316 Ga. 234 FINAL COPY
S23A0256. BACON v. THE STATE.
COLVIN, Justice.
Following a jury trial, Nicholas Bacon was convicted of malice
murder and possession of a firearm during the commission of a
felony in connection with the shooting death of his 64-year-old
mother, Montez Bacon (“Montez”).1 On appeal, Bacon alleges that
the trial court abused its discretion when it excluded the testimony
of the defense’s expert witness and that he received constitutionally
1 On September 25, 2017, a Liberty County grand jury indicted Bacon for
felony murder predicated on aggravated assault (Count 1), aggravated assault (Count 2), malice murder (Count 3), and possession of a firearm during the commission of a felony (Count 4). A jury trial was held March 25 through 26, 2019, and the jury found Bacon guilty of all counts. Bacon was sentenced to serve life in prison with the possibility of parole for malice murder. He also received a consecutive five-year sentence with three years to serve in confinement and two years suspended for the firearm charge. All remaining counts were either vacated by operation of law or merged for sentencing purposes. Bacon timely filed a motion for new trial on July 30, 2019, which was amended through new counsel on January 11, 2021, and February 1, 2021. After a hearing, the trial court denied the motion as amended on August 11, 2022. Bacon timely filed a notice of appeal. The appeal was docketed to the term of this Court beginning in December 2022 and was submitted for a decision on the briefs. ineffective assistance of counsel. For the reasons set forth below, we
affirm.
1. In the afternoon of March 3, 2017, the Savannah Police
Department responded to a call concerning a domestic incident
between Bacon and Montez. Upon arriving on the scene on the side
of Highway 204, officers found Bacon in the back seat of Montez’s
car. Montez, who appeared “distressed” and “scared,” was standing
outside of her vehicle. She informed the officers that she wanted
Bacon “out of the car,” but refused to provide any additional
information. Bacon told the officers that “everything was fine” and
that Montez was “just mad.” The officers concluded that this was a
“disorderly person” incident and convinced Montez to drive home
with Bacon. Montez complied. The officers followed Montez and
Bacon through Chatham County, but then “lost sight” of the vehicle
as it crossed into Bryan County.
Montez’s brother, Andrew, testified at trial that Montez called
him in a frantic state while she was in Savannah. Montez told her
brother that “she was afraid because [Bacon] was acting out of
2 character more so than what he normally would.” She asked
Andrew to meet them along their route home to Hinesville,
explaining that she needed help getting Bacon out of her vehicle
because the police would not remove him from the car. Andrew
testified that he believed Montez was “in danger” because she was
“not the type to involve [others] in her business as it relates to her
children or her husband.”
Then, around 4:00 p.m. on March 3, the Liberty County
Sheriff’s Office received multiple 911 calls reporting that Montez’s
vehicle had slowly rolled into a local business’s storage building off
Highway 196. Among the callers was Andrew, who had found
Montez inside her vehicle unresponsive. Witnesses reported seeing
Bacon exit the back seat of the vehicle after it came to a stop and
then casually walk away from the car with a backpack slung over
his shoulder.
Police officers and paramedics arrived at the scene and found
Montez dead on the ground with a dime-size gunshot wound to the
back of her right shoulder. The medical examiner later confirmed
3 that Montez’s cause of death was a gunshot wound to her right
scapula and recovered a .380-caliber bullet from Montez’s body
during her autopsy.
Officer Geoffrey Harriman testified at trial that he located a
man, later identified as Bacon, with a mesh backpack walking on
the side of Highway 196. Officer Harriman instructed Bacon to drop
the backpack and asked for some identification. Bacon dropped the
backpack but refused to give his name. He also told Officer
Harriman that “[my I.D. is] in my wallet, but I don’t know where my
wallet is.” Bacon told Officer Harriman that he was “coming from
Savannah” and going to Hinesville. When Officer Harriman picked
up the backpack, he saw, through the mesh exterior, a silver pistol
and a wallet. Officer Harriman pulled the gun out of the bag and
identified it as a Taurus PT-738 with five .380-caliber rounds in the
magazine and one in the chamber. Officer Harriman also found
Bacon’s wallet, which contained his identification. Bacon was
subsequently arrested.
Officers searched Montez’s vehicle and found a spent .380-
4 caliber shell casing under the driver’s seat. That shell casing, the
bullet retrieved from Montez’s body, and Bacon’s firearm were all
sent to the GBI for testing. The GBI’s firearm analyst testified that
the shell casing found in the car and the bullet found during
Montez’s autopsy were both fired from Bacon’s Taurus PT-738
pistol. He further concluded that Bacon’s gun was in “good working
condition,” that the gun would not fire absent a “pull of the trigger,”
and that the “trigger remained locked” when the safety was fully
engaged.
Bacon testified at trial. He admitted to shooting his mother
but claimed that the shooting was an accident. According to Bacon,
during the car ride, he removed his pistol from his pants pocket and
placed it in his bag. He testified that when “the vehicle made a swift
right turn” he reflexively grabbed his backpack to “prevent [his]
stuff from falling forward” and “then the gun discharged.” Bacon
testified that his Taurus PT-738 had design issues that impacted the
effectiveness of the gun’s safety lock. Specifically, Bacon testified
that a special wrench had to be inserted “like a key” into “a little
5 pinhole on the gun” in order to lock the safety mechanism, and that
it was difficult to “really know if [the safety was] set or not.”
After hearing all of the evidence, the jury found Bacon guilty
on all counts.
2. Bacon alleges that the trial court abused its discretion by
excluding the testimony of Kayton Smith. During the defense’s case-
in-chief, counsel sought to qualify Smith as a firearms expert.
During voir dire, Smith testified that he had “been in the [firearms]
business for 40 years”; that he owned a gun shop; that he was
involved in the “sales and service” of firearms; and that he did
“minor training, but mostly sales and service.” Smith testified that
he had certificates from Glock’s and Smith & Wesson’s armorer’s
schools, but he did not have anything from Taurus certifying him as
an expert on their firearms. He agreed that he had “practical
experience” with guns but no educational background on firearms.
The prosecution objected to Smith being tendered as a firearms
expert, arguing that the defense had not laid a sufficient foundation
to qualify him as an expert. Defense counsel asked Smith for
6 additional information concerning his background and experience.
Smith noted that he had testified in court as an expert witness
regarding Smith & Wesson firearms. He also testified that he had
been gunsmithing since 1980, wherein he learned how to field strip,
clean, and tool new parts for guns. The trial court informed defense
counsel that it was “concerned . . . you know, he’s been around guns
and he’s worked on guns. But as to actually taking any courses other
than the Glock and the Smith & Wesson courses, you know, you’re
going to have to give me a little bit more than this.”
Defense counsel and the court asked Smith additional
questions concerning his background and knowledge of guns. Smith
testified that he had 40 years of experience in the sale and service
of “various” rifles, shotguns, and handguns including work with
antique firearms. Smith also testified he was a “range master” for
five years in the early 1980s wherein he “was making sure that
people were safe on the [gun] range itself. If there was a malfunction
with [a] weapon, I’d go and, you know, put the weapon down. [I’d]
clear the weapon until we can make it safe.” Smith also testified as
7 to his 15 years owning and operating a gun shop wherein he “did
sales, service, like I said, you know, minor repairs [of firearms].”
Smith further explained
I mean, we’re not going to get into — we don’t get into the trigger-type stuff because of the liabilities for insurance purposes. But things, like, if you’ve got a barrel — you know, the weapon is jamming, we’re going to try and find out why it’s jamming and try to solve that problem. A lot of times, it’s just tossing the feed round, that sort of stuff.
The trial court replied, “I don’t know. You’ve had — you know, your
testimony is to [the] safety. Do you have any knowledge, outside
your own knowledge, as to the safety item without going into it? Do
you have any knowledge outside of your own knowledge on that?”
Smith stated, “Little things, like fitting safet[ies] to 1911s.” The
trial court noted, and Smith agreed, that he was talking about
“antique collectibles of firearms,” and also agreed that the gun at
issue was not an antique weapon. When defense counsel asked if
Smith carried the Taurus at issue in his store, Smith replied, “Well,
I still carry the Taurus spectrums from time to time, which is the
new version .380, which replaced the TCPs.”
8 The trial court stated, “I don’t know. He cleans guns. He does
minor repairs,” and then instructed defense counsel to proffer
Smith’s testimony, explaining “My concern[ ], [counsel], is that
there’s no — like, a Taurus is a low-line handgun. He works on
antique guns. He works on collectible guns.” The trial court then
asked Smith if he had worked on a Taurus gun that had jammed.
Smith replied, “Well, yeah, or send them back to the factory,
depending on what the problem is.”
Defense counsel then proceeded to question Smith regarding
his testing of Bacon’s gun. Smith testified that he fully inspected
the weapon externally and internally. Smith explained that, during
his examination, he performed a “trigger[-]pull test” on the firearm
and found that, when the safety was “fully engaged” at 180 degrees,
the firearm would not discharge. However, when the safety was only
partially engaged at 75 or 70 degrees, “[the firearm] would
sometimes fire.” When testing the gun, Smith found that, out of the
18 times he shot the gun, it misfired three times. Smith explained
that the Taurus 700 series had “been discontinued” because
9 “[a]pparently, they . . . were having an issue with [the] keylock
safety” and that, at one point in time, there was a class-action
lawsuit because of the gun’s safety issues.
The trial court asked Smith whether he disassembled the
weapon before testing the safety. Smith responded, “Yes, I did.” The
trial court then concluded, “[W]e can’t let him testify. It wasn’t the
same gun. He’s disassembled it. I don’t know how he reassembled
it. . . . [H]e took it apart and he experienced the safety problems. He
did not fire it as it was and as it came to him.” The trial court also
ruled that Smith’s testimony concerning the safety recall was
inadmissible hearsay.2 Defense counsel objected to these rulings.
2 The trial court clarified its ruling in its order denying Bacon’s motion
for new trial, explaining that the defense had failed to lay a proper foundation to tender Smith as an expert under former OCGA § 24-7-707. Specifically, the court found that “Smith’s testimony [was] not specific to any subject matter directly within the realm of expertise of which he is qualified,” and that his “forty years of experience selling firearms and his ownership and management of a gun store do not qualify him as an expert capable of testifying to the integrity of the safety lock mechanism of the specific firearm at issue in this case.” See Harris v. State, 310 Ga. 372, 377 (2) (a) n.12 (850 SE2d 77) (2020) (“[I]t is well established that the superior court has the power to interpret and clarify its own orders. Such power includes shedding light on the scope of an earlier ruling.” (citation and punctuation omitted)).
10 Bacon alleges that the trial court abused its discretion by
finding that the defense failed to lay the proper foundation to qualify
Smith as an expert pursuant to former OCGA § 24-7-707.3
Pretermitting whether the trial court abused its discretion by
excluding Smith as an expert witness, any error was harmless. “In
determining whether [an evidentiary] error was harmless, we
review the record de novo and weigh the evidence as we would expect
reasonable jurors to have done so.” Timmons v. State, 302 Ga. 464,
470 (2) (b) (807 SE2d 363) (2017) (citation and punctuation omitted).
“The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.” Id. (citation and punctuation omitted).
Here, the evidence establishing Bacon’s guilt was strong.
Bacon admitted to shooting his mother, but claimed it was an
accident. The jury also heard testimony that Montez called 911
3 Although repealed in July 2022, this Code section was in effect at the
time of Bacon’s trial and provides that “[i]n criminal proceedings, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-7-707 (2011). 11 requesting Bacon be removed from her vehicle, that Montez called
her brother in a frantic state prior to the shooting expressing fear of
Bacon and requesting help, that Bacon left the car with the murder
weapon after his mother had been shot, and that Bacon refused to
provide his name or any identification to the police after walking
away from the scene. Furthermore, the jury heard Bacon testify
that he had previous issues with the safety mechanism on his gun.
Although Smith could have provided additional testimony
concerning the weapon’s safety mechanism, the jury would likely not
have given Smith’s testimony much weight since Smith
disassembled and reassembled the gun before conducting any
relevant testing. Consequently, it is highly probable that any error
committed by the trial court did not contribute to the verdict. Cf.
Tuggle v. State, 305 Ga. 624, 627 (2) (825 SE2d 221) (2019) (any error
in the admission of evidence was harmless where testimony was
cumulative of other evidence already admitted and where there was
12 strong evidence of guilt).4
3. Bacon also alleges that he received ineffective assistance
of trial counsel based upon counsel’s failure to call Smith as a lay
witness and offer testimony concerning the integrity of the safety
lock mechanism on Bacon’s gun. In order to establish
constitutionally ineffective assistance, a defendant must show that
his counsel’s performance was professionally deficient and that, but
for such deficient performance, there is a reasonable probability that
the result of the trial would have been different. See Strickland v.
Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674)
(1984).
To prove deficiency, Bacon must show that his attorney
“performed at trial in an objectively unreasonable way considering
all the circumstances and in the light of prevailing professional
norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013).
4 Bacon also alleges that the trial court abused its discretion by finding,
in its order denying the motion for new trial, that Smith’s testimony was not relevant under OCGA § 24-4-401 and, therefore, inadmissible. However, as discussed, any error committed by the trial court in excluding Smith’s testimony would have been harmless. 13 “A strong presumption exists that trial counsel’s performance was
reasonable and that counsel’s decisions and choices at trial fell
within the broad range of professional conduct as assessed from
counsel’s perspective at the time of trial and under the specific
circumstances of the case.” Jones v. State, 296 Ga. 561, 564 (2) (769
SE2d 307) (2015). Furthermore, “[e]ven though [Appellant’s] trial
counsel died prior to the hearing on the motion for new trial,
[Appellant] still must overcome this presumption and is not relieved
of his heavy burden of proving ineffective assistance.” Rhoden v.
State, 303 Ga. 482, 484 (2) (813 SE2d 375) (2018).
“In reviewing the trial court’s decision, we accept the trial
court’s factual findings and credibility determinations unless clearly
erroneous, but we independently apply the legal principles to the
facts.” Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012)
(citation and punctuation omitted). If the defendant fails to satisfy
either prong of the Strickland test, this Court is not required to
examine the other. See Green v. State, 291 Ga. 579, 580 (2) (731
SE2d 359) (2012).
14 At the hearing on Bacon’s motion for new trial, Bacon was
unable to call his lead trial counsel, John Ely, as a witness because
counsel had died. Instead, to support his claim of ineffectiveness,
Bacon called Allison Lane Bruns, who sat as second-chair during
Bacon’s trial. Bruns testified that Bacon’s trial was her first as an
attorney and that her responsibilities were to handle opening and
closing arguments and to cross-examine “one, maybe two,
witnesses.” When asked why the defense never sought to tender
Smith as a lay witness, Bruns responded, “I’m not sure. I was a baby
attorney, so that was not my decision. I’m not sure why Mr. El[y] did
not go that route, and I definitely don’t want to speak for him since
he’s not here to speak for himself.” Bruns testified that she did not
discuss tendering Smith as a lay witness with Ely, but she did
explain that “[o]ur defense was that [the shooting] was an accident
and that the gun fired on safety.” She further testified that the
defense’s strategy concerning Smith was to “ha[ve] him test fire the
gun and to look at it since he was a firearms expert,” and she recalled
that he was “able to determine that the gun would actually fire at a
15 certain degree of the safety being on.” Bruns opined that Smith’s
testimony would have been helpful to Bacon’s defense’s theory and
agreed that Smith’s testimony would have been consistent with
Bacon’s testimony at trial.
Based on this record, we agree with the trial court that Bacon
has failed to show that trial counsel acted deficiently under
Strickland. It is well settled that “[a]n attorney’s decision about
which defense witnesses to call is a classic matter of trial strategy,
and such a decision will not form the basis for an ineffectiveness
claim unless it is so unreasonable that no competent attorney would
have made that decision under the circumstances.” Davis v. State,
315 Ga. 252, 262 (4) (a) (882 SE2d 210) (2022) (citation and
punctuation omitted). Indeed, “[t]he standard regarding ineffective
assistance of counsel is not errorless counsel and not counsel judged
ineffective by hindsight, but counsel rendering reasonably effective
assistance.” Harris v. State, 280 Ga. 372, 375 (3) (627 SE2d 562)
(2006) (citation and punctuation omitted).
Here, we cannot say that trial counsel’s “decisions regarding
16 trial tactics and strategy” were “so patently unreasonable that no
competent attorney would have followed such a course.” Davis v.
State, 299 Ga. 180, 183 (2) (787 SE2d 221) (2016) (citation and
punctuation omitted). See also Capps v. State, 300 Ga. 6, 12 (2) (e)
(792 SE2d 665) (2016) (“Hindsight has no place in an assessment of
the effectiveness of trial counsel. . . . Nor will speculation support a
claim of ineffective assistance of counsel.”). Indeed, counsel could
have reasonably decided not to present Smith as a lay witness
because Smith’s admissions that he had little prior experience with
the specific type of weapon at issue and that he did not test the
firearm’s safety mechanism until after disassembling and
reassembling the weapon undermined the credibility of his proffered
testimony. Based on the foregoing, Bacon has failed to show that
trial counsel was deficient by not calling Smith as a lay witness at
trial.
Judgment affirmed. All the Justices concur.
17 Decided May 2, 2023.
Murder. Liberty Superior Court. Before Judge Cheney.
Rouse & Copeland, Amy L. Copeland, for appellant.
Tom Durden, District Attorney, Hugh D. Ridgway III, Assistant
District Attorney; Christopher M. Carr, Attorney General, Beth A.
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Emily R. Polk, Assistant Attorney General, for
appellee.