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: April 18, 2023
S23A0109. PRIESTER v. THE STATE
COLVIN, Justice.
Appellant Joseph Priester was convicted of malice murder and
related offenses in connection with the May 2017 shooting death of
Genaro Rojas-Martinez. 1 On appeal, Appellant contends that (1) the
1The crimes were committed on May 15, 2017. On August 25, 2017 a
Cobb County grand jury indicted Appellant for malice murder (Count 1), felony
murder predicated on aggravated assault (Count 2), aggravated assault (Count
3), possession of a firearm during the commission of a felony (Count 4), and
possession of a firearm by a convicted felon (Count 5). A bifurcated jury trial
commenced on September 14, 2018. In the second portion of the bifurcated
trial on the felony firearm possession charge, the State tendered a certified
copy of Appellant’s prior felony conviction for aggravated assault from Upson
County. The jury found Appellant guilty of all counts. The trial court imposed
a sentence of life in prison without the possibility of parole for malice murder
(Count 1), plus a consecutive five-year term for the possession of a firearm
during the commission of a felony (Count 4). The trial court also imposed five
years on probation for the possession of a firearm by a convicted felon count, to
be served consecutively to Count 1 and concurrently with Count 4. The other
counts were either merged for sentencing purposes or vacated by operation of
law. On September 17, 2018, Appellant’s trial counsel timely filed a motion for
new trial, which was amended through new counsel on March 28, 2022. The
trial court held a hearing on the amended motion on June 6, 2022, and denied
trial court erred in admitting evidence of an armed robbery and
shooting Appellant allegedly committed the day before the murder,
pursuant to OCGA § 24-4-404 (b) (“Rule 404 (b)”); and (2) the trial
court erred in instructing the jury that it could consider the prior
armed-robbery and shooting evidence for the purposes of
opportunity, intent, knowledge, and lack of mistake or accident.
Seeing no reversible error, we affirm.
1. The evidence at trial showed the following. 2 On May 15,
2017, at 10:55 p.m., Smyrna Police Department officers were
dispatched to a gas station located in Cobb County after multiple
911 calls reported a shooting. When officers arrived on the scene,
they found Rojas-Martinez lying in “a large amount of blood”
between his red 2006 Ford F150 truck and a gas pump. Medical
the amended motion on July 1, 2022. Appellant filed a timely notice of appeal.
The case was docketed to our term of court beginning in December 2022 and
submitted for a decision on the briefs.
2 In light of the harmless-error analysis we undertake in Divisions 2 and
3 of this opinion, “we review the record de novo, and we weigh the evidence as
we would expect reasonable jurors to have done so as opposed to viewing it all
in the light most favorable to the jury’s verdict.” Moore v. State, 315 Ga. 263,
264 n.2 (1) (882 SE2d 227) (2022) (citation and punctuation omitted).
2
personnel pronounced him dead at the scene, and the medical
examiner later determined that the cause of death was a gunshot
wound to the back of the head. During their investigation, officers
learned that Rojas-Martinez had stopped at the gas station on his
way home from the restaurant where he worked as a waiter.
Officers obtained the restaurant’s video surveillance footage
from the night of the shooting. Entering the parking lot at 8:26 p.m.
was a green 2002 Chevrolet Avalanche, with faded paint and various
yard and cleaning equipment in the bed of the truck. The Avalanche
remained in a parked position until 10:02 p.m. The Avalanche left
the parking lot and returned at 10:27 p.m. The Avalanche exited
the parking lot for the final time at 10:34 p.m. No one entered or
exited the vehicle at any point during this timeframe.
Officers also viewed the gas station surveillance video, which
showed that Rojas-Martinez entered the parking lot at
approximately 10:53 p.m., parked in front of a gas pump, and then
walked inside the gas station store. Thereafter, the green Avalanche
entered the parking lot and parked on the opposite side of the pump
3
as Rojas-Martinez’s truck. When Rojas-Martinez returned to his
vehicle, a male wearing dark clothes and a hat exited the Avalanche.
The man then ran up behind Rojas-Martinez, pointed a silver
revolver at the back of his head, and fired. The revolver initially
misfired, and the shooter quickly readjusted the gun and fired again.
Rojas-Martinez immediately fell to the ground after the second shot.
The shooter returned to the Avalanche and sped away from the gas
station.
Investigators released images of the shooter and the Avalanche
to local news outlets. The next day, Eddie Holland and Erikk
Slaughter arrived at the Henry County Police Department with the
Avalanche. In speaking with Holland and Slaughter, 3 officers
learned that the Avalanche was titled in Slaughter’s name and that
Holland was in possession of the vehicle and in the process of buying
it for his mobile pressure washing business. Holland stated that, on
the night of the shooting, he lent the Avalanche to Appellant, who
had worked a job for Holland earlier that day. Appellant planned to
3 Both Holland and Slaughter testified for the State at trial.
4
spend the night at Holland’s house in McDonough to work another
job the following day, and had asked to borrow the truck to drive to
his mother’s house to pick up some clothes. At the time Holland went
to bed on May 15, Appellant had not returned with the truck.
However, when Holland woke up the next day, Appellant was asleep
on Holland’s couch and the Avalanche was parked outside Holland’s
home. Later that morning, Appellant informed Holland that he was
no longer interested in working the job Holland had previously
offered to him. Both Holland and Slaughter identified the green
Avalanche in the surveillance videos as the vehicle that Holland was
in the process of buying from Slaughter.
Officers applied for and received a search warrant for the
Avalanche and Appellant’s cell phone records. Officers did not lift
any fingerprints from the Avalanche. However, the cell phone
records revealed that Appellant’s phone pinged off a cell tower
located in McDonough in the approximate vicinity of Holland’s
house around 7:40 p.m. on the night of the shooting. Between 8:42
p.m. and 10:16 p.m., Appellant’s cell phone pinged off a tower located
5
in Smyrna approximately 40 miles away from Holland’s house and
4 miles from the restaurant at which Rojas-Martinez was working.
Then, at 10:56 p.m., approximately one minute after the Smyrna
Police Department received its first 911 call to report the shooting,
Appellant’s cell phone made an outgoing call to a cell phone number
associated with a man named Byron Scott. This call pinged off a cell
tower located less than 1.2 miles from the gas station. The cell site
location data indicated that, after Appellant made the 10:56 p.m.
call to Scott, he traveled toward the east side of Atlanta. Within the
next hour, Appellant called Scott four additional times, and
Appellant’s last known location on that evening was in the general
area of Scott’s address.
Officers obtained a warrant for Appellant’s arrest on May 18,
2017. Appellant was located and arrested by the U.S. Marshals
Service in New Jersey on June 3.
At trial, defense counsel argued that Appellant was not the
person who shot Rojas-Martinez. To support this theory, defense
counsel presented evidence that officers initially apprehended a
6
different person immediately after the shooting, and further
questioned officers about what Appellant characterized as an
incomplete investigation into Scott’s potential involvement in the
shooting. However, the investigating officer testified that the wrong
person was apprehended because a 911 caller had misreported the
shooter’s vehicle and that he had interviewed Scott shortly after
obtaining Appellant’s cell-phone records and had completed a report
detailing this investigation.
2. In addition to the evidence described in Division 1, the State
introduced evidence pursuant to Rule 404 (b) 4 that Appellant had
committed an armed robbery and shot at a car during a drug deal on
the day before Rojas-Martinez’s murder. At trial, the State called
Zack Kelly, who testified that, on the day prior to Rojas-Martinez’s
death, he and his friend, Danny Farmer, went with Appellant to an
apartment complex “to purchase some drugs.” Upon their arrival,
4 Under Rule 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,” but may 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.” OCGA § 24-4-404 (b).
7
Appellant pulled out a large, silver .44 magnum revolver that was
about 15 inches in length, “stuck the gun to [Kelly’s] head,” and
demanded Kelly’s money. Appellant also pointed the gun at Farmer
and demanded his money as well. When Farmer threw his money
onto the ground, Appellant “picked the money up and walked around
to the front of the car, fired a round into the car, and . . . just walked
away.”
Appellant objected to the admission of this evidence on
multiple grounds, including that the evidence was not relevant to
any issue other than Appellant’s bad character and that any
probative value was substantially outweighed by its prejudicial
effect. The trial court overruled the objection, finding that the
evidence was admissible under Rule 404 (b) to show opportunity,
intent, knowledge, and absence of mistake or accident. In doing so,
the trial court determined that the evidence showed that Appellant
had a gun similar to the one shown in the gas station footage, knew
about handguns, had previously fired a handgun, and was in
Georgia when the crime was committed. The trial court then
8
instructed the jury before Kelly’s testimony and again during the
final charge on the permissible purposes for which it could consider
the evidence, informed the jury that it could not use the evidence to
conclude that Appellant had a propensity to commit crimes, and
reminded the jury that Appellant was on trial for the offenses
charged in the indictment and not for any other acts.
Appellant asserts that this ruling was error. The State
concedes that the trial court erred by admitting the Rule 404 (b)
evidence for the purposes of intent, knowledge, and lack of mistake
or accident. However, the State maintains that the evidence was
admissible for the purpose of proving opportunity under Rule 404
(b). Assuming without deciding that the trial court erred in
admitting this evidence, the error was harmless and, therefore, does
not require reversal.
“The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.” Henry v. State, 307 Ga. 140, 146 (2) (c) (834 SE2d 861)
(2019) (citation and punctuation omitted). When determining
9
whether the error was harmless, “we review the record de novo and
weigh the evidence as we would expect reasonable jurors to have
done.” Saxton v. State, 313 Ga. 48, 51 (2) (b) (867 SE2d 130) (2021)
(citation and punctuation omitted). We have previously concluded
that erroneously admitted Rule 404 (b) evidence was not harmful
where the properly admitted “evidence against [the defendant] was
strong,” see Allen v. State, 310 Ga. 411, 415 (2) (851 SE2d 541)
(2020), and where “the trial court instructed the jury that it could
consider the other acts evidence only for the limited [Rule 404 (b)]
purpose[s],” see Edwards v. State, 308 Ga. 176, 184 (3) (839 SE2d
599) (2020).
Here, the evidence against Appellant was strong. Although
Appellant argued at trial that someone else shot the victim, the jury
was shown the gas station surveillance video, which captured the
shooter’s face, profile, and distinctive car; heard unrebutted
testimony that, on the night of the shooting, Appellant was in
possession of the green Avalanche shown in the surveillance videos;
and heard testimony that the cell site location data from Appellant’s
10
phone placed him near the restaurant during Rojas-Martinez’s shift
shortly before the shooting, and approximately one mile away from
the gas station immediately after the shooting. Moreover, the jury
heard testimony that, on the morning after Rojas-Martinez’s
murder, Appellant informed Holland that he was no longer
interested in working for him, and that, at some point afterward, he
fled the state. Additionally, the defense’s theory that someone else
had shot the victim was undermined by the investigating officer’s
testimony that he had completed an investigation into Scott’s
potential involvement with the shooting and that officers had
originally apprehended the wrong person because a 911 caller
misreported the shooter’s vehicle.
Further, the trial court twice instructed the jury that it could
only consider the other-act evidence for the limited Rule 404 (b)
purposes and that it could not conclude from the evidence that
Appellant had a propensity to commit crimes, and the court
reminded the jury that Appellant was on trial only for the charges
listed in the indictment. Because we presume that jurors follow the
11
trial court’s instructions, any harm caused by the Rule 404 (b)
evidence was mitigated by the trial court’s instructions limiting the
jury’s consideration of the evidence. See Williams v. State, 313 Ga.
443, 449-450 (1) (870 SE2d 397) (2022) (“Because we ordinarily
presume that jurors follow [the trial court’s instructions], any unfair
prejudice from the admission of the [Rule 404 (b)] evidence was
reduced.” (citation and punctuation omitted)). Moreover, although
the trial court instructed the jury that it could consider the otheract evidence for the purposes of intent, knowledge, and absence of
mistake or accident, which the State concedes were not permissible
purposes, the instructions, as a whole, reduced the likelihood that
any error in admitting the armed-robbery and shooting evidence
contributed to the verdict, as “they did, at least, tell the jury what it
could not do,” namely, that the jury could not consider the evidence
as proof of Appellant’s propensity to commit crimes. Nundra v.
State, __Ga. __, __ (2) (__ SE2d __) (2023) (emphasis in original)
(although the limiting instructions “did not meaningfully explain for
which permissible purpose the [Rule 404 (b)] evidence was relevant,”
12
the trial court’s “admonition that the jury may not infer from such
evidence that the accused is of a character that would commit such
crimes reduce[d] the likelihood that the evidence of [the defendant’s]
past crimes influenced the verdict” (punctuation omitted)).
Therefore, given the strength of the evidence against Appellant
and the trial court’s limiting instructions, we conclude that it is
highly probable that the admission of the armed-robbery and
shooting evidence did not contribute to the verdict. See Howell v.
State, 307 Ga. 865, 875-876 (3) (838 SE2d 839) (2020) (admission of
Rule 404 (b) evidence harmless where evidence of Appellant’s guilt
was strong and the trial court instructed the jury that it could
consider the other-act evidence only for the limited Rule 404 (b)
purpose, that Appellant was on trial only for the offenses charged in
the current case, and that the other-act evidence, by itself, could not
be a basis for conviction). Accordingly, Appellant’s claim fails.
3. Appellant next contends that the trial court erred by
instructing the jury that it could consider the armed-robbery and
shooting as Rule 404 (b) evidence for the limited purposes of
13
opportunity, intent, knowledge, and absence of mistake or accident,
because the evidence itself was improper. We again identify no
reversible error.
Because trial counsel did not object to the jury instructions, we
review the trial court’s jury instructions under the plain-error
standard. See State v. Williams, 308 Ga. 228, 231 (1) (838 SE2d 764)
(2020). To satisfy plain error review, Appellant must show that “the
alleged instructional error was not affirmatively waived; was clear
and obvious, rather than subject to reasonable dispute; likely
affected the outcome of the trial; and seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Walker v.
State, 311 Ga. 719, 724 (3) (859 SE2d 25) (2021) (citation and
punctuation omitted).
Appellant’s claim fails because he cannot satisfy plain error
review. As explained in Division 2, the State has conceded that the
admission of the armed-robbery and shooting evidence for the
purposes of intent, knowledge, and absence of mistake or accident
was erroneous. However, even assuming that the trial court clearly
14
erred by instructing the jury that the Rule 404 (b) evidence could be
considered for those purposes and for the purpose of opportunity,
Appellant has failed to satisfy the third prong of plain error review:
that the challenged instructions likely affected the outcome of his
trial.
When determining whether a jury instruction likely affected
the outcome of the trial, this Court considers the jury instruction as
a whole, rather than looking at the challenged instruction in
isolation. See Carpenter v. State, 305 Ga. 725, 728 (3) (827 SE2d
250) (2019). Here, the trial court instructed the jury that it could
not use the other-act evidence to make an inference about
Appellant’s character or as evidence that Appellant had a propensity
to commit crimes. Moreover, the trial court reiterated to the jury
that Appellant was “on trial for the offenses charged in this bill of
indictment only and not for any other acts, even though such acts
may incidentally be criminal”; that the State carried the burden “to
prove every material allegation of the indictment and every
essential element of the crimes charged beyond a reasonable doubt,”
15
which included the elements of intent and identity; and that the jury
could not convict Appellant “of any crime unless and until each
element of the crime as charged is proven beyond a reasonable
doubt.” As discussed above, we assume that the jury followed the
trial court’s instructions not to use the other-act evidence to make
improper inferences about Appellant’s character or propensity to
commit crimes. Further, although the trial court instructed the jury
that it could consider the other-act evidence for the purposes of
intent, knowledge, and absence of mistake or accident, such
instructions did not likely affect the outcome of Appellant’s trial,
even if the jury considered the evidence for such impermissible
purposes, given the strength of the evidence of Appellant’s guilt. As
discussed above, the jury was shown the gas station surveillance
video of the shooting and heard unrebutted testimony that
Appellant was in possession of the green Avalanche seen in the video
and that the cell site location data from Appellant’s phone placed
him approximately one mile from the gas station immediately after
the shooting. Therefore, based on the trial court’s instructions as a
16
whole and the strong evidence of Appellant’s guilt, we cannot say
that the challenged instructional error likely affected the outcome of
his trial. 5 See Jones v. State, 302 Ga. 892, 897-898 (3) (810 SE2d
140) (2018) (concluding any error in the jury instructions was
harmless, given the court’s instruction as a whole and the very
strong evidence of defendant’s guilt).
Judgment affirmed. All the Justices concur, except Peterson,
P.J., disqualified.
5 Appellant has not raised a cumulative-error claim, and we discern no
cumulative prejudice from the evidentiary and instructional errors we assume.
See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808 (2020) (“[A] defendant who
wishes to take advantage of the [cumulative-error] rule that we adopt today
should explain to the reviewing court just how he was prejudiced by the
cumulative effect of multiple errors.”).
17