendant’s
constructive possession); United States v. Brooks, 715 F3d 1069,
1076-77 (8th Cir. 2013) (photos and video showing defendant posing
with a gun, recovered from cell phone left in stolen van, were
intrinsic where gun appeared to be the same gun used in stealing
the van and committing armed robbery earlier that same day); Shea,
159 F3d at 39-40 (gun seized during defendant’s arrest for a
separate crime one week after the charged crime was admissible as
intrinsic evidence where government sought to prove it was the
same gun used in charged crime); Roberts, 933 F.2d at 520
21
(categorizing as intrinsic the limited evidence that defendant “was
caught with a dark steel revolver with a brown handle matching the
description of the weapon he used only two days earlier to rob the
Joliet bank” because it was “directly relevant to the crimes with
which he was charged”); United States v. Towne, 870 F2d 880, 886
(2d Cir. 1989) (in prosecution for unlawful receiving and possession
of a firearm, evidence that defendant was in possession of that
firearm on dates not charged in the indictment was admissible as
intrinsic evidence).
As intrinsic evidence, this limited evidence from the armed
robbery was admissible as long as it satisfied OCGA § 24-4-403
(“Rule 403”), see Harris, 314 Ga. at 264 (intrinsic evidence “‘must
satisfy Rule 403’”), and there is little question that it did. Physical
evidence and testimony placing the murder weapon in Roberts’s
hands just nine days before the murder had substantial probative
value, particularly given the lack of eyewitnesses to Pettway’s
murder and the fact that Roberts denied he was involved. See Olds
v. State, 299 Ga. 65, 75-76 (2) (786 SE2d 633) (2016) (explaining that
22
the probative value of evidence depends in part on whether the fact
it is offered to prove is disputed and on its marginal worth in proving
that fact in comparison to other available proof). And although this
evidence was surely prejudicial to Roberts’s defense, Rule 403
requires exclusion only when “unfair prejudice substantially
outweighs probative value.” Anglin v. State, 302 Ga. 333, 337 (3)
(806 SE2d 573) (2017) (citation and punctuation omitted). And given
its strong probative value, this intrinsic evidence was not the
evidence of “scant or cumulative probative force, dragged in by the
heels for the sake of its prejudicial effect,” that Rule 403
contemplates excluding. Johnson, 312 Ga. at 493 (4) (citation and
punctuation omitted). Thus, the trial court did not abuse its
discretion in admitting this limited evidence. See Smith, 307 Ga. at
271-273 (2) (c) (affirming admission of evidence as intrinsic despite
trial court’s having admitted it under Rule 404 (b)).
(c) That leaves the rest of the evidence of the armed robbery.
Evidence that did not directly relate to the shell casing or identify
Roberts as the person who possessed, shot, and left with the gun was
23
not admissible as intrinsic evidence. But under these circumstances,
any error in admitting the rest—like the details of the sexual
encounter, the fact that Mendoza was injured during the incident,
and the state of Mendoza’s apartment after Roberts left—was
harmless. 5
A non-constitutional evidentiary error requires reversal only if
it “harm[s] a defendant’s substantial rights,” and we determine
whether such harm occurred by asking whether it is “highly
probable that the error did not contribute to the verdict.” Williams
v. State, 313 Ga. 443, 448 (1) (870 SE2d 397) (2022). As part of that
determination, we review all the evidence de novo, after setting
aside the evidence admitted in error, and “we weigh the remaining
evidence as we would expect reasonable jurors to have done so.” Id.
(cleaned up).
Here, the evidence that was properly admitted against Roberts,
although circumstantial, was quite strong. The intrinsic evidence
5We do not decide whether the evidence of the armed robbery as a whole
was admissible under Rule 404 (b) for identity or any other purpose.
24
from the armed robbery placed the murder weapon in Roberts’s
hands just nine days before the murder. Roberts admitted to having
been with Pettway earlier on the night of the murder, which celltower records and surveillance-video footage confirmed. Cell-tower
records placed both Roberts and Pettway, around the time of the
murder, in the area where Pettway’s body was later found. A
cigarette butt bearing Roberts’s DNA was found at the scene near
Pettway’s body. There was testimony that Roberts asked Glover to
help him destroy Pettway’s car just hours after the murder and that
then—as corroborated by cell-tower records and surveillance video—
the pair set out to accomplish that job by setting fire to the car in an
abandoned lot. There was testimony that Roberts was in possession
of a red backpack just hours after the murder, as well as testimony
that Pettway had been carrying a red backpack on the evening of
the murder. And Roberts, when confronted with cell records and
video evidence implicating him, had no explanation other than that
it was all “a lie.”
In light of this very strong evidence, it is highly probable that
25
the extra details of the armed robbery did not contribute to the
verdicts. Those details, while certainly not helpful to Roberts’s case,
were not unusually inflammatory. See generally Chavez v. State,
307 Ga. 804, 809 (2) (a) (837 SE2d 766) (2020) (noting that evidence
of prior convictions for less serious crimes is “not likely to inflame
the jury’s passions in a murder case”). Cf. Heard, 309 Ga. at 91-92
(3) (g) (concluding that prejudicial effect of other-acts evidence was
“substantial” because of the egregious means by which the earlier
crime was committed). And the trial court’s limiting instruction also
helped mitigate the prejudicial effect of those details: by instructing
the jury to consider the armed-robbery evidence “only insofar as it
may relate to” the issue of “the identity of the perpetrator,” the trial
court effectively directed the jury’s attention to the evidence that
was intrinsic and away from the extraneous details. See Johnson,
312 Ga. at 494 (4) (noting that the prejudicial effect of certain
evidence “was mitigated by the trial court’s instruction limiting the
jury’s consideration of that evidence”). Given that instruction and
the strong evidence against Roberts, any error in admitting this
26
evidence was therefore harmless.
Judgment affirmed. All the Justices concur.
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