CourtListener 10680347

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In the Supreme Court of Georgia

Decided: April 30, 2024

S24A0013. PITTMAN v. THE STATE.

BOGGS, Chief Justice.

Appellant Randy Leon Pittman, Jr., challenges his convictions

for malice murder and arson in connection with the shooting and

burning death of Natoshia Smith. Appellant contends that the

evidence was legally insufficient to support his convictions because

the evidence failed to sufficiently identify Smith’s skeletal remains;

that the trial court erred in denying his motion to disqualify the

District Attorney; that the trial court abused its discretion in

prohibiting him from asking witnesses about other fires that

occurred while he was incarcerated; and that the trial court erred in

denying a motion for mistrial. We conclude that the forensic

evidence and eyewitness testimony was sufficient to identify Smith

as the victim and that there was no error in refusing to disqualify
the District Attorney based on the District Attorney’s prior

representation of Appellant, where it was undisputed that the prior

representation ended several years before, and was completely

unrelated to, the murder prosecution. We also conclude that the trial

court did not abuse its discretion in excluding evidence of other fires

because the evidence was not relevant. Finally, we conclude that

Appellant did not preserve for appeal his claim related to the denial

of his motion for mistrial. Accordingly, we affirm. 1

1. Viewed in the light most favorable to the verdicts, the

1 The crimes occurred on July 24, 2015. On November 14, 2016, a
Haralson County grand jury indicted Appellant for malice murder, felony
murder, aggravated assault with a deadly weapon, arson in the first degree,
and possession of a firearm by a convicted felon. The felon-in-possession count
was bifurcated for trial and nolle prossed after trial. The indictment also
charged Marie Southers with malice and felony murder and aggravated
battery in connection with Smith’s death. Southers pled guilty to aggravated
battery and testified against Appellant. At a trial from October 23 to November
1, 2017, the jury found Appellant guilty of the remaining charges. The trial
court sentenced Appellant to serve life in prison without the possibility of
parole for malice murder and a consecutive term of 20 years for arson. The
felony murder verdict was vacated by operation of law, and the aggravated
assault count merged into the malice murder conviction. On November 10,
2017, Appellant filed a motion for new trial, which he amended with new
counsel on January 29, 2021. After an evidentiary hearing before a successor
judge on February 22, 2023, the trial court entered an order denying the motion
for new trial on March 17, 2023. Appellant filed a timely notice of appeal, and
the case was docketed in this Court to the term beginning in December 2023
and submitted for a decision on the briefs.
2
evidence presented at trial showed the following. Appellant and

Smith were dating prior to her death. On the afternoon of July 23,

2015, Appellant was at the home of his co-indictee Marie Southers

when he learned from other friends that Smith had stolen items

from the friends’ home. Appellant told Southers that he could not

take Smith anywhere without her “stealing, lying, or just

intentionally making him look bad.” At Appellant’s request,

Southers telephoned Smith to ask her to come over, and then

Appellant picked Smith up and brought her to Southers’s home at

about 3:30 p.m. When Smith arrived, she appeared to be high on

methamphetamine, and Southers asked Smith to go into a bedroom.

As Smith did so, she dropped a syringe full of methamphetamine on

the floor, which angered Southers because Southers’s children were

present. Southers told her children to go next door to their

grandparents’ home and then followed Smith into the bedroom, and

Appellant walked outside to take a phone call. Smith told Southers

that Appellant had “forced himself on her” and forced her to do

drugs. When Appellant returned to the bedroom, Southers told him

3
about Smith’s accusations. Smith accused Southers of lying, and the

two women got into a fist fight, with Southers punching Smith three

times in the face and then telling Smith to leave. As Appellant and

Smith left in Appellant’s car, Appellant told Smith to lie down in the

back seat so no one would see her with him.

Sometime after midnight, Appellant called Southers and said

he was at his father’s house and needed gas. Southers and her

husband took a one-gallon can of gas to Appellant’s father’s house,

saw Appellant and Smith in Appellant’s car, left the gas can by the

car, and then returned home. Several hours later, Appellant called

Southers and said there was an issue that they needed to discuss,

but he did not say what it was. Appellant asked her to come to a

location on Coppermine Road and provided directions. Southers

arrived at that location about 5:00 or 6:00 a.m. and saw Appellant’s

car parked in front of an unoccupied and dilapidated house.

Appellant was standing by the open front passenger door; he was

holding a gun and trying to force Smith out of the car. The gun was

a “little 22” with a pearl-colored handle that Southers had seen

4
Appellant carry before. Appellant appeared angry and told Smith

that he did not know why she had to make him look bad all the time,

that he had done nothing but try to be good to her, and that he could

not take her anywhere. While pointing the gun at Smith, Appellant

forced her to remove her belongings from the car and to walk into

the house. Southers followed and remained in the doorway of the

house. Appellant was carrying a gas can that appeared to be the one

Southers and her husband had taken to Appellant. Smith pleaded,

“Please don’t do this. You don’t have to do this,” and Appellant

responded that he had made her a promise, she knew what the

promise was, and she knew that he was a man of his word. Appellant

put the gun in his boot, grabbed Smith’s arm when she tried to walk

out of the house, taped her arms behind her, put her on the floor,

taped her legs, dragged her across the floor, and yanked her to her

knees. Smith again pleaded, “Please don’t do this.” Appellant then

walked behind Smith, and Southers heard the gun cock, saw

Appellant point the gun at the back of Smith’s head, and heard the

gun fire. Smith fell face first onto the floor. Appellant told Southers

5
to leave, and Southers drove home. About three hours later,

Appellant called Southers, said “she’s dead,” and then hung up.

A few days later, Appellant came to Southers’s home and told

Southers that he had put Smith’s belongings on top of her and set

Smith and her possessions on fire; that Smith was alive when he set

her on fire; and that he threw the gun into Morgan Lake. He also

told Southers, “The more you kill the easier it gets.” In a later

conversation, Appellant told Southers that he returned to the

abandoned house two times; that a pill bottle that he had placed in

the fire had not burned; that the bottle contained a prescription label

for Smith’s former boyfriend, Matthew Hurston, and could point

police toward Hurston instead of him as a suspect; and that he put

Smith’s phone in Hurston’s house. Appellant also said that he was

worried the police would find his DNA in Smith’s body.

The crime scene was not discovered until August 29, 2015,

when a man who had been looking for scrap wood found a skull and

other bones in front of the home; he called 911. During the ensuing

investigation, law enforcement officers collected multiple human

6
bones spread on the ground outside of the house, including a

jawbone with a metal plate in it and a skull with what appeared to

be a bullet hole in it. Several of the bones had charring on them. The

officers also discovered evidence of a fire that had burned through

the floor in one room of the house. Officers collected a partially

burned medicine bottle for a prescription for Matthew Hurston from

that room. An investigator with the Haralson County fire

department concluded that the fire was intentionally set using a

flammable liquid that had been poured between the entryway of the

room and the interior of the room. During his investigation, he

searched the ground under the hole in the floor and recovered

human bones and hair, a necklace, and a piece of wire that appeared

to come from an underwire bra. A forensic chemist testified that

testing completed on wood and carpet samples taken from the scene

of the fire indicated the presence of gasoline.

Smith’s remains were initially identified by a dentist who

treated Smith in 2012 after her jaw had been surgically repaired

after Hurston had hit her and broke her jaw. At trial, the dentist

7
testified that the jawbone with the metal plate found on August 29

was Smith’s. The medical examiner testified that she compared

ante-mortem dental x-rays of Smith with post-mortem x-rays of the

jawbone found at the scene and concluded that the jawbone found at

the scene was Smith’s. The medical examiner also testified that the

skull had a hole in it that was consistent with a gunshot wound, and

she recovered a bullet from the right side of the skull. The medical

examiner determined that the cause of death was a gunshot to the

skull “with burning.” A firearms expert testified that the bullet

recovered from the skull was a .22 caliber. The gun that fired the

bullet was never found.

In addition to Southers’s testimony, the State presented

several witnesses who testified to inculpatory statements made by

Appellant before the details of the crime scene were made public.

One of those witnesses was Adrian Williamson, who was

incarcerated with Appellant in the Carroll County Jail before

Appellant was arrested for Smith’s murder and who testified about

statements Appellant made to him in December 2015 or January

8
2016. According to Williamson, Appellant related a story about a

murder in which an unnamed man shot a woman in the back of the

head with a pearl-handled .22 caliber gun and burned her. Appellant

said that the woman had an ex-boyfriend who had broken her jaw

previously, but the ex-boyfriend had been in jail at the time of the

murder, and police cleared him. In connection with telling this story,

Appellant asked Williamson how long DNA would stay in a body if

the body had been scattered by animals. He also said that “a guy”

had thrown a pearl-handled .22-caliber gun into a lake and that if

the gun was ever found, “I’m “f**ked.”

Investigator Bernie Reece, III, of the Haralson County Sheriff’s

office interviewed Appellant at the Carroll County jail. He testified

that Appellant said that he and Smith had dated until the end of

June 2015 and that the last time Appellant saw her was July 4 when

she and a friend dropped him off at his father’s house. Appellant also

said that Hurston had told him that the police had cleared Hurston

as a possible suspect.

2. Appellant contends that the evidence was insufficient to

9
support his convictions because the skeletal remains found on

August 29, 2015, were not sufficiently identified as Smith’s

remains.2 His argument implicates an essential element the State

must prove in a murder prosecution — “that the person alleged to

have been killed is actually dead.” Gude v. State, 313 Ga. 859, 865

(874 SE2d 84) (2022) (cleaned up); Reddick v. State, 202 Ga. 209, 209

(42 SE2d 742) (1947) (discussing element of “corpus delicti”). See

also OCGA § 16-5-1 (a) (“A person commits the offense of murder

when he unlawfully and with malice aforethought, either express or

implied, causes the death of another human being.”). Here, the State

presented forensic identification testimony by two experts, as well

as Southers’s testimony about Appellant’s actions on July 24 and

2 Appellant summarily states that the evidence was insufficient to prove

beyond a reasonable doubt that “he was involved in any of the charged crimes.”
However, the only substantive argument he makes relates to the identification
of the victim. Because we no longer automatically review sua sponte the
sufficiency of the evidence, except that of murder convictions resulting in the
death penalty, see Davenport v. State, 309 Ga. 385, 398-399 (846 SE2d 83)
(2020), we limit our consideration to the one argument that Appellant makes
in challenging the sufficiency of the evidence. See Scoggins v. State, 317 Ga.
832, 837 n.6 (896 SE2d 476) (2023). See also former Supreme Court Rule 22
(2023) (“Any enumerated error not supported by argument or citation of
authority in the brief shall be deemed abandoned.”).
10
July 25. This evidence, viewed in the light most favorable to the

verdicts, was clearly sufficient to authorize a rational jury to

conclude that the skeletal remains found at the vacant house on

Coppermine Road on August 29, 2015, were Smith’s. See Jackson v.

Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See

also Lowe v. State, 288 Ga. 662, 662-663 (706 SE2d 449) (2011)

(evidence constitutionally sufficient to find appellant guilty of

malice murder in the death of her housemate where identity of

housemate, whose badly decomposed body was discovered in the

woods by hunters, was established by dental records and where

appellant told a friend that she had fought with housemate, hit her

with truck, and watched her body fly into the brush on the side of

the road).

3. Appellant contends that the trial court abused its

discretion in denying his motion to disqualify the Haralson County

District Attorney because the District Attorney previously

represented Appellant in several cases when the District Attorney

had been a public defender. Appellant acknowledges that at a

11
pretrial hearing the District Attorney testified without contradiction

that the prior representations ended before 2013 and were

completely unrelated to the murder prosecution, 3 but Appellant

nevertheless argues that he need not show that an actual conflict of

interest existed under these circumstances. We disagree.

Appellant has cited no authority, and we have found none,

supporting the argument that a prosecutor’s prior representation of

a criminal defendant in a completely unrelated matter requires his

disqualification. Instead, in such cases, our precedent requires more

than the fact of a prior representation to mandate the

disqualification of a prosecutor. See Lyons v. State, 271 Ga. 639, 640

(522 SE2d 225) (1999) (conflict sufficient to require disqualification

of district attorney’s office after defendant’s former lawyers were

hired by district attorney must be more than “theoretical or

speculative” (cleaned up)). Such a conflict exists when “the

3 One of the matters in which the District Attorney represented
Appellant resulted in Appellant’s conviction for theft by receiving. The State
agreed that this conviction would not be used against Appellant for any
purpose in this case.
12
prosecutor previously has represented the defendant with respect to

the offense charged, or has consulted with the defendant in a

professional capacity with regard thereto.” Reed v. State, 314 Ga.

534, 545 (878 SE2d 217) (2022) (cleaned up). See also Rules 1.9

(“Conflict of Interest: Former Client”) and 1.11 (“Successive

Government and Private Employment”) of the Georgia Rules of

Professional Conduct (“GRPC”) found in Bar Rule 4-102 (d). 4

Although Appellant relies on Lemming v. State, 292 Ga. App. 138

4 Rule 1.9 (c) provides:

A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in
a matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 or Rule 3.3
would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except
as Rule 1.6 [Confidentiality of Information] or Rule 3.3 [Candor
Toward The Tribunal] would permit or require with respect to a
client.
Rule 1.11 (c) provides, in part:
Except as law may otherwise expressly permit, a lawyer serving
as a public officer or employee shall not:
(1) participate in a matter in which the lawyer participated
personally and substantially while in private practice or
nongovernmental employment, unless under applicable law no one
is, or by lawful delegation may be, authorized to act in the lawyer’s
stead in the matter[.]
13
(663 SE2d 375) (2008), nothing in Lemming suggests that

disqualification is mandated where a prosecutor’s prior

representation of a defendant is completely unrelated to the charges

at issue. Rather, in Lemming, the Court of Appeals rejected the

argument that members of the district attorney’s office should have

been disqualified from prosecuting the case after the district

attorney, who had previously represented the defendant in

unrelated matters, recused herself voluntarily. See id. at 139-142.

Here, the trial court found that the District Attorney’s prior

representations of Appellant were “indisputably unrelated” to the

murder prosecution and that Appellant failed to show that any

information the District Attorney may have obtained during his

prior representation “could be used in any manner to the

disadvantage of [Appellant] in the instant case.” Our review of the

record shows that the trial court’s findings are amply supported by

the evidence presented at the pretrial hearing, and accordingly, we

conclude that the trial court did not abuse its discretion in denying

the motion to disqualify. See Neuman v. State, 311 Ga. 83, 88 (856

14
SE2d 289) (2021) (an appellate court reviews a ruling on a motion to

disqualify a prosecutor for an abuse of discretion, accepting the trial

court’s factual findings if there is any evidence to support them).

4. Appellant next contends that the trial court abused its

discretion in prohibiting him from questioning witnesses about

other fires that occurred in 2017, arguing that such evidence would

suggest that another person killed Smith. This issue arose when

Appellant was cross-examining the fire investigator, and Appellant

started to ask about two fires that had occurred at the homes of

Southers and a defense witness after Appellant had been arrested

for Smith’s murder and remained incarcerated. Following the

State’s objection and outside the presence of the jury, the fire

investigator testified that the fires were still under investigation

and that no cause had been ruled out. Following this proffer, the

trial court sustained the State’s objection that the evidence was not

relevant and ruled that Appellant could not question the fire

investigator or other witnesses about these fires.

Appellant argues that the evidence was relevant because both

15
homes had a connection to Smith, with Smith having been present

in Southers’s home the day before Smith died and Smith’s cell phone

being found in the other home. Appellant asserts that because the

State’s theory of the case was that Appellant set the fire to cover up

the murder of Smith, Appellant should have been able to ask about

fires that occurred while he was incarcerated in order to suggest that

another person was the actual perpetrator of the crimes for which

Appellant was on trial. For the reasons we explain below, this claim

fails.

Evidence that a person other than the defendant committed

the crime is generally relevant under OCGA § 24-4-401 (“Rule 401”)

(defining relevant evidence as evidence that has “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.”). And relevant evidence is generally

admissible. See OCGA § 24-4-402. In cases decided under the former

Evidence Code, we held that for such third-party guilt evidence to

be admissible, it “must raise a reasonable inference of the

16
defendant’s innocence, and must directly connect the other person

with the corpus delicti, or show that the other person has recently

committed a crime of the same or similar nature.” Klinect v. State,

269 Ga. 570, 573 (501 SE2d 810) (1998) (addressing claim that

curtailment of cross-examination of witness about violent nature of

co-defendant precluded defendant from showing that the co-

defendant committed the murder). Since the enactment of the

current Evidence Code, we have applied a reasonable-inference-of-

innocence standard of admissibility when considering the relevance

of such evidence under Rule 401. For example, in Roberts v. State,

305 Ga. 257, 260 (824 SE2d 326) (2019), we explained that we have

“followed the general rule that, before testimony can be introduced

that another person committed the charged crime, the proffered

evidence must raise a reasonable inference of the defendant’s

innocence.” In Roberts, we held that the appellant failed to show that

evidence he sought to admit to establish that a third person had a

motive to kill the victim was relevant under Rule 401 where the

appellant did not identify the third person at trial and “offered

17
nothing more than speculation and conjecture” that a third person

could have been involved in the murder. Id. at 260-262.5 See also

Payne v. State, 314 Ga. 322, 333-334 (877 SE2d 202) (2022) (rejecting

claim that trial counsel was deficient in failing to investigate and

present evidence that another person was the perpetrator, on the

ground that proffered evidence was not relevant because it did not

raise reasonable inference of appellant’s innocence); Goins v. State,

310 Ga. 199, 207-209 (850 SE2d 68) (2020) (applying reasonable-

5 Neither Appellant nor the State asserts that Roberts and subsequent

case law improperly utilized the reasonable-inference-of-innocence standard as
a specialized relevance test under Rule 401 in the context of third-party guilt.
Nor has either party argued that OCGA § 24-4-404 (b) applies to third-party
guilt evidence, an issue we pretermitted in Roberts, 305 Ga. at 260. We
recognize that there is not a consensus view among federal courts about
whether Federal Rule of Evidence 404 (b) is applicable to the consideration of
the admissibility of third-party-guilt evidence. See Michael H. Graham, 3
Handbook of Federal Evidence § 404:5 (9th ed. Nov. 2023 update) (noting in
context of evidence of third party guilt that “the federal courts are in conflict
as to whether [Federal Rule of Evidence] 404 (b) applies to a ‘person’ who is not
also the defendant” and describing the various approaches taken by federal
courts). See also State v. Almanza, 304 Ga. 553, 556-559 (820 SE2d 1) (2018)
(explaining circumstances in which Georgia courts consider federal case law
construing Federal Rules of Evidence in considering the meaning of our current
Evidence Code). Given that neither Appellant nor the State have argued that
we should change course in addressing third-party guilt evidence or that such
evidence is governed by Rule 404 (b), we need not consider in this case whether
Rule 404 (b) applies to third-party-guilt evidence or whether the reasonable-
inference-of-innocence standard for determining the relevance of such evidence
is an appropriate standard under the current Evidence Code.
18
inference-of-innocence standard and laying out Rule-401 relevance

standard in addressing whether proffered third-party-guilt was

admissible).6

Here, the testimony that Appellant sought to elicit from the fire

investigator and other witnesses does not raise a reasonable

inference of Appellant’s innocence. Rather, the proffered evidence —

that two years after Smith’s murder, some unidentified person set

fire to two occupied dwellings, which dwellings had a tangential

connection to Smith’s murder — offered nothing more than

“speculation and conjecture” that this unidentified person may have

done so to hide evidence of that person’s involvement in Smith’s

murder and the arson committed at the scene of the murder.

6 In addressing the admissibility of evidence of third-party guilt, Goins

and other cases have cited OCGA § 24-4-403 (“Rule 403”), which authorizes a
trial court to exclude such evidence “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 those cases, however, we
were not asked to review a trial court’s reliance on Rule 403 to exclude such
evidence. See Palmer v. State, ___ Ga. ___ (___ SE2d ___) (2024 WL 923159
*12; 2024 Ga. LEXIS 61 *36) (March 5, 2024); Goins, 310 Ga. at 207-208; Moss
v. State, 298 Ga. 613, 616 (783 SE2d 652) (2016). We note here that the trial
court did not address Rule 403’s balancing test.
19
Roberts, 305 Ga. at 261-262. The proffered evidence did not establish

that arson was the cause of the 2017 fires, did not identify any

person who may have started the fires, and did not connect any

specific person to the murder or arson charged in this case. In the

absence of any nexus between the 2017 fires and a third party, the

evidence does not raise a reasonable inference of Appellant’s

innocence. Thus, applying our precedent, the evidence was not

admissible under Rule 401 to show another person committed the

crimes for which Appellant was on trial. See Goins, 310 Ga. at 207-

209 (no abuse of discretion in exclusion of evidence that appellant

claimed was relevant to show that other people could have had

motive to kill victim, where proffered evidence did not link any other

person to the murder or raise a reasonable inference of appellant’s

innocence and thus failed to meet basic requirements for

admissibility under current Evidence Code, including Rule 401);

Roberts, 305 Ga. at 261-262. Accordingly, the trial court did not

abuse its discretion in precluding Appellant from questioning the

fire investigator and other witnesses about fires that occurred while

20
Appellant was incarcerated.

5. Appellant’s final enumeration of error states that the trial

court abused its discretion in denying his motion for mistrial.

However, Appellant failed to make his motion for mistrial

contemporaneously with the complained-of testimony, and thus, this

claim is not preserved for appeal.

Before trial, the State filed a notice of intent to present certain

“bad-character” evidence, including evidence that Appellant boasted

that he had committed murder in 1994 and had been found not

guilty of that murder. The admissibility of this evidence was

discussed at two pretrial hearings. During the second hearing, the

trial court ruled, and Appellant agreed, that a witness’s testimony

about Appellant’s own statements would be admissible under Rule

801 (d) (2) (A). See OCGA § 24-8-801 (d) (2) (A) (“Admissions by

party-opponent. Admissions shall not be excluded by the hearsay

rule. An admission is a statement offered against a party which is .

. . [t]he party’s own statement . . . [.]”) Appellant, however, indicated

he would object if a witness testified as to a belief that Appellant

21
previously “got away” with murder.

During the direct examination of Williamson, who had been

incarcerated with Appellant, the prosecutor asked, “Did Mr.

Pittman ever brag about anything concerning the crime?” Appellant

did not object, and Williamson testified that Appellant had told him

that Appellant had committed a murder in 1994 and had been found

not guilty. According to Williamson, Appellant also said, “If you ever

want to kill somebody and get away with it, go to Haralson County.’”

Appellant did not object to or move to strike the testimony; nor did

he move for a mistrial at that point. Instead, after the State

concluded the direct examination, Appellant stated he needed to

make a motion outside the presence of the jury. After the jury exited

the courtroom, Appellant moved for a mistrial, contending that

Williamson’s testimony that Appellant said he had committed

murder and been found not guilty violated the trial court’s pretrial

ruling and was “highly prejudicial.” The State argued that the

testimony was not in violation of the pretrial ruling, and the trial

court denied the motion. The trial court later clarified that the basis

22
for its ruling was that Williamson’s testimony was admissible under

Rule 801 (d) (2) (A).

(a) It is well settled that a motion for mistrial must be made as

soon as the party is aware of the matter giving rise to the motion,

and that the failure to promptly move for a mistrial fails to preserve

the issue for appellate review. See, e.g., Lee v. State, 317 Ga. 880,

884-885 (896 SE2d 524) (2023) (holding that “it is well established

that a motion for a mistrial must be promptly made as soon as the

party is aware of the matter giving rise to the motion” and

concluding that the denial of the mistrial motion was not preserved

for appeal where motion was not made until day after witness had

finished testifying (cleaned up)); Coley v. State, 305 Ga. 658, 661-662

(827 SE2d 241) (2019) (claim of error related to denial of mistrial

following admission of bad-character evidence was not preserved for

appeal where the motion was not made contemporaneously with the

testimony at issue); Burrell v. State, 301 Ga. 21, 26 (799 SE2d 181)

(2017) (where State’s witness had emotional outburst on direct-

examination, defendant’s motion for mistrial made after the

23
defendant had completed the cross-examination failed to preserve

the issue for review). Because Appellant did not object to the State’s

question, which clearly was intended to elicit the testimony

discussed at the pretrial hearings, and did not move to strike

Williamson’s answer, and then waited until after the prosecutor

completed the direct examination to make a motion for mistrial, the

claim that the trial court abused its discretion in denying a mistrial

presents nothing for our review. See Coley, 305 Ga. at 662.

(b) Appellant also asserts summarily that the trial court

abused its discretion in admitting Appellant’s statement to

Williamson because his statement about the 1994 murder did not

relate to any of the charges in this case. However, Appellant failed

to offer a contemporaneous objection to Williamson’s testimony. And

even during argument regarding the motion for mistrial, Appellant

asserted a different ground as the reason the testimony was

improper. At trial, Appellant argued that a mistrial should be

granted because Williamson’s testimony was “in direct contradiction

with what the Court ordered earlier.” However, as discussed above,

24
the trial court’s pretrial ruling was that any such statement made

by Appellant to a witness was admissible.7 Under these

circumstances, where the basis for the objection at trial and

argument on appeal are different, this evidentiary claim is not

preserved for ordinary appellate review. See OCGA § 24-1-103 (a)

(1) (a trial court’s ruling admitting evidence is ordinarily reviewable

only when “a timely objection or motion to strike appears of record,

stating the specific ground of objection, if the specific ground was not

apparent from the context”). Compare OCGA § 24-1-103 (a) (“Once

the court makes a definitive ruling on the record admitting or

excluding any evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve such claim of error

for appeal.”); Williams v. Harvey, 311 Ga. 439, 447 (858 SE2d 479)

(2021) (to preserve for appeal the violation of a definitive ruling on

a motion in limine, a party must make a contemporaneous objection

at trial).

7 Because Appellant does not argue on appeal that the trial court erred

in relying on Rule 801 (d) (2), we need not address this issue.
25
Even though Appellant does not argue that the admission of

this statement should be reviewed for plain error, we generally

review claims of evidentiary error under a plain error standard

when a party raises an evidentiary error but fails to recognize that

the error was not preserved for ordinary appellate review. See, e.g.,

State v. Kenney, 315 Ga. 408, 413 n.10 (883 SE2d 298) (2023) (noting

that “we ordinarily review forfeited evidentiary arguments for plain

error”); Gates v. State, 298 Ga. 324, 326-327 (781 SE2d 772) (2016)

(adopting federal plain-error standard for reviewing claims of

unpreserved evidentiary error under OCGA § 24-1-103 (d)).

Therefore, we consider whether the trial court’s decision not to

strike Williamson’s testimony about Appellant’s statement

constitutes plain error under the familiar standard set forth in

Gates, 298 Ga. at 327 (to show plain error, appellant bears burden

of showing error that is clear or obvious; that was not intentionally

waived; that affected appellant’s substantial rights, which generally

means it must have affected the outcome of the trial court

proceedings; and that seriously affected fairness, integrity, or public

26
reputation of judicial proceedings). Appellant argues on appeal only

that the “statement about a murder in 1994 had nothing to do with

the facts of this case” and that “the trial court should have excluded

this testimony under a OCGA § 24-4-403 (b) balancing test.” His

argument omits any substantive discussion about how the

admission of this snippet of testimony affected the outcome of the

trial. Given Appellant’s cursory treatment of the claim of error and

the overwhelming evidence of his guilt, including his own

statements, we conclude that he has failed to meet his burden of

making “an affirmative showing that the error probably did affect

the outcome below.” Bozzie v. State, 302 Ga. 704, 708 (808 SE2d 671)

(2017) (cleaned up). Accordingly, there was no plain error. See

Williams v. State, 315 Ga. 490, 496 (883 SE2d 733) (2023) (we need

not analyze all prongs of plain error review where appellant fails to

establish one of them).

Judgment affirmed. All the Justices concur.

27
BOGGS, CHIEF JUSTICE, concurring.

I obviously agree with all that is said in the opinion. I write

separately to note a concern I have with the Court’s current practice

of analyzing unpreserved evidentiary errors under the four-pronged

plain error standard when the appellant does not assert plain error.

We have not addressed whether the current Evidence Code requires

us to apply plain error review to unpreserved evidentiary errors, and

I am skeptical that it does. The source of plain error review of

evidentiary errors is OCGA § 24-1-103 (d), which contains no

command — but rather gives courts permission — to review

evidentiary errors for plain error, providing, “Nothing in this Code

section shall preclude a court from taking notice of plain errors

affecting substantial rights although such errors were not brought

to the attention of the court.” We have expressly concluded that

plain error review is statutorily required in the context of jury

instructions. See State v. Kelly, 290 Ga. 29, 32 (718 SE2d 232)

(2011). See also OCGA § 17-8-58 (b) (“Failure to object [to a charge

to the jury] in accordance with subsection (a) of this Code section

28
shall preclude appellate review of such portion of the jury charge,

unless such portion of the jury charge constitutes plain error which

affects substantial rights of the parties. Such plain error may be

considered on appeal even if it was not brought to the court’s

attention as provided in subsection (a) of this Code section.”); OCGA

§ 5-5-24 (c) (“[T]he appellate courts shall consider and review

erroneous charges where there has been a substantial error in the

charge which was harmful as a matter of law, regardless of whether

objection was made hereunder or not.”). I would welcome the

opportunity to consider, with briefing by the parties in an

appropriate case, whether our current practice of conducting plain

error review of unpreserved evidentiary issues when the appellant

does not argue plain error is mandated by jurisprudential or

statutory concerns.

I am authorized to state that Justice LaGrua joins this

concurrence.

29
PETERSON, Presiding Justice, concurring.

I join the Court’s opinion in full because it faithfully applies our

precedent regarding the admissibility of evidence that a third party

may have committed the crime with which the defendant is charged,

and that precedent is not challenged here. I write separately to point

out that at least some of that precedent may be wrong.

Division 4 of the Court’s opinion rejects Pittman’s claim that

the trial court erred by refusing to admit evidence that someone else

set fires in the relevant area while Pittman was in prison. Pittman

sought to use that evidence to argue that whoever set those fires

may have committed the arson-related crimes with which he was

charged here. In rejecting his argument, the Court applies a rule

developed under the old Evidence Code and that our precedent has

previously carried forward into the current Evidence Code. But I am

uncertain that this rule was correct even under the old code, and am

even more skeptical that we have properly imported it into our

current Evidence Code (and we have certainly never explained why

that old rule should still apply under the current code).

30
Under the old code, we summarized this rule as follows:

Certainly a defendant is entitled to introduce relevant
and admissible testimony tending to show that another
person committed the crime for which the defendant is
tried. However, the proffered evidence must raise a
reasonable inference of the defendant’s innocence, and
must directly connect the other person with the corpus
delicti, or show that the other person has recently
committed a crime of the same or similar nature.

Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998) (citations

omitted). In setting out the test for admissibility, we cited only two

Court of Appeals decisions. See id. (citing Croom v. State, 217 Ga.

App. 596, 599 (3) (458 SE2d 679) (1995); Bradford v. State, 204 Ga.

App. 568 (420 SE2d 4) (1992)). Croom, in turn, cited only Bradford

on this point. See Croom, 217 Ga. App. at 599 (3). Bradford cited a

treatise and three decisions of this Court. See Bradford, 204 Ga.

App. at 569-570. But those decisions of this Court were all decisions

reversing convictions on the ground that evidence of third-party

guilt had been wrongfully excluded. See Walker v. State, 260 Ga.

737, 738-739 (1) (399 SE2d 199) (1991); Henderson v. State, 255 Ga.

687, 689 (1) (341 SE2d 439) (1986); Butler v. State, 254 Ga. 637, 639-

31
640 (332 SE2d 654) (1985). And none of those cases articulated a

rule like the one Bradford applied; rather, they appear to have

applied a lower bar to admission. See, e.g., Walker, 260 Ga. at 739

(1) (mere “evidence enough to raise a reasonable doubt as to the

defendant’s guilt in the minds of the jury, not evidence sufficient to

convict someone else, would be enough to change the outcome of the

case and to warrant reversal”); Henderson, 255 Ga. at 689 (1) (same);

Butler, 254 Ga. at 640 (“the evidence as to [the third party] did tend

to establish the possibility that [the third party] was responsible for

committing the crimes[,]” and, therefore, “this evidence was relevant

and admissible”) (emphasis added). 8

In any event, the language Bradford quoted from its chosen

treatise began with language that may at first blush seem similar to

8 Later in the opinion, Bradford also cited Stephens v. State, 261 Ga. 467,

468 (6) (405 SE2d 483) (1991), which held that the trial court erred by
admitting a certified copy of the defendant’s prior conviction because the State
failed to offer evidence that established similarity and a logical connection
between the independent crime and the crime for which the defendant was on
trial. See Bradford, 204 Ga. App. at 570. But a case about the admissibility of
evidence that the defendant had previously committed a different crime has no
obvious relevance to whether the defendant can admit evidence that someone
else committed the crime for which the defendant is being prosecuted.
32
our current OCGA § 24-4-403 (“Rule 403”): the “accused may

introduce evidence tending to show that another person committed

the crime with which he is charged . . . unless the probative value of

the evidence is substantially outweighed by actual risk of undue

delay, prejudice, or confusion.” Bradford, 204 Ga. App. at 569

(quoting 22A CJS Criminal Law, § 729). But our old code contained

no provision identical to our current Rule 403, and a leading Georgia

treatise has observed that our Rule 403-equivalent approach under

the old code was materially different and led to excluding more

evidence than the federal rule would. See Ronald L. Carlson &

Michael Scott Carlson, Carlson on Evidence: Comparing Georgia

and Federal Rules 121-22 (6th ed. 2018).9 In short, the only

authority that did any actual analysis and upon which we relied in

Klinect did not apply a rule of evidence that the General Assembly

carried forward into our current code. See Bradford, 204 Ga. App. at

9That same treatise observed that Georgia cases decided under the
current code regarding admissibility of third-party culpability have applied
Georgia old code standards, and stated that “[f]uture decisions will determine
whether Georgia will rely upon federal standards on this issue.” Id. at 118-119.
33
569-570.

Nevertheless, we uncritically adopted Klinect as applicable

under the current code. See Moss v. State, 298 Ga. 613, 616-617 (4)

(783 SE2d 652) (2016) (citing the test in Klinect). And since then, it’s

been off to the races. See, e.g., Roberts v. State, 305 Ga. 257, 260-261

(3) (824 SE2d 326) (2019) (citing Moss and numerous old code cases

to apply rule from Klinect under current code); Palmer v. State, ___

Ga. ___ (5) (___ SE2d ___) (2024) (citing Klinect, Moss, and Roberts);

Payne v. State, 314 Ga. 322, 333 (3) (g) (877 SE2d 202) (2022) (citing

Roberts and other cases)10; Goins v. State, 310 Ga. 199, 208 (6) (850

SE2d 68) (2020) (citing Roberts and Moss); Hills v. State, 306 Ga.

800, 803-804 (2) (a) & n.7 (833 SE2d 515) (2019) (citing Roberts); and

Elkins v. State, 306 Ga. 351, 358 (2) (b) (830 SE2d 217) (2019) (citing

Roberts, Moss, and old code cases).

In none of these cases did we do the kind of analysis that we

10 Even if Moss and its progeny are wrong, Payne’s holding and analysis

were correct, given that Payne was reviewing a claim of ineffective assistance
of counsel, and the state of the law at the time (right or wrong) warranted
rejection of that claim. See id. at 333 (3) (g).
34
have elsewhere held is required in determining whether an old code

rule carries forward. One case has at least suggested that the Klinect

rule is consistent with Rule 403. See Roberts, 305 Ga. at 260-261 (3).

But the rule as we regularly apply it does not resemble the careful

fact-specific, case-by-case determination that Rule 403 requires.

Instead, it appears to approximate a categorical rule that evidence

of third-party guilt must show a direct connection between the third

party and the crime in order to survive Rule 403, even if an indirect

connection could still show the possibility of third-party guilt.11

Categorical rules of that sort did not survive the passage of the

current Evidence Code; it is “clear that Rule 403 provides no

authority for an appellate court to direct the exclusion of entire

categories of evidence.” State v. Orr, 305 Ga. 729, 738 (3) (827 SE2d

892) (2019) (citing Olds v. State, 299 Ga. 65, 76 (2) (786 SE2d 633)

(2016) (explaining that the application of Rule 403 “calls for a

11 Some of our cases could be interpreted as speaking of this rule in terms

of Rule 401 relevance instead, which makes little sense. Of course evidence
tending in an indirect way to show someone else might have committed the
crime is relevant; it just might not have much probative value in the context of
the case.
35
careful, case-by-case analysis, not a categorical approach”); Williams

v. State, 328 Ga. App. 876, 879-880 (1) (763 SE2d 261) (2014)

(discussing differences between Rule 403 and prior Georgia

precedent on excluding evidence based on its prejudice)).

In short, it appears to me that we’ve uncritically imported an

old code rule to the current code without the analysis we regularly

require, and the current code justifications that we have actually

suggested do not appear to match the rule’s actual application. In an

appropriate case, we should consider whether our case law is correct.

In that event, we would also need to consider what, if any, approach

federal courts and especially the Eleventh Circuit had taken as of

2011.12 See State v. Almanza, 304 Ga. 553, 555-557 (2) (820 SE2d 1)

12 This question is beyond the scope of this concurrence, but I’ll offer a

couple of observations. First, it’s not clear that the Eleventh Circuit has a pre-
2011 holding directly on point. See David S. Schwartz & Chelsey B. Metcalf,
Disfavored Treatment of Third-Party Guilt Evidence, 2016 Wis. L. Rev. 337,
409 (2016) (discussing approaches about third-party guilt evidence, citing for
Eleventh Circuit approach only United States v. Johnson, 904 FSupp 1303,
1307 (M.D. Ala. 1995) (“Evidence that a person other than the defendant
committed the crime would certainly be admissible if it was exculpatory and if
it complied with the requirements of Rules 401 and 403.”)). Other district
courts within the Eleventh Circuit continued to cite Johnson as authority on
this point after 2011. See, e.g., Dorsey v. Hetzel, 2013 U.S. Dist. LEXIS 154865

36
(2018).

I am authorized to state that Chief Justice Boggs, Justice

Warren, Justice Bethel, Justice McMillian, and Justice Pinson join

in this concurrence.

at *33 (3) (a) (S.D. Ala. Sept. 6, 2013). Second, to the extent that our precedent
has discussed Rule 404 (b) in the context of evidence of third-party guilt, the
Eleventh Circuit has held that Rule 404 (b) does not apply to any person other
than the defendant, such that evidence regarding the acts of other people are
excludable only under Rule 403. See United States v. Morano, 697 F2d 923, 926
(11th Cir. 1983) (“Rule 404 (b) does not specifically apply to exclude this
evidence because it involves an extraneous offense committed by someone
other than the defendant.”); compare, e.g., Roberts, 305 Ga. 260-261 (3)
(excluding the victim’s character evidence on relevance grounds without
deciding whether Rule 404 (b) applied); Palmer, ___ Ga. at ___ (5) (to the extent
appellant attempted to show a third party’s “participation in the murders
based solely on the fact that he had recently committed a crime of the same or
similar nature, the testimony that he sought to elicit was inadmissible
character evidence” under Rule 404 (b) (cleaned up; citation omitted)); Goins,
310 Ga. at 207-208 (6) (discussing generally whether character evidence was
admissible to support the defense theory that other people had a motive to kill
the victim). Schwartz and Metcalf argue that the federal circuits are split on
what rule to apply to evidence of third-party guilt, with some following a rule
like ours, while others simply apply Rule 403 as they would to any other
evidence. See Schwartz & Metcalf, supra, at 347-348, 358-359, 408-409. How
we would go about deciding which conflicting line of caselaw to follow in the
absence of Eleventh Circuit precedent is another open question on which I offer
no thoughts today.
37

318 Ga. 819
FINAL COPY