Greene v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 21, 2023
S23A0200. GREENE v. THE STATE.
LAGRUA, Justice.
Appellant Eric Jackson Greene was convicted of malice murder
and theft by taking in connection with the strangling death of Sheila
Bryant in January 2019.1 On appeal, Greene contends that the
evidence was legally insufficient to support his convictions and that
the trial court erred in the following respects: (1) by denying
1 Bryant’s body was discovered on January 25, 2019. In March 2019,
Greene was indicted by a Douglas County grand jury on charges of malice
murder, felony murder predicated on aggravated assault by strangling her,
and theft by taking. In February 2020, a jury found Greene guilty of all counts.
The trial court sentenced Greene to serve life in prison without the possibility
of parole on the malice murder count, plus an additional ten years on the theft
by taking count. The felony murder count was vacated by operation of law. On
March 3, 2020, Greene filed a timely motion for new trial, which he amended
through new counsel on January 4, 2021. Following an evidentiary hearing,
the trial court denied Greene’s motion for new trial on July 29, 2022. Greene
filed a timely notice of appeal to this Court on August 11, 2022, and the case
was docketed to the term of this Court beginning in December 2022 and
submitted for a decision on the briefs.
Greene’s motion to suppress his statement taken on February 18,
2019; (2) by admitting improper extrinsic evidence; (3) by admitting
overly graphic autopsy photographs; (4) by allowing the State to
present harmful and non-probative evidence from Greene’s cell
phone showing that he conducted internet searches pertaining to
rape; and (5) by failing to instruct the jury on mere presence and
corroboration of a defendant’s statement. For the reasons that
follow, these claims fail, and we affirm Greene’s convictions.
The evidence presented at Greene’s trial showed that, on the
night of January 23, 2019, Greene—who did not have a permanent
residence—stayed at the home of Kenny Bradford. 2 Christina
Norton was also staying at Bradford’s house in January 2019, and
she testified that, on January 24, she needed a ride to meet with her
probation officer, so she texted her friend, Blake Lee, to ask for a
ride. Lee did not have a car of his own, but he was living with
Bryant—the victim in this case—who did own a car. Lee testified
2 Bradford testified that a lot of people were “coming and going” and
“doing drugs” at his house during this time period.
2
that he asked Bryant if they could give Norton a ride to her
probation meeting in Bryant’s car, and Bryant agreed. Lee and
Bryant arrived at Bradford’s house around 3:30 p.m. on January 24.
According to Norton, Greene had been hanging out at Bradford’s
house all day, trying to get a ride to a car lot because he wanted to
steal a truck. And, when Lee and Bryant arrived and Greene
realized that Bryant owned a car, he asked for Bryant’s help to
“accomplish this car lot plan” because Greene “needed somebody to
be there to test drive [the truck].” Lee testified that he and Bryant
did not know Greene, so Lee told Greene they could not help him
with his plan. Lee later realized that Greene had talked Bryant into
taking him to the car lot because, when they left Bradford’s house,
Greene rode with them.
Lee testified that, after leaving Bradford’s house, he asked
Bryant to drop him off at a mobile home park where Zada Price—a
woman he knew—lived. According to Lee, after getting dropped off,
he could not get in touch with Price, so he went to the home of her
neighbor, Greg Jones. Jones testified that Lee ended up staying at
3
his house for “five or six, seven hours,” until after 9:30 p.m., trying
to reach Price and waiting for Bryant to pick him up. After several
hours, Lee assumed that Bryant was not going to “show back up,” so
he walked back to Bradford’s house. Greene and Bryant did not
return to Bradford’s house that night, and Lee testified that he never
saw Bryant again.
At approximately 7:45 the next morning, Bill Messer was
driving home from work along West Union Hill Road when he saw
“somebody l[y]ing on the side of the road.” Messer pulled over and
approached the person, noting upon closer examination that it was
a woman, lying “face down,” whose “underwear was still for the most
part up, but her pants were pulled down.” Messer, who was a
firefighter, “took a radial pulse from both [her] wrists,” and after
finding no pulse, he called 911.
Law enforcement officers with the Douglas County Sheriff’s
Office arrived shortly afterwards and also observed a “female l[y]ing
face down on the side of the road,” with her arms “stretched above
her head,” her pants and underwear “pulled down below her
4
buttocks,” and her “feet elevated in some bushes.” Lieutenant Greg
Ashcraft, one of the responding officers, testified that the woman
also had frost on her jacket, “which told [him] she had been out there
a period of time and the moisture had frozen on her.” Lieutenant
Ashcraft also noticed tire impressions going through the grass close
to the body. When officers turned the woman’s body over in
preparation for removing her from the scene, Lieutenant Ashcraft
observed that “a lot of her abdomen area [was] exposed” and that
she had “bruising” up towards her “ear area” and “what appeared to
be an injury around the neck area,” including “sign[s] of a ligature
having been used.” Lieutenant Ashcraft testified that, on this basis,
he believed this woman had died from “ligature strangulation.”
Investigator Jay Hayes with the Criminal Investigation
Division of the Douglas County Sheriff’s Office also responded to the
scene and used a mobile fingerprint identification device to identify
the deceased as Bryant. At trial, the medical examiner testified that
Bryant’s cause of death was ligature strangulation by a belt or
similar object, as demonstrated by “the broad abrasion over a
5
significant portion of the neck” and a “very straight line across the
whole front of the neck.” According to the medical examiner, the
strangulation was “forceful,” causing “deep tissue damage.” The
medical examiner also noted bruising on Bryant’s extremities, as
well as “contusions and superficial abrasions and skin tears on her
hands,” indicating that she was “in a struggle” and “trying to fight
somebody off.” The medical examiner also documented “injuries to
[] Bryant’s vagina” consistent with “sexual penetration.”
Investigator Hayes testified at trial that Lee was initially a
person of interest because he lived with Bryant and was the last
person Bryant’s daughters had seen with her on January 24. On
January 29, 2019, Investigator Hayes interviewed Lee at the
Sheriff’s Office. During the interview, Lee told Investigator Hayes
that Bryant and Greene dropped Lee off at a mobile home park on
the afternoon of January 24 and that was the last time he saw
Bryant. Lee stated that he hung out at Jones’s house because he
could not get in touch with Price—the woman he was hoping to see—
6
and after several hours, Lee walked back to Bradford’s house.3
Based on Lee’s cell phone records and witness interviews,
Investigator Hayes “eliminate[d]” Lee as a suspect, determining
that Lee “wasn’t anywhere near” the “area of the crime scene” during
the hours in question. Investigator Hayes also learned that Bryant
owned a four-door, silver or gray 2010 Mazda 6 sedan that was
missing.
During the early morning hours of January 30 or 31, Lee called
Investigator Hayes and informed him that Greene had just stopped
by Bradford’s house and was driving Bryant’s car. Norton testified
that she also saw Greene in Bryant’s car that night, and then, on
February 1, she received a text message from Greene at 4:15 a.m.,
stating that it was “hard to believe [Bryant] got killed.” Norton also
received a second message from Greene stating that Bryant had told
Greene on January 24 that “she was supposed to go meet someone
about some pills.”
3During this interview, Lee consented to having a buccal swab of his
DNA taken by Investigator Hayes.
7
About a week later, on February 7, Officer Timothy Ito with
the Paulding County Sheriff’s Office responded to “a report of a
vehicle parked in front of a residence” in Paulding County “where
the male was sleeping in the front seat.” When Officer Ito arrived,
he observed a man asleep in the front seat of a “gray four door
Mazda” sedan. Officer Ito directed the man—later identified as
Greene—to exit the vehicle. As Officer Ito was in the process of
obtaining Greene’s personal information, he received a report that
“the vehicle had returned as stolen” and “was connected to a
homicide.” At that point, “Greene grabbed his phone and took off
running,” but he tripped and fell down. Officer Ito took Greene into
custody and coordinated with Douglas County law enforcement to
tow Bryant’s vehicle and have Green transported to Douglas
County.
Later that same day, Investigator Hayes interviewed Greene.4
After waiving his Miranda rights, 5 Greene told Investigator Hayes
4 This interview was video-recorded and played for the jury at trial.
5 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
8
that he had borrowed the car he was sleeping in “from a guy named
Blake”—later determined to be Blake Lee—about two weeks before.
Greene told Investigator Hayes that he met Lee on January 24 when
Lee “showed up” at Bradford’s house with “an older lady”—later
determined to be Bryant—and they gave Greene a ride to a few car
lots in Villa Rica and Douglasville for Greene to look for a truck.
Greene said that, when they arrived at the last car lot in
Douglasville, he “got out of [the car] and they took off on [him].”
Greene said his phone was not working, so he had to walk back to
Bradford’s house. Greene stated that he saw Lee again about “two
or three days” later at Bradford’s house, and Greene borrowed the
car from Lee.
Investigator Hayes confronted Greene with Lee’s account of
events and advised Greene that Bryant had been murdered. Greene
said he did not realize Bryant was dead, denied any involvement in
her death, and consented to have a buccal swab of his DNA taken.
Greene also gave several differing accounts about how he obtained
Bryant’s car. In the last account, Greene said that, three days after
9
he visited the car lots with Lee and Bryant, Lee offered to rent him
Bryant’s car, and Greene agreed to do so.
When Investigator Hayes informed Greene that he would “pull
video” surveillance from the various car lots Greene had mentioned,
Greene’s account changed slightly. Greene said he went to one car
lot alone with Bryant because they had dropped Lee off at a store.
According to Greene, when they arrived at this car lot, Bryant
appeared to be under the influence. Greene said he did not want her
driving “when [she] was like that,” so he helped her out of the car
and put her in the passenger seat. Greene said he then drove
Bryant’s car to pick up Lee, and they stopped by a few other car lots.
At the last one, Lee and Bryant left Greene, forcing him to walk back
to Bradford’s house.
At the end of the interview, Investigator Hayes looked through
Greene’s cell phone and observed that the call log started at 6:35
p.m. on January 25, the day Bryant’s body was discovered. Greene
told Investigator Hayes that he did a factory reset on January 25
because the “memory got too full” and the phone was “not working.”
10
Investigator Hayes also observed “slight indications of healing from
scratch marks or like thin lacerations on [Greene’s] hands.” When
Investigator Hayes asked Greene about the scratches and whether
his DNA would be under Bryant’s fingernails, Greene insisted that
he did not touch Bryant and that he would “never do anything to
harm a woman.”
Following this interview and after obtaining a search warrant
for the contents of Greene’s cell phone, an investigator conducted a
search of the phone and discovered that, on January 23 and 24, 2019,
Greene conducted internet searches, specifically appearing on his
phone as “‘Rape’ Search – [a link to the specific website].” Any
material or photographs Greene might have obtained as a result of
these searches were not referenced or admitted at trial—only the
fact that Greene conducted the searches. Additionally, Investigator
Hayes obtained surveillance video from the car lots Greene
mentioned and from the surrounding businesses, but the footage did
not show that Greene visited or was in the vicinity of any of those
businesses on January 24, except for Comfort Cars in Villa Rica.
11
The surveillance video recording from Comfort Cars and the
testimony from one of its salesman, James Clayton, demonstrated
that Bryant and Greene arrived at the car lot in Bryant’s car around
5:00 p.m. on January 24. Bryant was driving the car at the time,
Greene was in the front passenger seat, and no one else was in the
car. Clayton testified that these two individuals “stuck out in [his]
mind” because the “female in the vehicle was high on something”
and “couldn’t even hold herself up.” Clayton observed that “she was
slumped over” in the car and “kind of drunk like.” Greene told
Clayton that he was looking for a truck and asked about a Chevrolet
Avalanche that Clayton had on the lot. Greene told Clayton that “he
didn’t have a license, so she [indicating Bryant] was going to drive,”
and Clayton responded that she was “not in any shape to drive.”
Clayton testified that he walked over to the office to get the key to
the Avalanche, and as he did so, he could hear Greene telling Bryant
to “straighten the f**k up” and “sit up straight.” Clayton said he
heard Greene yelling and swearing at her, calling her a “stupid
f**king b**ch.” According to Clayton, Greene then pulled Bryant
12
out of the driver’s seat of the car and walked her around to the front
passenger seat. Clayton said “she was a dish rag,” that “she was
gone.” Greene got into the driver’s seat of Bryant’s car and drove
out of the Comfort Cars lot at 5:25 p.m.
Officers collecting evidence from Bryant’s car located a receipt
from an auto parts store with Greene’s name and contact
information on it. The manager of the auto parts store testified that,
on January 25, at 7:27 p.m., he assisted Greene in exchanging a
headlight bulb that Greene had purchased earlier in the evening for
one that would fit a 2010 Mazda 6.
A forensic DNA analyst with the GBI testified that she tested
swabs from Bryant’s hands and vaginal area and identified Greene’s
DNA on Bryant’s fingernail clippings and inside her vaginal area.
Greene was arrested soon afterwards.
On February 15, Investigator Hayes interviewed Greene a
second time6 and reviewed Greene’s Miranda rights, which Greene
agreed to waive. After Investigator Hayes confronted Greene with
6 This interview was video-recorded and played for the jury at trial.
13
discrepancies in his statements from the February 7 interview—
including where Greene allegedly went on January 24 and 25, who
accompanied him, and when he took possession of Bryant’s vehicle—
Greene eventually told Investigator Hayes that, about 45 minutes
after being left at the last car lot on January 24, Lee and Bryant
returned, and the following occurred:
[Lee] comes to me. He was in the driver’s seat, she was in
the passenger’s seat. And I thought she was asleep. And
he sat there and said, “Hey, I done f**ked up. I done
f**ked up.” And I was like, “How’d you f**k up?” And he
said [inaudible], “I don’t know what to do, I don’t know
what to do.” And I said, “So what are you talking about?
What did you do?” And he said, “I killed somebody.” And
I said, “How’d you kill somebody?” And he said, “She’s
dead.” And I said, “Who’s dead?” I didn’t know he was
talking about the woman who was sitting right next to
him.
Greene said he asked Lee to drop him off because he “didn’t want
any part of it,” and Greene hitched a ride back to Bradford’s house
to get his belongings and then to a friend’s house in Paulding
County. Greene told Investigator Hayes that the next day, January
25—around 1:00 or 2:00 p.m.—Greene was walking down the road
in Villa Rica when he “ran into [Lee] again.” According to Greene,
14
Lee was driving Bryant’s Mazda, and Lee stopped the car and told
Greene that he would sell him the car and “give him the title and
everything.” Greene said he agreed to buy the car and took
possession of it at that time. Greene told Investigator Hayes that he
replaced the headlight that evening because he noticed “it was
blown.”
The trial evidence showed that Greene ultimately gave five
accounts of what occurred on January 24 and 25. In Greene’s final
account, Greene told Captain John Sweat—who had taken over the
interview for Investigator Hayes—that, 45 minutes after Lee and
Bryant left Greene at the last car lot, they returned with “two
unidentified males in the back seat of the car,” and Greene sat in
between the men in the back seat. Greene indicated that these men
were “[u]nknown gang members,” but could not otherwise provide
any identifying information about them or how to get in touch with
them. Greene said that Bryant was alive at this point, and she and
Lee were “bickering.” According to Greene, a few minutes later, they
pulled off the road near some power lines on West Union Hill Road
15
in Douglas County, and Lee choked Bryant with his arm and
wrapped “a purple scarf around her neck,” which he used to strangle
her. 7 Greene then demonstrated the act for Captain Sweat,
explaining that Lee pulled the scarf through the headrest and
“cinche[d] down on it.” Greene stated that he tried to stop Lee, but
he “had these two guys sitting beside [him], and each one put a gun
to [his] head at that moment.” Greene said that, after Bryant was
“obviously dead,” Lee drove over to the “dump site”—an area off the
side of the road, not far from the area where she was killed. Greene
said that Lee and one of the men pulled Bryant out of the car and
“dragged her over to the wood line off the roadway,” leaving her face
down on the side of the road. Greene said the man seated beside
him in the backseat put a gun in his mouth and “told [him] not to
move.” Greene stated that Lee and “this other guy” went through
Bryant’s pockets and stole something from her. Greene repeated the
The medical examiner testified that, “based on the broad abrasion over
7
a significant portion of the neck” and a “very straight line across the whole
front of the neck,” it “d[id]n’t seem likely” that Bryant was strangled with a
scarf.
16
same account to Investigator Hayes when Hayes rejoined the
interview. Investigator Hayes asked Greene if he would be able to
lead officers to the site where Bryant was killed, and Greene
indicated he could do so.
On February 18, Investigator Hayes and another officer picked
Greene up at the Douglas County Jail. 8 Investigator Hayes testified
that he briefly reviewed Greene’s Miranda rights again, after which
Greene led the officers to “a dirt, turn-off road with power lines
running across it” along West Union Hill Road, where Greene
asserted that Bryant had been killed. Investigator Hayes testified
that this location was “[a]bout six-tenths of a mile” from there they
found Bryant’s body.
At trial, Jerry Trotter, a family friend of Greene’s, testified
that, between 9:45 and 10:15 p.m. on January 24, Greene stopped
by Trotter’s house, which is located “maybe a mile” from where
“[Bryant’s] body was found.” According to Trotter, Greene was alone
at the time and was driving “a late model dark colored four-door
8 This car trip was audio-recorded and played for the jury at trial.
17
sedan” that Trotter had never seen before. Trotter asked Greene
whose car he was driving, and Greene said it was “his girlfriend’s,
Sheila’s.” When the State asked Trotter about Greene’s demeanor
that night, he testified that Greene seemed “nervous” and “worried.”
Additionally, Trotter testified that he was very familiar with the
area where Bryant was purportedly killed—i.e., the power lines on
West Union Hill Road—because he and Greene fished a pond in that
area and Greene would also occasionally hang out and sleep in his
car there. Amber Echols, an acquaintance of Greene’s, also testified
at trial that she and Greene had previously hung out by the power
lines on West Union Hill Road to “smoke[]” because the area was “off
the road” where “nobody could see [them].” Echols said that, in late
January 2019, Greene started driving a “darker color” car with four
doors.
Jennifer Brownlow, a family friend of Greene’s, also testified
at trial. According to Brownlow, Greene attended a birthday party
at her house on January 27, 2019, arriving in a “blue colored car”
with “four door[s].” Brownlow observed that Greene was “a little off
18
that day, kind of fidgety, looking around,” and stayed at the party
for “maybe ten minutes at the most.”
1. On appeal, Greene contends that the evidence was
insufficient to support his conviction for malice murder under OCGA
§ 16-5-1 (a).9 See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781,
61 LE2d 560) (1979). Greene also contends that his conviction was
based solely on circumstantial evidence and that the State failed to
exclude the reasonable hypothesis that Lee was the person who
killed Bryant by strangling her. See OCGA § 24-14-6 (“To warrant
a conviction on circumstantial evidence, the proved facts shall not
only be consistent with the hypothesis of guilt, but shall exclude
every other reasonable hypothesis save that of the guilt of the
accused.”). Pretermitting whether Greene’s convictions were based
solely on circumstantial evidence, we disagree that the evidence was
insufficient to support Greene’s conviction for malice murder as a
matter of constitutional due process or under OCGA § 24-14-6.
9 Pursuant to 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.”
19
When evaluating challenges to the sufficiency of the evidence
as a matter of constitutional due process, “the relevant question is
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 319 (III) (B) (emphasis in original).
“We leave to the jury the resolution of conflicts or inconsistencies in
the evidence, credibility of witnesses, and reasonable inferences to
be derived from the facts, and we do not reweigh the evidence.”
Harris v. State, 313 Ga. 225, 229 (2) (869 SE2d 461) (2022).
Additionally,
“[t]o warrant a conviction on circumstantial evidence, the
proved facts shall not only be consistent with the
hypothesis of guilt, but shall exclude every other
reasonable hypothesis save that of the guilt of the
accused.” Not every hypothesis is reasonable, and the
evidence does not have to exclude every conceivable
inference or hypothesis; it need rule out only those that
are reasonable. Whether alternative hypotheses are
reasonable, however, is usually a question for the jury,
and this Court will not disturb the jury’s finding unless it
is insufficient as a matter of law.
20
Garay v. State, 314 Ga. 16, 19-20 (2) (875 SE2d 631) (2022) (quoting
OCGA § 24-14-6). And, although “the State is required to prove its
case with competent evidence, there is no requirement that it prove
its case with any particular sort of evidence.” Id. at 21 (2) (citation
and punctuation omitted).
Construing the evidence in the light most favorable to the
jury’s verdict, the evidence demonstrated the following: (1) Greene
was the last person seen with Bryant on January 24, 2019—the day
before her body was discovered; (2) the sales manager for Comfort
Cars observed Greene yelling and swearing at Bryant in the Comfort
Cars parking lot that evening, and around 5:25 p.m., Greene moved
Bryant to the passenger seat and drove her car away from the
dealership; (3) later that night, between 9:45 and 10:15 p.m., Greene
showed up at Trotter’s house alone, driving a vehicle closely
resembling Bryant’s car that he said had been given to him by
someone named “Sheila”; (4) the next morning, Bryant was found
dead on the side of the road—in an area close to where Trotter
lived—with her pants and underwear pulled down, and Greene’s
21
DNA was found inside Bryant’s vaginal area; (5) Greene purchased
a headlight bulb for Bryant’s car the evening after her body was
discovered; (6) over the next few days, several witnesses, including
Lee, saw Greene driving Bryant’s car; (7) a week or so later, Greene
was discovered by law enforcement sleeping in and living out of
Bryant’s car; (8) during Greene’s subsequent interviews with law
enforcement, Greene gave a number of conflicting accounts
regarding his whereabouts and activities on January 24 and 25, and
those interviews were played for the jury; (9) Greene’s DNA was
found underneath Bryant’s fingernails, and Investigator Hayes
observed scratch marks on Greene’s hands during his first interview
on February 7; and (10) the medical examiner testified that Bryant
had “superficial abrasions and skin tears on her hands”—consistent
with having been “in a struggle” and “trying to fight somebody off.”
Additionally, Greene placed himself at the location of Bryant’s
murder and the location where her body was found—stating that he
was present for Bryant’s murder and the disposal of her body, but
did not kill her or touch her. Greene also led Investigator Hayes to
22
the murder site—the power lines along West Union Hill Road—and
trial testimony from Trotter and Echols demonstrated that Greene
was familiar with this area, having gone there often to fish, hang
out, sleep in his car, and smoke. And, although Greene told
Investigator Hayes that he saw Lee strangle and kill Bryant, law
enforcement had already eliminated Lee as a suspect based on
witness statements and cell phone data that confirmed Lee was
nowhere near the crime scene on January 24 and 25.
The jury was “entitled to disbelieve” Greene’s version of the
events preceding Bryant’s death because “his story conflicted with
most of the other evidence.” McKinney v. State, 300 Ga. 562, 567 (2)
(797 SE2d 484) (2017). “The jury could instead believe the testimony
and other evidence” indicating that Greene was the person who
strangled Bryant to death on the night of January 24. Id.Accordingly, after properly viewing the evidence in the light
most favorable to the verdict, we conclude that the evidence was
sufficient under the Jackson standard for a jury to find Greene
guilty beyond a reasonable doubt of malice murder. See Jackson,
23
443 U.S. at 319 (III) (B). See also Boyd v. State, 306 Ga. 204, 207 (1)
(830 SE2d 160) (2019). Additionally, based on this evidence, the jury
was authorized to find that Greene killed Bryant and that the
alternative hypothesis that someone other than Greene committed
the crimes was unreasonable. See Garay, 314 Ga. at 21 (2).
Therefore, Greene’s challenge to the sufficiency of the evidence as a
matter of both constitutional due process and Georgia statutory law
fails.
2. Greene next contends that the trial court erred in not
suppressing his February 18, 2019 statement to Investigator Hayes
because Investigator Hayes failed to give Greene his complete
Miranda warnings at the outset of that interview. “The trial court
determines the admissibility of a defendant’s statement under the
preponderance of the evidence standard considering the totality of
the circumstances. Although we defer to the trial court’s findings of
disputed facts, we review de novo the trial court’s application of the
law to the facts.” Gaddy v. State, 311 Ga. 44, 46 (2) (855 SE2d 613)
(2021) (citation and punctuation omitted).
24
At the Jackson-Denno 10 hearing, Investigator Hayes testified
that Greene was taken into custody on February 7, 2019, and before
Investigator Hayes interviewed Greene that day, he read Greene his
Miranda rights. Greene indicated that he understood those rights,
signed a waiver of rights form, and agreed to speak with Investigator
Hayes. Investigator Hayes testified that he interviewed Greene a
second time on February 15, 2019. At the outset of the February 15
interview, Investigator Hayes read Greene his Miranda rights, and
Greene indicated that he understood those rights and affirmatively
waived those rights. According to Investigator Hayes, during the
February 15 interview, Greene “changed course”—going from
having “no knowledge” of Bryant’s death, to having been present
when Bryant was killed and “when the body was disposed of.” So
Investigator Hayes asked Greene whether “he would take [them] out
and show [them] the location that [Bryant] was killed,” and Greene
confirmed that he could.
Investigator Hayes testified that, three days later, on February
10 Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
25
18, he and another officer removed Greene from the Douglas County
Jail for Greene to lead them to the site where Bryant was killed.
Investigator Hayes noted that he had already Mirandized Greene
“at least twice,” but he briefly recited Greene’s Miranda rights again
before driving to the location in question. Investigator Hayes
recorded the interview on a digital voice recorder inside the vehicle.
The audio recording of the February 18 interview was then played
for the trial court, and in the recording, the following exchange
occurred:
INVESTIGATOR HAYES: Do you understand that you’re
still under your rights? You still have the right to remain
silent. You still have the right to have an attorney with
you if I ask you any questions or before you can answer
any questions if you like. If you can’t afford to hire an
attorney, one can be appointed to represent you if you
wish. You understand all those rights?
GREENE: Yes.
INVESTIGATOR HAYES: OK, having all those rights in
mind, you still want to continue with our field trip?
GREENE: Yes.
After hearing Investigator Hayes’s testimony and the audio
recording of the interview, the trial court denied Greene’s motion to
suppress, finding that: (1) Investigator Hayes had previously
26
advised Greene of his Miranda rights during his February 7 and
February 15 interviews; (2) during both of the prior interviews,
Greene “waived his rights freely and voluntarily, without hope of
benefit, [or] fear of injury” and spoke to Investigator Hayes about
“the homicide that is at issue in this case”; (3) on February 18,
Investigator Hayes gained Greene’s “voluntary cooperation” to go to
a location “where the victim was originally killed,” and “rather than
give the full Miranda warning,” Investigator Hayes “advised”
Greene that “the Miranda rights still applied and substantially gave
the Miranda warning”; and (4) Greene “freely and voluntarily
agreed to converse with [Investigator Hayes] and go to the location
and answer the officer’s questions.” The trial court ruled that,
“under the circumstances of this case,” Greene’s February 18
statement was “admissible and that [Greene] waived his rights and
made the statement voluntarily.” The trial court reached the same
conclusion in denying Greene’s motion for new trial.
On appeal, Greene does not dispute that Investigator Hayes
properly advised him of his Miranda rights before questioning him
27
on February 7 and February 15 and that he signed a Miranda
waiver prior to each of those interviews. Greene argues, as he did
below, that, on February 18, he did not sign a waiver of rights form
and that Investigator Hayes went over the Miranda warnings “real
quick” while they were driving to the site where Bryant was
allegedly killed. Greene contends that Investigator Hayes left out
the following rights from the Miranda warning: (1) Greene had a
right to stop the interrogation at any time, and (2) anything Greene
said during the interview could be used against him. Greene asserts
that his February 7, February 15, and February 18 interviews were
independent—as opposed to one continuous interview—and
accordingly, Investigator Hayes “committed an error of
constitutional magnitude” when he “outright failed” to advise
Greene that anything he said on February 18 could be used against
him in a court of law.
The trial court did not err in concluding that Greene knowingly
and voluntarily waived his Miranda rights on February 18. See
Pender v. State, 311 Ga. 98, 119 (5) (856 SE2d 302) (2021)
28
(concluding that the record supported the trial court’s finding that
the appellant “made a knowing, intelligent voluntary waiver of his
rights” during his custodial interview and that “the officers were not
required to re-read the Miranda warnings to [the appellant] before
commencing their questioning” eight days later). “Neither federal
nor Georgia law mandates that an accused be continually reminded
of his rights once he has intelligently waived them.” Ellis v. State,
299 Ga. 645, 648 (2) (791 SE2d 16) (2016) (citation and punctuation
omitted). “Thus, when conducting a follow-up interview or a
continuation of a previous interview, a reminder of Miranda rights
may be permitted in place of a complete restatement.” Gaddy, 311
Ga. at 47 (2) (citations omitted).
Here, Greene does not dispute that he was fully advised of and
knowingly and voluntarily waived his Miranda rights prior to his
interviews with Investigator Hayes on February 7 and 15, and the
record reflects that Investigator Hayes reminded Greene of those
rights on February 18. Greene has not shown that, under these
circumstances, “the Miranda warnings he received” on February 15
29
“became stale” in the three days “between receiving them and [any]
incriminating statements he made to the police on” February 18 or
that other circumstances arose after Greene was informed of those
rights on February 15 which would have rendered his February 18
statements involuntary. Pender, 311 Ga. at 119 (5). Therefore,
“[b]ased on the totality of the circumstances, the trial court did not
err in its determination that” Greene’s February 18 statement was
“freely, knowingly, and voluntarily given or in its admission” of the
statement at trial. Id.
3. Greene also contends that the trial court erroneously
admitted other-acts evidence pursuant to OCGA § 24-4-404 (b)
(“Rule 404 (b)”). We conclude that the trial court did not clearly
abuse its discretion in admitting this other-acts evidence at trial,
but even if certain of this evidence should not have been admitted,
any such error was harmless.
The other-acts evidence admitted at trial involved Greene’s
prior assaults by strangulation of his ex-girlfriends, Amber Clark
and Nadine Pirkle. Clark, who dated Greene in 2017, testified that,
30
when Greene got angry with her, he would strangle her—explaining
that it happened “so many” times she “couldn’t count” and “[i]t would
feel like [she] was about to die.” Clark testified that, on one occasion,
Greene got angry with her while he was driving her car, and he
pulled the car over on the side of the road, at which point Clark
exited the car and started running. Greene caught up with Clark
and strangled her to the point of unconsciousness, and while she was
unconscious, Greene stole Clark’s vehicle and left her on the side of
the road. When Clark woke up, she started walking, and a police
officer stopped and gave her a ride to a friend’s house. The police
officer testified at trial that Clark indicated there had been a
“physical altercation” with someone, but she “denied a report.”
Clark testified that she did not want to press charges because
Greene still had her car, and she was afraid of him. Pirkle also
testified that she dated Greene in 2000, and when he got angry with
her, he would strangle her—generally “grabb[ing] [her] from
behind.” Pirkle testified that Greene frequently “choked [her] till
[she] passed out,” and on one occasion, when Pirkle refused to give
31
Greene money from her tax refund, he “strangled [her] in front of
[her] mother.” Pirkle called the police, and the responding officer
testified that she arrested Greene and charged him with simple
battery.11
“We review the trial court’s decision to admit evidence
pursuant to Rule 404 (b) for a clear abuse of discretion.” Hood v.
State, 309 Ga. 493, 499 (2) (847 SE2d 172) (2020). “Rule 404 (b) is a
rule of inclusion, but it does prohibit the introduction of other acts
evidence when it is offered for the sole purpose of showing a
defendant’s bad character or propensity to commit a crime.” Booth
v. State, 301 Ga. 678, 683 (3) (804 SE2d 104) (2017). To that end,
“[i]t is well established that other acts evidence is not admissible ‘to
prove the character of a person in order to show action in conformity
therewith,’” but “such evidence is admissible for other purposes,
including ‘proof of motive, opportunity, intent, preparation, plan,
11 A certified copy of the indictment was admitted at trial, as well as
Greene’s guilty plea to simple battery.
32
knowledge, identity, or absence of mistake or accident.’” Hood, 309
Ga. at 499 (2) (quoting OCGA § 24-4-404 (b)).
A party offering evidence pursuant to Rule 404 (b) must
demonstrate three things: (1) that the evidence is
relevant to an issue in the case other than the defendant’s
character; (2) that the evidence’s probative value is not
substantially outweighed by its undue prejudice; and (3)
that sufficient proof exists for a jury to find by a
preponderance of the evidence that the defendant
committed the other act.
Id. (citation omitted).
Here, Greene does not argue that the State failed to satisfy its
burden under the third part of the test to show that he committed
the other acts against Clark and Pirkle. Therefore, we need only
examine the first and second parts of the test to determine whether
the other-acts evidence was relevant to an issue other than Greene’s
character and whether the probative value of the evidence was
“substantially outweighed by its undue prejudice.” Hood, 309 Ga. at
499 (2).
To determine whether evidence is “relevant to an issue in the
case other than the defendant’s character,” Kirby v. State, 304 Ga.
33472, 479 (4) (819 SE2d 468) (2018), we apply OCGA § 24-4-401,
which defines “relevant evidence” as evidence that “ha[s] 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. Greene argues
that relevance can only be established in this context where the
other act was committed with the same state of mind as the charged
crimes. Greene further argues that, because the intent required for
the other acts at issue was not the same as the offenses for which he
was charged—namely, malice murder by strangling Bryant and
theft by taking for stealing Bryant’s car12—the other-acts evidence
was not relevant for any purpose except to impermissibly show
Greene’s propensity to commit criminal acts. We disagree and
conclude that the other-acts evidence was relevant to the issue of
Greene’s intent. Because Greene entered a plea of not guilty in this
case and “did not take affirmative steps to remove intent as an
12 We note that Greene was also charged with felony murder predicated
on aggravated assault for causing the death of Bryant, irrespective of malice,
by strangling her.
34
issue,” Hounkpatin v. State, 313 Ga. 789, 794 (2) (a) (873 SE2d 201)
(2022), he made intent “a material issue,” and “the State may prove
intent by qualifying Rule 404 (b) evidence absent affirmative steps
by the defendant to remove intent as an issue.” Hood, 309 Ga. at
499-500 (2) (citation and punctuation omitted). See also Naples v.
State, 308 Ga. 43, 51 (2) (838 SE2d 780) (2020) (“We have stated that
a defendant who enters a not guilty plea makes intent a material
issue, and the State may prove intent by qualifying Rule 404 (b)
evidence absent affirmative steps by the defendant to remove intent
as an issue.” (citation and punctuation omitted)).
As noted above, Greene was charged in this case with felony
murder predicated on aggravated assault for causing Bryant’s death
by strangling her and theft by taking for unlawfully taking Bryant’s
motor vehicle with the intent to deprive her of it. And “we may
consider whether the other acts were relevant to the issue of intent
on any of these offenses.” Booth, 301 Ga. at 683 (3). The charged
offense of felony murder predicated on aggravated assault by
strangulation involved “similar intent,” id., to Greene’s prior acts of
35
strangulation against Clark and Pirkle—acts which could also have
constituted aggravated assaults by strangulation. 13 The charged
offense of theft by taking for stealing Bryant’s car likewise involved
“similar intent” to Greene’s theft of Clark’s vehicle after she passed
out from strangulation, which could also have constituted a theft by
taking. “The relevance of other[-]acts evidence offered to show
intent is established when the prior act was committed with the
same state of mind as the charged crime.” Hood, 309 Ga. at 500 (2)
(“Here, the states of mind required for the charged offenses of
aggravated assault, aggravated battery, and armed robbery were
the same as the states of mind required for the uncharged DeKalb
County incident, which could constitute robbery, aggravated
assault, and aggravated battery. Therefore, the trial court did not
err by ruling that the other acts evidence was relevant to a matter
other than Hood’s character – her intent.”). Phrased another way,
13 Under OCGA § 16-5-21 (a) (3), “[a] person commits the offense
of aggravated assault when he or she assaults: . . . [w]ith any object, device, or
instrument which, when used offensively against a person, is likely to or
actually does result in strangulation . . . .”
36
“evidence that an accused committed an intentional act generally is
relevant to show . . . that the same defendant committed a similar
act with the same sort of intent.” Olds v. State, 299 Ga. 65, 72 (2)
(786 SE2d 633) (2016). See also Booth, 301 Ga. at 682-683 (3)
(explaining that, while the appellant “focuse[d] specifically on the
intent required for malice murder,” malice murder was “not the only
crime for which he was prosecuted in this case and thus for which
the State was required to prove intent”). Accordingly, because “the
intent required for the charged offense and other acts is the same,
and intent is at issue, the first prong of the Rule 404 (b) test [has
been] satisfied.” Id.Having concluded that the other-acts evidence was relevant to
prove intent and met the first part of the Rule 404 (b) test, “the next
step is to weigh its probative value against its prejudicial effect,”
Kirby, 304 Ga. at 481 (4) (a), which “requires evaluation of the other-
acts evidence under Rule 403.” Naples, 308 Ga. at 52 (2).
Rule 403 provides for the exclusion of relevant evidence
where its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues or
37
misleading the jury or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence. In other words, other acts evidence should be
excluded if it constitutes matter of scant or cumulative
probative force, dragged in by the heels for the sake of its
prejudicial effect. Factors to be considered in
determining the probative value of other act evidence
offered to prove intent include its overall similarity to the
charged crime, its temporal remoteness, and the
prosecutorial need for it.
Hood, 309 Ga. at 500-501 (2) (citations and punctuation omitted).
As discussed above, the State was required to prove that
Greene intended to assault Bryant by strangling her and to take
Bryant’s car with the intention of depriving her of this property.
And the other-acts evidence related to Clark “was highly probative”
on those points “given the overall similarity between the offenses,
their temporal proximity, and the prosecution’s need for them.”
Hounkpatin, 313 Ga. at 795 (2) (a). The evidence shows that
Greene’s acts of strangling Clark were “the same type of act alleged
to have caused” Bryant’s “death.” Hounkpatin, 313 Ga. at 795 (2)
(a). And, while Clark did not ultimately die as a result of the
assaults by strangulation and Greene generally used his hands or
38
arm as an instrument—as opposed to a ligature of some kind—when
strangling her, see OCGA § 16-5-21 (a) (3), these differences do not
alter the striking similarities in Greene’s mental state and intent in
engaging in these acts of strangulation. Additionally, with respect
to the theft by taking charge in this case, the other-acts evidence
established that, on at least one occasion after Greene strangled
Clark and she passed out, he stole her car and left her on the side of
the road. Bryant’s car was also stolen after she was strangled and
left on the side of the road, and her car was later found in Greene’s
possession.
The similarities between the acts of strangling Clark and
taking her property—i.e., her car—with the intent to deprive her of
said property and the theft of Bryant’s car following her death by
strangulation were substantial. And, “[w]hen other act evidence is
introduced to prove intent, [] a lesser degree of similarity between
the charged crime and the extrinsic evidence is required” than when
it is used to prove identity. Kirby, 304 Ga. at 484 (4) (a) (i) (quotation
and punctuation omitted). As for temporal proximity, the crimes
39
charged in this case occurred two years after Greene’s violent
strangulation of Clark and consequent theft of her car. Given this
timeframe and the significant similarities between the Clark
incidents and the crimes at issue, the incidents involving Clark were
highly probative. See Hood, 309 Ga. at 501 (2). And, even if the
other-acts evidence involving Clark was not “critical to the State’s
prosecution,” the other-acts evidence proved that Greene acted with
intent in assaulting Bryant by strangling her and unlawfully taking
her car with the intent to deprive her of this property. Hounkpatin,
313 Ga. at 796 (2) (a). See also Olds, 299 Ga. at 75 (concluding that
the “probative value of evidence derives in large part from the extent
to which the evidence tends to make the existence of a fact more or
less probable,” and “the greater the tendency to make the existence
of a fact more or less probable, the greater the probative value”)
(citations omitted).
We recognize that the other-acts evidence related to Clark was
also certainly prejudicial to Greene, particularly since he was not
charged with any crimes arising from his assaults on Clark or the
40
theft of her car, which can increase the prejudicial impact of this
evidence. See Hood v. State, 299 Ga. 95, 105 (786 SE2d 648) (noting
that the danger of admitting extrinsic offense evidence is greater
where “the extrinsic activity was not the subject of a prior
conviction” because “the jury may feel that the defendant should be
punished for that activity even if he is not guilty of the offense
charged”). However, “Rule 403’s exclusionary force is meant to be
applied sparingly—primarily when the other-acts evidence has
scant or cumulative probative force, dragged in by the heels for the
sake of its prejudicial effect.” Hounkpatin, 313 Ga. at 796 (2) (a)
(citations and punctuation omitted). “Given the substantial
probative value” of this other-acts evidence in proving Greene’s
intent, “the trial court did not abuse its discretion in determining
that unfair prejudice” to Greene did not “substantially outweigh it.”
Id. at 797 (2) (a).
Under these circumstances, we conclude that the other-acts
evidence involving Clark “was not a matter of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial
41
effect,” Kirby, 304 Ga. at 484 (4) (a) (i) (quotation and punctuation
omitted), and we cannot say that the probative value of this other-
acts evidence “was so outweighed by the danger of unfair prejudice
that the trial court abused its discretion when it admitted it.” Hood,
309 Ga. at 501 (citation and punctuation omitted).
Turning to the trial court’s admission of Greene’s violent acts
towards Pirkle, we conclude that, because these acts occurred 19
years before the charged crimes, they were too remote in time to
have much, if any, evidentiary value, but any error in admitting this
evidence was harmless.
The test for determining whether a nonconstitutional
evidentiary error was harmless is whether it is highly
probable that the error did not contribute to the verdict.
In conducting this harmless-error review, we review the
record de novo and weigh the evidence as we would expect
reasonable jurors to have done[.]
Tiraboschi v. State, 312 Ga. 198, 200 (2) (862 SE2d 276) (2021)
(citations and punctuation omitted).
As discussed above in Division 1, the evidence of Greene’s guilt,
“aside from the other[-]acts evidence” related to Pirkle, was “strong.”
42
Edwards v. State, 308 Ga. 176, 184 (3) (839 SE2d 599) (2020).
Greene’s DNA was found underneath Bryant’s fingernails and
inside her vaginal area—demonstrating that Greene had physical
and sexual contact with Bryant, despite his statements to the
contrary. And Greene had healing scratch marks on his hands
during his first interview with law enforcement. Bryant also had
abrasions on her hands at the time of her death, indicating a
struggle with someone. Greene was in sole possession of Bryant’s
car as of the night she was killed, which was confirmed by several
witnesses who saw him in the car on the night of the murder and in
the days afterward, and Greene purchased a headlight bulb for a car
of the same make and model as Bryant’s on the day Bryant’s body
was discovered. Additionally, Greene gave hours of conflicting
statements to law enforcement about his activities and whereabouts
on January 24 and 25, which were videotaped and played for the
jury. In his final account, Greene admitted to being present for
Bryant’s murder and the disposal of her body, but insisted that
Lee—who had an alibi—was the person who killed her. Greene then
43
took law enforcement officers to the location of Bryant’s murder—a
location he knew well.
Moreover, before the State presented the other-acts evidence
and again during the jury charge, the trial court instructed the jury
that it could consider the other-acts evidence only for certain limited
purposes, including Greene’s alleged intent to commit the crimes for
which he was charged, but the jury was not permitted to consider
the other-acts evidence for any other purpose—to include inferring
that Greene was of the character to commit these other acts. The
trial court also emphasized that Greene was on trial only for the
offenses charged in this case and not for any other act.
“[A]lthough the trial court’s limiting instructions did not
meaningfully explain” the only “permissible purpose” for which this
evidence was relevant, the instructions “did, at least, tell the jury
what it could not do,” which was to “infer from such evidence that
the accused is of a character that would commit such crimes. We
have held that this sort of admonition can lower the risk that the
jury will convict for the wrong reasons.” Nundra v. State, --- Ga. --
44
--, 885 SE2d 790, 797 (2) (March 21, 2023).
To be clear: because these instructions [were overly broad
as to] the permissible purposes for which the evidence
could be considered, they do not have the same mitigating
effect that we have found in other cases where the trial
judge specifically [and appropriately] instructed the jury
on which Rule 404 (b) purposes could be considered.
Id. “Even so, the trial court’s admonition that the jury may not infer
from such evidence that the accused is of a character that would
commit such crimes reduces the likelihood that the evidence” of
Greene’s prior acts “influenced the verdict.” Id.Given the substantial evidence of guilt in this case, including
the other-acts evidence involving Clark, we conclude that “it is
highly probable” that any error in admitting the other-acts evidence
involving Pirkle was harmless and did not contribute to the jury’s
guilty verdicts against Greene, Jackson v. State, 306 Ga. 69, 81 (2)
(c) (829 SE2d 142) (2019), and we need not decide whether it was
error for the trial court to admit the other-acts evidence for purposes
other than proving Greene’s intent. See Tiraboschi, 312 Ga. at 200
(2) (“We need not decide whether this evidence was erroneously
45
admitted, because any such error was harmless.”). Therefore, this
contention fails.
4. Greene next contends that the trial court erred by admitting
autopsy photographs into evidence that were overly graphic and
unduly prejudicial. We see no merit to this contention.
“[W]e generally evaluate the admissibility of autopsy
photographs under OCGA §§ 24-4-401, 24-4-402, and 24-4-403.”
Mitchell v. State, 307 Ga. 855, 863 (3) (b) (838 SE2d 847) (2020).
Pursuant to OCGA § 24-4-402, “[a]ll relevant evidence
shall be admissible[.]” To evaluate relevancy, this Court
relies on OCGA § 24-4-401, which defines “relevant
evidence” as “evidence having 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.”
However, relevant evidence may be excluded
under OCGA § 24-4-403 (“Rule 403”) 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.” Id. The
major function of Rule 403 is to exclud(e) matter of scant
or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect. Moreover, the exclusion
of relevant evidence under Rule 403 is an extraordinary
remedy that should be used only sparingly.
46
Lanier v. State, 310 Ga. 520, 527 (4) (852 SE2d 509) (2020) (citations
and punctuation omitted).
Before the medical examiner testified at trial, the State
advised the trial court of its intention to introduce autopsy
photographs—some of which were graphic in nature—and Greene
objected. The trial court then excused the jury and reviewed the
photographs the State sought to admit, which reflected traumatic
injuries to the exterior and interior of the victim’s neck and scalp—
including contusions and other extensive bruising—and injuries to
the exterior surfaces of the victim’s hands and vagina, including skin
abrasions and vaginal tearing. The trial court questioned the
medical examiner outside the presence of the jury about whether the
photographs were “necessary” to his presentation of the evidence
regarding the injuries to the victim.
The medical examiner testified that the photographs were
necessary because the deep tissue damage and interior injuries to
the victim’s neck and scalp could not be reflected without peeling
back the tissue in the neck and scalp area to demonstrate the extent
47
of her injuries, which included hemorrhaging caused by ligature
strangulation and blunt force trauma. And the tearing and
abrasions in the victim’s vaginal area—consistent with “sexual
penetration”—could not be shown without moving the skin to
adequately reflect the external components of that area. The
medical examiner also testified that “photographs are always
helpful to explain what people aren’t used to seeing.” The trial court
then admitted the photographs, concluding that they were necessary
to depict injuries that would be visible only by altering the body.
“Given the medical examiner’s testimony, the trial court did
not abuse its discretion when it concluded that the autopsy
photograph[s] [were] relevant under Rule 401’s broad definition.”
Mitchell, 307 Ga. at 864 (3) (b). The trial court also determined that
the photographs were necessary for the medical examiner to explain
Bryant’s injuries, and we cannot say, based upon this finding, that
“the trial court abused its discretion in admitting into evidence the
autopsy photograph[s] at issue here.” Id. at 865 (3) (b). “Further,
the photographs were relevant to show the nature and location of
48
the victim[’s] wounds, which corroborated the State’s evidence of the
circumstances of the killing[].” Lanier, 310 Ga. at 527-528 (4).
Therefore, the trial court did not abuse its discretion by admitting
the challenged photographs at trial. See id. at 528 (4).
5. Greene also argues that the trial court abused its discretion
in allowing the State to introduce harmful and non-probative
evidence to the jury from Greene’s cell phone showing that he
conducted two internet searches for rape because he was not charged
with rape in this case. During trial, the State sought to introduce a
photograph of Greene’s cell phone browser history showing that he
conducted two internet searches related to rape14 on January 23 and
24, 2019—the day before and day of Bryant’s murder. The State
argued that the fact Greene conducted these internet searches
“help[ed] explain[] what’s going on here in this particular crime.”
Greene objected to the introduction of the photograph of this search
history from his cell phone. The trial court excused the jury and
14 The precise time of the searches was not included in the cell phone
data.
49
reviewed the evidence in question. The trial court determined that
the photograph of Greene’s cell phone showing Greene conducted
two internet searches, identified on his phone as “‘Rape’ Search,”
was admissible as intrinsic evidence, and the photograph was
admitted into evidence through the law enforcement officer who
conducted the forensics download of Greene’s cell phone.
Assuming that the trial court abused its discretion by
admitting this photograph of Greene’s cell phone into evidence, we
conclude that any such abuse of discretion was harmless error and
“requires reversal only if it harms” Greene’s “substantial rights.”
Roberts v. State, 315 Ga. 229, 238 (2) (c) (880 SE2d 501) (2022)
(citation and punctuation omitted).
[W]e determine whether such harm occurred by asking
whether it is highly probable that the error did not
contribute to the verdict. As part of that determination,
we review all the evidence de novo, after setting aside the
evidence admitted in error, and we weigh the remaining
evidence as we would expect reasonable jurors to have
done[.]
Id. (citations and punctuation omitted).
50
As detailed in Divisions 1 and 3, the evidence of Greene’s guilt
in this case, apart from the photograph showing the two internet
searches, was strong. “In light of this very strong evidence, it is
highly probable” that the photographic evidence of the internet
search history from Greene’s cell phone, while not helpful to Greene,
“did not contribute to the verdicts.” Roberts, 315 Ga. at 239 (2) (c).
As such, in light of the other strong evidence presented against
Greene at trial, any error in the trial court’s admission of this
evidence was harmless.
6. Greene contends that the trial court erred by failing to
instruct the jury on mere presence and corroboration of a
defendant’s statement as he requested.15 However, the record
15 Greene requested the pattern charge on “mere presence,” tracking the
following language from Morales v. State, 281 Ga. App. 18, 19 (1) (635 SE2d
325) (2006):
A jury is not authorized to find a person who was merely present
at the scene of a commission of a crime at the time of its
perpetration guilty of consent in and concurrence in the
commission of the crime, unless the evidence shows, beyond a
reasonable doubt, that such person committed the actual crime,
helped in the actual perpetration of the crime, or participated in
the criminal endeavor.
Greene also requested the following charge on corroboration: “A
defendant’s statement unsupported by any other evidence is not sufficient to
51
reflects that, at the conclusion of the charge to the jury, Greene’s
trial counsel did not object to the omission of these charges, and
thus, our “review of the trial court’s instructions is for plain error
only.” Palencia v. State, 313 Ga. 625, 628 (872 SE2d 681) (2022).
To establish plain error in regard to jury instructions, Greene
must satisfy the following four prongs:
First, there must be an error or defect—some sort of
deviation from a legal rule—that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error—discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.
Palencia, 313 Ga. at 628 (citing State v. Kelly, 290 Ga. 29, 33 (2) (a)
(718 SE2d 232) (2011)). “Satisfying all four prongs of this standard
is difficult, as it should be.” Kelly, 290 Ga. at 33 (2) (a).
justify a conviction.”
52
During the charge conference, the trial court explained that it
would not give a charge on mere presence unless Greene could point
to case law showing that the charge was legally required in this case.
Additionally, the trial court advised that it would not give the
corroboration charge because Greene had not given a confession, and
Greene would “need to find” a case stating that the trial court was
required to give such a charge under those circumstances. The
following day, Greene informed the trial court that he could not find
any case law mandating that the trial court give a charge on mere
presence, but he stated that “our request is still obviously in effect.”
Greene did not mention his prior request to charge on corroboration
of a defendant’s statement or provide any case law demonstrating
that such a charge was appropriate where a defendant has not given
a confession. The trial court did not instruct the jury on mere
presence or corroboration, and as noted above, Greene did not object
at the conclusion of the jury charge.
We conclude that the trial court did not clearly or obviously err
in refusing to charge the jury on corroboration because Greene did
53
not confess to committing the crimes charged. See OCGA § 24-8-823
(providing that “[a] confession alone, uncorroborated by any other
evidence, shall not justify a conviction”). See also English v. State,
300 Ga. 471, 474 (2) (796 SE2d 258) (2017) (determining that “in a
confession, the entire criminal act is confessed”). We further
conclude that a failure to give a mere presence instruction is not
error where, as here, the trial court instructed the jury that the
State was required to prove each element of the crimes charged. See
Simmons v. State, 282 Ga. 183, 188 (14) (646 SE2d 55) (2007)
(“[M]ere presence is only a corollary to the requirement that the
State prove each element of the crime charged, and, as the trial
court’s instructions clearly informed the jury of this requirement,
there was no error.” (citation omitted)). However, even if the trial
court had clearly and obviously erred in not charging the jury on
mere presence, Greene has failed to demonstrate that “any such
error likely affected the outcome of the trial,” and thus, “he has
failed to establish plain error.” Clark v. State, 315 Ga. 423, 440 (4)
(883 SE2d 317) (2023) (citation and punctuation omitted).
54
As detailed above, the evidence presented by the State in this
case was substantial, and Greene “has not met his burden of
affirmatively showing that the [trial court’s] failure to give” a mere
presence instruction “probably affected the outcome of his trial.”
Lyman v. State, 301 Ga. 312, 320-321 (2) (800 SE2d 333) (2017).
Accordingly, even if there was clear and obvious error, “there is no
likelihood that the outcome of the trial would have been different
had the instruction in question been given, and, for this reason [],
there is no plain error.” Kelly, 290 Ga. at 34 (2) (b).
7. Finally, because we assumed error in the trial court’s
admission of the Rule 404 (b) evidence related to Pirkle and the
photograph of Greene’s cell phone showing his internet search
history, we must consider whether the cumulative prejudicial
impact of these admissions requires a new trial. See State v. Lane,
308 Ga. 10, 21 (4) (838 SE2d 808) (2020). “To establish cumulative
error,” an appellant “must show that (1) at least two errors were
committed in the course of the trial; and (2) considered together
along with the entire record, the multiple errors so infected the
55
jury’s deliberation that they denied” the appellant a “fundamentally
fair trial.” Flood v. State, 311 Ga. 800, 808 (2) (d) (860 SE2d 731)
(2021) (citation and punctuation omitted).
Having considered the combined effect of the trial court’s errors
in this case, we conclude that they do not entitle Greene to a new
trial. In light of the harmlessness of the evidentiary errors in
question and in light of the other substantial evidence heard by the
jury in this case, which included: (1) Greene’s repeated denials that
he ever touched Bryant, when his DNA was found both underneath
her fingernails and in her vaginal area; (2) his possession of her car
on the night of her murder; and (3) his multiple, conflicting
statements to law enforcement—first insisting he did not know
about Bryant’s death, then stating that he was present for Bryant’s
murder—statements the jury was entitled to disbelieve; “it is highly
probable that the error[s] did not contribute to the verdict.” Lane,
308 Ga. at 21 (4). Additionally, Greene has not shown that “the
multiple errors so infected the jury’s deliberation that they denied”
him a “fundamentally fair trial.” Flood, 311 Ga. at 808 (2) (d).
56
Judgment affirmed. All the Justices concur, except Colvin, J.,
who concurs in judgment only in Division 4, and Peterson, P. J., and
Warren and Pinson, JJ., who dissent.
57
PETERSON, Presiding Justice, dissenting.
I generally agree with the majority’s legal conclusions.
Unfortunately, I find myself unable to agree with its more fact-
bound conclusions. I therefore respectfully dissent.
A proper Rule 403 analysis would have excluded the Clark Rule
404 (b) evidence. The majority overstates the prosecutorial need for
that evidence (and thus its probative value); although intent was
technically put at issue by Greene’s not guilty plea, it was not an
important issue in the case. Greene’s defense was that he didn’t do
the crime at all, not that he did the act alleged but without culpable
intent. See Olds v. State, 299 Ga. 65, 69-76 (2) (786 SE2d 633) (2016)
(clarifying previous case law to explain that while intent was always
technically at issue when a defendant pleads not guilty, that does
not mean that intent is an important issue in every such case). And
the majority substantially overstates the mitigating impact of a
“limiting” instruction that affirmatively told the jurors that they
could consider the evidence for a range of impermissible purposes,
58
including motive, identity, and absence of harm or mistake
(purposes that the majority does not contend were permissible).
And the majority is correct that the Rule 404 (b) evidence was
“certainly prejudicial.” It told the jury that Greene regularly
strangled women, the crime with which he was charged here. The
jurors were expressly instructed that they could consider that
evidence of identity – i.e., that strangling was such a signature crime
of his that the fact this victim was strangled was evidence he did
it. 16 The Rule 404 (b) evidence also told the jury that he had not
previously been held criminally responsible for some of those prior
attacks, including because one of the victims was afraid of him. The
majority merely acknowledges that there is a greater danger in
admitting such evidence without explaining what the danger is; the
16 Evidence admitted for identity under Rule 404 (b) “must be a
‘signature’ crime, and the defendant must have used a modus operandi that is
uniquely his. . . . Evidence cannot be used to prove identity simply because the
defendant has at other times committed the same commonplace variety of
criminal act.” Brooks v. State, 298 Ga. 722, 725 (2) (783 SE2d 895) (2016)
(citations and punctuation omitted); see also Williams v. State, 313 Ga. 443,
447-448 (1) (870 SE2d 397) (2022) (same). That is absent here, of course; the
Rule 404 (b) evidence showed that Greene strangled Clark and Pirkle with his
hands, and the victim here was strangled with an instrument.
59
danger is that there was a high risk that the jury would convict
Greene not for the charged offense but for the extrinsic acts. See
Kirby v. State, 304 Ga. 472, 485 (4) (a) (i) (819 SE2d 468) (2018)
(“[T]he risk that a jury may convict a defendant not for the offense
charged but for his extrinsic conduct is greater where the extrinsic
conduct was not already the subject of a conviction.”).
The majority presumes that admission of the Pirkle Rule 404
(b) evidence and Greene’s search for rape pornography were error;
in my view, they were in fact error. 17 A cumulative harm
assessment, then, must consider the harm of the Clark evidence, the
Pirkle evidence, and the search for rape pornography. And that
assessment must also recognize that because those errors were
preserved by trial counsel, the State bears the burden of showing
that those errors, in combination, were highly probable not to have
17 Underlying much of the State’s case was at least a subtext of sexual
assault. But Greene was not charged with any sexual offense. Although the
State’s medical examiner who conducted an autopsy of the victim testified that
the victim had injuries to her vagina, when asked whether he could “say
whether that penetration’s consensual or nonconsensual,” the medical
examiner responded, “I cannot.”
60
contributed to the verdict. See Jackson v. State, 306 Ga. 69, 81 (2)
(c) (829 SE2d 142) (2019).
The State has not made that showing. Although the majority
characterizes the evidence against Greene as “very strong,” almost
all of it was circumstantial. The strongest evidence, I think, was the
evidence of the scrapes on Greene’s hands and the presence of his
DNA under the victim’s fingernails. In my view, the evidence
against him was plainly sufficient for federal due process purposes.
But constitutional sufficiency is a much lower bar than a showing of
harmlessness.
Standing alone, the Rule 404 (b) evidence was certainly
prejudicial, but the cumulative impact of the evidence was
heightened because it portrayed Greene not just as a strangler, but
as serial strangler who had been committing violent crimes for
almost 20 years. See Kirby, 304 Ga. at 486 (4) (a) (ii) (the resulting
prejudice from the Rule 404 (b) evidence substantially outweighed
its scant probative value because the evidence suggested the
defendant was a serial criminal who kept committing dangerous
61
crimes). And the search for rape pornography additionally painted
him (quite possibly accurately, albeit irrelevant to any charge here)
as someone who enjoyed harming women sexually.
All of this was powerful. And we have no idea how the State
used it, because closing arguments were not transcribed.18 But it is
not reasonable to assume that this powerful evidence would not have
been used to significant advantage for those impermissible purposes
that the jury was instructed the State could use it. “Where
evidentiary error is deemed harmless, it is often true that the
evidence was only ‘marginal’ to the prosecution’s case.” Thompson v.
State, 302 Ga. 533, 542 (III) (A) (807 SE2d 899) (2017) (quoting
Johnson v. State, 301 Ga. 277, 280 (800 SE2d 545) (2017)); compare
Jackson, 306 Ga. at 80 (holding Rule 404 (b) evidence harmless even
in absence of transcript because the “prosecutor did not need to rely
18In briefing on appeal, both the District Attorney’s Office that tried the
case and the Attorney General focus their arguments regarding the other-acts
evidence as being admissible for the purpose of establishing identity, arguing
that identity was the central issue in the case because Greene denied killing
the victim, there were no eyewitnesses to the incident, no one could place
Greene at the scene of the crime, and the murder weapon was never found.
62
on the [Rule 404 (b) evidence] in his closing argument, because there
was solid direct evidence” and “compelling circumstantial
evidence”). The State has not shown that this powerful, inadmissible
evidence was highly probable not to have contributed to the verdict.
Accordingly, I must respectfully dissent.
I am authorized to state that Justice Warren and Justice
Pinson join in this dissent.
63