X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Nahmias, Justice.Appellant Allen Watson was convicted of felony murder and possession of a firearm in connection with the shooting death of Jackise McKie. On appeal, he contends that the trial court erred by allowing the lead detective to testify as a firearms expert and raises two claims of ineffective assistance of counsel. We affirm.[1]1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On the evening of November 9, 2014, Randall Whitfield hosted a party in his garage for people to watch a Falcons game, drink, and gamble. Among the guests were Appellant, McKie, Tyre Howard, and Paul Hogan. They and Whitfield had attended high school together, and Whitfield regularly hosted similar parties during Falcons games. Appellant arrived at the party with a bottle of liquor, a handgun, and a guest, unknown to the regular group and identified only as “Cool,” who was also armed with a handgun. Shannon Fort, Howard’s girlfriend who was also at the party, was upset about the guns, so Howard asked that everyone put their guns on a table off to the side; Appellant, Cool, and Hogan complied. Fort and Hogan later testified that the mood was tense and there was a bad “vibe” at the party, which they attributed to Cool.[2]Cool and McKie gambled for most of the evening. At some point, Appellant and Cool left the party to get more liquor and cash to continue gambling, and they retrieved their guns on their way out. When they returned, Cool and McKie resumed playing dice. They soon began to argue, and McKie accused Cool of cheating. Appellant drunkenly intervened on behalf of Cool. Appellant and McKie stood facing each other, both yelling, “What are you going to do?” as if they were going to fight. Whitfield attempted to ease the tension by standing between Appellant and McKie, trying to calm down McKie, and telling the two men to “chill it out.” But Appellant then pulled out his gun, cocked it, swung his arm around Whitfield, and hit McKie in the forehead with the gun. The gun fired, with the bullet entering McKie’s skull just above his right eye and exiting the back of his head, killing him. According to Hogan, Appellant said, “Da*n, fu*k, the gun went off, bro. I shot the man, fu*k.” Appellant and Cool then fled the garage.When the police arrived at the scene, they found a .380-caliber pistol, a .40-caliber live round under a car in the driveway, and a .40-caliber projectile embedded in the wall of the garage. The party guests did not know if the .380- caliber pistol was one of the guns that Appellant and Cool brought to the party, and no other gun was recovered in connection with the shooting. The medical examiner was unable to determine what caliber bullet had struck and killed McKie.Whitfield and Hogan both identified Appellant as the shooter in a photo lineup and at trial. No witness indicated that anyone other than Appellant brandished a gun before McKie was shot. The party guests described Cool and the investigation yielded a potential address for him, but he was never further identified or located. Appellant did not testify at trial. His theory of defense was that the State could not prove that Appellant was the shooter, primarily because the investigation was mishandled, including by the failure to pursue and locate Cool. Appellant did not claim that the shooting was accidental.Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court’s practice in murder cases, we have reviewed the record and conclude that the evidence presented at trial and as summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’” (citation omitted)).2. Appellant contends that Detective Courtney Brown, who led the investigation of the shooting, should not have been allowed to testify as an expert about the firearms involved in the case. But the one objection Appellant’s trial counsel made was properly overruled, the trial court did not plainly err with regard to the detective’s subsequent, unobjected-to testimony about guns, and Appellant’s trial counsel was not ineffective in not raising further objections.(a) On direct examination at trial, Detective Brown described his experience with and knowledge of firearms as follows:I’ve been an officer for almost twenty years. Every year that I have been an officer, you have to qualify sometimes once, sometimes twice a year with firearms. The firearms that I’ve been trained with mainly have been 9 millimeter, [.]380 caliber, and [.]40 caliber handguns. In this training they teach you the nomenclature of the gun, which is basically the gun itself, the different parts of the gun, how to load the weapon, how to make the weapon safe, proper handling techniques, so on and so forth. And I probably have over, I would say, 300 to 400 hours of training, firearms training.The prosecutor then questioned Detective Brown about the difference between .40-caliber and 9-millimeter firearms. The detective explained that in most cases the only apparent difference between those two types of handguns is their barrels, as their frames are mostly the same size so the guns look the same. Appellant’s trial counsel objected to this line of questioning on the ground that there was no foundation for Detective Brown to talk about guns. The trial court overruled the objection. Later in the direct examination, the prosecutor asked the detective to discuss trigger pull. Without objection, Detective Brown testified that he thought it takes five to eight pounds of pressure to pull the trigger and fire most semiautomatic handguns, although he has seen a .40-caliber gun modified to require only about three pounds of pressure. On redirect examination, the prosecutor asked Detective Brown whether it was possible for a .380-caliber gun, like the one found at the crime scene, to fire .40-caliber ammunition like that found at the scene. Again without objection, the detective answered that it was not possible.(b) Appellant argues that the testimony described above was “beyond the ken of the average layman” and so required Detective Brown to be qualified as an expert in firearms. Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981).[3] A witness can be qualified as an expert in a particular field if he demonstrates “special knowledge . . . derived from experience.” Billings v. State, 293 Ga. 99, 104-105 (745 SE2d 583) (2013) (citation and quotation marks omitted). By overruling Appellant’s objection following the question and answer regarding the difference between .40-caliber and 9-millimeter firearms, the trial court implicitly accepted Detective Brown as an expert on that subject. See Bly v. State, 283 Ga. 453, 458 (660 SE2d 713) (2008). We review the trial court’s ruling only for an abuse of discretion, see Thomas v. State, 290 Ga. 653, 658 (723 SE2d 885) (2012), and the court did not abuse its discretion in overruling Appellant’s objection. Detective Brown’s description of his training over many years with both .40-caliber and 9-millimeter handguns sufficiently qualified him to describe the general difference in appearance between the two guns, which was the answer to which Appellant objected.(c) To the extent Appellant now argues that Detective Brown’s experience with firearms was insufficient to qualify him to answer the questions he was subsequently asked about trigger pull pressure and the possibility of a .380-caliber gun firing .40-caliber bullets, our review is limited to plain error, because Appellant did not object to these questions at trial. See OCGA § 24-1 – 103 (a) (1), (d). To establish plain error on these evidentiary rulings, Appellant must show that the error alleged was not affirmatively waived; was obvious and not subject to reasonable dispute; probably affected the outcome of the trial; and seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Gates v. State, 298 Ga. 324, 327-328 (781 SE2d 772) (2016).Pretermitting the other elements of this test, Appellant has not shown that the detective’s disputed testimony likely affected the outcome of the trial. Two eyewitnesses who knew Appellant identified him as the shooter; one of them testified that Appellant said “I shot the man” right after shooting the victim; no witness indicated that anyone else brandished a gun before the victim was shot; and Appellant did not claim that the shooting was unintentional. Thus, it is not probable that the jury would have reached a different verdict had it not heard Detective Brown’s generalized testimony about trigger pull pressure or been told that a .380-caliber handgun cannot fire .40-caliber ammunition. The admission of the detective’s testimony on those two issues therefore does not amount to plain error.(d) Appellant also argues that his trial counsel provided ineffective assistance by not objecting to Detective Brown’s testimony on those same two issues. To prevail on a claim of ineffective assistance of counsel, Appellant must prove both deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LEd2d 674) (1984). To establish deficient performance, Appellant must show that his trial counsel performed in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. To establish prejudice, Appellant must show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. We need not address both components of this test if Appellant has not proved one of them. See Walker v. State, 301 Ga. 482, 489 (801 SE2d 804) (2017).The test for prejudice in the ineffective assistance analysis is equivalent to the test for harm in plain error review. See id. at 488. Thus, from our holding in the previous subdivision that the admission of Detective Brown’s testimony about trigger pull pressure and bullet-firearm compatibility did not cause harm, it follows that trial counsel’s failure to object to that testimony did not cause prejudice and thus did not constitute ineffective assistance. See id.3. Appellant’s trial counsel questioned Detective Brown on cross-examination about the detective’s decision not to investigate Appellant’s associate Cool, despite labeling Cool “Suspect Number Two” and having a possible address for him. On redirect examination, the prosecutor asked Detective Brown why he did not go to the address linked to Cool. The detective replied:Based on the witnesses that were at the scene, they all identified the [Appellant] as the shooter in very detail, very good detail. They all knew him personally. And like I said, the only thing we had to go on was the nickname of Cool as the second subject. I didn’t think there was – I didn’t think that Cool, based on the statements given, was an intricate part of the incident, being that the subject here was the one identified as waving the handgun around at the location, being loud, boisterous, and actually was the one who actually struck the victim and shot him in the process.Appellant contends that his counsel was ineffective in failing to make a hearsay or improper bolstering objection to the testimony that Appellant “actually was the one who actually struck the victim and shot him in the process.” We disagree.Trial counsel’s decision not to object was not deficient performance, because an objection would have been meritless. Detective Brown mentioned what the eyewitnesses had told him to explain why he focused his investigation on Appellant, rather than trying to identify and locate Cool. Because that explanation followed the attack on the detective’s investigation on cross- examination, the testimony was permissible. An investigating officer may not testify about what others told him “merely under the guise of explaining the officer’s conduct.” Jackson v. State, 301 Ga. 866, 870 (804 SE2d 367) (2017) (citation and quotation marks omitted). However, where the defense was significantly based on the assertion that the lead investigator inadequately performed his duties and the subject of Cool in particular was brought up by the defense on cross-examination, it was appropriate for the prosecutor to ask and for the detective to explain why he conducted the investigation as he did. See id.Thus, a hearsay objection would have been properly overruled because the evidentiary value of the witnesses’ statements that guided Detective Brown’s investigation was in their existence, not their truth. See United States v. Jiminez, 564 F3d 1280, 1287 (11th Cir. 2009).[4] An improper bolstering objection also would have been meritless, as the detective’s testimony did not directly address the credibility of another witness. See Brown v. State, 302 Ga. 454, 460 (807 SE2d 369) (2017). Failure to make a meritless objection cannot support a claim of ineffective assistance. See Faust v. State, 302 Ga. 311, 318­319 (805 SE2d 826) (2017). Moreover, even if an objection would have been sustained, the detective’s disputed testimony was not prejudicial, because it was cumulative of the testimony of the two eyewitnesses that the jury had already heard identify Appellant as the shooter. See Hall v. State, 292 Ga. 701, 703 (743 SE2d 6) (2013). Appellant has not established any ineffective assistance of counsel.Judgment affirmed. All the Justices concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
May 01, 2025
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

We are seeking two attorneys with a minimum of two to three years of experience to join our prominent and thriving education law practice in...


Apply Now ›

Description: Fox Rothschild has an opening in the New York office for a Real Estate Litigation Associate with three to six years of commerci...


Apply Now ›

Downtown NY property and casualty defense law firm seeks a Litigation Associate with 3+ years' experience to become a part of our team! You ...


Apply Now ›