BRITTAIN v. STATE (2026)

Kevin Tyrone Brittain was convicted of the malice murder of his ex-wife Tamekia Flint, the aggravated assault of Leandre Christian, and other related crimes.¹ On appeal, Brittain asserts that the trial court erred in two respects: by refusing to dismiss the jury panel after one prospective juror expressed her opinion during voir dire that Brittain was guilty and by admitting the recording of the 911 call made after Flint was shot. Finding no error, we affirm.

1. The evidence at trial showed as follows. On the day of the crimes, Flint, accompanied by Christian, gave Brittain a ride to his mother's gravesite, at Brittain's request. Upon arriving at the church where the gravesite was located, Flint refused Brittain's requests to accompany him to his mother's grave, staying in the vehicle while Brittain stood just outside the vehicle for about 15 minutes. When Brittain reentered the vehicle, he accused Flint of being romantically involved with another man, drew a gun, and shot her in the back. Brittain attempted to shoot Christian, but the gun jammed. Notwithstanding her injuries, Flint pushed Brittain out of the vehicle and drove off, and the women called 911. First responders transported Flint to the hospital, where she later died.

Because Flint and Christian were unfamiliar with the area, they were unable to identify with specificity the church at which the shooting occurred. Eventually, officers identified the church where the gravesite was located. Upon arriving at the church, officers searched the area immediately surrounding the church and began moving toward a storage building behind the church. Brittain, who had been hiding behind a dirt mound near the storage building, revealed his location to the officers. A subsequent canine search located the handgun used in the shooting, which Brittain had hidden in the “rotted through” floor area of the storage building. 2. Brittain first argues that, during voir dire, the trial court erred by refusing to dismiss a venire panel after a prospective juror announced in response to an inquiry about her ability to be fair and impartial that she thought Brittain was guilty.² The trial court excused the prospective juror for cause and, the next day, gave a curative instruction and obtained an affirmation from each of the empaneled jurors that he or she could be fair and impartial. Nevertheless, Brittain insists that the entire panel should have been disqualified and that he is entitled to a new trial on this basis. We disagree.

“Our review of this issue is limited to determining whether the trial court abused its discretion” by refusing to dismiss the venire panel. Heywood v. State, 292 Ga. 771, 772, 743 S.E.2d 12 (2013). When we consider whether the trial court should have excused a venire panel following panel members’ exposure to unauthorized comments, “the appropriate inquiry is whether the remarks were inherently prejudicial and deprived [the] appellant of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.” Slaughter v. State, 289 Ga. 790, 792, 716 S.E.2d 180 (2011) (cleaned up). And as we have explained, “where a prospective juror's comments do not link a defendant with criminal activity, or characterize the defendant as a criminal, the entire jury panel does not have to be excused.” Jackson v. State, 278 Ga. 235, 238, 599 S.E.2d 129 (2004).

Here, without referencing any facts or particularized opinions, the prospective juror expressed only her own general belief that Brittain was guilty. She did not offer any explanation about her basis for that belief, nor did she link Brittain with other unrelated criminal activity. See Whitehead v. State, 308 Ga. 825, 830, 842 S.E.2d 816 (2020) (“Generally, the dismissal of a jury panel is required when, during voir dire, a prospective juror relays prejudicial information that is specific to the defendant and germane to the case for which the defendant is on trial. Dismissal is not required, however, when the statements establish only gossamer possibilities of prejudice.”). The singular expression of such an opinion does not, standing alone, deprive a defendant “of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.” Slaughter, 289 Ga. at 792, 716 S.E.2d 180. Moreover, the offending juror was promptly excused for cause, and the trial court gave a lengthy curative instruction to the remaining jurors, noting that the dismissed juror's comment was inappropriate, emphasizing the presumption of innocence and the State's burden of proof, and stressing the jurors’ duty to be fair and impartial. And the trial court went on to elicit an affirmation from each juror that he or she would “put [the dismissed] juror's comment out of your mind, and completely disregard it and be a fair and impartial juror,” underscoring that “if there was anything that may have been said that would in any way at this point keep you from being fair and impartial, then we need to know.” Under these circumstances, we see no abuse of discretion in the trial court's refusal to dismiss the entire jury panel, and this claim fails. See Heywood, 292 Ga. at 773, 743 S.E.2d 12 (where prospective juror announced during voir dire that defendant resembled person who had previously assaulted her with a gun, trial court did not abuse its discretion by denying motion to dismiss venire panel where it took corrective action by excusing that juror for cause, instructing the remaining jurors that defendant was not the perpetrator of the prior assault, and inquiring of the remaining jurors whether the inappropriate remark would affect their ability to remain fair and impartial); Kinder v. State, 284 Ga. 148, 149–50, 663 S.E.2d 711 (2008) (after venire panel member admitted to discussing underlying facts of case with other panel members, including defendant's godfather, trial court did not abuse its discretion by refusing to dismiss entire panel and instead taking corrective action by individually questioning the involved jurors to ascertain whether they were prejudiced by the discussion and reiterating previous admonitions about discussing the case).

3. Brittain next contends that the trial court erred by denying his motion to exclude the recording of Flint and Christian's 911 call, arguing that the evidence had little probative value, was highly prejudicial, and thus failed the balancing test under OCGA § 24-4-403 (“Rule 403”). We see no abuse of discretion.

A trial court has discretion under Rule 403 to exclude “[r]elevant evidence” if the “probative value” of that evidence “is substantially outweighed by the danger of unfair prejudice[.]” OCGA § 24-4-403. “Unfair prejudice under this rule means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Pierce v. State, 302 Ga. 389, 394–95, 807 S.E.2d 425 (2017) (quotation marks omitted). But “excluding relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly.” Allen v. State, 307 Ga. 707, 710, 838 S.E.2d 301 (2020) (quotation marks omitted). And because “the balance should be struck in favor of admissibility,” when we review a trial court's decision to exercise — or not to exercise — its discretion under Rule 403, we view that evidence “in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.” Carston v. State, 310 Ga. 797, 803, 854 S.E.2d 684 (2021) (quotation marks omitted).

Brittain maintains that the 911 recording should have been excluded under Rule 403 because, he says, the State did not need the recording to prove any disputed fact at issue in the case and, as such, the recording had minimal probative value. As Brittain views the case, the only issue in dispute was his intent in shooting Flint — the State said it was intentional, Brittain said accidental — and the recording proved nothing on that point, serving only to provoke an emotional reaction from the jury. And Brittain argues that, because the recording was emotionally charged, it was unfairly prejudicial. It is true that probative value depends in part “upon the need for the evidence.” Olds v. State, 299 Ga. 65, 76, 786 S.E.2d 633 (2016). But the State is not limited to offering evidence that has the sole purpose of proving elements of the charged offense that are disputed by the defendant. See Harris v. State, 310 Ga. 372, 379, 850 S.E.2d 77 (2020) (“[T]here is no requirement that the government proffer only enough evidence to allow the jury to convict, and no more[.]” (quotation marks omitted)). See also Morgan v. State, 307 Ga. 889, 896, 838 S.E.2d 878 (2020) (“Generally, a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the State chooses to present it.” (quotation marks omitted)).

Here, the State introduced the recording of the 911 call as evidence of the charged crimes, using the call during opening and closing arguments and during the testimony of several witnesses. Christian and Flint made the call to 911 immediately after the shooting, and Flint began the call by informing the operator that her “baby daddy” had just shot her in the back. The call continued with the operator attempting to ascertain Flint's current location and the location at which the shooting occurred. The State used the recording to show the chain of events leading to responding police officers’ identification of the church where the shooting occurred and at which they apprehended Brittain and located the concealed handgun used in the shooting. The 911 recording thus was certainly relevant and probative as evidence of the circumstances of the crimes, Brittain's apprehension, and the investigation that followed. See Hughes v. State, 310 Ga. 453, 459, 851 S.E.2d 580 (2020) (recording of eyewitness's call to 911 was relevant and probative to “demonstrating the circumstances of the shooting — specifically the existence, nature, and location of the gunfight that led to [the victim's] death”). And we cannot say that the recording's probative value was substantially outweighed by the risk of unfair prejudice. The 911 call occurred minutes after Flint had been shot, so it is not surprising that, as Brittain argues, she was in some distress during the call. But our review of the recording shows that Flint was coherent and measured during her interactions with the 911 operator and was able to offer sufficient information to enable first responders to locate her. And we see little risk that the recording would so inflame the passions of the jurors that they would find Brittain guilty solely on the basis of an emotional reaction. See Pierce, 302 Ga. at 394–95, 807 S.E.2d 425 (video of sexual assault victim sobbing as he described sexual encounter with defendant was “relevant as evidence of the crimes charged” and had “highly probative value” which was not substantially outweighed by the risk of unfair prejudice). Compare Morgan v. State, 307 Ga. 889, 896–97, 838 S.E.2d 878 (2020) (minimal probative value of four-minute-long body-camera footage that showed little of the crime scene and nothing of the defendant was substantially outweighed by the risk of unfair prejudice arising from its depiction of, “from the officer's close-up perspective, a dead baby girl sprawled on a dark hallway floor with water and foam oozing from her nose as the officer futilely tries to pump life back into her tiny, naked body” that was “likely to incite feelings of revulsion, disbelief, shock, sadness, and anger”). Accordingly, the trial court did not abuse its discretion by refusing to exclude this evidence under Rule 403, and this claim fails.

Judgment affirmed.

FOOTNOTES

1.   The crimes occurred on January 14, 2022. In August 2022, a Wilkes County grand jury indicted Brittain for malice murder, two counts of felony murder, aggravated assault of Flint (family violence), aggravated assault of Christian, possession of a firearm by a convicted felon, and two counts of possession of a firearm during the commission of a felony. At an April 2024 trial, a jury found Brittain guilty of all counts. The trial court sentenced Brittain to serve life in prison without the possibility of parole for malice murder, a consecutive 20-year term for the aggravated assault of Christian, a consecutive 10-year term for possession of a firearm by a convicted felon, and a consecutive 5-year term for each count of possession of a firearm during the commission of a felony. Brittain timely filed a motion for new trial, which he subsequently amended through new counsel. Following a hearing, the trial court entered an order denying Brittain's motion, as amended, on March 2, 2026. Brittain timely filed a notice of appeal, and his case was docketed to this Court's April 2026 term and submitted for a decision on the briefs.

2.   We question whether this claim was preserved for appellate review. At trial, Brittain did not expressly seek dismissal of the venire panel and instead cast his objection as a motion for mistrial, which was premature at that stage of the proceedings. See Sharpe v. State, 272 Ga. 684, 687, 531 S.E.2d 84 (2000) (“The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn.” (quotation marks omitted)). As Brittain argues, our case law counsels against elevating nomenclature over substance with respect to motions made under these circumstances. See id. (“[T]here is authority for disregarding the nomenclature of a defendant's premature motion for mistrial when the clear import of the motion is that the jury panel be excused and another panel be made available.”). Though we are not so certain that the motion for mistrial adequately apprised the trial court that Brittain in fact sought the venire panel's dismissal, we assume without deciding that the issue was preserved for appellate review.

Bethel, Justice.

All the Justices concur, except Warren, P.J., not participating.