Fleming v. State

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, 

 (

, 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, 

 (

) (2013). See also

OCGA § 16-2-20 (party to a crime); Parks v. State, 

, 354-

355 (

) (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, 

 (5) (

) (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, 

 (

)

(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, 

 (15) (a) (

)

(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, 

 (6) (

) (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,

 (2) (a), (b) (

) (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, 

 (

) (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, 

 (2) (

) (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, 

. Therefore, the trial

court did not abuse its discretion in admitting the gang affiliation

evidence at trial. See Davis, 

 (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, 

,
487 n.12 (

) (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, 

 (

) (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, 

 (

) (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, 

 (

) (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, 

 (2) (

) (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, 

 (2) (

) (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, 

(“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, 

 (“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, 

.

“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.” 

 Finally, “the exclusion of evidence under Rule 403 ‘is an

extraordinary remedy which should be used only sparingly.’”

(Citation omitted.) Olds, 

.

     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, 

 (“The high prosecutorial

need for the [other acts] evidence . . . greatly increases its probative

value.”); Olds, 

 (“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, 

 (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.) 

. 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,

 (2) (b) (ii) (__SE2d__) (2019). See also Kirby, 

 (4) (a)
(ii); Brown v. State, 

 (2) (

) (2018); Parks, 

. 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, 

 (“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, 

 (4) (

) (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, 

 (2)

(a) (

) (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, 

 (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. 

     (IV); Fuller v. State, 

 (3) (

)
     (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, 

 (

)
     (2003).

Wright v. State, 

 (

) (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,

 (

) (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, 

 (

) (2016); Leonard v. State, 

 (

) (2012); Lupoe v. State, 

 (3) (f) (

)

(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, 

 (2) (b) (

)

(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,

 (

) (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, 

 (

) (2017); OCGA § 24-7-701 (a). See also Lupoe v. State, 

 (16) (

) (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, 

 (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 

     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.