CourtListener 10846043

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: February 3, 2026

S25A1464. BIGGS v. THE STATE.

ELLINGTON, Justice.

Jalen Shakur Biggs appeals his conviction for malice murder

in connection with the shooting death of Keith Basham. 1 Biggs

contends that the trial court abused its discretion by excluding

evidence that Basham had assaulted the mother of Biggs’s fiancée

and erred by refusing to give a jury instruction on voluntary

manslaughter. Because the trial court abused its discretion in

Basham was killed on February 22, 2021. On March 23, 2021, a
1

Haralson County grand jury indicted Biggs for malice murder, felony murder,
and aggravated assault. After a jury trial that ended on November 2, 2023,
Biggs was found guilty on all counts. On January 8, 2024, Biggs was sentenced
to serve life in prison without the possibility of parole for malice murder. The
felony murder count was vacated by operation of law, and the aggravated
assault count was merged into the malice murder conviction for sentencing
purposes. Biggs filed a timely motion for new trial, which he amended on
January 31, 2025. The trial court denied Biggs’s amended motion for new trial
on May 23, 2025. Biggs filed a timely notice of appeal, and the case was
docketed in this Court to the August 2025 term and submitted for a decision
on the briefs.
excluding the victim’s prior violent act under OCGA § 24-4-403

(“Rule 403”), we vacate the trial court’s order denying Biggs’s motion

for new trial and remand the case with direction.2

1. Evidence at Trial

As summarized below, the evidence presented at trial showed

that Biggs and his fiancée Miranda Bell drove from South Carolina

to Basham’s house in Haralson County to pick up April Oubre – who

was Bell’s mother and Basham’s girlfriend – and her belongings.

While Oubre, Bell, and Biggs were arguing with Basham, Biggs shot

and killed Basham and left with Oubre and Bell. Biggs testified at

trial in support of his defense of justification.

Basham lived with Oubre at his uncle’s house. When Basham’s

uncle came home from work around 4:30 p.m. on February 22, 2021,

he found Basham lying dead in the carport. The cause of death was

two gunshot wounds to the torso from a distant or indeterminate

2 We do not address Biggs’s enumeration of error related to the trial

court’s omission of a jury charge on voluntary manslaughter, but he may raise
this enumeration again in a renewed appeal if the trial court again denies
Biggs’s motion for new trial. See Kitchens v. State, 322 Ga. 169, 169 n.2 (2025);
Welbon v. State, 301 Ga. 106, 111 n.5 (2017).
2
range. No weapon of any sort was found with or near Basham, but

two shell casings were found in the driveway.

Surveillance video footage from the house showed the following

over the course of about five minutes. Around 4:00 p.m. that day, a

woman later identified as Oubre was taking things out to the edge

of the road, and a red vehicle backed into the driveway but parked

close to the road. Two persons – a woman later identified as Bell and

a man who was driving the vehicle and was later identified as Biggs

– exited the vehicle and began loading it. They yelled back toward

the house, and Bell got a baseball bat from the vehicle. Biggs walked

around Oubre and toward the carport. A man in the carport later

identified as Basham was gesticulating and, as he then began to

move from the carport toward Biggs, Biggs pulled out a gun and

fired twice. During the brief time that Basham appeared in the

video, his empty left hand could be seen. Although Basham’s right

hand or its shadow could be seen after Biggs began walking toward

him, it could not be seen immediately before the shooting. After the

shooting, Biggs, Oubre, and Bell entered the vehicle and left.

3
Later that day, police located Biggs, Oubre, and Bell in a red

Ford Escape in Anderson, South Carolina, and Biggs was arrested

at that time. The vehicle was registered to Biggs and contained a

bat on the passenger side and a Smith & Wesson .40-caliber semi-

automatic pistol that was between the driver’s seat and the console

and that matched the two shell casings at the scene and a projectile

recovered during the autopsy of Basham.

At trial, Biggs testified as follows. He and Bell arrived at the

scene around 4:00 p.m. and parked next to Oubre’s belongings on

the side of the road. Oubre was getting her things from the carport,

and Basham was on the front porch yelling and cursing at her. After

exiting his car, Biggs walked to the side of the car to urinate and

afterward began petting a dog that came up. Basham went inside,

came to the carport door, and told Oubre that he was going to kill

her for leaving him and also kill her “b***h daughter,” but Biggs was

not paying attention, was just trying to leave, and did not think

anyone was in imminent danger of violence at that point. Basham

then accused Biggs of “taking [Oubre] away from him,” but Biggs

4
said that he was not there to argue and that they were about to

leave. As Oubre was saying she “need[ed] to go to the hospital,”

Basham said, “I’m going to kill you, n****r,” and he started coming

toward Biggs. Biggs “instantly feared for [his] life and [Oubre’s] life,”

so he got in front of Oubre so that she would not be harmed, and he

took 11 steps toward Basham. Basham again said “that he was going

to kill” Biggs and also said he knew Biggs had a gun on him but did

not care. Basham did not have a weapon in his hands, but when he

got to the edge of the carport, he said, “I got something for your a**,”

and reached into his pocket for what Biggs believed was a gun.

Basham put his hand in his pocket, which Biggs saw as a “threat of

force,” and never took his hand out, and there was a bulge in his

pocket that looked like a gun. Biggs feared Basham was going to kill

him at that moment, pulled his gun, and shot in Basham’s direction.

Biggs did not see any blood or see Basham fall, so he thought he had

not hit Basham. He, Oubre, and Bell left to take Oubre to the

hospital, but Oubre said she wanted to go to a hospital closer to their

house in South Carolina, so he took her to a hospital in Anderson.

5
2. Arguments of the Parties and Rulings of the Trial Court

Biggs contends that the trial court abused its discretion by

excluding, under Rule 403, evidence that Basham had assaulted

Oubre earlier on the day of the shooting, including testimony that

this assault was the reason Biggs went to Basham’s house to pick

up Oubre. Biggs also contends that this evidence was relevant and

admissible either as intrinsic evidence or under OCGA § 24-4-404(b)

(“Rule 404(b)”). But the trial court did not rule on whether the

evidence was intrinsic in nature or whether it came within the

requirements of Rule 404(b). Instead, it ruled only that evidence of

Basham’s assault on Oubre failed the balancing required by Rule

403. After thoroughly reviewing the record, we conclude that the

trial court abused its discretion under Rule 403.

Prior to trial, the court denied a motion in limine filed by the

State to exclude such evidence, concluding that Biggs, upon making

out a prima facie case for defense of self or others, would be

authorized to present evidence of specific instances of Basham’s

violent conduct – known to Biggs at the time he shot Basham – to

6
prove Biggs’s state of mind “that could have factored into the

decision making process that resulted in his fatally shooting …

Basham.” Also before trial, the court denied a motion filed by Biggs

for a continuance to secure the attendance of absent out-of-state

witnesses Oubre and Bell.

During Biggs’s testimony at trial, the trial court ruled that

Biggs had presented a prima facie case of self-defense. But the trial

court subsequently stated that it did not anticipate Biggs’s

testimony that he had “ignored” Basham’s arguments and threats

until Basham “directed” them at Biggs. The trial court further

stated that in fairness to both sides, the only testimony that could

be fairly elicited about Biggs’s state of mind would relate to the

victim’s prior criminal convictions because otherwise the door would

be opened for defendants to “make anything up.” The trial court

ruled that under Rule 403, the probative value of any evidence of

specific violent acts by Basham to show Biggs’s state of mind would

be substantially outweighed by the danger of unfair prejudice,

confusion of the issues, and misleading the jury.

7
Thereafter, the trial court specifically allowed the State to

introduce, for impeachment purposes on cross-examination of Biggs,

a stipulated recording of a 911 call that Biggs made upon returning

to South Carolina. Although the State argued that playing the whole

recording would circumvent the court’s ruling that excluded

evidence of Basham’s assault on Oubre, the trial court ruled that the

entire recording would be played, including the portion where Biggs

explained that he went to pick up Oubre because she had been

beaten by Basham and that Biggs rushed her to the hospital. The

trial court stated, however, that “there will be no follow-up questions

from the defense or the State or any testimony from … Biggs as to

any of the allegations he made about why he came to Haralson

County” and that the jury would “hear it and I expect that will be

the last that’s said of it.” Defense counsel then expressed his intent

to comply with the trial court’s ruling by neither presenting any

more testimony nor referring to Basham’s prior assault against

Oubre during closing argument.

The recording of the 911 call was in fact played for the jury. In

8
the call, Biggs told the operator, among other things, that he and his

fiancée went to pick up her mom, who had called him “frantically”

that morning about her “getting … beat on by her boyfriend”; that

“she rushed to get me over there to come save her and pick her up”;

that Basham threatened everyone and “kept running toward” him

even after Biggs fired a warning shot; and that he “just rushed her

mom to the hospital because she’s pretty beaten, kind of badly.”

The trial court revisited the issue in its order denying Biggs’s

motion for new trial. Although the court extensively quoted

applicable law and reviewed the parties’ argument, it assumed for

purposes of its analysis that the evidence at issue was intrinsic and

that this Court would eventually hold that a victim’s prior bad acts

are admissible under OCGA § 24-4-404 (“Rule 404”)3 to establish the

defendant’s state of mind and the reasonableness of his use of force.4

3 The trial court acknowledged this Court’s holding that, because a
victim’s violent character is not an essential element of self-defense, evidence
of specific instances of the victim’s conduct may not be admitted under OCGA
§ 24-4-405(b) (“Rule 405(b)”). Wood v. State, 320 Ga. 466, 470 (2024).

4 The trial court explained that “[t]his Court has reserved the question

9
The trial court assumed specifically that the evidence that Basham

committed an act of family violence by physically assaulting Oubre

earlier on the day of his death was not barred by Georgia law and

was relevant. The trial court found, however, that this evidence did

not pass the requirements of Rule 403 because its probative value

was weak. Noting that neither Bell nor Oubre testified or even

appeared at trial, the trial court found that, if Biggs established his

knowledge at the time of the fatal shooting that Basham had

physically abused Oubre before Biggs started his six-hour drive to

Basham’s house, Biggs’s behavior at the murder scene as well as

Oubre’s actions – as seen by the jury in the video evidence – and

Biggs’s trial testimony greatly diluted the probative value of the

proffered “specific acts” evidence. 5 The trial court then found that

whether prior acts of violence by a victim could be admitted if they are relevant
to a purpose other than to prove the victim’s ‘character ... in order to show
action in conformity therewith.’” Wood, 320 Ga. at 470 n.5 (quoting Rule
404(b)).

5 The trial court specified that it considered the following admissible

evidence: Oubre’s trips to move her belongings to the driveway were unhurried,
without limping, and with no apparent difficulty, and she talked on a cell
phone and acted as if she was not arguing with or threatened by anyone; while

10
the weak probative value of the “specific acts” evidence was

substantially outweighed by the danger of unfair prejudice to the

victim and to the State’s case, confusion of the issues, and

misleading the jury, and by considerations of undue delay and waste

of time. The trial court concluded in its order denying Biggs’s motion

for new trial “that it did not err by excluding the domestic-violence

evidence that … Basham assaulted … Oubre the day that Biggs

fatally shot him.”

3. Rule 403

Basham was in the carport, Biggs urinated next to his car with his back toward
the victim; Biggs calmly helped load Oubre’s belongings with his back to the
victim; Biggs took time to pet the dog with his back to the victim, and at least
one of the women also petted the dog; Biggs took 11 steps towards Basham
before quickly pulling his loaded pistol from his rear waistband and
immediately shot Basham; no weapon of any type was found on or near
Basham; Basham’s empty hands were seen on the security video in the final
moments before Biggs shot him; after the shooting, Biggs immediately walked
back to his car and drove off, leaving Basham alone to die in the carport; Biggs
did not call 911 until he was in South Carolina a couple of hours after he shot
Basham; Biggs’s recorded 911 call is completely contradicted by the
unimpeached video evidence of the shooting; Biggs testified that he was
ignoring Basham at the shooting scene because Biggs is not a confrontational
person and that he had never had an argument with Basham because Basham
never argued; and Biggs’s purported fear of Basham’s potential for violence
toward the two women and him apparently was not significant enough to
motivate him to call 911 before his arrival for police protection while he picked
up Oubre.
11
We turn now to an examination of Rule 403 because Biggs

contends that the trial court abused its discretion by excluding

evidence of Basham’s assault on Oubre under that rule. Regardless

of whether this evidence should be “addressed under Rule 404(b) or

as intrinsic,” the proponent of the evidence must prove that it

“satisfies Rule 403.” Harris v. State, 314 Ga. 238, 266–67 (2022).

Thus, in order to decide whether the evidence satisfies Rule 403, we

need not decide whether it should be analyzed as intrinsic evidence

or as Rule 404(b) evidence. See id. at 267. Rule 403 provides that

“[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.” “In reviewing issues under Rule 403, we look at the

evidence in a light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial impact.”

Coleman v. State, 321 Ga. 476, 481 (2025) (punctuation omitted).

“[I]n close cases, balancing under Rule 403 should be in favor of

12
admissibility of the evidence.” Pike v. State, 302 Ga. 795, 801 (2018).

“[T]he Rule 403 balancing test calls for the exercise of the trial

court’s discretion.” State v. Atkins, 304 Ga. 413, 422 (2018). Although

this discretion generally is “broad,” “it is not unlimited. Such

discretion does not sanction exclusion of competent evidence without

a sound, practical reason.” Id. (quotation marks omitted; citing

precedent of the United States Court of Appeals for the Fifth and

Eleventh Circuits). 6 In this regard, we have said that, “[b]ecause the

primary function of Rule 403 is to exclude matter of scant or

cumulative probative force, dragged in by the heels for the sake of

its prejudicial effect, the trial court’s decision to exclude evidence

under Rule 403 is an extraordinary remedy which should be used

only sparingly.” Rooks v. State, 317 Ga. 743, 757 (2023) (quotation

marks omitted). For this reason, the Eleventh Circuit has described

the trial court’s discretion to exclude evidence under Rule 403 –

6 Because Rule 403 “is modeled on its counterpart in the Federal Rules

of Evidence, we may look to federal appellate precedents interpreting the
pertinent federal rule for guidance in applying the state provision.” Harris, 314
Ga. at 264.
13
unlike its ordinarily broad discretion to admit relevant evidence –

as “narrowly circumscribed.” United States v. Smith, 459 F3d 1276,

1295 (11th Cir. 2006).

4. Probative Value

“The probative value of evidence is a combination of its logical

force to prove a point and the need at trial for evidence on that

point.” State v. Flowers, 320 Ga. 882, 889 (2025) (quotation marks

omitted). The evidence of Basham’s prior assault on Oubre and

Biggs’s knowledge of it explained why Biggs went to Basham’s house

to pick up Oubre and her things, why there was tension between

Basham and the others, and why they would have been arguing at

the time. The evidence was relevant to Biggs’s justification defense,

as he presented a viable prima facie case of self-defense and defense

of others. The surveillance video of the shooting showed Basham

moving directly toward Biggs and did not show what Basham was

doing with his right hand just before Biggs drew his pistol.

Weaknesses in Biggs’s viable justification defense increased his

need to support it with evidence of his mental state and to counter

14
the State’s claim that Biggs acted out of malice instead of a

reasonable fear. Although the trial court relied on Biggs’s admitted

initial lack of fear in excluding the evidence, Biggs could have used

Basham’s attack on Oubre just hours earlier to explain why his fear

for himself and the others developed quickly when, according to

Biggs’s testimony, Basham expanded his threats and reached inside

his pocket.

Given the relevance of Basham’s earlier assault against Oubre

to Biggs’s justification defense, and Biggs’s need to counter the

State’s evidence tending to disprove that defense, the probative

value of the evidence of Basham’s assault against Oubre was

significant. See Ward v. State, 318 Ga. 884, 902 (2024) (assuming

without deciding that Rule 404(b) applies to evidence regarding the

other acts of a victim, a victim’s prior violence may be admissible to

“establish the defendant’s state of mind and the reasonableness of

the defendant’s use of force” (quotation marks omitted)). That

probative value is analogous to that which we have previously

identified when analyzing admission of the State’s evidence of a

15
defendant’s prior acts. See Mills v. State, 320 Ga. 457, 465 (2024)

(holding that the prosecutorial need for evidence that two weeks

earlier the defendant and others had assaulted another person who

disrespected a fellow gang member was significant, given that the

State had to disprove the defendant’s justification defense and his

motive was not otherwise clear); Miller v. State, 320 Ga. 255, 264–

67 (2024) (holding that two prior incidents of domestic violence

between the victim and the defendant had significant probative

value because they explained in the context of their relationship why

he would start shooting when she only said she was leaving him and

he heard a table sliding); Jackson v. State, 315 Ga. 543, 558 (2023)

(holding that evidence of a prior botched drug deal was highly

probative and necessary to explain the context of the crime); Heade

v. State, 312 Ga. 19, 27 (2021) (holding that three prior acts of

defendant were highly probative evidence that explained the context

of the charged crimes); Frazier v. State, 309 Ga. 219, 227 (2020)

(holding that application of the Rule 403 balancing test showed that

the State had a high prosecutorial need for other acts evidence to

16
counter the defense).

5. Danger of Unfair Prejudice

“The prejudicial effect of evidence is ‘unfair’ if the evidence has

the capacity to lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged, or an undue

tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.” Wilson v. State, 315 Ga.

728, 738 (2023) (punctuation omitted). Biggs argues that when a

defendant offers a victim’s prior bad act to support his defense, the

standard for admission is “relaxed,” and “the normal risk of

prejudice is absent.” United States v. Cohen, 888 F2d 770, 776, 777

(11th Cir. 1989). Regardless of whether and to what extent Biggs is

correct, the risk of unfair prejudice in this case was not high. The

disputed evidence was relevant to support Biggs’s state of mind and

his justification defense, and the jury was not likely to acquit Biggs

on the sole basis that Basham had committed domestic violence. See

Thompson v. State, 308 Ga. 854, 860 (2020) (“The other acts evidence

had a prejudicial effect, but no more than was inherent in the prior

17
acts; the evidence was not dragged in by its heels for the sake of its

prejudicial effect.” (quotation marks omitted)); West v. State, 305 Ga.

467, 474 (2019) (recognizing that, if the evidence implicates no

irrelevant or collateral matters, any prejudice arises only from its

probative value).

The State has remained silent about the trial court’s specific

ruling under Rule 403, providing no argument on appeal about

either the probative value of the excluded evidence or the risk of

unfair prejudice. And the trial court did not separately address the

quantum or nature of the potential prejudicial effect, instead

expressly addressing only the perceived weakness of the probative

value of the excluded evidence and concluding that the probative

value therefore was substantially outweighed by the danger of

unfair prejudice. We acknowledge that evidence of Basham’s

violence earlier in the day could have tempted the jury to think that

he deserved retribution. But, in the absence of irrelevant or

collateral matters, it was unlikely that the jury would acquit Biggs

based solely on Basham’s prior violent act. See State v. Burns, 306

18
Ga. 117, 126 (2019) (holding that Rule 403 did not bar admission of

alleged rape victim’s prior false allegation of sexual misconduct

where the probative force of that evidence was not scant and it was

unclear how the prior allegation would inflame the jury’s passions

and inspire an emotional rather than a reasoned decision). Cf.

Gialenios v. State, 310 Ga. 869, 879–80 (2021) (holding that, where

the trial court permitted testimony about the victim’s verbal abuse

of his wife and about how she had conceived the victim’s child, the

court did not abuse its discretion in prohibiting cross-examination

into whether she had used the terms “rape” or “rape baby” because

such evidence was not probative and was overly prejudicial to the

victim by suggesting that he was deserving of death at the hands of

the defendant or someone else). Accordingly, any risk of unfair

prejudice from Basham’s prior violent act toward Oubre did not

substantially outweigh the probative value of that evidence, which,

as discussed above, was explanatory and relevant to Biggs’s prima

facie case of justification.

6. Other “[D]anger[s]” and “[C]onsiderations” under Rule 403

19
In its ruling at trial, the trial court also relied on the dangers

of “confusion of the issues” and “misleading the jury” but did not

explain, nor has the State explained, and we do not see, how

evidence of Basham’s prior assault against Oubre would confuse the

issues or mislead the jury in a way that would substantially

outweigh the probative value of that evidence.

There is no basis for confusion of the issues, as this prosecution

involves one defendant and a single incident, and the victim’s prior

violent act occurred earlier in the day and did not involve the

defendant. See Burns, 306 Ga. at 126 (“[W]ith respect to ‘confusion

of the issue[s],’ this prosecution involves one defendant and a single

incident[.] The false allegation at hand plainly describes an event

involving someone else at a separate time; there is no basis for

confusion.”). There was no evidence that a mini-trial or a “trial

within a trial” would have been required if Basham’s prior assault

of Oubre had been admitted. In that event, Biggs would have been

permitted to testify about his knowledge of the prior incident and to

include that circumstance in his closing argument, and Oubre and

20
Bell were not available to testify. Moreover, neither the trial court

nor the State explained why any confusion of the issues could not be

remedied by jury instructions regarding how and for what purposes

the jury should consider the evidence. See Wilson v. State, 312 Ga.

174, 193–94 (2021) (holding that the probative value of the

appellant’s alleged prior offenses was not substantially outweighed

by the danger of confusion of the issues where evidence of the prior

offenses did not present a “trial within a trial” problem and where

the trial court charged the jury on how it should consider evidence

of the prior offenses and the appellant did not request further

instructions).

As for potentially misleading the jury, the State has not

explained any difference between the basis for the court’s ruling

with respect to confusion of the issues and the basis for its ruling

with respect to misleading the jury. We see no likelihood that

Basham’s prior violent act would have misled the jury regarding its

determination of Biggs’s culpability or that limiting instructions and

the opportunity for cross-examination would not have prevented the

21
jury from being misled. See Harris, 314 Ga. at 294 (rejecting the

argument that any probative value of certain demonstrative

evidence was substantially outweighed by the risk of misleading the

jury where the differences between human sight and the

demonstrative evidence were elicited during cross-examination and

the jury could compare the demonstrative evidence to other evidence

in the case).

In its order denying Biggs’s motion for new trial, the trial court

additionally recited the considerations under Rule 403 of undue

delay or waste of time. As with the dangers under Rule 403 that it

listed, the trial court did not explain, nor do we see, how admission

of Basham’s prior violent act against Oubre would result in undue

delay or waste of time that would substantially outweigh its

probative value. As already discussed, had the trial court admitted

this evidence, the only delay or passage of time would have been the

time required for Biggs to testify and be cross-examined about his

knowledge of that incident. Thus, we conclude that the trial court

abused its discretion to the extent it generally relied on the dangers

22
and considerations set out in Rule 403 in addition to unfair

prejudice.

7. Conclusion

Given the significant probative value of the evidence of

Basham’s prior assault against Oubre and the minimal risk of unfair

prejudice and of other dangers and considerations, we hold that the

trial court abused its discretion in excluding Basham’s prior violent

act under Rule 403, and we therefore vacate the trial court’s order

denying Biggs’s motion for new trial. However, we cannot say at this

point that evidence of Basham’s prior act was not properly excluded

on an alternative basis or that its exclusion was not harmless. We

therefore remand the case with the following direction. See, e.g.,

Welbon v. State, 301 Ga. 106, 107, 110–11, 111 n.5 (2017) (vacating

an order denying the appellant’s motion for new trial and remanding

for consideration of his claim that his pre-trial statements were

involuntary because the trial court erroneously placed the burden

on the appellant and we could not say at that stage that there was

no evidence authorizing the grant of a motion to suppress or that the

23
error was harmless). The trial court should consider the remaining

available grounds for admitting or excluding Basham’s prior assault

against Oubre. If the trial court determines that Basham’s prior

violent act was admissible, then it should consider whether

exclusion of the evidence at trial, together with the court’s

prohibition on any further mention of the evidence, was harmless.

Judgment vacated, and case remanded with direction. All the
Justices concur.