306 Ga. 240 FINAL COPY
S19A0116. FLEMING v. THE STATE.
MELTON, Chief Justice.
Charles Fleming was tried and convicted of murder and related
offenses in connection with the crimes he committed against
Lamonte Corbin and Tracy Skrine.1 Fleming appeals, alleging that
the evidence was insufficient to support his convictions, that the
trial court erred by improperly admitting certain evidence at trial,
1 On October 6, 2016, a DeKalb County grand jury indicted Fleming for the following crimes committed against Corbin and Skrine: malice murder of Corbin (Count 1), felony murder of Corbin predicated on aggravated assault (Count 2), felony murder of Corbin predicated on possession of a firearm by a convicted felon (Count 3), aggravated assault of Corbin (Count 4), aggravated assault of Skrine (Count 5), and possession of a firearm by a convicted felon (Count 6). Following a jury trial that took place on October 17-21, 2016, Fleming was found guilty of all charges, except malice murder. The trial court sentenced Fleming to serve life without parole for felony murder (Count 2), twenty years consecutive for the aggravated assault of Skrine (Count 5), and five years concurrent for possession of a firearm by a convicted felon (Count 6). The court merged the aggravated assault of Corbin (Count 4) into the felony murder conviction (Count 2) and vacated the remaining felony murder charge (Count 3). Fleming timely filed a motion for new trial on December 19, 2016, which he subsequently amended through new counsel on August 30, 2017. After a hearing, the trial court denied the motion as amended on February 9, 2018. Fleming timely filed a notice of appeal to this Court. The case was docketed in this Court for the term beginning in December 2018 and was submitted for a decision on the briefs. and that he received ineffective assistance of counsel. Finding no
reversible error, we affirm.
1. Viewed in the light most favorable to the verdict, the
evidence presented at trial established that, at all relevant times,
Skrine lived in a house in DeKalb County known to be a “hangout
spot” from which Skrine sold drugs. Skrine and Fleming were
longtime friends, and, in April 2015, Skrine introduced Fleming to
Corbin and Howard Archer.
On April 25, 2015, Archer was at Skrine’s house along
with Desmond Snider, Lamonte Collins, and Ivy Hampton. Fleming
stopped by around 3:00 p.m. and asked if anyone had information
regarding who had shot and killed his brother.2 The men denied
having any knowledge about the shooting. Fleming left the house,
but returned a few hours later with three unknown men. Hampton
later told officers that Skrine and Fleming had argued earlier in the
day, and that Fleming told Skrine “he was coming back.” Skrine
2 Fleming’s brother, Bernard Collins, had been robbed and shot approximately one month prior. told officers he believed that Fleming had brought the three
unknown men to the house because Fleming thought Skrine and
Corbin were withholding information regarding who shot Fleming’s
brother. Archer, who was sitting in his car at this time, saw Fleming
and the unknown men make hand signals and perform handshakes
associated with the Bloods street gang. Archer further testified
that, on a prior occasion, Fleming had self-identified as a member of
the Bloods.
Fleming approached Archer and asked if he had a gun, to which
Archer replied, “no.” When Hampton told the group of men that
Skrine was not at home, Fleming decided to remain outside by the
carport while his companions went inside the house.
Skrine returned home later with his girlfriend, Brittni
Chatman, and Corbin. The three walked through the carport and
into the house. Archer also went inside. There, he saw Skrine
counting money while in the living room with the three unknown
men who had arrived with Fleming. At this time, one of the men
flashed a gun at Archer, leading him to believe that a drug deal was underway. Then Fleming came inside the house, gave the unknown
men a “look,” and walked back out to the car. Soon after, the men
approached Corbin and Skrine, brandished their guns, and began
shooting. Then they fled the house, got into a running car where
Fleming was waiting, and drove away.
After the shooting, Snider, Archer, and Chatman found Corbin
lying unresponsive on the floor of the kitchen. Skrine was hiding in
his bedroom and had suffered a gunshot wound to his left buttock.
Archer and Chatman called the police, but Corbin had died by the
time they arrived. Officers found a $1 bill and a small bag with a
white powdery substance in Corbin’s right hand. The medical
examiner concluded that Corbin sustained three gunshot wounds,
with the one to his chest being the cause of death.
During their investigation of the crime scene, officers located
one unfired 9mm round and two 9mm cartridge casings on the
dining room floor, one 9mm cartridge casing on the kitchen floor by the entrance to the house, and two “.380-caliber”3 cartridge casings
on the living room floor. The medical examiner also located a “.380-
caliber” bullet in Corbin’s body during the autopsy. Based upon the
ballistics evidence found at the scene and during the autopsy, a GBI
firearms examiner concluded that between three and five firearms
were involved in the shooting. Chatman and Skrine later identified
Fleming in a photographic line-up, and Archer, Snider, and
Hampton all made in-court identifications of Fleming at trial. In
addition to presenting testimony that Fleming was seen making
gang signs on the night of the shooting, and that he had previously
self-identified as a member of the Bloods, the State called a gang
expert at trial to testify about additional evidence of Fleming’s gang
affiliation. This expert opined that Fleming was a high-ranking
Bloods member who had the authority to order a retaliatory and
violent attack on a person who had wronged the gang or one of its
members. The State also presented evidence pursuant to OCGA §
3 It is unclear whether the witnesses were referring to a .38-caliber or a
.380 bullet and cartridge. 24-4-404 (b) (“Rule 404 (b)”) of a retaliatory gang attack orchestrated
by Fleming that occurred at the DeKalb County jail prior to trial.
Finally, the parties stipulated to Fleming’s status as a convicted
felon in relation to the charge of possession of a firearm by a
convicted felon.
Contrary to Fleming’s assertion, the evidence presented at trial
was sufficient to enable a rational trier of fact to find him guilty
beyond a reasonable doubt of the crimes for which he was convicted.
See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979). “This Court does not reweigh evidence or resolve conflicts in
testimony; instead, evidence is reviewed in a light most favorable to
the verdict, with deference to the jury’s assessment of the weight
and credibility of the evidence.” (Citation and punctuation omitted.)
Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013). See also
OCGA § 16-2-20 (party to a crime); Parks v. State, 272 Ga. 353, 354-
355 (529 SE2d 127) (2000). 2. Next, Fleming argues that the trial court erred by failing to
sua sponte rebuke the prosecutor under OCGA § 17-8-75,4 and for
failing to sua sponte declare a mistrial after the State raised matters
in closing argument that had not been placed into evidence during
trial. The District Attorney concedes that the prosecutor’s actions
during closing argument were improper, but argues that the error
was harmless. We agree with the District Attorney.
The record reflects that, during the State’s direct examination
of the medical examiner, the State presented photographs of
Corbin’s body, which included a picture of a tattoo on his chest that
said “M-O-B.” Later in the trial, the State called a gang expert to
provide testimony regarding the Bloods street gang as well as
Fleming’s gang affiliation. During cross-examination of the expert
4 OCGA § 17-8-75 provides:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender. witness, defense counsel asked if “M-O-B” was short for “Member of
Blood[s],” to which the expert replied, “yes.” This was contrary to
testimony from Archer that Corbin was not a member of the Bloods.
Defense counsel then asked if Fleming had an “M-O-B” tattoo, to
which the expert replied “no, sir, not that I recall.” Later, on re-cross
examination, defense counsel elicited testimony that fellow gang
members cannot be violent toward one another without orders from
a higher-ranking gang member.
Relying upon the gang expert’s testimony and the picture of
Corbin’s M-O-B tattoo, defense counsel argued during closing that
the jury could infer that Fleming could not have been responsible for
Corbin’s death because Fleming and Corbin were both members of
the Bloods. In response, the prosecutor reminded the jury that the
State had elicited testimony from Archer that Corbin was not a
Bloods member and further argued that defense counsel had
“mischaracterized . . . that M-O-B means member of blood[s].”
Defense counsel objected, arguing that the prosecutor had misstated
the evidence. The trial court instructed the jury to “recall what the evidence was and base your verdict on your recollection and not on
what counsel says it was.” The prosecutor then took out a cell
phone, played a portion of Tupac Shakur’s song, “M.O.B.,” and
argued that “M-O-B” actually stands for “money over b**ches,” not
“member of blood[s].” Once again, defense counsel objected, and
argued that the prosecutor was trying to present new evidence. The
trial court sustained the objection and the prosecutor moved on.
Later, during its charge of the jury, the trial court instructed the
jury that closing arguments were not to be considered as evidence.
While the prosecutor improperly extended closing argument
into matters not in evidence when she played a portion of Tupac
Shakur’s song for the jury, see Walker v. State, 281 Ga. 521 (5) (640
SE2d 274) (2007), defense counsel’s objection to the argument was
sustained, and “[w]here the objection to the prejudicial matter is
sustained . . . the court has no duty to rebuke counsel or give curative
instructions unless specifically requested by the defendant.”
(Citation omitted.) Mullins v. State, 269 Ga. 157, 158 (496 SE2d 252)
(1998). Here, defense counsel made no such request. Even if we were to assume that the trial court erred in not
rebuking the prosecutor under OCGA § 17-8-75, any such error was
harmless. Arrington v. State, 286 Ga. 335 (15) (a) (687 SE2d 438)
(2009) (trial court’s failing to fulfill its duty under OCGA § 17-8-75
is subject to harmless error analysis). In light of the substantial
evidence against Fleming, defense counsel’s prompt objections, and
the trial court’s instructions, it is highly probable that neither the
prosecutor’s argument nor any alleged failure of the trial court to
rebuke the prosecutor contributed to the verdict. See Anderson v.
State, 302 Ga. 74 (6) (805 SE2d 47) (2017).5 For these same reasons,
we conclude that the trial court did not deprive Fleming of a fair
trial by not declaring a mistrial sua sponte. See Dolphy v. State,
288 Ga. 705 (2) (a), (b) (707 SE2d 56) (2011).
3. Prior to trial, the State filed notices of intent to introduce
evidence of Fleming’s gang affiliation, including testimony from a
5 Fleming also asserts that the prosecutor’s statements violated his rights to confrontation and due process. However, because Fleming asserts these claims for the first time on appeal, they are not properly preserved for review. gang expert, photographs of Fleming’s tattoos, testimony from
Archer that he witnessed Fleming and the unknown men making
gang signs and wearing red scarves on the night of the shooting, and
recordings of Fleming’s phone calls from jail wherein he referred to
himself and others as members of the Bloods. The notices also
sought to introduce an incident at the DeKalb County jail wherein
Fleming orchestrated a gang attack against another inmate as other
acts evidence pursuant to Rule 404 (b). 6 After a hearing, the trial
court admitted both the gang affiliation evidence and the Rule 404
(b) evidence at trial. Fleming contends that both rulings were error.
We will review each claim in turn.
(a) Gang Affiliation Evidence
6 The notices were filed under the original indictment in this case, as was
the trial court’s order allowing the admission of the evidence. Neither is part of the record before the Court; however, the transcript from the hearing on the State’s notices was transmitted to this Court. There, the State asked that the evidence regarding gang affiliation be introduced as relevant intrinsic evidence, and the jail incident be admitted for the purposes of showing intent, plan, modus operandi, and opportunity pursuant to Rule 404 (b). At trial, the judge charged the jury that it was allowed to consider the Rule 404 (b) evidence only for the purposes of showing intent and knowledge. Fleming alleges that the trial court erred in admitting evidence
of his alleged gang affiliation because there was no evidence that the
crime in the instant case was gang-related, and because the evidence
of gang membership was highly prejudicial to him. However,
because the evidence regarding Fleming’s gang affiliation was
intrinsic to the crimes charged, the trial court did not err in
admitting the same.
As we explained in Williams v. State, 302 Ga. 474 (807 SE2d
350) (2017),
[e]vidence is admissible as intrinsic evidence when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense. Intrinsic evidence must also satisfy [OCGA § 24-4-403 “Rule 403”]. In applying these factors, the Eleventh Circuit has noted that evidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury. (Citations and punctuation omitted.) Id. at 485-486. See also United
States v. Mills, 704 F2d 1553 (IV) (11th Cir. 1983) (Intrinsic evidence
of defendant’s affiliation with the Aryan Brotherhood was relevant
and admissible where “it pertained to a chain of events forming the
context, motive, and set-up of the crime.”).
Finally, it is within the trial court’s sound discretion to
determine whether to admit such evidence. Davis v. State, 301 Ga.
397 (2) (801 SE2d 897) (2017).
Here, the State sought to introduce evidence of Fleming’s gang
affiliation in order to establish a connection between Fleming and
the shooters and to provide context for his participation in the
crimes at issue. The record shows that Fleming initially arrived at
Skrine’s house seeking answers regarding who had shot his brother;
that Fleming and the unknown men arrived at and departed from
the scene together; that Fleming was a high-ranking member of the
Bloods with the authority to order a retaliatory attack on a person
who had wronged the gang or its members; that the unknown men
were making gang signs prior to the shooting; that the unknown men were wearing gang colors; that Fleming had previously self-
identified as a member of the Bloods; and that, immediately prior to
the shooting, Fleming gave the unknown men a “look.” Indeed, the
testimony concerning Fleming’s gang affiliation completed the story
of the crimes as it enabled the State to explain Fleming’s authority
within the gang, his association with the shooters, and his role in
the crimes. This evidence was also inextricably intertwined with the
charged offenses as the record shows that the shooting was a
retaliatory attack orchestrated by Fleming, a high-ranking gang
member. Lastly, “although the evidence may have incidentally
placed [Fleming’s] character at issue, its probative value was not
substantially outweighed by the danger of unfair prejudice under
these circumstances.” Williams, 302 Ga. at 487. Therefore, the trial
court did not abuse its discretion in admitting the gang affiliation
evidence at trial. See Davis, 301 Ga. at 400 (2).
(b) Other Acts Evidence
Fleming also alleges that the trial court erred in admitting a
surveillance video from the DeKalb County jail that showed Fleming orchestrating a retaliatory and violent attack on another inmate,
along with related expert testimony. Specifically, the evidence at
trial showed that, on March 19, 2016, while awaiting trial at the
DeKalb County jail, Fleming entered a pod where another inmate,
who was accused of murdering a member of the Bloods, was in
protective custody. Other lower-ranking Bloods members were also
in the pod. There, Fleming communicated with the three lower-
ranking gang members via hand gestures and signals. As soon as
Fleming left the area, the three lower-ranking gang members
carried out a violent assault on the inmate in protective custody.
Fleming contends that the State failed to establish that this
evidence was admissible to show his intent and knowledge in the
charged crimes. We disagree.7
It is well established that other acts evidence is admissible
where
7 Under the circumstances of this case, we need not examine whether this evidence was also admissible on the issue of knowledge because we conclude that it was admissible as to intent. See Kirby v. State, 304 Ga. 472, 487 n.12 (819 SE2d 468) (2018). (1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) the probative value is not substantially outweighed by undue prejudice, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act. . . . On appeal, a trial court’s decision to admit evidence pursuant to OCGA § 24-4-404 (b) is reviewed for a clear abuse of discretion.
(Citations omitted.) Brannon v. State, 298 Ga. 601, 606 (783 SE2d
642) (2016). Fleming does not dispute that the State satisfied the
third part of the Rule 404 (b) test; accordingly, we will only examine
the first two prongs.
Relevance “is a binary question — evidence is either relevant
or it is not.” Kirby v. State, 304 Ga. 472, 480 (819 SE2d 468) (2018).
In order to determine whether the evidence offered is relevant
pursuant to OCGA § 24-4-401, the evidence must “hav[e] 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.” Id. “And because a plea of not
guilty puts the prosecution to its burden of proving every element of
the crime — including intent — evidence of other acts that tends to make the requisite intent more or less probable to any extent is
relevant.” Olds v. State, 299 Ga. 65, 75 (786 SE2d 633) (2016).
Simply put, the evidence must be for a purpose other than to show
a defendant’s general propensity toward violence. See, e.g., Parks v.
State, 300 Ga. 303 (2) (794 SE2d 623) (2016).
Fleming was charged with felony murder predicated on
aggravated assault, and two separate counts of aggravated assault
for each victim. For the felony murder charge, the State was
required to prove that Fleming caused Corbin’s death while in the
commission of an aggravated assault. See OCGA § 16-5-1 (c). Both
of the aggravated assault charges, as well as the underlying
aggravated assault for the felony murder charge, required proof that
Fleming had the general intent to assault Corbin and Skrine. See
OCGA § 16-5-21 (a) (2). Importantly, because Fleming was not the
shooter, the State needed to prove that he acted as a party to a crime,
see OCGA § 16-2-20 (defining party to a crime), meaning that he
shared a common criminal intent with the direct perpetrators, see
Butts v. State, 297 Ga. 766 (2) (778 SE2d 205) (2015) (a jury may infer parties’ common criminal intent based on their presence,
companionship, and conduct with each other before, during, and
after the crimes).
Fleming’s conduct during the jail incident involved the same
intent to assault that the State had to prove in the present case for
both the aggravated assault charges and the felony murder charge
predicated on aggravated assault. Kirby, 304 Ga. at 480-481
(“Where the issue addressed is the defendant’s intent to commit the
offense charged, the relevancy of the extrinsic offense derives from
the defendant’s indulging himself in the same state of mind in the
perpetration of both the extrinsic and charged offenses.” (Citation
and punctuation omitted.)). Accordingly, the jail incident was
relevant to show Fleming’s intent.
The second prong of our Rule 404 (b) analysis requires us to
weigh the probative value of the other acts evidence against the
danger of unfair prejudice. See Olds, 299 Ga. at 70 (“for evidence of
other acts to be admitted under Rule 404 (b), the evidence must pass
the test of OCGA § 24-4-403”). Such an assessment “must be done on a case-by-case basis and requires a common sense assessment of
all the circumstances surrounding the extrinsic act and the charged
offense.” (Citation and punctuation omitted.) Kirby, 304 Ga. at 481.
“These circumstances include the prosecutorial need for the
extrinsic evidence, the overall similarity between the extrinsic act
and the charged offense, and the temporal remoteness of the other
act.” Id. Finally, “the exclusion of evidence under Rule 403 ‘is an
extraordinary remedy which should be used only sparingly.’”
(Citation omitted.) Olds, 299 Ga. at 70.
Here, the State had a high prosecutorial need for the other acts
evidence, as the State needed to overcome Fleming’s defense that he
was merely present at the scene of the crime, to prove that he shared
the same criminal intent as the unknown men, and, indeed, to show
that he may have been the mastermind behind the assaults and
resulting murder. See Kirby, 304 Ga. at 483 (“The high prosecutorial
need for the [other acts] evidence . . . greatly increases its probative
value.”); Olds, 299 Ga. at 75-76 (“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 significant similarities between the incidents — the
number of assailants involved, the communication through Bloods
hand gestures and signals, the fact that Fleming immediately
departed from the scene of the assaults just before they began, and
the retaliatory nature of the attacks — outweigh the dissimilarities
— gun versus fists, and the setting of the attacks. See Kirby, 304
Ga. at 483 (4) (a) (i). Less than one year had passed between the
crimes charged and the jail incident, making the other acts evidence
“not so remote as to be lacking in evidentiary value.” (Citation and
punctuation omitted.) Id. at 484. Therefore, the jail incident has
high probative value.8 And while the jail attack evidence is
8 This Court has cautioned that other acts evidence admitted for the
purpose of proving the general intent of an assault may have low probative value and significant prejudicial effect, so Georgia courts should be especially careful when conducting the Rule 403 balancing test. See Jackson v. State, 306 Ga. ___ (2) (b) (ii) (__SE2d__) (2019). See also Kirby, 304 Ga. at 486 (4) (a) (ii); Brown v. State, 303 Ga. 158 (2) (810 SE2d 145) (2018); Parks, 300 Ga. at 307. Here, however, Fleming was a high-ranking member of a gang, and he conspired with numerous actors in order to commit a premeditated and violent assault. Cf. Olds, 299 Ga. at 76 (“Generally speaking, in conspiracy cases, quality evidence of other acts that tends to prove criminal intent ordinarily will have substantial probative value, both because intent often is disputed in such prejudicial, the incident was not a “matter of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial
effect.” (Citation and punctuation omitted.) Hood v. State, 299 Ga.
95, 103 (4) (786 SE2d 648) (2016). Instead, this evidence allowed
the State to rebut Fleming’s defense of mere presence and establish
Fleming’s intent as a co-conspirator and ringleader in the present
case. Based on the foregoing, the probative value of the evidence
outweighed any prejudicial effect, and the trial court did not abuse
its discretion by admitting the jail incident into evidence at trial via
Rule 404 (b).
4. Fleming contends the trial court abused its discretion when
it restricted the cross-examination of Detective Tappan regarding
the contents of Skrine’s text messages. During trial, Detective
Tappan testified that, after the shooting, he examined Skrine’s cell
phone. He noticed that Skrine had exchanged calls and text
cases, and because the prosecution frequently will find itself without other strong proof of intent.”). messages with numerous people on the day of the shooting, leading
the detective to believe that Skrine was involved in selling drugs.
On cross-examination, defense counsel attempted to have the
detective opine whether, “based on [his] training and experience,”
these messages established that Skrine had “sold someone bad
drugs.” The State objected to the line of questioning; in response,
defense counsel informed the trial court that he was trying to
establish that someone other than Fleming had a motive to shoot
the victims. The trial court ruled that the contents of the messages
were “irrelevant, hearsay.”
On appeal, Fleming contends that the trial court improperly
curtailed his cross-examination, violating his right to confrontation
and denying him due process. Assuming, without deciding, that the
trial court’s ruling was error, because defense counsel had elicited
testimony on these very topics from Skrine earlier in the trial, any
error was ultimately harmless. See Moore v. State, 251 Ga. 499 (2)
(a) (307 SE2d 476) (1983) (any trial court error in curtailing cross- examination rendered harmless where the questions that were
disallowed were later posed to and answered by another witness).
5. Fleming raises five claims of ineffective assistance of
counsel. As explained more fully below, none of these claims have
merit.
In order to succeed on his claim of ineffective assistance, [the defendant] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC[t] 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In reviewing the trial court’s decision, “‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
Wright v. State, 291 Ga. 869, 870 (734 SE2d 876) (2012).
Furthermore, “[t]rial tactics and strategy . . . are almost never
adequate grounds for finding trial counsel ineffective unless they are
so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) McNair v. State,
296 Ga. 181, 184 (766 SE2d 45) (2014). Fleming has failed to make
the requisite showings.
(a) Fleming contends that trial counsel rendered ineffective
assistance by merely objecting to the State’s improper argument in
closing instead of asking the trial court to rebuke the prosecutor,
requesting that the remarks be stricken from the record, requesting
the trial court instruct the jury to disregard the remarks, placing a
copy of the song’s lyrics into the record for appellate review, and
moving for a mistrial. Pursuant to our discussion in Division 2, we
find no prejudice.
(b) Next, Fleming contends that trial counsel was ineffective
for failing to take exception to the trial court’s ruling restricting his
cross-examination of Detective Tappan, for failing to request that
copies of the text messages be placed into the record for appellate
review, and for failing to move for a mistrial. However, counsel did
object to the trial court’s ruling, and even read the excluded text
messages into the record, properly preserving this issue for appellate review. Further, as discussed in Division 4, counsel cross-
examined Skrine about the text messages and the implications of
the same. Based on the foregoing, a motion for mistrial would have
been unsuccessful, and counsel cannot be ineffective for failing to
make a meritless motion. See Bradshaw v. State, 300 Ga. 1, 5 (792
SE2d 672) (2016); Leonard v. State, 292 Ga. 214, 217-218 (735 SE2d
767) (2012); Lupoe v. State, 284 Ga. 576, 580 (3) (f) (669 SE2d 133)
(2008).
(c) In support of its motion to admit evidence of Fleming’s gang
affiliation, the State made a proffer at the pre-trial hearing that
Archer would testify that, on the night of the shooting, he saw the
three unknown men with red scarves in their back pockets. During
trial, however, Archer denied making such a statement. The State
then called a detective who had taken a recorded statement from
Archer; the detective testified that Archer reported seeing the
unknown men with red scarves in their back pockets.
Fleming contends that trial counsel was ineffective for failing
to move for a mistrial based upon the State’s failure to conform to its prior proffer after Archer denied making the red scarves
statement. Because the proffered evidence was ultimately
introduced through another witness, a motion for mistrial based
upon Archer’s failure to testify as proffered would have been
fruitless. See Duvall v. State, 290 Ga. 475 (2) (b) (722 SE2d 62)
(2012) (trial counsel cannot be deficient for failing to lodge a
meritless objection). Furthermore, defense counsel was able to use
this inconsistent testimony to attack Archer’s credibility at trial, and
“[t]he manner in which an attorney attacks the credibility of a
witness falls within the ambit of trial tactics.” Washington v. State,
276 Ga. 655, 659 (581 SE2d 518) (2003). Accordingly, Fleming has
failed to show that trial counsel acted deficiently.
(d) Fourth, Fleming argues that trial counsel was ineffective
for failing to object and move for a mistrial when Archer testified
about observing Bloods handshakes. Specifically, Fleming contends
that Archer was not qualified as a gang expert and, thus, should not
have been allowed to testify on the subject. We disagree. “Georgia’s new Evidence Code permits lay witness testimony
in the form of opinions . . . that are rationally based on the witness’s
perception, helpful to a clear understanding of the determination of
a fact in issue, and not based on scientific, technical, or other
specialized knowledge.” Glenn v. State, 302 Ga. 276, 279-280 (806
SE2d 564) (2017); OCGA § 24-7-701 (a). See also Lupoe v. State, 300
Ga. 233 (16) (794 SE2d 67) (2016) (trial counsel was not ineffective
in failing to object to hearsay testimony relating to defendant’s gang
affiliation where another witness saw defendant using a special
gang handshake). Here, Archer testified that he saw Fleming doing
a handshake with the unknown men, which he knew to be a Bloods
handshake based on his own prior knowledge. Because Archer’s
testimony was based on his first-hand knowledge, the proper
foundation was laid and any objection would have been meritless.
See Duvall, 290 Ga. at 475 (2) (b).
(e) Lastly, Fleming contends that counsel was ineffective for
failing to move for a mistrial when the State tendered evidence of
Fleming’s gang affiliation. Here, counsel challenged the gang evidence prior to trial and renewed his objection to the evidence
prior to its admission at trial. The trial court overruled this
objection and admitted the gang affiliation evidence. As discussed
in Division 3 (a), the evidence of Fleming’s gang affiliation was
admissible. Defense counsel made numerous attempts to have the
evidence excluded, all of which were overruled by the trial court.
Thus, a motion for mistrial would have been fruitless. Accordingly,
Fleming cannot show that trial counsel was deficient for failing to
make such a meritless motion. See id.
Judgment affirmed. All the Justices concur.
Decided June 24, 2019.
Murder. DeKalb Superior Court. Before Judge Coursey.
Bentley C. Adams III, for appellant.
Sherry Boston, District Attorney, Emily K. Richardson, Gerald
Mason, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M.
Youn, Assistant Attorney General, for appellee.