In the Supreme Court of Georgia



                                              Decided: July 5, 2016


                      S16A0393. SMART v. THE STATE.

      HUNSTEIN, Justice.

      Appellant Norman Smart was convicted of malice murder and related

offenses in connection with the beating death of his wife, Lauren Smart, and was

sentenced to life imprisonment without the possibility of parole. On appeal,

Appellant contends, inter alia, that there was insufficient evidence to sustain his

convictions and that the trial court erroneously admitted both character evidence

and hearsay testimony. For the reasons that follow, we affirm.1

      1
        In November 2014, a Chatham County grand jury returned an indictment
charging Appellant with one count of malice murder, one count of felony murder
predicated on aggravated assault, two counts of felony murder predicated on
aggravated battery, two counts of aggravated battery - family violence, and one count
of aggravated assault - family violence; Appellant was also charged with cruelty to
children in the first degree for causing Lauren’s death in the presence of her child.
Following a trial in December 2014, a jury found Appellant guilty of all counts.
After properly merging and vacating offenses, the trial court sentenced Appellant to
life without parole for malice murder and 20-years consecutive for cruelty to children
in the first degree. In December 2014, Appellant moved for a new trial, and he later
amended the motion through new counsel in April 2015. Appellant waived a hearing
on the motion – asking that the issues be decided on briefs – and the trial court denied
the amended motion on the pleadings in June 2015. This appeal was docketed to the
January 2016 term of this Court, and oral argument was heard on March 7, 2016.
      Viewed in a light most favorable to the jury’s verdict, the evidence at trial

established as follows. On the evening of June 6, 2014, a deliveryman making

a delivery at the marital residence observed Appellant and Lauren arguing and

overheard Appellant state “this B’s going to make me F her up.” The next

morning, Appellant called 911 regarding his wife; officers responded to the

marital home and discovered Lauren on the floor next to the couple’s bed,

obviously deceased. The marital residence showed no sign of forced entry.

Appellant, a weightlifter and former professional fighter, reported to police that

he had arrived home earlier that morning, at approximately 1:30 a.m., and

discovered that his wife was intoxicated. According to Appellant, his wife had

lain down on the floor and “passed out” from her alcohol consumption;

Appellant told authorities that he covered his wife with a blanket and went to

bed but that, when he awoke, he found her unresponsive. In a subsequent letter

written from jail, however, Appellant reported that he and Lauren “went to sleep

together” and that Lauren had “passed away in her sleep.”

      A subsequent autopsy revealed that Lauren died from multiple blunt-force

traumas and strangulation. Lauren suffered dozens of internal and external

injuries, some caused with the force expected from a car crash or long fall. The

                                        2
medical examiner testified that, “visually,” there was a “very high degree of

similarity” between injuries on Lauren’s body and the sole of a shoe belonging

to Appellant. Though Appellant had reported in the 911 call that he was

performing CPR on his wife – and a recording of that call captured a rhythmic

“squeaking” sound – the medical examiner found no evidence that CPR was

performed on Lauren. Likewise, the rhythmic squeaking sounds captured on the

911 call likely came from the couple’s mattress, but there was no indication that

Lauren’s body was on the mattress immediately before or after her death.

      Brian Patterson, who worked for Appellant, testified that he repaired a

door and door frame in the marital residence that had been “severely damaged”

and that, on the night he performed the repairs, Lauren wore sunglasses the

entire time. Watson Lee, who was with Patterson that night, testified that he

saw Lauren remove her sunglasses and that she had two black eyes. The jury

also heard text messages sent by Appellant in which he stated that he was “really

going to rattle [Luaren’s] brain” and that he was going to “smash her.” Finally,

the jury heard testimony that, Lauren’s son, Brayden, heard Appellant beating

his mother and heard her screaming during the fatal assault.

      1. The evidence as summarized above was sufficient to enable a rational

                                       3
trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of

the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979). Though Appellant contends that the evidence

was insufficient because the State failed to present substantial credible and

direct evidence to sustain the conviction for murder, it is axiomatic that

resolving evidentiary conflicts and assessing witness credibility are within the

exclusive province of the jury. See Hampton v. State, 272 Ga. 284 (1) (527

SE2d 872) (2000).

      2. The trial court permitted the State to present the testimony of Katie

Tucker, the sister of Appellant’s ex-wife, Sarah, regarding prior acts of domestic

violence committed by Appellant. Tucker testified that Appellant would

threaten Sarah daily, would hit Sarah in such a way so as to leave no visible

injury, and that Appellant’s “motto” was that “his love is pain.” According to

Tucker, Appellant would ask Sarah “how many” – referencing punches – and

if Sarah said “one,” Appellant would punch her twice. Tucker explained that

Sarah did not like having her kneecaps touched but that Appellant would often

punch her there. Tucker also described an incident in which Sarah, then eight-

months pregnant, suspected that Appellant was with another woman in the

                                        4
marital residence. Appellant prevented Sarah from entering the residence and,

when Sarah attempted to climb through a broken window, Appellant shoved her

out of the window to the ground. Tucker explained that, when the injured and

bloody Sarah managed to enter the house, she was forcefully dragged out of the

house by Appellant. Appellant now argues that the trial court abused its

discretion in admitting this testimony.2 We disagree.

      Because Appellant was tried after January 1, 2013, we utilize Georgia’s

new Evidence Code to evaluate this claim. Under the new code,

      [e]vidence of other crimes, wrongs, or acts shall not be admissible
      to prove the character of a person in order to show action in
      conformity therewith. It may, however, be admissible for other
      purposes, including, but not limited to, proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity, or
      absence of mistake or accident.

OCGA § 24-4-404 (b) (“Rule 404 (b)”). Evidence offered for a proper purpose

under this rule may be excluded under OCGA § 24-4-403 (“Rule 403”) “if its

      2
          The State contends that, because Appellant did not object to this testimony
at trial, this argument is waived. The record is clear, however, that Appellant made
a pre-trial objection to the testimony and that, immediately before trial, the trial court
entered an order admitting Tucker’s testimony; accordingly, Appellant was not
required to lodge a subsequent objection. See OCGA § 24-1-103 (a) (“Once the court
makes a definitive ruling on the record admitting or excluding any evidence, either
at or before trial, a party need not renew an objection or offer of proof to preserve
such claim of error for appeal.”).

                                            5
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.” These

rules track their federal counterparts, and this Court has adopted the three-part

test used by the Eleventh Circuit Court of Appeals to evaluate the admissibility

of other acts evidence. Bradshaw v. State, 296 Ga. 650 (3) (769 SE2d 892)

(2015) (adopting the three-part test). The three-part test to utilized by the

Eleventh Circuit to determine the admissibility of evidence under Rule 404 (b)

is as follows:

      (1) the evidence must be relevant to an issue other than defendant’s
      character; (2) the probative value must not be substantially
      outweighed by its undue prejudice; (3) the government must offer
      sufficient proof so that the jury could find that defendant committed
      the act.

United States v. Ellisor, 522 F3d 1255, 1267 (11th Cir.2008). See also State v.

Jones, 297 Ga. 156 (1) (773 SE2d 170) (2015). Here, the trial court ruled that

the testimony was admissible for the purposes of showing defendant’s motive

to control family members with violence and his intent to harm his intimate

partners, as well as to show the absence of mistake or accident. We review this

decision for clear abuse of discretion. Bradshaw, 296 Ga. at 656.

                                       6
      (a) Rule 404 (b) prohibits other acts evidence from being admitted for the

sole purpose of proving the character of a person in order to show action in

conformity therewith, see Jones, 297 Ga. at 159; however, other acts evidence

may be admitted under Rule 404 (b) if that evidence is relevant to some issue

other than character. See Olds v. State, ___ Ga. ___, ___ (2) (___ SE2d ___)

(2016). 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.” See also

Jones, 297 Ga. at 159. The trial court concluded that the evidence was relevant

to show, inter alia, motive. “Motive has been defined as ‘the reason that nudges

the will and prods the mind to indulge the criminal intent.’” (Citation omitted.)

United States v. Benton, 637 F2d 1052, 1056 (2) (5th Cir. 1981).

      While motive is not an element of any of the charged offenses here,

Tucker’s testimony was relevant to help the jury understand why Appellant

might have used violence against Lauren.          Though Tucker’s testimony

referenced specific acts of domestic violence, her testimony also revealed the

impetus behind that violence: control. Sarah would ask for one punch, but

                                       7
would get two; Appellant would hit Sarah where she was most sensitive and in

a way that would not reveal that violence; and Appellant forcibly removed Sarah

from the marital residence when he did not want her there. Accordingly,

Tucker’s testimony was relevant to the State addressing motive, namely, that

Appellant used violence to control Lauren.3 Cf. United States v. Banks, 514 F3d

959, 976 (9th Cir. 2008) (holding that evidence of the defendant’s prior stabbing

of someone who insulted his gang status was admissible to prove motive under

Rule 404(b) in his trial for attempted murder of someone else who also insulted

his gang status).

      (b) The mere fact that the evidence was relevant to an issue other than

Appellant’s character does not end our analysis. We now must address whether

“the probative value of the other acts evidence is [] substantially outweighed by

its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule

403.” Jones, 297 Ga. at 159. “The application of the Rule 403 test is a matter

committed principally to the discretion of the trial courts, but as we have



      3
        Because we conclude that Tucker’s testimony was admissible to show motive,
we need not address whether that testimony was admissible to show intent or absence
of mistake or accident.

                                        8
explained before, the exclusion of evidence under Rule 403 ‘is an extraordinary

remedy which should be used only sparingly.’” (Citations omitted.) Olds, ___

Ga. at ___. “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.”’” Hood v. State, ___ Ga. ___ (4) (___ SE2d __ ) (2016).

      While the evidence against Appellant was prejudicial – as almost all

evidence presented by the State will be – on balance, we agree with the trial

court that the probative nature of Tucker’s testimony outweighed that prejudice.

As discussed above, Tucker’s testimony was not elicited merely to show that

Appellant had engaged in prior acts of domestic violence, but, instead, it

demonstrated that the violence was a mechanism for control of his intimate

partners. While the evidence of Appellant’s guilt was strong – which tends to

lessen the probative value of Tucker’s testimony – there was very little evidence

from which a jury could have gleaned why Appellant lashed out against his

wife. Further, while the evidence in Tucker’s testimony was disturbing, there

was “nothing inherent in this evidence that would create a risk that [Appellant]

would be convicted ‘on a ground different from proof specific to the offense

charged.’” Banks, 514 F3d at 976-977. As in Banks, “[n]othing in the

                                       9
[testimony] would shock the average juror or otherwise render the jury

incapable of weighing the evidence in a disinterested manner,” and “given the

relevance of the evidence to the question of motive, we cannot say that any

prejudice it might have caused outweighed its significant probative value.” Id.

at 977.

      (c) Finally, we must decide whether the State offered sufficient proof for

the jury to conclude that Appellant committed the acts described by Tucker.

Tucker testified that she spent considerable time in the marital residence with

Appellant and Sarah – summers and weekends – and that she witnessed the acts

about which she testified; this was sufficient. See United States v. Lail, 846 F2d

1299, 1302, n. 3 (1988) (eyewitness testimony sufficient proof that defendant

committed extrinsic acts under Rule 404 (b)). Accordingly, the trial court did

not abuse its discretion when it permitted the State to present Tucker’s

testimony.

      3. The trial court also granted the State’s request to admit various hearsay

testimony and evidence under OCGA § 24-8-807 (“Rule 807”), the new residual

hearsay provision. Namely, the trial court admitted the following: testimony

from Maranda Self that, on the evening before Lauren’s death, Self brought

                                       10
alcohol to Lauren at the marital residence, that she was told by Lauren that

Appellant had slashed a tire on Lauren’s truck, and that Lauren was anxious for

Self to leave the residence before Appellant returned; testimony from April

Solomon that, approximately seven months before the murder, Lauren reported

that Appellant had beaten her with a suitcase when she announced her intention

to leave the marriage; Facebook messages exchanged between Appellant and

Lauren (who was pretending to be someone else) in which Appellant used the

phrase “death before dishonor”; “letters to God,” written by Lauren, in which

she described her tumultuous and abusive relationship with her husband; and,

numerous text messages sent by Lauren to various family and friends regarding

her relationship with Appellant. Appellant contends that the evidence was

improperly admitted.4

      As an initial matter, our review of this claim is hampered by Appellant’s

failure to specify which evidence he contends was wrongfully admitted and, if


      4
        Appellant also suggests that the admission of this evidence violated his
right to confrontation; this argument, however, was not raised below and none
of the statements were testimonial. See Davis v. Washington, 547 U. S. 813,
822 (126 SCt 2266, 165 LE2d 224) (2006) (statements are testimonial when the
primary purpose is to establish past events potentially relevant to later criminal
prosecution).
                                       11
he takes issue with all of the evidence, his failure to engage in legal analysis

with respect to each piece of evidence he is challenging. “It is not this Court’s

job to cull the record on behalf of [Appellant] to find alleged errors.” (Citations

omitted.) Maxwell v. State, 290 Ga. 574, 575(2) (722 SE2d 763) (2012). While

Appellant apparently seeks to challenge the admissibility of all the evidence

admitted under Rule 807, we agree with the State that Appellant’s arguments are

not preserved for appellate review.5 Accordingly, we review this claim for plain

error. See OCGA § 24-1-103 (d); Gates v. State, 298 Ga. 324 (3) (781 SE2d

772) (2016).

      In State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011), this Court adopted

the federal plain-error standard as set out in Puckett v. United States, 556 U. S.

129 (II) (a) (129 SCt 1423, 173 LEd2d 266) (2009), which involves the

following four prongs:

      5
         Prior to trial, the State filed a notice of intent to introduce hearsay evidence
under Rule 807; Appellant filed a written objection and argued against the admission
of that evidence at a subsequent hearing. Later, the State filed a supplement to its
original notice, adding text messages that Lauren had sent to various friends and
family. While Appellant objected to other evidence that the State sought to admit
under Rule 807, there was no pre-trial or contemporaneous objection with respect to
the text-message evidence. With respect to the remaining evidence, Appellant’s
arguments in this Court are not the same that Appellant made pre-trial. Our review
is now limited to plain error.

                                           12
      First, there must be an error or defect – some sort of “[d]eviation
      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 affect[s] the fairness, integrity or public reputation of
      judicial proceedings.”’

(Emphasis in original.) Kelly, 290 Ga. at 33. See also Gates, 298 Ga. at 327

(recognizing that the test adopted in Kelly applies to rulings on evidence).

Accordingly, beyond showing a clear or obvious error, “plain-error analysis . .

. requires the appellant to make an affirmative showing that the error probably

did affect the outcome below.” (Citation and punctuation omitted.) Shaw v.

State, 292 Ga. 871, 873(2) (742 SE2d 707) (2013). “Reversal is authorized only

if all four prongs are satisfied—a ‘difficult’ standard indeed.” Carruth v. State,

290 Ga. 342, 348 (6) (721 SE2d 80) (2012).

      The relevant portion of Rule 807 states as follows:

      A statement not specifically covered by any law but having
      equivalent circumstantial guarantees of trustworthiness shall not be
      excluded by the hearsay rule, if the court determines that:


                                        13
            (1) The statement is offered as evidence of a material
            fact;

            (2) The statement is more probative on the point for
            which it is offered than any other evidence which the
            proponent can procure through reasonable efforts; and

            (3) The general purposes of the rules of evidence and
            the interests of justice will best be served by admission
            of the statement into evidence.

OCGA § 24-8-807. The residual hearsay exception was designed “‘to be used

very rarely, and only in exceptional circumstances.’” (Citations omitted.)

Rivers v. United States, 777 F3d 1306, 1312 (II) (11th Cir. 2015). The rule

applies “‘only when certain exceptional guarantees of trustworthiness exist and

when high degrees of probativeness and necessity are present.’” Id.

      [S]uch guarantees must be “equivalent to cross-examined former
      testimony, statements under a belief of impending death, statements
      against interest, and statements of personal or family history.”
      [Cit.] These categories of hearsay “have attributes of
      trustworthiness not possessed by the general run of hearsay
      statements that tip the balance in favor of introducing the
      information if the declarant is unavailable to testify.” [Cit.] And
      they are all considered sufficiently trustworthy not because of the
      credibility of the witness reporting them in court, but because of the
      circumstances under which they were originally made. For
      example, a dying declaration is trustworthy enough to admit as
      evidence in certain types of cases because at the time the declaration
      is made, the declarant believes that she is about to die and the
      statement concerns the cause of her death—in other words, because

                                       14
      of the particular circumstances surrounding the original utterance
      of the statement.

(Citations omitted.) Rivers, 777 F3d at 1314.

      While Appellant argues that Lauren’s statements lacked the “exceptional

guarantees of trustworthiness” required to be admissible under Rule 807, any

error in admitting those statements is neither clear nor obvious. We cannot say

that statements from a wife to her friends or family, or her own writings, which

describe acts of domestic violence, do not, in fact, bear an increased level of

trustworthiness. Likewise, in light of the often-secretive nature of domestic

violence, we can also envision that such statements might be highly probative.

Moreover, Appellant has failed to demonstrate that the admission of this

evidence affected his substantial rights. As noted above, Appellant does not

speak to, much less analyze, the entirety of the evidence admitted under this

rule. Though the Rule 807 evidence admitted at trial clearly painted a picture

that Appellant was violent and controlling, the jury had already heard other

evidence establishing this, namely: that Lauren was seen with extensive injuries

and that Appellant had made threatening statements about Lauren.

      Further, the State’s case was incredibly strong. The undisputed evidence


                                      15
below established that: Lauren was beaten to death in her master bedroom; in

two different statements, Appellant admitted to being in the same room with his

wife at the time of her death and gave inconsistent accounts of what happened

on the night of the murder; Appellant was overheard threatening his wife on the

day before her murder; there was no evidence of forced entry into the house on

the night of the incident; shoe prints on Lauren’s body very clearly matched the

soles of shoes belonging to Appellant; and, the jury heard testimony that

Lauren’s son heard Appellant punching his mother on the night of her death.

Reviewing the record as a whole we cannot say that any error here “seriously

affect[ed] the fairness, integrity, or public reputation of judicial proceedings.”

Kelly, supra. Accordingly, there is no plain error.

      4. Appellant argues that the trial court committed reversible error by

telling potential jurors that Appellant was “charged with the . . . murder of

Lauren Brown Smart, his wife.” According to Appellant, Lauren’s status as

Appellant’s wife was an essential and disputed element that the State was

required to prove with respect to the each of the family violence counts. There

is no error.

      At the time of Appellant’s trial, OCGA § 17-8-57 provided, in relevant

                                       16
part, that “[i]t is error for any judge in any criminal case, during its progress or

in his charge to the jury, to express or intimate his opinion as to what has or has

not been proved or as to the guilt of the accused.”6 However, OCGA § 17-8-57

“is violated only when [a] trial court’s instruction, considered as a whole,

‘assumes certain things as facts and intimates to the jury what the judge believes

the evidence to be.’” (Citations omitted.) Parker v. State, 276 Ga. 598, 600 (5)

(581 SE2d 7) (2003). Here, the record is clear that the judge was not

commenting on the evidence but, instead, was merely explaining the nature of

the case during voir dire to help potential jurors determine whether they had

been exposed to the extensive media coverage; the trial court’s statement here

was akin to referencing allegations in an indictment and “in no way constituted

the type of direct comment on the substance or weight of the evidence that we

have held to violate OCGA § 17-8-57.” Dailey v. State, 297 Ga. 442, 443 (2)

(774 SE2d 672) (2015). See Lindsey v. State, 295 Ga. 343 (2) (760 SE2d 170)

(2014) (trial court’s preliminary instructions to venire explaining allegations in

indictment did not violate OCGA § 17-8-57). Compare Murphy v. State, 290



      6
          This code section was amended subsequent to Appellant’s trial.

                                         17
Ga. 459, 460-461(2) (722 SE2d 51) (2012) (trial judge’s comments that witness

was a “good detective” and that through “his good efforts we're going to find the

truth of the matter” violated OCGA § 17-8-57).

      5. Finally, Appellant claims that both his trial counsel and first appellate

counsel were ineffective. The record shows that, while a claim of ineffective

assistance of trial counsel was asserted in Appellant’s initial motion for new

trial, first appellate counsel later withdrew that claim in an amended motion and

did not pursue it further. Accordingly, Appellant’s claim that trial counsel was

ineffective is now waived and cannot now be reasserted on appeal. See

Williams v. Moody, 287 Ga. 665, 666 (697 SE2d 199) (2010) (“In order to

avoid a waiver of a claim of ineffective assistance against trial counsel, the

claim must be raised at the earliest practicable moment, and that moment is

‘before appeal if the opportunity to do so is available.’ The pre-appeal

opportunity is ‘available’ when the convicted defendant is no longer represented

by the attorney who represented him at trial.” (citation omitted)). While

Appellant also argues that first appellate counsel was ineffective for failing to

pursue those claims, he is not entitled to a remand on that claim and must

instead raise it in a habeas corpus proceeding. See Wilson v. State, 286 Ga. 141,

                                       18
145 (686 SE2d 104) (2009) (“[The appellant] cannot resuscitate the procedurally

barred claims of ineffective assistance of trial counsel by bootstrapping them to

a claim of ineffectiveness of appellate counsel.”). See also Cowart v. State, 294

Ga. 333, 337, n. 6 (3) (751 SE2d 399) (2014).

      Judgment affirmed. All the Justices concur.




                                       19
