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: February 7, 2023
S22A1223. JACKSON v. THE STATE.
LAGRUA, Justice.
Appellant Desmond Sherron Jackson was convicted of felony
murder and other crimes in connection with the fatal shooting of
Heather Smith, the shooting of Quantavious Banks, and the
aggravated assault of Kendaishia Jefferies, all of which occurred on
August 20, 2017. On appeal, Appellant contends that the evidence
was legally insufficient to support his convictions, that the trial
judge erred by not recusing himself, and that the trial court erred by
allowing improper extrinsic evidence to be presented against
Appellant at trial. 1 For the reasons that follow, we affirm
1In October 2017, Appellant was indicted by a Walton County grand jury
on charges of malice murder, felony murder, three counts of aggravated
assault, aggravated battery, and five counts of possession of a firearm during
the commission of a felony. In May 2019, a jury found Appellant guilty of all
counts except malice murder and one count of possession of a firearm during
Appellant’s convictions.
Viewed in the light most favorable to the verdicts, the evidence
presented at Appellant’s trial showed that approximately a week
and a half before the shootings in this case occurred, Appellant and
Banks got into a dispute over a botched drug transaction. According
to Banks’s testimony at trial, on or about August 10, 2017, Banks
went to the house where Appellant was staying in Social Circle to
purchase four ounces of marijuana from Appellant. Banks testified
that, although he paid Appellant for four ounces of marijuana,
Appellant gave Banks less than that amount in the sale. Later that
day, when Banks opened the package and discovered he had been
“shorted,” he went back to Appellant’s house to pick up the rest of
the commission of a felony. The trial court sentenced Appellant to life in
prison, plus an additional 40 years. One of the aggravated assault counts
merged with the felony murder count for sentencing purposes. On June 3,
2019, Appellant filed a timely motion for new trial, which he amended twice
through new counsel on March 11, 2021, and June 29, 2021. The State filed a
response in opposition to the motion for new trial on June 1, 2022, and
Appellant amended his motion for new trial a third time on June 10, 2022,
after which he waived his right to a hearing on the motion. The trial court
considered the existing record and denied Appellant’s motion for new trial
without a hearing on June 20, 2022. Appellant filed a timely notice of appeal
to this Court on June 27, 2022, and the case was docketed to the August 2022
term of this Court and submitted for a decision on the briefs.
2
the marijuana he had purchased. According to Banks, when he went
inside Appellant’s house, Appellant was sitting around with some
other people and told Banks that “he was going to straighten it out
but he couldn’t right then and there.” Banks and Appellant started
to argue, and Banks said he “had already done paid [Appellant], [he]
can’t be waiting.” Banks then observed some marijuana sitting on
the table, so he took it and left, acknowledging that he “got more
weed than [he’d] really paid for.”
Over the next few days, the dispute between Banks and
Appellant escalated. Banks testified that, when he took the
marijuana and walked out, no one said anything to him, but later,
he received “phone calls saying [Appellant] and his people better not
see me no more.” Banks said he also received “threats about [his]
daughter and all type of other stuff,” including hostile postings about
the incident on Facebook from associates of Appellant. According to
Banks, “that’s how [he] knew then there was a problem.”
However, Banks also admitted to posting a statement on his
Facebook account suggesting he wanted to fight Appellant “one on
3
one.” And, according to the trial testimony of Appellant’s girlfriend,
Banks frequently drove by Appellant’s house and would “lay on the
horn.” Appellant’s brother, Datavious Sheats, testified that he also
received a threatening phone call after the incident from Smith,
Banks’s girlfriend. In addition to threatening phone calls and
Facebook posts, Banks, Smith, and some of Appellant’s friends and
relatives were also involved in at least two hostile encounters during
this time period.
The first encounter took place on August 13, 2017. According
to Charles Shy, a friend of Appellant’s, Shy was hanging out at a
house in Social Circle on August 13 when Banks and Smith stopped
by looking for Appellant. Shy testified that Smith stayed in the car,
but Banks came inside the house and, “in so many words[,] said that
he was trying to justify the fact that he robbed [Appellant] and when
he seen [Appellant] he was going to handle it.” Shy testified that
Banks had a “firearm on his hip,” but Banks did not “pull it out,
point it at [Shy], threaten anybody or anything like that.” Shy
stated that he thought Banks was just trying to scare them and
4
“make it known that he was going to handle [Appellant] when he
saw him.” Banks and Smith left after this exchange with Shy.
A few minutes later, Banks and Smith showed up at the nearby
home of Darius Still, another friend of Appellant’s. Shy, who had
come over to Still’s house after the encounter with Banks, testified
that Smith stayed in the car again, but Banks came up to the house
with a gun “on his hip,” asking where Appellant was. According to
the trial testimony of Shy and Sheats, as well as Appellant’s
statement to the police, Appellant and Sheats were also at Still’s
house at this time, but they hid in a closet when Banks and Smith
pulled up in front of the house. Shy testified that Appellant
appeared to be “trying to avoid the situation—at all costs.” Shy also
testified that during this second exchange with Banks, Banks did
not point his gun at anyone or threaten anyone with it.
The next day, Banks and Smith got into an argument with
Appellant’s mother, Keshia Jackson, outside of Ms. Jackson’s home.
Ms. Jackson testified at trial that she was standing on her front
porch talking on the telephone when Smith, who was down the
5
street with Banks, started yelling at Ms. Jackson and calling her
names. According to Ms. Jackson, Banks and Smith then
approached Ms. Jackson’s house, and Banks had a gun “tucked into
his pants.” Ms. Jackson said that Banks did not point the gun at
her, but told her that he “was going to do” Appellant and “was going
to take [Appellant] out because [Banks] was tired of the back and
forth.” Ms. Jackson testified that she knew Appellant and Banks
were in a disagreement because she “understood [Banks] stole
money from [her] son.”
Sheats testified that he was at Ms. Jackson’s house at the time
of her encounter with Banks and Smith, and he heard Smith “telling
us they was going to kill us.” Sheats said that Ms. Jackson then
“made [Sheats] leave,” so he left the house. According to Banks,
Sheats was armed when Banks and Smith encountered him at Ms.
Jackson’s house, and Sheats threatened them, saying, “we’re gonna
catch you slipping.” Ms. Jackson and Sheats testified that when
they told Appellant about this encounter, Appellant was “terrified.”
Several days later, on August 20—the day of the shootings—
6
Banks and Smith gave Smith’s close friend, Jefferies, and Jefferies’s
one-year-old son a ride to Rutledge so Jefferies could take her son to
a relative’s house. According to Jefferies, on the way to Rutledge
from Social Circle, Banks stopped and left his gun at a friend’s house
because “he didn’t want to ride with the gun to Rutledge.” 2 Jefferies
testified that, after they dropped off her son and were driving back
to Social Circle, Banks received a phone call from Appellant.
Jefferies testified that Banks put the call on speaker phone, and she
overheard Appellant say to Banks, “[B]ring my stuff back or ya’ll
going to have to see about me.” Jefferies said Banks and Appellant
then had several phone conversations during the drive, and she
heard Banks tell Appellant, “[Y]ou need to check my résumé . . . I
ain’t bringing nothing back.”
According to Banks, this phone call was the first time he spoke
directly to Appellant after the incident on August 10. Banks
testified that, when Appellant called him the first time, Appellant
said he was at his house and asked Banks to “[s]hoot [him] or one,”
2 At trial, Banks testified that he did not have a gun with him that day.
7
meaning Appellant wanted to fight Banks “one on one.” Banks
responded, “all right” and started driving towards Appellant’s
house.
According to Jefferies, she asked Banks to drop her off before
he went to Appellant’s house, but Banks said he “just going to go
ahead and go up here and see what [Appellant] wants.” Jefferies
testified that, when they arrived at Appellant’s house around 1:00
or 2:00 p.m., they did not see Appellant outside the house. So, Banks
drove a short distance away and called Appellant, telling him, “[Y]ou
called me up here, come outside.” Banks then drove back to
Appellant’s house and parked the car at the intersection adjacent to
it. Smith was sitting in the front passenger seat, and Jefferies was
sitting in the backseat behind Banks. The window next to Jefferies
was rolled down.
Jefferies testified that, when they pulled back up to the
intersection, Appellant was standing on the front porch of his house,
“right there by the door,” armed with an AR-15. Banks jumped out
of the car and started “walking fast” into the front yard of
8
Appellant’s house. Jefferies saw Banks lift up his shirt and beat on
his chest, saying to Appellant, “You need to check my résumé.”
According to Jefferies, as Banks approached Appellant’s front porch
from the yard, Appellant told Banks to “step back.” Banks testified
that he turned around at this point because—although Appellant
had told him “to pull up and fight”—Appellant had a gun, so Banks
was not “fixing to get into it with [Appellant].”
According to Banks and Jefferies, as soon as Banks turned
around and started walking back towards the car, Appellant started
shooting, hitting Banks in the back of his right leg. 3 Banks fell to
the ground. Jefferies testified that Smith got out of the car on the
passenger side to check on Banks, and as Smith started walking
around the back of the vehicle, Appellant shot her twice—once in the
arm and once in the chest.4 Smith grabbed her chest and said to
Jefferies, who was still seated in the backseat, “[H]e done shot me.
3 An orthopedic surgeon testified that the bullet shattered Banks’s right
femur and then exited his right leg on the groin side, grazing his left leg.
4 The record reflects that when Banks was shot, he fell to the ground
about 78 feet from the front porch of Appellant’s house, and when Smith was
shot, she fell about 93 feet from the front porch of Appellant’s house.
9
Call the police.” Smith slid to the ground beside the car. 5
Jefferies testified that she remained in the backseat of the car
during the shootings, “praying that she would not get shot.” Several
of the gunshots struck the car near where Jefferies was seated.
After Smith was shot, Jefferies heard Appellant say, “[W]hoever in
the back seat need to step out” because “he was fixing to get ready
to shoot[] up the car.” Jefferies also overheard Appellant’s friend,
Still, who was standing on the front porch with Appellant, tell
Appellant to shoot her and “leave no witnesses.” As Jefferies
stepped out of the car, she looked down at Smith’s body and saw that
her chest was soaked with blood and she was not moving. Banks
asked Jefferies what was going on, and she told him that Smith was
dead. Jefferies testified that she and Appellant are cousins, and
when she stepped out of the car, she could tell Appellant recognized
her. Jefferies then heard Appellant ask one of his friends for a phone
to call the police.
5 The medical examiner testified that Smith died from a gunshot wound
of the chest.
10
The police arrived at the scene several minutes later. Jefferies
did not approach the police, but instead, walked to a nearby
relative’s house because she was “in shock mode.” Emergency
medical personnel also arrived on the scene shortly thereafter and
transported Banks to the hospital. The police located Appellant’s
AR-15—the only weapon found at the scene—and nine shell casings
just inside the front door and on the front porch of Appellant’s
residence. Appellant was arrested and taken into custody.
During Appellant’s custodial interview, the police asked him
what “led up” to the shootings, and Appellant told the police that,
earlier that day, he called Banks and “asked him was he going to
give [Appellant] [his] stuff—[his] money back. And [Banks] started
talking sh**.” Appellant explained that, two weeks prior to the
shootings, Banks had “snatched all [Appellant’s] money and ran out
of the house,” and since that time, Banks had “been looking for
[Appellant],” “talking sh**” to Appellant and his “momma,” and
“threatening [Appellant’s] little brother.” Appellant said that,
“every other day ever since [the robbery] happened,” Banks would
11
“ride up and down the street” where Appellant lived and follow
Appellant, once forcing Appellant to hide in the back room of his
cousin’s house. Appellant said he “really felt threatened” and “like
[his] back was against the wall.” The police asked Appellant why he
did not contact them “when [Banks] robbed [Appellant] a couple
weeks ago,” and Appellant responded that he did not “want to see
nobody get in trouble” and “just want[ed] [his] money back.”
Appellant told the police that he was “tired of it” and decided
to call Banks about getting the money back. Appellant said when
he called Banks earlier that day, Banks “started getting irate on the
phone.” And, when Banks pulled up to Appellant’s house and
jumped out of the car, Appellant knew he had to “protect [him]self,”
explaining that “[Banks] was going to hurt [Appellant] or
[Appellant] was going to hurt [Banks].” And “[Appellant] wasn’t
going to let [Banks] hurt [him].” As Banks was “coming down the
yard” and “walking toward” Appellant, Appellant “opened the door
and step[ped] out with the gun and point[ed] it at [Banks].” When
Banks “kept walking up,” Appellant “shot,” and when Smith got out
12
of the car, Appellant “shot over there, too.” Appellant “just shot
[until] it wouldn’t shoot no more.” Appellant admitted that he did
not see Banks or Smith with a gun that day and had, in fact, never
seen them with a gun before. Appellant also acknowledged that
Banks was not close to him when Appellant started shooting at
Banks.
At trial, Banks and Jefferies testified that neither Banks nor
Smith was armed at the time of the shootings—Jefferies confirmed
that the only gun she ever saw on Banks was the one he dropped off
earlier in the day before arriving in Rutledge. According to Jefferies,
Banks “never fired no shots,” and Appellant “never fired no shots
until Banks turned his back,” and “that’s when [Appellant] started
firing the shot.” Jefferies said that Banks wanted “to fight,” but
Appellant wanted “to shoot.”
1. On appeal, Appellant contends that the evidence was
insufficient to authorize a rational trier of fact to find him guilty
beyond a reasonable doubt of all the charges of which he was
convicted. When evaluating challenges to the sufficiency of the
13
evidence as a matter of constitutional due process, “the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781,
61 LE2d 560) (1979) (emphasis in original). “This Court views the
evidence in the light most favorable to the verdict, with deference to
the jury’s assessment of the weight and credibility of the evidence.”
Sams v. State, 314 Ga. 306, 309 (2) (875 SE2d 757) (2022) (citation
and punctuation omitted). Applying this standard, we conclude that
the evidence was sufficient to support Appellant’s convictions, and
thus, Appellant’s challenges—discussed in more detail below—are
without merit. See id.
(a) Aggravated Assault Against Jefferies and Related Charge
Appellant contends that the evidence was legally insufficient
to support his convictions for aggravated assault against Jefferies
and the related charge of possession of a firearm during the
commission of a felony. In support thereof, Appellant argues that,
14
while the evidence established that gunfire struck the vehicle in
which Jefferies was seated, the evidence did not show that Appellant
pointed the AR-15 directly at Jefferies or establish the specific area
of the car where Appellant pointed his weapon. Additionally,
Appellant argues that Jefferies never testified to being in fear of her
safety or her life or to being in reasonable apprehension of
immediately receiving a violent injury. And Appellant contends
that, because Jefferies left the scene after the shootings occurred
without speaking to the police, a reasonable hypothesis exists that
she did not believe a crime had been committed against her.
A person commits the offense of aggravated assault
[under OCGA §§ 16-5-20 and 16-5-21] when he uses a
deadly weapon to commit an act which places another
person in reasonable apprehension of immediately
receiving a violent injury. Whether a victim has been
placed in reasonable apprehension of injury is a question
of fact, which may be established by indirect or
circumstantial evidence. The presence of a deadly weapon
would normally place a victim in reasonable
apprehension of being injured violently.
Stewart v. State, 299 Ga. 622, 626 (2) (a) (791 SE2d 61) (2016)
(citation and punctuation omitted).
15
In this case, Jefferies testified extensively about witnessing
Appellant shoot Banks and Smith, while “praying that she would
not get shot.” Jefferies also testified that Appellant told her to get
out of the car because he “was fixing to get ready to shoot[] [it] up.”
When Jefferies exited the car, she had to step over Smith’s body, and
she overheard Appellant’s friend tell him to shoot her so there would
be no witnesses. The State also presented evidence that several
gunshots struck the driver’s side of the vehicle close to the area
where Jefferies was seated.
A jury could infer from this evidence that Jefferies was placed
in “reasonable apprehension of immediately receiving a violent
injury.” OCGA § 16-5-20 (a) (2). Therefore, the evidence was
“sufficient to prove the aggravated assault,” as well as the
possession of a firearm during the commission of a felony predicated
on that aggravated assault. Stewart, 299 Ga. at 626 (2) (a) (citation
omitted).
(b) Felony Murder and Related Charges
Appellant also contends that the evidence was insufficient to
16
support his convictions for felony murder, aggravated assault,
aggravated battery, and possession of a firearm during the
commission of a felony because there was evidence presented to
show that, when Appellant shot Banks and Smith, he was acting in
self-defense or as a result of a sudden, violent, and irresistible
passion, resulting from the victims’ serious provocation and
repeated attempts to confront Appellant. We disagree.
“A person is justified in threatening or using force against
another when and to the extent that he or she reasonably believes
that such threat or force is necessary to defend himself or herself or
a third person against such other’s imminent use of unlawful force.”
OCGA § 16-3-21 (a). However, “[a] person is justified in using force
which is intended or likely to cause death or great bodily harm only
if he or she reasonably believes that such force is necessary to
prevent death or great bodily harm to himself or herself or a third
person or to prevent the commission of a forcible felony.” Nelson v.
State, 283 Ga. 119, 120 (1) (657 SE2d 201) (2008) (citing OCGA § 16-3-21 (a)). “A homicide is not justified if the force used by the
17
defendant exceeds that which a reasonable person would believe was
necessary to defend against the victim’s unlawful act.” Id. (citations
and punctuation omitted). The evidence in this case was more than
sufficient for the jury to reject Appellant’s assertion that he was
acting in self-defense when he shot Banks and Smith.
No evidence was presented to show that, at the time of the
shootings, Banks or Smith was armed or that Appellant was
otherwise in danger of the “imminent use of unlawful force” which
was “likely to cause death or great bodily harm.” OCGA § 16-3-21
(a). In fact, Appellant told the police that he did not see Banks or
Smith with a gun that day, and the only weapon found at the scene
was the AR-15 used by Appellant. The evidence showed that, when
the shooting occurred, Banks was not within close range of
Appellant—who never left his front porch—and Banks was walking
back towards his car. Similarly, Smith was not threatening
Appellant in any way at the time he shot her. Accordingly, the jury
was authorized to reject Appellant’s justification defense in this
case.
18
The jury was also authorized to reject the theory that
Appellant was acting as a result of a sudden, violent, and irresistible
passion when he shot Banks and Smith. See OCGA § 16-5-2.6 In
this case, the trial court charged the jury on voluntary manslaughter
and instructed the jury that, “if after consideration of all the
evidence and before you would be authorized to return a verdict of
guilty of malice murder or felony murder, you must first determine
whether mitigating circumstances, if any, would cause the offense
to be reduced to voluntary manslaughter.” The jury apparently
found no such mitigating circumstances present here, and the
evidence was sufficient to support that finding. See Watkins v.
6 Pursuant to OCGA § 16-5-2 (a),
[a] person commits the offense of voluntary manslaughter when he
causes the death of another human being under circumstances
which would otherwise be murder and if he acts solely as the result
of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable
person; however, if there should have been an interval between the
provocation and the killing sufficient for the voice of reason and
humanity to be heard, of which the jury in all cases shall be the
judge, the killing shall be attributed to deliberate revenge and be
punished as murder.
19
State, 313 Ga. 573, 576 (2) (872 SE2d 293) (2022).
As noted above, the evidence showed that Banks and Smith—
who were unarmed—did not engage in any “provocation sufficient to
excite” a “sudden, violent, and irresistible passion” in Appellant
when the shootings occurred. Ware v. State, 303 Ga. 847, 849-850
(III) (815 SE2d 837) (2018). Banks was retreating from Appellant’s
yard at the time Appellant shot him, and Smith was simply getting
out of the car—presumably to check on Banks. And, the prior
difficulties between these parties were insufficient to demonstrate
provocation in this case. See Francis v. State, 296 Ga. 190, 193 (2)
(766 SE2d 52) (2014) (holding that “words alone generally are not
sufficient provocation to excite the passion necessary to give rise to
voluntary manslaughter”).
Accordingly, after properly viewing the evidence in the light
most favorable to the verdicts, we conclude that the evidence was
sufficient under the Jackson standard for a jury to find Appellant
guilty beyond a reasonable doubt of all the crimes of which he was
convicted. See Jackson, 443 U.S. at 319 (III) (B). See also Boyd v.
20
State, 306 Ga. 204, 207 (1) (830 SE2d 160) (2019).
2. Appellant also contends that the trial judge erred by not
recusing himself from this case, alleging that certain of the trial
judge’s comments and conduct during trial demonstrated a lack of
impartiality and a bias in favor of the State. We see no merit to this
contention.
First, Appellant asserts that, after the State rested its case, the
trial judge interjected during trial counsel’s direct examination of
witnesses—often without any objection from the State—but did not
interject when the State was examining witnesses on direct or cross.
Appellant argues that the trial judge’s interjections during only the
defense portion of the case could have made Appellant’s witnesses
look less credible in the eyes of the jury. Appellant cites to numerous
pages of the trial transcript where the trial court made comments
during Appellant’s examination of witnesses, but does not argue
that any specific comments, by themselves, demonstrated a bias in
favor of the State.
Appellant also claims that two specific instances during trial
21
demonstrated the trial judge’s bias in favor of the State. The first
alleged instance occurred during the charge conference—outside the
presence of the jury—when Appellant asked the trial judge to give
the following jury charge defining “forcible felony”: “A forcible felony
is any felony that involves the use or threat of force or violence
against any person. (Insert name of offense) is a felony, defined as
follows: (Give Definition of Felony).” Appellant argued that this
charge was appropriate to explain to the jury that, if it found the
victims were attempting to inflict a “forcible felony” on Appellant,
the jury could find Appellant “not guilty based upon self-defense.”
The State argued that this charge did not adequately define any
offense, and Appellant responded that the trial judge could insert
the name of any felony in this case—murder, felony murder,
aggravated assault, etc.—as they were all potentially applicable to
what the victims were attempting to inflict upon Appellant.
The trial judge disagreed, explaining that, in the context of the
evidence presented at trial, it was not clear which offense should be
included and defined in the requested instruction. The trial judge
22
stated, “There was a threat of fight, that’s the most I feel you could
say, counsel. I know what you’re arguing. Lucky for you I’m not on
this jury, I don’t buy it, and what they buy is on them.” Then, after
hearing again from both parties, the trial judge declined to “define a
forcible felony in this case,” stating,
I think given the convoluted nature of the facts that have
been presented in this case the only way if I give this I am
in some way I feel commenting, maybe not commenting,
but at least inserting, the Court’s—as it relates to it. You
can argue all you wish as it relates to that. And to me that
term is not one that needs a definition. Any forcible
felony. You can talk about that all day long. You know,
assaults, battery, you know, all the way up to murder and
everything in between that would have occurred there as
well.
Appellant then inquired of the trial judge, “So by not giving it
you’re not in any way limiting my ability to make those arguments
to the jury?” The trial judge responded, “No, that’s what your whole
argument is; am I right?”
The next alleged instance of bias took place when the jury
returned the verdicts and the trial judge reviewed the verdict form.
The trial judge observed that the jury failed to render a verdict on
23
one of the gun possession counts, so the trial court returned the
verdict form to the foreperson, stating, “You’ve got a count you did
not complete. It’s just the third page back there, and sign it for me.
Probably won’t take but a second[.]”
Appellant contends that the trial judge’s interjections during
trial counsel’s examination of witnesses and his comments on
Appellant’s requested jury charge showed partiality and bias in
favor of the State, and thus, the trial judge should have recused
himself, citing Johnson v. State, 278 Ga. 344, 348 (3) (602 SE2d 623)
(2004) (noting that trial judges are bound to recuse themselves
whenever their impartiality might reasonably be questioned).
Appellant also contends that the trial judge’s comment to the jury
that it would only take “a second” to complete the verdict form was
“a direct statement on the guilt of the accused” and clearly showed
a lack of impartiality by the trial judge. We disagree.
As an initial matter, the record shows that, at the time of trial,
Appellant “was aware of the circumstances that, he says on appeal,
evidence the partiality of the judge.” Pyatt v. State, 298 Ga. 742, 749
24
(5) (784 SE2d 759) (2016). Even so, Appellant did not object to any
of the trial judge’s conduct or comments during trial and “filed no
motion to recuse the trial judge.” Id.
“Generally speaking, ‘[w]hen a party learns of grounds for the
potential disqualification of the judge, he must promptly move for
the recusal of the judge, and if he does not, the question of
disqualification is not preserved for appellate review.’” Pyatt, 298
Ga. at 749 (5) (quoting State v. Hargis, 294 Ga. 818, 821 (1) (756
SE2d 529) (2014)). Here, however, Appellant “waited until after he
had been tried, convicted, and sentenced to raise the recusal issue,
which he first asserted in his []amended motion for new trial.”
Battle v. State, 298 Ga. 661, 666 (2) (a) (784 SE2d 381) (2016). See
also Butts v. State, 273 Ga. 760, 762 (3) (546 SE2d 472) (2001) (“We
find that the issue of the trial judge’s alleged error for failing to
recuse herself is waived because Butts and his trial counsel failed to
raise the issue at or before trial.”). Accordingly, “[u]nder our
precedents, [Appellant] has failed to preserve any claim of error
about the partiality of the trial judge for appellate review.” Pyatt,
25
298 Ga. at 750 (5).
However, “[e]ven assuming [a] trial judge’s failure to recuse
could in a rare instance constitute reversible error even though the
parties knew of the grounds for recusal but did not make a motion,
there is no reversible error here.” Barnett v. State, 300 Ga. 551, 554
(2) (796 SE2d 653) (2017). “Judges shall disqualify themselves in
any proceeding in which their impartiality might reasonably be
questioned.” Id. But the record in this case shows there was no such
partiality here.
First, as to Appellant’s contention that the trial judge
improperly interjected himself during trial counsel’s questioning of
witnesses—allegedly demonstrating partiality in favor of the
State—that contention is unsupported by the record. The record
reflects that, throughout the trial and during both parties’
questioning of witnesses, the trial judge interjected only when
necessary to prevent the solicitation of hearsay testimony or the
leading of witnesses, among other things.
“It is the duty of the trial [judge] to control the trial of the case
26
and to ensure a fair trial to both sides on the disputed issues in the
case[,]” and “[s]ometimes this requires interference by the court with
the conduct of counsel.” Bonner v. State, 295 Ga. 10, 15 (3) (757
SE2d 118) (2014) (citation and punctuation omitted). Appellant has
not shown that the trial judge’s interjections were anything other
than the use of the trial court’s discretion to ensure that the
proceedings were “orderly and fair” and that the “rules of evidence
and procedure [were] followed.” Johnson, 278 Ga. at 348. See also
Smith v. State, 297 Ga. 268, 270 (2) (773 SE2d 269) (2015) (“[A] trial
court has considerable discretion to control the trial of the case to
ensure a fair trial and the orderly administration justice.”).
Additionally, the trial judge’s denial of Appellant’s request to
charge the jury on the definition of forcible felony occurred during
the charge conference outside the presence of the jury. And the
record does not reflect and Appellant has not shown that this ruling
demonstrated any partiality on the part of the judge or any bias on
his part in favor of the State. “Judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” Barnett, 300
27
Ga. at 555 (2) (citation and punctuation omitted).
With respect to the trial judge’s statement when he advised the
jury that it needed to complete a count on the verdict form—i.e., that
it “[p]robably won’t take but a second”—the most reasonable way to
construe this statement, when read in context, is that the trial judge
was instructing the jury to complete an administrative task—i.e., to
finish filling out the verdict form that the jury had already discussed
one way or another. Appellant has failed to offer any evidence
supporting an alternate reading, and he has not shown—and the
record does not demonstrate—that this statement was in any way
motivated by any alleged bias in favor of the State or was a violation
of the trial judge’s duty to maintain his impartiality. See Barnett,
300 Ga. at 554-556 (2).
As to any allegation that Appellant was “denied a trial before
a fair and impartial judge in violation of the constitutional
guarantee of due process,” the record in this case “discloses no actual
bias and involves no circumstance that has been recognized as
presenting an intolerably high probability of actual bias.” Pyatt, 298
28
Ga. at 752-753 (5). “The law presumes honesty and integrity on the
part of those serving as adjudicators, and [Appellant] has failed to
overcome the presumption in this case.” Id. at 753 (citation and
punctuation omitted).
3. Finally, Appellant contends that the trial court “erred by
allowing improper extrinsic evidence to be presented at trial,” citing
Jackson v. State, 306 Ga. 69 (829 SE2d 142) (2019). This contention
fails.
In a pretrial motion in limine, Appellant moved to exclude any
evidence or testimony related to the alleged use, sale, or purchase of
illegal substances on Appellant’s part, and at the pretrial hearing,
Appellant requested that “the State not be allowed to bring up []
uncorroborated allegations by Quantavious Banks that there was
some kind of drug sale or drug activity being conducted by
[Appellant].” In response, the State argued that the specific drug
transaction between Appellant and Banks that Appellant sought to
exclude was intrinsic to the crime because it initiated the dispute
between Appellant and the victims, and so, “even if it incidentally
29
might place any character issues on the table,” the evidence was
admissible. The trial court agreed and denied Appellant’s motion in
limine, concluding that this evidence was intrinsic to the crimes.
On appeal, Appellant contends that the trial court erred in
allowing this evidence to be presented at trial because the charges
in this case were “associated with the shooting death of [Smith],”
and evidence that Appellant “sold or used marijuana could not make
any material fact surrounding the death of [Smith] more probable,
therefore making the evidence irrelevant.” Appellant also contends
that this evidence “reflected highly negatively on Appellant’s
character,” and that, “[e]ven if the [trial court] was correct in finding
the evidence relevant, the evidence should have been excluded due
to its extreme prejudicial value.”
Appellant’s contention that evidence of the drug transaction
between Appellant and Banks was “improper extrinsic evidence” is
incorrect. “The limitations and prohibition on ‘other acts’ evidence
set out in OCGA § 24–4–404 (b)7 do not apply to intrinsic evidence.”
7 Pursuant to OCGA § 24-4-404 (b):
30
Williams v. State, 302 Ga. 474, 485 (IV) (d) (807 SE2d 350) (2017)
(citation and punctuation omitted). “Evidence is admissible as
intrinsic evidence 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
intertwined with the evidence regarding the charged offense.” Id.
(citation and punctuation omitted).
In applying these factors, this Court has explained that
[e]vidence 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 of the crime for the jury. Evidence of other acts
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. Notice shall not be required when the
evidence of prior crimes, wrongs, or acts is offered to prove the
circumstances immediately surrounding the charged crime,
motive, or prior difficulties between the accused and the alleged
victim.
31
is inextricably intertwined with the evidence regarding
the charged offense if it forms an integral and natural
part of the witness’s accounts of the circumstances
surrounding the offenses for which the defendant was
indicted. And this sort of intrinsic evidence remains
admissible even if it incidentally places the defendant’s
character at issue.
Heade v. State, 312 Ga. 19, 24-25 (3) (860 SE2d 509) (2021),
(citations and punctuation omitted). Moreover, “[t]here is no
brightline rule regarding how close in time evidence must be to the
charged offenses, or requiring evidence to pertain directly to the
victims of the charged offenses, for that evidence to be admitted
properly as intrinsic evidence.” Id. at 25 (3) (citation and
punctuation omitted).
The story of this case began with a drug transaction. The
evidence showed that, when Banks paid Appellant for marijuana
that he did not receive and then, in retribution, took from Appellant
either money or marijuana that Banks did not pay for, a dispute
arose between these men that festered, leading to the shootings of
Banks and Smith. And, during Appellant’s custodial interview with
the police, he discussed this dispute at length, confirming that it
32
started when Banks took Appellant’s “stuff” or “money” and
escalated over the next two weeks as threatening exchanges and
encounters occurred, directly resulting in the shootings of Banks
and Smith. As such, Appellant’s own statements rendered this
evidence intrinsic.
This evidence was “necessary to complete the story of the crime
for the jury,” Heade, 312 Ga. at 24-25 (3), and to explain why
Appellant and Banks were engaged in an ongoing feud that led to
the shootings. The evidence was also “inextricably intertwined with
the evidence” regarding the crimes for which Appellant was indicted
because it formed “an integral and natural part” of Appellant’s
account of the circumstances surrounding the crimes and explained
how the dispute between Appellant and Banks originated. Id. at 25
(3). Without evidence of the initial drug transaction and Banks’s
theft of marijuana or money from Appellant afterwards, there would
be no explanation for the dispute between Appellant and Banks and
for the subsequent threats and confrontations that took place—
33
about which Appellant’s friends and family members testified
extensively. See id.
Accordingly, we conclude that evidence of the drug transaction
was relevant and “properly admitted as intrinsic evidence, so we
need not address its potential admission as extrinsic evidence under
Rule 404 (b).” Heade, 312 Ga. at 24 (3). See also Smith v. State, 307
Ga. 263, 272 (2) (c) (834 SE2d 1) (2019) (“[B]ecause the evidence was
intrinsic, it was outside the reach of Rule 404 (b).” (citation and
punctuation omitted)). And, while “[r]elevant 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,” OCGA § 24-4-403, “there is no
mechanical solution for this balancing test.” State v. Jones, 297 Ga.
156, 163 (3) (773 SE2d 170) (2015).
Instead, 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
34
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.
Id. at 175-176 (citation and punctuation omitted). “We have
explained that this balance should be struck in favor of
admissibility,” Heade, 312 Ga. at 25 (3), and in this case, the
testimony concerning the drug transaction was highly probative and
necessary to explain the context of the crime. See Hughes v. State,
312 Ga. 149, 153 (1) (861 SE2d 94) (2021).
Although Appellant’s character might have incidentally been
placed at issue by evidence that he sold drugs, any prejudicial
impact Appellant suffered as a result of the admission of this
evidence did not outweigh its probative value under OCGA § 24-4-403. In fact, Appellant relied upon this botched drug transaction
and the ensuing dispute to attempt to justify the shootings in this
case. Accordingly, we hold that the trial court did not abuse its
discretion in finding that evidence of the drug transaction was
admissible.
Judgment affirmed. All the Justices concur.
35