CourtListener 10679997

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317 Ga. 689
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S23A0871. CARTER v. THE STATE.

ELLINGTON, Justice.

Pacer Sebastian Carter appeals his convictions for malice

murder and other crimes in connection with the shooting death of

Aramis O’Brad Peterson.1 Carter contends that the omission of a

1 The crimes occurred on January 6, 2017. On September 7, 2018, a
Fulton County grand jury indicted Carter for malice murder, four counts of
felony murder, and one count each of participation in criminal street gang
activity, aggravated assault, possession of marijuana with intent to distribute,
possession of a firearm during the commission of a felony, and possession of a
firearm by a convicted felon. After a jury trial that ended on August 25, 2021,
Carter was found guilty on all counts. On September 1, 2021, Carter was
sentenced to serve life in prison without the possibility of parole for malice
murder, concurrent prison terms of twenty years for the gang-activity count,
ten years for the marijuana-possession count, and five years for possession of
a firearm by a convicted felon, and a consecutive five-year prison term for
possession of a firearm during the commission of a felony. The felony murder
counts were vacated by operation of law, and the aggravated assault count was
merged into the malice murder conviction for sentencing purposes. Carter filed
a premature motion for new trial on August 31, 2021, which ripened upon the
entry of judgment, see Southall v. State, 300 Ga. 462, 464-467 (1) (796 SE2d
261) (2017), and he amended that motion through new counsel on September
8, 2022. After a hearing on December 7, 2022, the trial court denied the
amended motion for new trial on March 6, 2023. Carter filed a timely notice of
appeal, and the case was docketed in this Court to the August 2023 term and
submitted for a decision on the briefs.
jury instruction on the statutory requirement of corroboration of

accomplice testimony in felony cases was plain error and resulted

from the ineffective assistance of his trial counsel, and that the trial

court erred in admitting a document entitled “Proof of

Incarceration.” Because both claims of trial court error are subject

to review only for plain error, and Carter has failed to carry his

burden of showing either plain error or the ineffective assistance of

his trial counsel, we affirm.

The evidence submitted at trial shows the following. A few

months before Peterson was killed, Carter was robbed and shot in

the face by a man visiting the “trap house” from which Carter’s

fellow gang members sold drugs. The shooter in that prior incident

drove away in a “gray BMW” and was described by Carter as having

a money-bag tattoo on his face.

On the evening Peterson was killed, Carter and several other

gang members were present at their trap house. One gang member,

Anthony Norman, testified that Carter received a phone call, that

Carter said the caller was the one who had shot him, and that people

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at the house then armed themselves. About half an hour later,

Peterson called a member of Carter’s gang, parked his dark-colored

BMW in front of the house, and was “hesitant” to get out of the car,

but after two or three minutes, he walked up to the house, leaving

his two young sons and two adult friends in the car.

Peterson was let inside the house, and Norman testified that

Peterson was trying to hide a facial tattoo. According to another

witness, Maria Johnson, Carter shouted that Peterson was the one

who had shot him, and Peterson dropped a gun that discharged.

Norman testified that Carter then shot Peterson with a .357-caliber

revolver, which Norman had purchased a few days earlier to keep in

the house, and that Carter chased Peterson out the front door and

continued to shoot. Norman was the only eyewitness to directly

identify Carter as the shooter, although Johnson testified about

Carter’s identification of Peterson, and other witnesses confirmed

Carter’s presence at the house. Peterson was shot five times, fell in

the street, and died.

Peterson’s older son testified that in the same area where he

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saw the flash of gunfire, he saw someone who had a firearm in his

hand and dreadlocks to the middle of his neck. A detective testified

as an expert on Carter’s gang that “trust[ed]” members of the gang

operated and maintained the trap house and kept access to it “very

restricted” and “controlled,” and that Carter was the only person

associated with the house who had dreadlocks at the time of the

shooting. A search of the house yielded, among other things, money,

marijuana, cocaine, a .357-caliber revolver with six spent rounds,

other firearms, and ammunition, as well as items labeled with

Carter’s name or nickname, including government paperwork,

prescriptions, a pill bottle, and the “Proof of Incarceration” with a

photograph of Carter with dreadlocks.

1. Carter contends that the trial court should have instructed

the jury that a felony conviction cannot be sustained by the

uncorroborated testimony of an accomplice. See OCGA § 24-14-8

(“The testimony of a single witness is generally sufficient to

establish a fact. However, in certain cases, including . . . felony cases

where the only witness is an accomplice, the testimony of a single

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witness shall not be sufficient. Nevertheless, corroborating

circumstances may dispense with the necessity for the testimony of

a second witness, except in prosecutions for treason.”). Because

Carter’s trial counsel did not request an accomplice-corroboration

instruction or object to the omission of that instruction, Carter raises

the claim as both plain error and ineffective assistance of counsel.

To establish plain error, Carter would have to show, among

other things, that the alleged error likely affected the outcome of his

trial. See State v. Johnson, 305 Ga. 237, 240 (1) (824 SE2d 317)

(2019) (“The third prong of the plain error test requires that the

error must have affected the appellant’s substantial rights, which in

the ordinary case means he must demonstrate that it likely affected

the outcome of the trial court proceedings.”). See also Jackson v.

State, 306 Ga. 69, 83 (4) (a) (829 SE2d 142) (2019) (“[E]ven a clear

error is plain error only if it likely affected the outcome of the

proceedings.” (emphasis in original)). And to prove his claim of

ineffective assistance, he would have to show not only that the

failure of his trial counsel to object was professionally deficient, but

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also that “but for such deficient performance, there is a reasonable

probability that the result of the trial would have been different.”

Dixon v. State, 309 Ga. 28, 36 (3) (843 SE2d 806) (2020). “This Court

has equated the prejudice step of the plain error standard with the

prejudice prong for an ineffective assistance of counsel claim.”

Jackson, 306 Ga. at 84 (4) (b) (citation and punctuation omitted); see

also id. at 84-85 (4) (b) (holding that, even assuming that trial

counsel performed deficiently in not requesting an accomplice-

corroboration instruction, the appellant had not shown prejudice for

the reasons explained in reviewing the absence of that instruction

for plain error).

Pretermitting whether Carter affirmatively waived this

alleged error in the jury instructions, whether Norman could be

considered an accomplice, and whether the failure to give the

instruction was error, Carter has failed to establish that he was

prejudiced by the omission of an accomplice-corroboration

instruction. The independent evidence at trial corroborating

Norman’s testimony was substantial and consistent. That evidence

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included identification of the shooter by Peterson’s son as having

dreadlocks; identification of Carter as the only person with

dreadlocks who was present at the trap house; testimony that Carter

communicated a motive of revenge just before the shooting, which

was supported by evidence that Carter’s prior assailant had a facial

tattoo like Peterson’s and drove a car matching the description of

Peterson’s car; and the recovery of photographs of Carter at the

crime scene, other items labeled with his name, and a .357-caliber

revolver with six spent rounds. As a result of this substantial

evidence corroborating Carter’s involvement in the crimes, an

accomplice-corroboration instruction likely would not have caused

the jury to return a different verdict. See Lewis v. State, 311 Ga. 650,

666 (4) (859 SE2d 1) (2021) (holding that there was no plain error in

not giving the accomplice-corroboration instruction, because there

was a “substantial amount” of evidence corroborating the

accomplice’s testimony, making it unlikely that the outcome of the

trial was affected; distinguishing a case where “almost all of the

evidence incriminating” the defendant came from an accomplice);

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Rice v. State, 311 Ga. 620, 624-625 (1) (857 SE2d 230) (2021)

(holding that there was no plain error where “substantial and

consistent evidence” showed the defendant’s participation in the

crimes, such that the failure to give the accomplice-corroboration

charge likely did not affect the outcome of the trial). Accordingly,

Carter’s claims of plain error and ineffective assistance of counsel

predicated on the omission of an accomplice-corroboration jury

charge both fail. See Jackson, 306 Ga. at 84-85 (4) (b).

2. Carter also contends that the trial court erred in admitting

the document entitled “Proof of Incarceration” because it was either

irrelevant or substantially more prejudicial than probative under

OCGA § 24-4-403 (“Rule 403”). This enumeration can be reviewed

only for plain error, which Carter has failed to establish.

The “Proof of Incarceration” was found inside the trap house

and includes such details as Carter’s name, birthdate, and

photograph, his incarceration date of December 20, 2016, and his

release date of January 5, 2017, which was the day before Peterson’s

murder. During trial, outside the presence of the jury, the parties

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discussed the admissibility of four other documents — none of which

was the “Proof of Incarceration” — that were found in a notebook at

the crime scene and that related to Carter’s incarceration but did

not specify a release date. Carter objected that those four documents

(which ultimately were not admitted into evidence) added nothing

to the evidence of identity and included the information that he had

been arrested for and charged with possession of a firearm by a

convicted felon. When the State subsequently offered the Proof of

Incarceration to show that Carter was released on January 5, 2017,

Carter objected because it was unclear where the document came

from and where in the house it was found, and he later renewed his

objection based on a lack of proper “foundation” and his prior

objection based on “any reference to the firearm charge.” The trial

court stated that the State had to lay a foundation for admission of

the Proof of Incarceration and would have to redact the firearm

charge. During subsequent examination of the lead detective, the

State laid a foundation and offered the redacted Proof of

Incarceration into evidence, and defense counsel responded, “[n]o

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objection.” As a result, Carter no longer contends either that a

proper foundation for admission of the document was lacking or that

a firearms charge was referenced in the document.

Because Carter never objected to the Proof of Incarceration on

the grounds that he now raises on appeal, we consider only whether

the trial court committed plain error in admitting this evidence. See

Huff v. State, 315 Ga. 558, 566 (3) (883 SE2d 773) (2023) (Because

defense counsel objected to certain testimony only on the ground

that the State was improperly bolstering the testimony of a previous

witness, and not “on any other ground, Appellant did not preserve

for ordinary appellate review the contentions raised here, namely,

that the testimony was improper character evidence, irrelevant, and

inadmissible under OCGA § 24-4-403.”); Castillo-Velasquez v. State,

305 Ga. 644, 652 (4) (827 SE2d 257) (2019) (Because the defendant

objected to the admission of the victim’s clothes only on the ground

that the evidence was not relevant, but contended on appeal only

that it should have been excluded under Rule 403, “we consider[ed]

only whether the trial court committed plain error in admitting the

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evidence.”). To establish plain error in the trial court’s admission

into evidence of the Proof of Incarceration, Carter “must point to a

legal error that was not affirmatively waived, was clear and obvious

beyond reasonable dispute, affected his substantial rights, and

seriously affected the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 653 (4) (citation and punctuation

omitted). “Moreover, . . . to establish that the error affected his

substantial rights, he must demonstrate that it caused him harm,

meaning that the outcome of the trial court proceedings was likely

affected.” Id. (citation and punctuation omitted). “We need not

analyze all of the elements of this test when, as in this case, the

defendant has failed to establish one of them.” Early v. State, 313

Ga. 667, 672 (2) (b) (872 SE2d 705) (2022) (citation and punctuation

omitted).

Evidence is relevant if it 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.” OCGA § 24-4-401 (“Rule 401”). “Generally, relevant

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evidence is admissible. See OCGA § 24-4-402. The standard for

relevance is a liberal one, and relevant evidence is admissible even

if it has only slight probative value.” Wilson v. State, 315 Ga. 728,

738 (8) (883 SE2d 802) (2023) (citation and punctuation omitted).

Nevertheless, “[r]elevant evidence may be excluded if its probative

value is substantially outweighed[, inter alia,] by the danger of

unfair prejudice[.]” Rule 403. “But the exclusion of evidence under

Rule 403 is an extraordinary remedy that should be used only

sparingly.” Wilson, 315 Ga. at 738 (8) (citation and punctuation

omitted). “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. Williams, 316 Ga. 249, 252 (887 SE2d 285)

(2023) (citation and punctuation omitted). “Probative value also

depends on the marginal worth of the evidence — how much it adds,

in other words, to the other proof available to establish the fact for

which it is offered.” Id. (citation and punctuation omitted).

“[P]rejudice is not ‘unfair’ simply because it tends to inculpate the

defendant in an awful crime. Inculpatory evidence is inherently

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prejudicial; it is only when unfair prejudice substantially outweighs

probative value that Rule 403 permits exclusion.” Wilson, 315 Ga. at

738 (8) (citation and punctuation omitted; emphasis in original). The

prejudicial effect of evidence is “unfair” if it 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.” Id. (citation and punctuation omitted).

It was not “clear and obvious beyond reasonable dispute” that

the Proof of Incarceration was irrelevant under the liberal standard

of Rule 401. Because that document was found in the trap house and

contained a picture of Carter with dreadlocks, the State makes a

reasonable argument that the document tended to make it “more

probable” that Carter was present in the trap house with dreadlocks

like the shooter and that such presence and appearance was “of

consequence” to the determination of who murdered Peterson. See

Rule 401. Moreover, the State reasonably argues that the document

placed Carter at the scene of the crime within a “very limited

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window” of time. In other words, because Carter did not receive the

document until he was released from prison the day before the

murder and could not have left it at the house until after his release,

the presence of the document at the house at the time of the murder

made it more likely that Carter was present at the house beginning

one day or less before the murder, rather than merely on some

earlier dates. Furthermore, it was not “clear and obvious beyond

reasonable dispute” that the document’s probative value was

substantially outweighed by the risk of unfair prejudice. The State

argues, for the reasons just discussed, that the Proof of Incarceration

had a “high probative value as to identity.” Specifically, the

document tended to make it more probable that Carter was present

at the crime scene near the time of the murder and, therefore, the

document had significant “marginal worth” to corroborate the

testimony related to Carter’s presence and involvement and to

surpass the probative value of the other items from the trap house

belonging to Carter. See Williams, 316 Ga. at 252. The State further

argues that the risk of unfair prejudice was minimal because the

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jury knew that Carter was a convicted felon and because the trial

court mitigated any prejudice by redacting the charges from the

Proof of Incarceration. See Early, 313 Ga. at 671 (2) (b) (analyzing

the risk of unfair prejudice under Rule 403 and holding that

evidence of the defendant’s incarceration for several months after

being arrested would not unfairly influence the jury). These

arguments by the State are reasonable. Thus, the admission of the

Proof of Incarceration did not violate Rule 403 such that it would

constitute a clear or obvious error not subject to “reasonable

dispute.” See Strother v. State, 305 Ga. 838, 848 (4) (d) (828 SE2d

327) (2019) (where this Court, in analyzing whether the admission

of certain evidence would qualify as a clear or obvious error under

Rule 403, considered whether such admission was a “blatant abuse

of discretion” and determined that it was not). Accordingly, Carter

has failed to establish plain error, and this claim therefore fails.

Judgment affirmed. All the Justices concur.

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Decided November 7, 2023.

Murder. Fulton Superior Court. Before Judge Carnesale.

Kevin A. Anderson, for appellant.

Fani T. Willis, District Attorney, Kevin C. Armstrong, Virginia

L. Davis, Alex M. Bernick, Assistant District Attorneys; Christopher

M. Carr, Attorney General, Beth A. Burton, Deputy Attorney General,

Paula K. Smith, Senior Assistant Attorney General, Eric C. Peters,

Assistant Attorney General, for appellee.

In the Supreme Court of Georgia

Decided: November 7, 2023

S23A0871. CARTER v. THE STATE.

ELLINGTON, Justice.

Pacer Sebastian Carter appeals his convictions for malice

murder and other crimes in connection with the shooting death of

Aramis O’Brad Peterson.1 Carter contends that the omission of a

1 The crimes occurred on January 6, 2017. On September 7, 2018, a
Fulton County grand jury indicted Carter for malice murder, four counts of
felony murder, and one count each of participation in criminal street gang
activity, aggravated assault, possession of marijuana with intent to distribute,
possession of a firearm during the commission of a felony, and possession of a
firearm by a convicted felon. After a jury trial that ended on August 25, 2021,
Carter was found guilty on all counts. On September 1, 2021, Carter was
sentenced to serve life in prison without the possibility of parole for malice
murder, concurrent prison terms of twenty years for the gang-activity count,
ten years for the marijuana-possession count, and five years for possession of
a firearm by a convicted felon, and a consecutive five-year prison term for
possession of a firearm during the commission of a felony. The felony murder
counts were vacated by operation of law, and the aggravated assault count was
merged into the malice murder conviction for sentencing purposes. Carter filed
a premature motion for new trial on August 31, 2021, which ripened upon the
entry of judgment, see Southall v. State, 300 Ga. 462, 464-467 (1) (796 SE2d
261) (2017), and he amended that motion through new counsel on September
8, 2022. After a hearing on December 7, 2022, the trial court denied the
jury instruction on the statutory requirement of corroboration of

accomplice testimony in felony cases was plain error and resulted

from the ineffective assistance of his trial counsel, and that the trial

court erred in admitting a document entitled “Proof of

Incarceration.” Because both claims of trial court error are subject

to review only for plain error, and Carter has failed to carry his

burden of showing either plain error or the ineffective assistance of

his trial counsel, we affirm.

The evidence submitted at trial shows the following. A few

months before Peterson was killed, Carter was robbed and shot in

the face by a man visiting the “trap house” from which Carter’s

fellow gang members sold drugs. The shooter in that prior incident

drove away in a “gray BMW” and was described by Carter as having

a money-bag tattoo on his face.

On the evening Peterson was killed, Carter and several other

gang members were present at their trap house. One gang member,

amended motion for new trial on March 6, 2023. Carter filed a timely notice of
appeal, and the case was docketed in this Court to the August 2023 term and
submitted for a decision on the briefs.
2
Anthony Norman, testified that Carter received a phone call, that

Carter said the caller was the one who had shot him, and that people

at the house then armed themselves. About half an hour later,