CourtListener 10680377

Texto completo

318 Ga. 431
FINAL COPY

S23A0860. BAKER v. THE STATE.

WARREN, Justice.

Appellant Morgan Baker was convicted of malice murder in

connection with the shooting death of Tamarco Head.1 In his sole

enumeration of error, Baker contends that the trial court abused its

discretion under OCGA § 24-4-403 (“Rule 403”) by admitting into

evidence a portion of a rap music video. As explained below, we agree

that the trial court’s admission of the video was an abuse of

discretion. And because the State has not met its burden of showing

that the error was harmless, we reverse Baker’s conviction.

1 Head was killed on July 6, 2019. In February 2021, a Houston County

grand jury indicted Baker for malice murder, felony murder, and aggravated
assault. At a trial from February 8 to 11, 2022, a jury found him guilty of all
counts. The trial court sentenced him to serve life in prison for malice murder;
the remaining counts were vacated by operation of law or merged. Baker filed
a timely motion for new trial, which he later amended through new counsel.
After a hearing, the trial court entered an order denying the motion in
December 2022. In February 2023, Baker filed a motion to set aside that order
for lack of notice. The trial court granted the motion, vacated its order, and re-
entered it on March 7, 2023. Baker then filed a timely notice of appeal, and the
case was docketed to the August 2023 term of this Court and orally argued on
August 23, 2023.
1. (a) The Pretrial Ruling to Admit the Rap Music Video Into

Evidence

Before trial, Baker filed a motion to exclude from evidence a

music video of the rap song “Ghetto Angels” by Kobe Crawford (a rap

artist known as “NoCap”), which was “filmed in early 2019” and

showed Baker “holding a semi-automatic pistol with an extended

magazine.” The motion argued, among other things, that the video’s

probative value was substantially outweighed by the danger of

unfair prejudice under Rule 403. After a hearing on the motion, the

trial court ruled that a 33-second-long portion of the video was

admissible, concluding that it was relevant to establish Baker’s

“identity” and the relationship between Baker and Crawford. The

court also ruled, without explanation, that the “short clip [wa]s more

probative than prejudicial.”

(b) The Trial

The evidence presented at Baker’s trial showed the following.2

2 Because this case requires our assessment of whether an evidentiary

2
Baker was close friends with Crawford and worked as his road

manager, traveling with him to various concert venues to assist with

his performances. On the night of July 5, 2019, Crawford, Baker,

and several other members of Crawford’s “entourage”3 drove in a

black van to a nightclub in Warner Robins, where Crawford was

scheduled to perform.

According to Crawford’s music manager—Rodney Dunn—and

the owner of the nightclub, the van parked behind the nightclub, and

Crawford, Baker, and other members of the entourage hung out in

a “VIP” room in the nightclub until Crawford performed around 1:00

or 1:30 a.m. The performance ended around 2:00 a.m., when the

nightclub was scheduled to close, and Crawford and some of the

members of the entourage left through the rear exit and got back in

the van.

error was harmless, see Division 2 (d) below, “we review the record de novo and
weigh the evidence as we would expect reasonable jurors to have done.” Jivens
v. State, 317 Ga. 859, 863 (896 SE2d 516) (2023).

3 Crawford’s brother, one of Crawford’s friends, and a man who was
involved in the music industry and his friends were also part of the entourage.
None of these people testified at trial.
3
Meanwhile, patrons left through the front door of the

nightclub, where several security guards stood. Baker went out the

front door with the crowd, but he then tried to go back inside the

nightclub. One of the security guards testified as follows. A man,

later identified as Baker, and another man who appeared to be with

Baker, tried to come back inside, but the guard said that the two

men could not come in because the nightclub was closed. An

argument ensued, and several security guards pushed the men out

the door. Baker and the other man then walked down the breezeway

of the strip mall where the nightclub was located, toward a pawn

shop. Several security guards, including Head, stood near the door

of the nightclub, talking. A few minutes later, gunfire rang out from

the direction of the pawn shop; it sounded as though there was more

than one shooter. Head was shot, and he fell to the ground, dead.4

More gunfire later erupted “right up the street.”

Video recordings from the surveillance cameras at the

4 The medical examiner who later performed Head’s autopsy testified

that she recovered no bullets or bullet fragments from Head’s body.
4
nightclub showed the following.5 At 2:04 a.m., a crowd of people filed

through the front door to exit the nightclub. Baker, who had a short

hairstyle and wore a white T-shirt with black writing on the front,

walked outside, followed by a taller man wearing a black shirt and

a camouflage ball cap. The two men stood near the door, briefly

talked to a woman, and then walked down the breezeway. At 2:06

a.m., Baker and the man in the camouflage cap walked back toward

the nightclub together and tried to go inside, but a few security

guards stopped them. Baker and one of the security guards argued

and then shoved each other, and the man in the cap lunged toward

the guards. Baker pulled him back as the security guards pushed

Baker and the other man out the door, and it appears that Baker

and some of the guards tried to hit each other. Baker then put his

arm around the man in the camouflage cap, and at 2:07 a.m., they

walked down the breezeway and out of view.6 Several of the security

5 The video recordings did not include audio.
6 It was undisputed at trial that Baker was the man in the white T-shirt

who was involved in the altercation with the security guards. Baker’s trial
counsel mentioned this fact during his opening statement, and as discussed
more below, Baker admitted it during his testimony.
5
guards, including Head, stood together talking in front of the door,

and approximately two minutes later, Head suddenly fell down as

blood spattered on the ground near him.

Dunn (Crawford’s music manager) testified that after the

performance that night, he got in his car, and he thought that

Crawford, Baker, and the rest of the entourage got in the van, which

was still parked behind the nightclub. As Dunn pulled out onto the

street, following the van, he heard gunshots. He did not see anyone

get into the van after he heard the shots. At some point, Dunn asked

Baker if he was involved in the shooting, and Baker denied it. Dunn

also testified that members of Crawford’s entourage typically did not

carry guns to Crawford’s performances.

In response to the prosecutor’s questions about the “Ghetto

Angels” rap music video, Dunn testified that the song was about the

death of Crawford’s cousin, who had been shot 17 times years

earlier; the video showed Baker and several other men waving guns;

Dunn did not know what kind of gun Baker held or whether any of

the guns were real or fake; and Dunn discouraged Crawford from

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using guns in his music videos. During cross-examination, trial

counsel elicited Dunn’s testimony that rap artists often use guns in

their music videos “to portray that they are somebody deserving of

street cred” and that record labels encouraged the use of guns in

music videos.

On redirect, the prosecutor introduced the 33-second-long

portion of the rap music video, which the trial court admitted into

evidence over trial counsel’s renewed objection, and the prosecutor

played the video for the jury. The first few seconds of the video

showed Baker waving a black handgun, pointing it at the camera,

and motioning as if he was shooting the gun while three other men

rapped and made hand gestures. The video then showed Baker,

Crawford, and about a dozen other men singing and dancing on and

around a car; Baker waved the black handgun, sometimes pointing

it at the camera, while some of the men made hand gestures, held

bottles of what appears to be alcohol, and brandished guns. In

response to further questions from the prosecutor, Dunn identified

Baker as one of the men who was “flashing [a] firearm” and testified

7
that although Dunn did not condone guns, he could not control

whether Crawford’s entourage used guns in the music video or

whether they carried guns on the night of the shooting. The

prosecutor then asked why Crawford “promot[ed]” gun violence in

the video, and Dunn responded that Crawford was not promoting it

and that Crawford was simply “a rapper.”

Another security guard testified that there were no security

issues in the nightclub before the altercation with Baker, and that

after Baker and the man in the camouflage cap walked toward the

pawn shop, gunfire erupted from that direction. He did not see who

shot, but the gunfire sounded like it came from “multiple guns.”

A patron of the nightclub testified that shortly before the shots

were fired, she was standing in the breezeway with her sister when

two men walked past her toward the pawn shop. One of the men

wore a white shirt; the other man, who was taller, wore a black shirt

and had his arm around the man in the white shirt. She heard one

of them say something like, “[D]on’t worry about it; we gonna get

them.” She then got in a car with her sister and heard gunshots, but

8
she could not tell from which direction they came, and she did not

see a shooter. The sister similarly testified that two men walked past

her toward the pawn shop as she stood in the breezeway moments

before the shooting; one of the men wore a white shirt and the other

wore a black shirt.7

An off-duty police officer who was hired to provide security in

the parking lot of the nightclub testified that after the nightclub

closed, he heard gunshots that sounded like they were fired from

multiple guns, and he saw muzzle flashes near the pawn shop. A few

moments later, he heard another set of gunshots, which sounded as

if a shooter was driving around outside the nightclub. He told

investigators at the scene that he saw a shooter, who wore a light-

colored shirt and a ball cap, near the pawn shop. At trial, he testified

that he did not see a shooter or recall describing a shooter to

investigators, but he insisted that what he told investigators was

7 A third woman, who was with the sisters that night, testified that she

heard gunshots, followed by another set of gunshots, coming from the direction
of the pawn shop; she thought the shots came from only one gun; and she did
not see who shot.
9
“definitely the truth.”

Another patron, La’Destiny Orr-Oglesby, testified as follows.

She was standing near her car, which was parked in front of the

pawn shop, when two men in the breezeway by the shop began

shooting handguns in the direction of the nightclub. One of the

shooters was short; had short hair, “light” skin, and a tattoo on his

left arm; and wore a white shirt with writing on the front. The other

shooter was tall, had dark skin, and wore a dark shirt and a dark

hat. When the men stopped shooting, they ran to a dark van that

was parked on the side of the strip mall near the pawn shop. The

prosecutor played the surveillance recordings showing the

altercation among Baker, the man in the camouflage cap, and the

security guards, and Orr-Oglesby identified Baker and the man in

the camouflage cap as the shooters. She also testified that when the

lead detective for the case interviewed her and showed her the

surveillance recordings, she similarly identified Baker and the man

10
in the camouflage cap as the shooters.8

The lead detective testified that when Orr-Oglesby spoke to an

investigator on the day of the shooting, she “g[a]ve a description of

who . . . she saw shooting.” (The lead detective did not elaborate

further about that description.) Two days later, on July 8, the lead

detective showed Orr-Oglesby a photo lineup that did not include a

photo of Baker, and she did not identify any of the photos in the

lineup as a photo of the shooter. The lead detective interviewed Orr-

Oglesby again that day, and she said that she saw two shooters—

one of the shooters was short, had light skin and a tattoo on his left

arm, and wore a white T-shirt, and the other shooter wore a dark

shirt and a dark hat. When the detective interviewed her again on

August 21, he showed her the surveillance recordings from the

nightclub, and Orr-Oglesby identified the two men who fought with

security guards as the shooters.

8 Orr-Oglesby also testified that in the weeks before trial, she had been

arrested for a misdemeanor ticket, for driving on a suspended license, and for
failing to report to her probation officer. The District Attorney’s office arranged
for her release from jail so that she could prepare to testify. Her charges were
still pending at the time of trial.
11
While reviewing social media posts associated with Crawford,

the lead detective found the “Ghetto Angels” rap music video; he

determined that one of the men in the video was the same man

shown on the surveillance recordings of the altercation with the

security guards; and he “eventually learned” that the man was

Baker. The prosecutor then played the rap music video for the jury

again. The detective identified Crawford and Baker in the video,

saying that Baker was “holding what appear[ed] to be a firearm.”

On cross-examination, defense counsel tendered into evidence and

played for the jury a video recording of Orr-Oglesby’s August 21

interview, and the detective acknowledged that Orr-Oglesby said

during that interview that she “d[id]n’t think the light-skinned guy

was shooting.”9

The prosecutor tendered into evidence a photo of Baker that

9 During the remainder of the interview, Orr-Oglesby repeatedly referred

to two shooters and gave descriptions of them that were consistent with the
descriptions she gave at trial. Defense counsel asked Orr-Oglesby during cross-
examination if she told the lead detective that she “d[id]n’t think the light-
skinned guy was shooting,” and Orr-Oglesby stated that she did not remember
saying that and that she “always said there w[ere] two people shooting.”

12
was taken while he was on stage with Crawford on the night of the

shooting; the photo showed that Baker had short hair and a tattoo

on his left arm and wore a white T-shirt with writing on it.10 Forensic

testing showed that Baker’s fingerprints were on two plastic cups

found in the “VIP” room of the nightclub.

A crime scene investigator found seven .45-caliber shell casings

and fifteen 9mm shell casings near the pawn shop. A firearms

examiner later determined that all of the .45-caliber shell casings

were fired from the same gun (although he could not determine the

make and model of the gun), and all of the 9mm shell casings were

fired from the same Smith & Wesson 9mm pistol. Investigators did

not recover the guns used in the shooting, nor did they determine

the identity of the man in the camouflage cap.11

10 The photo, which was admitted without objection, depicted Baker
gesturing as if he was shooting a gun.
11 Investigators also found two .40-caliber shell casings in the nightclub

parking lot, three 9mm shell casings north of the nightclub, and two .223 shell
casings in a store parking lot a couple of blocks away. The lead detective
testified that he did not know whether any of these shell casings were related
to the shooting in this case. The firearms examiner determined that the 9mm
shell casings found north of the nightclub were not fired from the same gun
that fired the 9mm shell casings found near the pawn shop.

13
The defense presented testimony from two witnesses who saw

shots fired in the area surrounding the nightclub around 2:00 a.m.—

near the time of the shooting in this case. One of the witnesses

testified that his truck was hit by a bullet as he was driving at the

corner down the street from the nightclub, but he could not tell

where the shots came from. The other witness testified that he saw

shots fired from three vehicles—a black truck, a white Toyota

Solara, and an SUV—about a block away from the nightclub.12 The

defense also presented a surveillance video recording from the

nightclub that showed that about 30 minutes before the shooting in

this case, a security guard escorted an unidentified man in a white

shirt out of the nightclub and into the parking lot.

Baker testified in his own defense as follows. After Crawford,

12 In connection with the gunshots that the witnesses described, the lead

detective testified that he learned that shortly after the shooting in this case,
shots were fired at an intersection about a block away from the nightclub.
Investigators found 11 .40-caliber and 9mm shell casings near the intersection.
The firearms examiner determined that the .40-caliber shell casings near the
intersection were fired from the same gun that fired the .40-caliber shell
casings found in the nightclub parking lot; the 9mm shell casings from the
intersection were not fired from the gun that fired the 9mm shell casings found
north of the nightclub or the 9mm shell casings found near the pawn shop.
14
his close friend since childhood, performed on the night of the

shooting, Baker went out the front door of the nightclub to look for

a woman he had talked with earlier that night. The man in the

camouflage cap, whom Baker did not know but had seen in the “VIP”

room at the nightclub earlier, followed him outside and tried to

“latch on” to him because the man wanted to take a photo with

Crawford. Baker, with the man beside him, briefly spoke to the

woman, and then walked down the breezeway to look for someone

else; the man in the cap followed him. Baker eventually decided to

go to the van, which was parked behind the nightclub, so he tried to

go back inside, and the man again followed him. When a security

guard told Baker that he could not come in, Baker was angry and

asked what the problem was. The security guard pushed him, and

the man in the cap began yelling. Several security guards pushed

Baker and the man out the door, and the man ran past Baker to

fight with the guards. Baker pulled the man back and stepped

between the man and a security guard; a guard punched Baker in

the face as he tried to break up the fight. Baker and the man then

15
walked down the breezeway, and the man asked Baker if he was

alright. Baker replied that he was and then walked around the side

of the strip mall to the parking lot behind the nightclub, where the

van was parked, as the man in the cap walked in a different

direction. According to Baker, he wanted to distance himself from

the man because the man had escalated the situation with the

security guards. Baker then got in the van, which drove away

moments later. As the van turned onto the street in front of the

nightclub, Baker heard gunshots. The van then drove to Atlanta,

where Baker and others in the entourage stayed overnight.

Although Crawford was scheduled to perform in Tupelo, Mississippi

the next night, Baker did not travel there and did not continue

touring with Crawford, because Baker wanted to go home to see his

infant daughter. Baker squarely denied having a gun that night or

being involved in the shooting.

On cross-examination, Baker testified that he put his arm

around the man in the camouflage cap as they walked down the

breezeway because Baker was trying to “de-escalate the situation,”

16
since the man was still angry. The prosecutor asked whether the

entourage traveled with guns, and Baker responded, “Why would

we, though?” The prosecutor said, “Well, let’s see why” and then

played the rap music video again. In response to the prosecutor’s

questions about the video, Baker testified that he did not produce

the video, that it was about “losing loved ones,” that he thought he

had “a Glock” gun in the video, he did not know “what kind” of Glock

it was, it was not his gun, and he used it in the video because he was

“trying to look cool.” When the prosecutor asked why that made him

“look cool,” Baker responded, “[I]n the music industry in—in my age

group, you do whatever that you think will sell, such as if—if I was

to—say I was a country music artist, I probably don’t like cowboy

hats or cowboy boots, but I will wear it if I think it’s going to help

my country music sell.” The prosecutor asked why Baker was

“promoting” gun violence in the video, and he replied that he was

not promoting it and was “[j]ust trying to be cool.” The prosecutor

then rewound the video and paused it at a point where it depicted

Baker; she asked him if the shirt he was wearing said “Loyalty is

17
Love,” and he replied that he did not know. Later, the prosecutor

referenced the photo showing Baker on stage with Crawford,

gesturing as if he was pointing a gun, and asked if Baker was

“[p]ortraying a shooter” “[j]ust like in the video we just watched,

with a real gun?” Baker replied that he was “just trying to be cool.”

The State’s theory of the case was that the man in the

camouflage cap was part of Crawford’s entourage; the man and

Baker shot toward the security guards, killing Head, after the

altercation at the door of the nightclub; and they then fled in the van

with the rest of the entourage. During closing argument, defense

counsel argued that Orr-Oglesby’s testimony was not credible

because she told the lead detective that the “light-skinned” man did

not shoot and because she testified that the van was parked on the

side of the strip mall, whereas other witnesses testified that it was

parked behind the nightclub; and alternatively, that the shooter in

the white shirt was someone else, as the evidence showed that

shootings were frequent in that area. As to the rap music video,

defense counsel argued that the video was a performance that

18
merely showed Baker “wanting to act cool.”

The prosecutor argued in closing that Orr-Oglesby was

credible, that her testimony that there were two shooters was

supported by the ballistics evidence, that given the undisputed

evidence showing that Baker wore a white shirt that night and that

he fought with the security guards, it was improbable that the man

in the cap began shooting with a different person who also happened

to be wearing a white shirt, and that the evidence that Baker did

not continue touring with Crawford after the shooting allowed an

inference of guilt.

The prosecutor also asserted that Baker’s testimony that he did

not have a gun on the night of the shooting was not credible, because

“[t]hey don’t roll like that.” She went on:

Use your common sense. And you know why you can say
they don’t roll like that? Go back to that Ghetto Angels
video. Right? That’s all they know, the gun violence. They
want to promote it. They want to live by the sword, but
they don’t want to die by it, right? When it’s not
convenient, they don’t want to act like they promote the
shooting.

Near the end of her argument, she asserted that “[t]his gun violence

19
needs to stop,” saying that it was sad that the altercation at the front

door ended in Head’s murder. She then said, “We’re better than that.

We’re better than that. Your job is to return a verdict.” She closed

by saying: “The truth is it’s time to tell Morgan Baker that we’re

going to hold him accountable for exactly what he did that night.

That we’re going to h[o]ld him accountable for ending a human life.

That it’s not a game, it’s not about a rap video. It’s real.” As

mentioned above, the jury found Baker guilty of malice murder,

among other crimes, and he was sentenced to serve life in prison.

In his motion for new trial, Baker argued that the trial court

abused its discretion by admitting the rap music video into evidence,

asserting that the video was not relevant or probative because he

never disputed that he was close friends with Crawford or that he

was at the nightclub on the night of the shooting. In its order

denying the motion, the trial court ruled that the video was properly

admitted, because it was relevant to show that Baker was part of

the entourage, that he had a motive to shoot Head, and that the lead

20
detective was able to identify him through the video. The trial court

also concluded, apparently as part of its analysis under Rule 403,

that although the video showed Baker waving a gun, the video was

only about 30 seconds long and “the behavior in the video [was] not

in and of itself illegal and is relatively common in today’s music

videos.”

2. In his sole claim on appeal, Baker contends that the trial

court abused its discretion under Rule 403 by admitting the portion

of the rap music video into evidence. As discussed below, we agree.13

13 Baker also makes a bare-bones assertion that the rap music video

should have been excluded under the First Amendment to the United States
Constitution. But given our conclusion that the video was not admissible under
Rule 403 and that the error in admitting it was not harmless, we do not reach
Baker’s argument that the video also was not admissible under the First
Amendment.
In addition, we note that the State contends that, although Baker
preserved for ordinary appellate review his claim about the rap music video,
he affirmatively waived any argument about the audio, i.e., the lyrics of the
song featured in the video. But the lyrics in the rap music video are, for the
most part, indecipherable, and Baker makes no specific arguments about why
they should have been excluded. Thus, we need not address the State’s
contention, because the lyrics have no bearing on our conclusion that the rap
music video was improperly admitted. We note that the dissenting opinion
appears to argue that the unintelligibility of the lyrics in the rap music video
“further diminish[ ] any danger of unfair prejudice” under Rule 403, but the
lyrics’ unintelligibility would only mitigate any unfair prejudice flowing from
the lyrics themselves—not any unfair prejudice from the images in the video,
to which we have limited our review here.
21
(a) The Applicable Law

We begin with a review of the law that applies to Baker’s claim.

Under OCGA § 24-4-401 (“Rule 401”), “relevant evidence” is

evidence that has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

“The test for relevance is generally a liberal one, and [r]elevance is

a binary concept—evidence is relevant or it is not.” Harris v. State,

314 Ga. 238, 262 (875 SE2d 659) (2022) (citations and punctuation

omitted). Under OCGA § 24-4-402 (“Rule 402”), relevant evidence is

generally admissible, and evidence that is not relevant is not

admissible. Rule 402 also says, however, that the admissibility of

relevant evidence may be “limited by . . . law or by other rules.”

OCGA § 24-4-402. One such limiting rule is Rule 403, which says,

“Relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations

of undue delay, waste of time, or needless presentation of cumulative

22
evidence.”

We have often reiterated that “the major function of Rule 403

is to exclude matter of scant or cumulative probative force, dragged

in by the heels for the sake of its prejudicial effect.” Harris, 314 Ga.

at 262-263 (citation and punctuation omitted). To that end, we have

explained probative value in this way:

Generally speaking, the greater the tendency to make the
existence of a fact more or less probable, the greater the
probative value. And the extent to which evidence tends
to make the existence of a fact more or less probable
depends significantly on the quality of the evidence and
the strength of its logical connection to the fact for which
it is offered. 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. The stronger the other proof, the less the
marginal value of the evidence in question. And probative
value depends as well upon the need for the evidence.
When the fact for which the evidence is offered is
undisputed or not reasonably susceptible of dispute, the
less the probative value of the evidence.

Olds v. State, 299 Ga. 65, 75-76 (786 SE2d 633) (2016) (citations and

footnotes omitted).

As to the evaluation of prejudice under Rule 403, we have said

that “in a criminal trial, inculpatory evidence is inherently

23
prejudicial; it is only when unfair prejudice substantially outweighs

probative value that the rule permits exclusion.” Harris, 314 Ga. at

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

term “unfair prejudice,” as it is used in Rule 403, refers to “the

capacity of some concededly relevant evidence to lure the factfinder

into declaring guilt on an improper basis rather than on proof

specific to the offense charged.” Old Chief v. United States, 519 U.S.

172 (117 SCt 644, 136 LE2d 574) (1997).14 Generally, such improper

bases for a finding of guilt include a criminal defendant’s bad

character or his propensity for violence. See, e.g., id. at 181-182

(explaining that the risk that a jury will reach a guilty verdict

“‘because a bad person deserves punishment’” creates a substantial

prejudicial effect) (citation omitted); Harris, 314 Ga. at 271 (noting

that “‘[i]t does not follow because an accused person may have a bad

character that he is guilty of the particular offense for which he is

being tried’”) (citation omitted).

14 Because OCGA § 24-4-403 is “materially identical” to Federal Rule of

Evidence 403, we look to federal appellate cases for guidance in interpreting
the rule. See State v. Almanza, 304 Ga. 553, 556-558, 560 (820 SE2d 1) (2018).
24
In all, however, “the exclusion of evidence under Rule 403 is an

extraordinary remedy which should be used only sparingly.” Harris,

314 Ga. at 262 (citation and punctuation omitted).

(b) Relevance of the Rap Music Video

As an initial matter, we note that Baker does not argue that

the rap music video was not relevant evidence under Rules 401 and

402. Indeed, as the trial court indicated in its orders regarding the

admission of the rap music video, the video tended to prove that

Baker was involved in Crawford’s rap music business and was part

of his “entourage,” making it more likely that Baker was present at

the nightclub just after Crawford’s performance, around the time of

the shooting. Thus, the video was relevant in that respect and

satisfies Rule 401.

The State argues that the video was also relevant with respect

to four other purposes. First, the State asserts that the video was

relevant as “intrinsic evidence” to complete the story of the crime.

Second, the State claims that the video was relevant to identity

because the lead detective testified that during his investigation, he

25
reviewed the video, determined that one of the men in the video was

the same man shown on the surveillance recordings of the

altercation with the security guards, and “eventually learned” that

the man was Baker. The State also asserts that the video was

relevant to establish Baker’s motive to shoot toward the security

guards—that Baker’s involvement in the entourage caused him to

believe he was “a big shot” and become enraged when the security

guards “disrespected” him. Finally, the State argues that the video

was relevant to show that Baker had access to the guns used during

the shooting. Because Baker does not argue that the video was not

relevant, and particularly because “[t]he test for relevance is

generally a liberal one,” we will assume without deciding that the

video was relevant for these purposes as well. See Harris, 314 Ga.

at 262, 272 (assuming without deciding that evidence of the

appellant’s sexual messages and conduct was relevant under Rule

401 to prove his motive to murder the victim before ultimately

concluding that much of the evidence was not admissible under Rule

403).

26
(c) Admissibility of the Rap Music Video under Rule 403

Turning to Rule 403, the rap music video had little, if any,

probative value in proving the points discussed above. First, the

video’s probative force to show that Baker was part of Crawford’s

entourage and was present at the nightclub around the time of the

shooting was minimal. That is because at trial, Baker did not

dispute—and in fact admitted—that he was close friends with

Crawford; he was Crawford’s road manager; he toured with

Crawford as part of his entourage; he traveled in the van with

Crawford to the nightclub; he hung out in the “VIP” room; and when

security guards refused to let him back inside the nightclub, he and

the man in the camouflage cap fought with them.15 In addition, the

15 In particular, defense counsel told the jury during his opening
statement that Baker and Crawford had been “friends since adolescence”;
Baker “was working for [Crawford] as his road manager”; Baker toured the
country with Crawford to assist with “dozens of shows”; Baker traveled with
Crawford in the van to the nightclub in Warner Robins; they “were directed to
this VIP area”; after the show, security guards prevented Baker from re-
entering the nightclub, and Baker (along with the unknown man in the
camouflage cap) got into an altercation with the guards. And Baker admitted
during his direct examination that Crawford was a “very close friend”; the two
had known each other since Baker was “four years old”; he worked as
Crawford’s road manager and toured with him; he traveled in the van with

27
State presented other substantial evidence to establish Baker’s

relationship with Crawford and his presence at the nightclub,

including Dunn’s testimony on those points, the surveillance

recordings from the nightclub showing Baker fighting with security

guards, a photo of Baker and Crawford on stage at the nightclub,

and evidence that Baker’s fingerprints were on two plastic cups in

the “VIP” room. Put simply, given the extensive, definitive, and

undisputed evidence that Baker worked for and traveled with

Crawford and that Baker was at the nightclub near the time of the

shooting, it was not necessary to show the rap music video—which

supported only the inference that Baker was part of Crawford’s

entourage. Thus, the rap music video was minimally probative to

establish those points. See Olds, 299 Ga. at 76 & n.15 (explaining

that if a point is proved by other strong evidence, “the marginal

value of the evidence in question” is decreased and that “‘[i]f the

Crawford to the nightclub in Warner Robins; they went to the “VIP” room; he
sometimes performed on stage with Crawford; he was on stage during
Crawford’s performance at the nightclub; and he and the man in the
camouflage cap fought with security guards.
28
evidence . . . is cumulative of evidence already introduced, exclusion

is more likely’”) (citation omitted).

For similar reasons, the rap music video lacked any significant

probative value to complete the story of the crime (and thus had

little, if any, value as intrinsic evidence) or to establish identity by

proving how the lead detective determined that Baker was the man

shown in the surveillance recordings of the fight at the nightclub. As

we explained above, Baker admitted—and other evidence

established—the aspects of the “story of the crime” that the State

asserts the rap music video proved. And the lead detective’s

determination that Baker was the man shown in the surveillance

recordings was a detail of the investigation that was of little

consequence, particularly in light of Baker’s admission and the other

undisputed evidence proving that he was in fact the man shown on

the recordings. See Olds, 299 Ga. at 76 & n.15.

The probative value of the rap music video to show Baker’s

motive was also negligible, at best. In this respect, the State failed

to show a “logical and necessary link” between Baker’s waving and

29
pointing a gun during his performance of a rap song and his

motivation to shoot toward the security guards at the nightclub. If

anything, the alleged “link” between the video and Baker’s motive

appears to be the video’s portrayal of Baker as a violent gunman—a

link that essentially amounts to impermissible propensity evidence.

Kirby v. State, 304 Ga. 472, 486-487 (819 SE2d 468) (2018)

(explaining that “[m]otive is the reason that nudges the will and

prods the mind to indulge the criminal intent” and that evidence of

motive “must be logically relevant and necessary to prove something

other than the accused’s propensity to commit the crime charged”)

(citations and punctuation omitted). See also Harris, 314 Ga. at 270

(noting that evidence of an alleged motive that lacks a specific,

logical link to the alleged crimes often supports only improper

propensity arguments). Moreover, the State presented evidence

apart from the rap video—the surveillance recordings and testimony

from two security guards—to establish Baker’s alleged motive to

shoot toward the security guards because he believed that they had

“disrespected” him. See Olds, 299 Ga. at 76 & n.15.

30
Finally, the rap music video’s probative value to prove that

Baker had access to the guns used during the shooting was, at most,

trivial. We acknowledge that because there was no proof connecting

Baker to the guns used in the shooting, which the evidence indicated

were a .45-caliber gun of an undetermined make and model and a

Smith & Wesson 9mm pistol, the State had a real need to tie Baker

to those guns. But the rap music video tended to prove little, if

anything, about Baker’s access to those types of guns near the time

of the shooting. First, although Baker claimed in his pretrial motion

to exclude the video that it was “filmed in early 2019,” the State

offered no evidence at trial about when the performance was

recorded, which reduced the video’s probative force to prove that

Baker had access to guns near the time of the shooting in July 2019.

And the State did not argue at trial or present any evidence showing

that the gun Baker waved around in the rap music video was used,

or even could have been used, in the shooting. The only evidence

presented at trial about the gun Baker held in the rap music video

was Dunn’s testimony that he did not know the gun’s type (or even

31
whether it was real or fake) and Baker’s similar testimony that the

gun was not his, he did not know its type, he thought it was “a

Glock,” and he used it in the performance “to look cool.” Thus, the

rap video established only that at some unidentified point in time,

Baker held what may have been a Glock handgun during a rap

music performance. See Olds, 299 Ga. at 75 (explaining that

“‘[p]robative value refers to the strength of the connection between

the evidence and what it is offered to prove’”) (citation omitted).

Compare Wilson v. State, 315 Ga. 728, 739-740 (883 SE2d 802)

(2023) (holding that the trial court did not abuse its discretion under

Rule 403 by admitting into evidence a rap music video that was

filmed 11 days after the victim’s murder and showed the appellant’s

co-defendants “flash[ing]” a handgun that two witnesses testified

was the murder weapon); United States v. Smith, 967 F3d 1196,

1204-1206 (11th Cir. 2020) (holding that the trial court did not abuse

its discretion under Federal Rule of Evidence 403 by admitting

evidence of the appellant’s rap music video, which showed him

holding a pistol that the robbery victim testified was similar to the

32
one he used to strike her).16

In contrast to the exceedingly low probative value of the rap

music video, the prejudice flowing from the evidence the State

presented that Baker waved a handgun, pointed it directly at the

camera, and mimicked shooting the gun while rapping on a street

with a large group of men, some of whom also brandished guns and

made hand signs, was high. As the trial court noted in discussing

the rap music video at trial (outside the presence of the jury), “the

video [was] . . . glorifying of violence and gun violence and a sort of

street life, glamorizing it.”

16 We note that the probative value of the rap music video was further

diminished by the State’s failure to present any evidence that Baker’s
performance of Crawford’s rap song was not wholly theatric. See United States
v. Gamory, 635 F3d 480, 493 (11th Cir. 2011) (explaining that a rap video was
minimally probative under Federal Rule of Evidence 403 because there was no
proof that the appellant “authored the lyrics or that the views and values
reflected in the video were, in fact, adopted or shared by [the appellant]”); State
v. Skinner, 218 N.J. 496, 521 (95 A3d 236) (2014) (“The difficulty in identifying
probative value in fictional or other forms of artistic self-expressive endeavors
is that one cannot presume that, simply because an author has chosen to write
about certain topics, he or she has acted in accordance with those views.”);
Commonwealth v. Gray, 463 Mass. 731, 753-755 (978 NE2d 543) (2012)
(explaining that a rap music video was “minimally if at all probative” because
there was no evidence that the rap lyrics were biographical or indicative of the
appellant’s motive).
33
Yet the record shows that the trial court’s failure to recognize

the danger of unfair prejudice from the video when it ruled on its

admissibility enabled the State’s improper use of the video

throughout the trial. In particular, the trial court allowed the

prosecutor to capitalize on the video’s prejudicial impact by

emphasizing the video not to prove the purposes for which the State

now asserts the video was probative (i.e., to complete the story of the

crime, to establish Baker’s identity, to show Baker’s motive, or to

prove that Baker had access to the guns used in the shooting), but

for the purpose of showing Baker’s alleged propensity for violence

based on the theory that he was associated with a rap artist. For

example, when examining Dunn, the lead detective, and Baker, the

prosecutor emphasized the portion of the rap video in which Baker

waved a handgun, and she asked Dunn and Baker about the video’s

“promoting” gun violence—even though she did not offer argument,

let alone evidence, that the gun shown in the video was the gun used

in the shooting. And when the prosecutor asked Baker whether the

entourage traveled with guns and he responded, “Why would we,

34
though,” she again used the video to exaggerate Baker’s violent

nature, saying “Well, let’s see why,” before she played the video for

the jury a third time. Even worse, during closing argument, the

prosecutor expressly asserted that the rap music video proved that

those who participate in making rap music, such as Baker, had a

propensity for violence, saying, “Go back to that Ghetto Angels

video. Right? That’s all they know, the gun violence. They want to

promote it.” The prosecutor then drew a comparison between the

shooting and the rap music video, stating, “[I]t’s not a game, it’s not

about a rap video. It’s real.” See, e.g., Brown v. State, 303 Ga. 158,

162-163 (810 SE2d 145) (2018) (explaining that the probative value

of evidence that the appellant committed a prior aggravated assault

was “extremely low at best” and was “‘substantially outweighed by

its danger of creating prejudice,’” because the evidence had “‘no

purpose other than to show appellant’s propensity toward violence’”)

(citation omitted).17

17 The dissenting opinion says in passing that it does “not condone the

prosecutor’s potential misuse of the video to make a propensity argument.” But

35
The unfair prejudice from the evidence of the rap music video

substantially outweighed its minimal probative value, making this

evidence the sort that Rule 403 was meant to exclude: “matter of

scant or cumulative probative force, dragged in by the heels for the

sake of its prejudicial effect.” Harris, 314 Ga. at 277 (citation and

punctuation omitted). The trial court therefore abused its discretion

under Rule 403 by admitting the rap music video into evidence. See

id. at 274-280 (holding that the trial court abused its discretion

under Rule 403 by admitting evidence of the appellant’s sexual

activities on the day before the victim’s death, which had “trivial

probative value” and was “very prejudicial”); Jackson v. State, 306

Ga. 69, 79-80 (829 SE2d 142) (2019) (holding that the trial court

abused its discretion under the Rule 403 part of the test pursuant to

OCGA § 24-4-404 (b) by admitting evidence that the appellant was

involved in a prior shooting, because the probative value of the

evidence was “minimal at best”; it was “undoubtedly prejudicial”;

it undermines that disavowal by focusing on the amount of time the rap music
video was shown to the jurors instead of on the significantly harmful ways the
prosecutor used the video even when it was not being played.
36
and the prosecutor enhanced the prejudice by extensively

questioning the appellant about the prior shooting to try to establish

that he was “someone with a violent character”). See also United

States v. Gamory, 635 F3d 480, 493 (11th Cir. 2011) (holding that

the trial court abused its discretion under Federal Rule of Evidence

403 by admitting evidence of a rap music video and explaining that

“the probative value of the rap video was minimal at best,” partly

because any facts that the video made more probable “were not

seriously contested at the time the video was introduced” and there

was no evidence that the appellant adopted the “views and values

reflected in the video,” while “the substance of the rap video was

heavily prejudicial,” as the lyrics “could reasonably be understood as

promoting a violent and unlawful lifestyle”).18

18 The dissenting opinion concludes that the admission of the rap music

37
unfair prejudice under Rule 403 with the question of whether the video, in the
context of the entire trial, was harmful or harmless,” is simply incorrect. In
weighing probative value and unfair prejudice under Rule 403, a trial court
should consider how the evidence at issue might be used within the context of
the evidence and arguments presented at trial, including how a prosecutor
could capitalize on the prejudicial effect of the evidence during closing
argument. And in reviewing whether a trial court abused its discretion in
conducting Rule 403’s balancing test, an appellate court may properly consider
whether the risk of unfair prejudice was actualized at trial. See, e.g., Whited v.
State, 315 Ga. 598, 605-606 (883 SE2d 342) (2023) (noting, in considering
unfair prejudice under Rule 403, that the State’s opening statements and
closing arguments did not focus on the evidence at issue); Harris, 314 Ga. at
273-280 (noting the trial court’s pretrial ruling admitting evidence of the
appellant’s sexual messages and conduct under Rule 403 and then, in
concluding that the court abused its discretion, considering all of the evidence
presented at trial—including the State’s theory at trial of the appellant’s
motive; whether the evidence at issue was needlessly cumulative of other
evidence presented at trial; the probative value of the evidence, in light of the
other strong evidence presented at trial that proved the same point; and the
unfair prejudice flowing from the evidence at trial, which was “compound[ed]”
by the fact that the prosecutor hinted during his closing argument that the
appellant had not been charged with any crimes related to the evidence that
he sent sexual messages to a child); Jackson, 306 Ga. at 78-79 (holding that
the trial court abused its discretion under the Rule 403 part of the test
pursuant to OCGA § 24-4-404 (b) by admitting evidence that the appellant was
involved in a prior shooting, and evaluating as part of that analysis the State’s
need for the evidence—given the other evidence presented at trial—and its
prejudicial effect—which was “enhanced” by the prosecutor’s extensively
questioning the appellant about the shooting for the purpose of “establish[ing
the appellant] as someone with a violent character”); Kirby, 304 Ga. at 486
(concluding that the trial court abused its discretion under the Rule 403 part
of the test pursuant to OCGA § 24-4-404 (b) by admitting evidence that the
appellant committed a prior armed robbery and aggravated assault, and
discussing as part of that analysis its low probative value in light of the other
strong evidence presented at trial to prove the same point and its prejudicial
effect, which was “reduced” because the jury was presented with other evidence
that the appellant had committed another assault and robbery).
As to the dissenting opinion’s assessment that the video’s probative
value was more significant than we acknowledge because the video “showed

38
(d) Harm

Having concluded that the trial court abused its discretion

under Rule 403 by admitting the excerpt of the rap video into

evidence, we must now assess whether that error caused harm that

warrants a reversal of Baker’s conviction. “‘The test for determining

nonconstitutional harmless error is whether it is highly probable

that the error did not contribute to the verdict.’” Jivens v. State, 317

Ga. 859, 863 (896 SE2d 516) (2023) (citation omitted). Accordingly,

the error in admitting the rap music video into evidence may be

deemed harmless only if “‘it is highly probable that the error did not

contribute to the verdict.’” Id. (citation omitted). Applying that

that Baker was familiar and comfortable with handguns,” we have explained
time and again that when evidence is not particularly strong to prove the point
for which it is offered, the probative value of the evidence is diminished, not
increased. See, e.g., Olds, 299 Ga. at 75-76. Here, the State did not use the
video to connect the gun used in the crimes to the gun Baker held in the video,
so the video was not strong evidence and had little probative value in that
respect.
In sum, the dissent misses the point: the contents of the video, standing
alone, were not particularly prejudicial. But the video’s exceedingly low
probative value, compared to its outsized risk of unfair prejudice, made its
admission an abuse of discretion under Rule 403. And indeed, that risk—which
was apparent at the time the trial court had to decide whether to admit the
video—was actualized by the prosecutor’s improper use of the video to show
Baker’s propensity for gun violence.
39
standard, we conclude that the trial court’s error in this case was

not harmless.

As discussed above, the rap music video was highly prejudicial.

It allowed the State to introduce impermissible propensity evidence

by portraying Baker as a threatening gunman, and the prosecutor

severely exacerbated the video’s prejudicial impact by emphasizing

that it showed Baker’s predisposition to gun violence. Although the

video excerpt was relatively brief—it was only about 30 seconds long

(as the trial court pointed out in its order denying Baker’s motion

for new trial)—the prosecutor made it a focal point of the trial. She

played the video for the jury three times at three different points

during the trial; questioned three witnesses about the video

(specifically highlighting that the video advocated gun violence); and

then emphasized during her closing argument that Baker and other

rap artists “promote[d]” gun violence, because “[t]hat’s all they

know,” a pointed argument that reinforced to the jury Baker’s

alleged violent character. See, e.g., Strong v. State, 309 Ga. 295, 317

(845 SE2d 653) (2020) (noting, in reversing the appellant’s

40
convictions on the ground that an evidentiary error was not

harmless, that the State “emphasized” the evidence during closing

argument); Thompson v. State, 302 Ga. 533, 542 (807 SE2d 899)

(2017) (explaining, in reversing the appellant’s convictions due to

the improper admission of evidence that was not harmless, that the

prosecution emphasized during closing argument that the evidence

showed that the appellant had a propensity to commit crimes).19

19 We note that the trial court instructed the jury during the final charge

that the lawyers’ closing arguments were not evidence, but under these
circumstances, that generalized instruction was not sufficient to cure the
prejudicial impact of the prosecutor’s improper propensity argument. Cf. Jones
v. State, 292 Ga. 656, 662 (740 SE2d 590) (2013) (explaining that the standard
instruction that closing arguments are not evidence was insufficient to cure
the prosecutor’s “highly prejudicial” improper argument that the appellant was
involved in another shooting, which was not supported by any evidence at trial,
in violation of OCGA § 17-8-75).
In addition, the State contends that other aspects of the trial mitigated
any harm from the admission of the video: namely, that in response to the
prosecutor’s questions during jury selection about whether potential jurors had
heard about rap artists committing crimes and whether that would “color
[their] perception” of the case, no jurors expressed any bias, and that defense
counsel elicited testimony indicating, and asserted during closing argument,
that the video was a performance that merely showed Baker “wanting to act
cool.” We disagree. The jurors’ general attitudes toward rap artists at the time
of jury selection says little, if anything, about how they responded to the
prosecutor’s belaboring of the improperly admitted evidence of the rap music
video at trial. See Hill v. State, 308 Ga. 638, 648 (842 SE2d 853) (2020)
(explaining that although the jurors stated during jury selection that they
could remain impartial even though the appellant was visibly shackled during
the trial, at that point in the proceedings, they could “only speculate” as to how

41
Moreover, other than the improperly admitted evidence of the

rap music video, the State offered no connection between Baker and

guns. The State introduced no evidence showing that Baker carried

or had access to guns regularly, much less that he was carrying a

gun on the night of the shooting or that the gun displayed in the rap

video was used in the shooting. In short, the way in which the rap

music video was used at trial aggrandized a connection between

Baker and gun violence that was not properly established by any

other evidence. Under these circumstances, the evidence of the rap

music video was not “‘relatively benign’ or merely cumulative, as we

often have concluded in cases deeming improperly admitted

evidence harmless.” Harris, 314 Ga. at 284 (citation omitted).

Compare Jivens, 317 Ga. at 864 (explaining that the allegedly

improper admission of photographs of the appellant with firearms

they would feel after being exposed to the practice; accordingly, the jurors’
statements did not render the trial court’s error in requiring the appellant to
be shackled at trial harmless). As to the testimony and argument that the video
simply showed Baker’s attempt “to act cool,” we acknowledge that defense
counsel’s response to the video reduced its harmful effect, but that slight
mitigation was outweighed by the prosecutor’s repeated and improper use of
the video to show Baker’s alleged propensity for gun violence.
42
was harmless, partly because “any prejudicial effect these

photographs may have had was minimized by properly admitted

evidence that [the appellant], in fact, had access to guns”).

By contrast, the other evidence showing that Baker

participated in shooting Head was not especially compelling,

especially given the equivocation of multiple witnesses. See Harris,

314 Ga. at 284 (explaining that “‘compelling properly admitted

evidence of guilt’” may offset a high risk of prejudice from improperly

admitted evidence) (citation omitted). See also OCGA §§ 16-5-1 (a)

(defining malice murder); 16-2-20 (defining parties to a crime). As

we recounted in Division 1 above, only one eyewitness—Orr-

Oglesby—identified Baker as a shooter, and although she said

during her interviews with the lead detective that she saw two

shooters, provided a description of one of the shooters that matched

Baker, and then identified Baker during her interview with the

detective in August 2019 and again at trial, she also said during her

August 2019 interview that she “d[id]n’t think the light-skinned

guy” (referring to Baker) was a shooter. Moreover, evidence was

43
presented that after that interview and at the time of trial, Orr-

Oglesby had a motive to testify against Baker, because she had

recently been arrested on several criminal charges that were still

pending, which authorized the jury to make additional inferences

that might undermine Orr-Oglesby’s credibility.

The State points out that Orr-Oglesby’s account at trial was

supported by other evidence—including the surveillance recordings

showing Baker (in a white shirt) and the man in the camouflage cap

(in a black shirt) walking together toward the pawn shop; testimony

that patrons saw a man in a white shirt walking with a man in a

black shirt toward the pawn shop, saying something like, “we gonna

get them,” moments before the shooting; and the shell casings near

the pawn shop, which indicated that two guns were used in the

shooting. Notably, however, Orr-Oglesby’s account was also

contradicted by other evidence. Orr-Oglesby testified that Baker and

the man in the camouflage cap shot and then fled in a van that was

parked on the side of the strip mall, but Dunn testified that he did

not see anyone get into the entourage’s van, which had been parked

44
behind the strip mall, after he heard gunshots. Moreover, in contrast

to Orr-Oglesby’s testimony, the off-duty police officer told

investigators at the crime scene that he saw a shooter (with no

mention of a second shooter) wearing a light shirt and a ball cap.

And although the ballistics evidence showed that two guns were shot

near the pawn shop, witnesses testified that they also heard another

set of gunshots; the defense presented evidence that shots were fired

from three vehicles (the descriptions of which did not match the

entourage’s van) near the nightclub around the time of the shooting;

investigators found several additional shell casings in that area; and

the State presented no evidence of the type of bullet that killed

Head.

To be sure, the State presented substantial evidence of Baker’s

motive to participate in the shooting: namely, that he and the man

in the camouflage cap were angry with the security guards after the

fight. But Baker did not dispute that he and the man in the cap

fought with the guards or that he was angry. And to rebut the State’s

theory that his anger motivated him to perpetrate a shooting with

45
the man in the cap, Baker provided a not-implausible account: after

the fight, he simply parted ways with the man—whom he did not

know and whose presence he wanted to leave, given that the man

had escalated the fight—and got in the van, where he then heard

gunshots.20

Given all of this evidence, we cannot say that it is “highly

probable” that the trial court’s improper admission of the evidence

of the rap music video did not contribute to the guilty verdict, and

thus the State has not met its burden of showing that the error was

harmless. We therefore reverse Baker’s malice murder conviction.

20 The dissenting opinion contends that our harmless-error analysis is

“incomplete because it fails to account for the fact that Baker elected to testify
at his trial,” which it suggests would diminish the harm of the error in
admitting the rap video because “the jury did not find [Baker] credible.” But
we have accounted for Baker’s testimony above, concluding that his version of
the events on the night of the shooting was not implausible. Although the jury
was authorized to disbelieve Baker’s account, we would expect that the
prosecutor’s repeated use of the video to emphasize Baker’s alleged propensity
for gun violence would have significantly undermined his credibility with the
jurors. In other words, the prosecutor’s use of the video to emphatically cast
Baker as a violent gunman before the jury had an opportunity to listen to
Baker’s own account and assess his credibility made it more likely that the jury
would disbelieve Baker’s testimony not because it was unworthy of belief, but
because he had been portrayed as the sort of person who would commit a crime
like the one with which he was charged.
46
See, e.g., Harris, 314 Ga. at 288-289 (reversing the appellant’s

convictions due to the improper admission of evidence under Rule

403, which was not harmless, because the evidence was highly

prejudicial and the proof of the appellant’s guilt “was not

‘overwhelming,’ ‘compelling,’ or even strong”); Strong, 309 Ga. at

316-318 (reversing the appellant’s convictions on the ground that

improperly admitted evidence was not harmless, because the

evidence was highly prejudicial and not cumulative of other,

properly admitted evidence; the State emphasized the evidence at

trial; and the other evidence of the appellant’s guilt was “not

overwhelming,” particularly given that the State’s two eyewitnesses

gave somewhat inconsistent accounts of the murder and the

appellant “provided a not-outlandish account of the incident”);

Heard v. State, 309 Ga. 76, 91 (844 SE2d 791) (2020) (reversing the

appellant’s convictions based on improperly admitted evidence that

was not harmless, because the evidence was “highly prejudicial and

not at all cumulative . . . and the evidence that [the appellant]

47
committed the charged crimes was not compelling”).21

Judgment reversed. All the Justices concur, except Boggs, C. J.,
and LaGrua, J., who dissent.

LAGRUA, Justice, dissenting.

The majority opinion holds that the trial court abused its

discretion by admitting the 33-second clip from a rap music video

into evidence because the video’s “probative value [was]

substantially outweighed by the danger of unfair prejudice[.]” OCGA

§ 24-4-403 (“Rule 403”). Under such circumstances, reversal is only

necessary if the error was harmful, which the majority opinion also

21 Although the evidence presented at trial was not especially strong,

when viewed in the light most favorable to the verdicts, it was constitutionally
sufficient to sustain the jury’s guilty verdicts. See Jackson v. Virginia, 443 U.S.
307, 319 (99 SCt 2781, 61 LE2d 560) (1979); Hamilton v. State, 317 Ga. 337,
340 (893 SE2d 54) (2023) (concluding that the evidence, which showed that the
appellant initiated a dispute with the victim and then participated with his co-
defendant in shooting him, was constitutionally sufficient to support the
appellant’s conviction for felony murder based on aggravated assault);
Draughn v. State, 311 Ga. 378, 381-382 (858 SE2d 8) (2021) (holding that the
evidence supporting the appellants’ convictions for malice murder was
constitutionally sufficient, partly because an eyewitness identified them as the
assailants, and explaining that although there was conflicting evidence as to
their involvement, “‘[i]t is the jury’s role to resolve conflicts in the evidence and
to determine the credibility of witnesses, and the resolution of such conflicts
adversely to the defendant does not render the evidence insufficient’”) (citation
omitted). Thus, the State may retry Baker if it so chooses. See Harris, 314 Ga.
at 289; Strong, 309 Ga. at 318 n.25.
48
holds. I disagree as to both. The trial court did not err in admitting

the video, but, even if it did, any error was harmless. Because I

would affirm the judgment of the trial court, I respectfully dissent.

It is uncontested—even admitted by Baker and captured on

camera—that Baker and a man in a camouflage cap attempted to

reenter the nightclub shortly after 2:00 a.m., but they were denied

reentry after a brief argument and physical struggle with the

security guards. Baker and the man in the camouflage cap walked

away in the direction of a pawn shop, with Baker placing his arm

around the man in the camouflage cap. Uncontested evidence also

shows that one of those security guards near the door was shot and

killed minutes later. At least five witnesses testified that the gunfire

came from the direction of the pawn shop, where shell casings were

also found. Surveillance footage did not capture the shooting, but

Orr-Oglesby testified that she saw two men matching the

descriptions of Baker and the man in the camouflage cap both

shooting guns toward the nightclub from the direction of the pawn

shop. Another nightclub patron testified that she saw two men

49
walking toward the pawn shop, one with his arm around the other,

and she heard one say, “we gonna get them,” followed shortly by

gunfire. Baker testified that, by the time the shooting started, he

had already parted with the man in the camouflage cap and boarded

the van. However, no other witnesses, including Dunn, could

corroborate that Baker was in the van before the shooting.

Accordingly, the majority opinion concludes that this evidence was

constitutionally sufficient to support Baker’s conviction. Majority

Op. at 452 n.21.

But the majority opinion also holds that all this evidence “was

not especially compelling.” Majority Op. at 450. I do not agree;

rather, the evidence against Baker was substantial. To support its

contrary holding, the majority opinion undermines Orr-Oglesby’s

identification of Baker as the shooter by listing multiple instances

in which she identified Baker as the shooter but one instance where

she equivocated. However, the majority opinion also acknowledges

that the core of her testimony was largely consistent with other

uncontested evidence. She heard some commotion at the front door

50
of the nightclub and then saw two men near the pawn shop shooting

toward the nightclub—two men that were identified at trial as

Baker and the man in the camouflage cap. The inconsistencies

highlighted by the majority opinion generally do not contradict that

narrative, except for the testimony of an off-duty police officer at the

scene, who testified that he “couldn’t get a good sight of any

shooters” and could barely remember what he saw. The majority

opinion also explains that Orr-Oglesby had a motive to lie because

she was on probation and was recently arrested on a bench warrant

for a completely unrelated misdemeanor in a separate county, a

motive which I find weak and irrelevant considering that she was

not facing those charges during her prior identification of Baker.

Now to the question on appeal: did the trial court abuse its

discretion by admitting the video under Rule 403, and, if so, was it

harmful error? The majority opinion answers “yes” to both questions

for roughly the same reason: “the rap music video was highly

prejudicial.” Majority Op. at 448. I disagree.

I do not agree that the danger of unfair prejudice substantially

51
outweighed the video’s probative value, which is the difficult test

that Rule 403 sets out. The video was not as prejudicial as the

majority opinion holds. “[I]n reviewing issues under Rule 403, we

look at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue

prejudicial impact.” Lee v. State, 318 Ga. 412, 419 (4) (c) (897 SE2d

856) (2024) (citation and punctuation omitted). The 33-second clip

simply shows Baker and others singing, smiling, dancing on a car,

and waving around handguns, with Baker removing and inserting

an extended magazine. The video was not particularly offensive or

unusual. “A defendant’s appearance in a rap video . . . is not per se

prejudicial.” Wilson v. State, 315 Ga. 728, 739 (8) (a) (883 SE2d 802)

(2023). This is true even when the video is “replete with obscenities

and racial slurs.” Id. But here, the lyrics were largely

indecipherable, see Majority Op. at 440 n.13, further diminishing

any danger of unfair prejudice. Cf. United States v. Gamory, 635 F3d

480, 493 (II) (B) (11th Cir. 2011) (holding that the “substance of the

rap video was heavily prejudicial” because the lyrics “could

52
reasonably be understood as promoting a violent and unlawful

lifestyle”).

The real issue garnering the majority opinion’s focus is the

State’s use of the video once admitted. The video was played three

times: first during Dunn’s testimony, second during the lead

detective’s testimony, and last during Baker’s testimony. However,

each time, the video was used for a permitted purpose. In context,

Dunn’s and Baker’s testimony regarding the video focused on gun

ownership, and the detective’s testimony focused on how he

identified Baker as the shooter.

The prosecutor also briefly referenced the video twice in her

closing argument, with one reference merely in passing. Baker did

not object to either reference and does not raise the closing

argument’s impropriety on appeal. Baker has thus waived his right

to raise an independent claim that the prosecutor made an improper

propensity argument in closing. See Gates v. State, 298 Ga. 324, 328-

329 (4) (781 SE2d 772) (2016). Moreover, when the trial court ruled

on the admissibility of the video, it could not possibly have factored

53
the prosecutor’s later closing argument into its evaluation of

prejudice under Rule 403. While trial courts certainly must consider

the danger of unfair prejudice inherent to the contested evidence, we

should not fault the trial court for failing to predict that the State

will turn around and openly and intentionally use that evidence for

improper purposes. The trial court should be able to make rulings

with the understanding that the State will later follow the rules of

evidence. I still disagree with the majority opinion on how much

danger of unfair prejudice the video presented. But I do not calculate

in how the State’s eventual and actual use of the video impacted the

verdict. That is more appropriately—and more commonly—a part of

the harmless-error analysis. See, e.g., Morrell v. State, 313 Ga. 247,

261-262 (2) (869 SE2d 447) (2022) (considering State’s mentions of

prior act evidence in closing arguments when assessing harmless

error).

But by focusing on the State’s closing argument in the unfair

prejudice analysis, the majority opinion appears to conflate the

question of unfair prejudice under Rule 403 with the question of

54
whether the video, in the context of the entire trial, was harmful or

harmless. Perhaps we have not been so careful to maintain this

division in our past decisions regarding Rule 403 prejudice. See, e.g.,

Whited v. State, 315 Ga. 598, 606 (3) (883 SE2d 342) (2023)

(affirming trial court’s admission of evidence under Rule 403, in part

by explaining “it is noteworthy in considering the extent of any

unfair prejudice that the State’s opening and closing statements did

not focus” on the evidence in question, but, in support, only citing

cases doing the same in their harmless-error analyses). But we have

always maintained that exclusion under Rule 403 is an

“extraordinary remedy which should be used only sparingly . . . .” Id.

at 605 (3) (citation and punctuation omitted). The initial admission

or exclusion of the evidence itself, often done before the trial even

begins, is its own consideration. Here, when the trial court made its

ruling to admit the video, it was properly focused on the video

itself—not what the State might argue in closing. See Wilson, 315

Ga. at 739 (8) (a) (explaining that the question is “what specifically

about this video might cause unfair prejudice”) (emphasis in

55
original).

I also disagree with the majority opinion’s holding regarding

the video’s probative value. For example, I do not agree that the

video’s probative value to prove access to the guns was “trivial.”

Majority Op. at 444. The State offered no connection between Baker

and guns other than the video. The video showed that Baker was

familiar and comfortable with handguns, which was probative to a

critical part of the State’s case. Regarding the other permissible uses

of the video, the majority opinion only notes other trial evidence,

including Baker’s testimony, that served a similar purpose as the

video, potentially diminishing its probity. However, I do not agree

that the video lost its probative value to the degree that the majority

opinion holds. Accordingly, the danger of unfair prejudice did not

substantially outweigh the video’s probative value here. The video

was more probative and less prejudicial than the majority opinion

holds.

Like the Rule 403 standard, the test for harmless error is also

difficult to meet, as we must determine “whether it is highly

56
probable that the error did not contribute to the verdict.” Jivens v.

State, 317 Ga. at 859, 863 (2) (896 SE2d 516) (2023) (citation and

punctuation omitted; emphasis supplied). I do not condone the

prosecutor’s potential misuse of the video to make a propensity

argument, but she did not make “it a focal point of the trial.”

Majority Op. at 448. Ultimately, this case involved 19 witnesses—

including Baker himself and someone who actually saw the

shooting—and the trial transcript spans over 800 pages. The video

was played for a total of 99 seconds, and discussion of the video took

up only a few minutes of the four-day trial—a trial, as I have

explained, in which substantial evidence of Baker’s guilt was

presented to the jury. Further, testimony by Baker and Dunn put

the video in a performative context and explained that it was made

in memory of a family member lost to gun violence. This helped

mitigate whatever harm the video may have caused.

The majority opinion’s harmless error analysis is also

incomplete because it fails to account for the fact that Baker elected

to testify at his trial, and the jury did not find him credible. See

57
United States v. Phyfier, 842 Fed. Appx. 333, 338 (III) (11th Cir.

2021) (per curiam) (explaining that, in the harmless error context,

“it is well established that when a defendant testifies in his own

defense, the jury may disbelieve his testimony, conclude that the

opposite of his testimony is true, and consider it as substantive

evidence of his guilt”). See also Fitts v. State, 312 Ga. 134, 143 (3)

n.9 (859 SE2d 79) (2021) (“If disbelieved by the jury, [defendant’s]

testimony denying her involvement in the crime could have served

as direct evidence of the opposite proposition.”). For example, the

jury was entitled to find that, contrary to his trial testimony, Baker

was not in the van at the time of the shooting, but instead remained

with the man in the camouflage cap, and that Baker did have a gun

that night and was involved in the shooting. Cf. Majority Op. at 438.

Thus, even if Rule 403 did merit exclusion, it is “highly

probable” that the video’s admission did not contribute to the

verdict. See Ash v. State, 312 Ga. 771, 782-783 (2) (865 SE2d 150)

(2021) (holding that, if the prosecutor improperly used a prior

conviction to show defendant’s propensity for violence, its admission

58
was harmless when “neither the prosecutor nor [defense] counsel

devoted much attention to this evidence in closing arguments” and

the other evidence against defendant was “strong”). Therefore, I

respectfully dissent.

I am authorized to state that Chief Justice Boggs joins in this

dissent.

Decided March 5, 2024.

Murder. Houston Superior Court. Before Judge Lumsden.

Garland Samuel & Loeb, Donald F. Samuel; Hogue Hogue

Fitzgerald & Griffin, James T. Griffin, for appellant.

William M. Kendall, District Attorney, Rodrigo L. Silva,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Ashleigh D. Headrick, Assistant

Attorney General, for appellee.

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: March 5, 2024

S23A0860. BAKER v. THE STATE.

WARREN, Justice.

Appellant Morgan Baker was convicted of malice murder in

connection with the shooting death of Tamarco Head.1 In his sole

enumeration of error, Baker contends that the trial court abused its

discretion under OCGA § 24-4-403 (“Rule 403”) by admitting into

evidence a portion of a rap music video. As explained below, we

agree that the trial court’s admission of the video was an abuse of

1 Head was killed on July 6, 2019. In February 2021, a Houston County
grand jury indicted Baker for malice murder, felony murder, and aggravated
assault. At a trial from February 8 to 11, 2022, a jury found him guilty of all
counts. The trial court sentenced him to serve life in prison for malice murder;
the remaining counts were vacated by operation of law or merged. Baker filed
a timely motion for new trial, which he later amended through new counsel.
After a hearing, the trial court entered an order denying the motion in
December 2022. In February 2023, Baker filed a motion to set aside that order
for lack of notice. The trial court granted the motion, vacated its order, and re-
entered it on March 7, 2023. Baker then filed a timely notice of appeal, and
the case was docketed to the August 2023 term of this Court and orally argued
on August 23, 2023.
discretion. And because the State has not met its burden of showing

that the error was harmless, we reverse Baker’s conviction.

1. (a) The Pretrial Ruling to Admit the Rap Music Video Into
Evidence