Mack v. State

FINAL COPY

                   S19A0947. MACK v. THE STATE.


      PETERSON, Justice.

      Alvonte Mack appeals his convictions for malice murder and

felony possession of a firearm in connection with the 2014 shooting

death of Benjamin Webber.1 Mack argues that the trial court erred

by admitting a detective’s recorded comments that addressed the

ultimate issue in the case and by admitting a third-party’s comment

to a post on Mack’s Facebook page. He also complains that his trial

counsel was ineffective (1) in handling the third-party’s comment on




      1 Mack was indicted by a Chatham County grand jury on September 16,

2015, for malice murder, two counts of aggravated assault, felony murder
predicated on aggravated assault, two counts of possession of a firearm during
the commission of a felony, and aggravated battery. At a trial held in July 2016,
the jury found Mack guilty on all counts, except the jury did not enter a verdict
on felony murder. Mack was sentenced to serve life in prison for malice murder
and five years to run consecutively for one count of possession of a firearm
during the commission of a felony. The remaining counts were either merged
or vacated by operation of law. Mack filed a timely motion for new trial on July
25, 2016, and amended it through new counsel on December 1, 2017. On
February 1, 2019, after a hearing, the trial court denied the motion. Mack
timely filed his notice of appeal. His appeal was docketed to this Court’s April
2019 term and was submitted for a decision on the briefs.
the Facebook post, (2) in handling testimony relating to the

accidental nature of the shooting, and (3) for failing to object to the

State’s closing argument. We affirm because the trial court did not

err in admitting the detective’s testimony, the admission of the

third-party comment was harmless, and to the extent that trial

counsel’s performance may have been deficient, it was not

prejudicial.

     Viewed in the light most favorable to the verdicts, the evidence

at trial shows that on September 29, 2014, Mack posted on his

Facebook page a picture of an individual in handcuffs overlaid with

the text, “If I got arrested what would you think I did? Share and

see what your friends say!” The following day, another Facebook

user named Stanley Harley commented on the post, “Blow a

muthaf****’s doom off they shoulders.”

     Two days after Harley’s comment, on October 2, 2014, Mack

posted to his Instagram account a photo of himself pointing a gun at

the camera. He included the caption: “I SWARE TO GOD I WANNA

COOK ME A F*** N**** TODAY IDK WHITCH 1 BUT IK IMA

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COOK 1 OF YALL B**** N****S TODAY #FTG #FTO #H$MG

#HAWTHORNESTREETMURDERGANG.”

     After school later that same day, outside of a residence on

Hawthorne Street in Chatham County, Mack was with Benjamin

Webber, Dominique Bryant, and Mack’s cousin. Mack and Webber

had been friends, but they often fought, sometimes physically, and

Webber was dating someone in whom Mack was interested. Mack

pulled a gun out of his pocket and told the group he was going to

“cook somebody today.” At some point, Mack pointed the firearm at

Webber, took the clip out, showed off the bullets, put the clip back

in, and racked the slide, at which point a bullet fell from the gun to

the ground. Mack picked up the bullet, reloaded the gun, and shot

Webber in the neck.

     Mack fled the scene. Several hours later, Mack showed another

group of people his gun, informing them that he had just pointed

“the laser in a boy’s face” and shot him. He also told the group that

he was looking for a stolen vehicle in which to leave town. Two days

later, Mack posted to his Facebook page a screenshot of a news story

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indicating that he was being sought by law enforcement in

connection with the shooting. Mack surrendered to authorities the

following day.

     Webber was transported to a hospital, where he died ten

months later as a result of the bullet having severed his spinal cord.

The medical examiner testified that the bullet passed into Webber’s

spinal cord at a level trajectory.

     1. Although Mack does not challenge the sufficiency of the

evidence, we have independently reviewed the record and conclude

that the evidence presented at trial was legally sufficient to

authorize a rational trier of fact to find beyond a reasonable doubt

that he was guilty of the crimes for which he was convicted. See

Jackson v. Virginia, 

 (

, 61 LE2d 560)

(1979).

     2. Mack argues that the trial court erred in failing to redact the

comments made by a detective during a video interview of Bryant,

because the comments touched on the ultimate issue in the case:

whether the shooting was an accident. We disagree.

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     Mack did not testify at his July 2016 trial. His counsel

acknowledged that Mack shot Webber but claimed that the shooting

was unintentional. Testifying as a witness for the State, Bryant

indicated that Mack was only “playing” with the gun when it went

off accidentally. To counter this aspect of Bryant’s testimony, the

State sought — through the testimony of Detective Alan Sammons

— to introduce a video of Sammons’s interview of Bryant in which,

the State argued, Bryant described the incident differently. During

the interview, Bryant told law enforcement that Mack’s gun fired as

he was racking the slide, holding the gun sideways and close to his

chest. The defense unsuccessfully sought redaction of a portion of

the video in which Sammons told Bryant, “See, I look at this and I

can’t think of any need to be pointing a gun . . . at Ben. He shot him

in the face and at five feet away or six feet away. [Gesturing] That’s

how I would shoot you in the face, not like this. Not like that. Not

like this. I shoot you in the face.”

     This case is governed by the new Evidence Code, so OCGA §

24-7-704 governs the admission of opinion testimony of both lay and

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expert witnesses. In the case of lay witness testimony, “an opinion

or inference otherwise admissible shall not be objectionable because

it embraces an ultimate issue[.]” OCGA § 24-7-704 (a); see also Grier

v. State, 

 (2) (a) (

) (2019) (“And even

though [the witnesses’] opinion about who killed the victims

addressed an ultimate issue in the case, that alone does not make

the testimony objectionable.” (citation and punctuation omitted));

Thompson v. State, 

 (9) (

) (2018) (a

detective’s opinion testimony indicating she believed appellant to be

the shooter “did not violate the ultimate issue rule in the new

Evidence Code”); cf. OCGA § 24-7-704 (b) (prohibiting expert

testimony on certain “ultimate issues” reserved “for the trier of fact

alone”). Rule 704 (a) is materially identical to Federal Rule of

Evidence 704 (a), so “we look to federal case law,” particularly that

of the Eleventh Circuit pre-2013. State v. Almanza, 

, 556

(2) (

) (2018). The federal case law is equally unequivocal:

“[Federal Rule 704 (a)] has abolished the prohibition on [lay] opinion

testimony concerning the ultimate issue in a case.” Carter v.

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DecisionOne Corp., 

, 1005 (11th Cir. 1997) (punctuation

omitted); see also United States v. Dulcio, 

 (11th

Cir. 2006) (explaining that because agents testified as lay witnesses,

their testimony did not invoke Rule 704 (b) because it only applies

to expert testimony, and “Rule 704 (a) expressly allows opinion

testimony by non-expert witnesses”).

     Detective Sammons was a lay witness, and Rule 704 (a) does

not bar the admission of his comments even if they touched on the

ultimate issue in the case. The trial court did not err in refusing to

redact them from the interview.

     3. Mack argues that the trial court erred in admitting State’s

Exhibit 61 — Stanley Harley’s comment on Mack’s September 29,

2014 Facebook post — because it was hearsay and improper

character evidence. We conclude that, even if erroneous, the

admission of the comment was harmless.

     A non-constitutional error is harmless if it is “highly probable

that the error did not contribute to the verdict.” Lindsey v. State, 

 (2) (

) (2007), superseded on other grounds

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by statute as stated in Stroud v. State, 

 (

)

(2017). Even if the error admits improper evidence relevant to the

case that is neither cumulative of other evidence nor beneficial to

the defense and goes uncorrected by the trial court, “it may

nevertheless be harmless in the context of the entire case.” 

(citation and punctuation omitted). In determining whether the

error was harmless, we “weigh the evidence as we would expect

reasonable jurors to have done[.]” Boothe v. State, 

(2) (b) (

) (2013).

     On the day of the shooting, Mack posted on Instagram a photo

of himself holding a gun with a caption of him swearing to kill

someone. This properly admitted evidence reflected far more

negatively on Mack’s character than a comment on a post days

earlier written not by Mack but by a third party whose relationship

to and knowledge of Mack, if any, is unknown. Mack shot and killed

Webber on Hawthorne Street in front of two witnesses after

removing the clip, showing off the bullets, putting the clip back in

the gun, pointing the gun at Webber, racking the slide, dropping a

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bullet, picking it up, and reloading the gun. Mack then fled the scene

and bragged to others that he had pointed “the laser in a boy’s face”

and shot him. In the light of this evidence, the admission of Harley’s

comment was harmless; even if it was in error, there is not a

reasonable probability that it contributed to the verdict. See

Humphrey v. State, 

 (3) (

) (2007)

(admission of hearsay not an error in the light of overwhelming

evidence of guilt); Bridges v. State, 

 (6) (

) (1997) (same).

     4. Mack argues that his trial counsel was ineffective for failing

to preserve all of his objections to State’s Exhibit 61, in handling

Bryant’s testimony, and for failing to object to the prosecutor’s

closing argument. We disagree.

     To prevail on a claim of ineffective assistance of counsel, Mack

must show both that his trial counsel’s performance was deficient

and that this deficiency prejudiced his defense. Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984).

“To establish deficient performance, an appellant must overcome the

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strong presumption that his . . . counsel’s conduct falls within the

broad range of reasonable professional conduct and show that his

counsel performed in an objectively unreasonable way” in light of all

of the circumstances. Smith v. State, 

 (2) (

) (2015) (citation and punctuation omitted). To establish

prejudice, an 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.” Strickland, 

. An appellant must prove both prongs of the Strickland test,

and if he fails to prove one prong, “it is not incumbent upon this

Court to examine the other prong.” Smith, 

 (2)

(citation and punctuation omitted). In reviewing either component

of the inquiry, all factual findings by the trial court will be affirmed

unless clearly erroneous. 

     (a) Mack argues that trial counsel was ineffective for failing to

object to State’s Exhibit 61 as impermissible character evidence. As

explained above in Division 3, even assuming trial counsel was

deficient in failing to raise the objection, weighing the evidence

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against the much greater evidence of guilt, Mack has failed to show

that but for the admission of the Facebook comment the result of the

trial would have been different.

     (b) Mack argues that trial counsel was ineffective for conceding

the State’s motion in limine that sought to prevent the defense from

eliciting lay testimony that the shooting was accidental. This

argument is not supported by the record.

     Trial counsel never conceded the State’s motion in limine.

When the State first moved to exclude lay testimony that the

shooting was accidental, trial counsel initially said, “I don’t know

that I disagree with that,” but argued that the trial court should

preclude   the State from asking its         own questions about

intentionality. When the State refused to concede that, trial counsel

said, “I believe we should be able to ask the question, do you believe

he intentionally shot him based on what they observed[.]” When the

trial court suggested a standing order prohibiting the parties from

inquiring about intent or accident, trial counsel again disagreed and

said, “I think I should be allowed to ask based on what they saw.

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And their opinion is that the Defendant was intentionally pointing

a firearm at somebody or was this just a result of reckless behavior.”

Despite trial counsel’s objections, the trial court issued the standing

order that inquiries about intent or accident were “off limits” “unless

the landscape changes” and a party raises the issue again with the

court. Trial counsel was not deficient for doing at trial exactly what

Mack now says he should have done.

     (c) Mack argues that trial counsel was ineffective for failing to

press Bryant when he volunteered that the shooting was indeed an

accident, opening the door to that line of questioning. This argument

also is not supported by the record.

      Contrary to Mack’s argument, trial counsel did follow up on

Bryant’s testimony on direct examination that Mack was only

“playing” with the gun when Webber was shot. On direct

examination, Bryant testified that Mack was “playing with [the

gun], like just looking at it and stuff like that,” that Webber was

“already in front of [Mack]” when they were talking, and that the

“gun just accidentally went off when [Webber] was in front of

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[Mack].” On cross-examination, trial counsel explicitly and

repeatedly followed up on this testimony, asking: “by your

testimony, he was playing with the gun, is that correct?” “[d]id you

ever see him intentionally point at anyone?” “[y]ou say he was not

looking at Ben when the gun was fired, is that correct?” “according

to your testimony, he was playing with the gun and the gun fired, is

that correct?” “[h]e played with the gun for a period of time, is that

correct?” and “[b]ut it’s your testimony that he pulled the gun, he

played with it and the gun fired, is that correct?” These questions all

elicited answers favorable to Mack. Again, trial counsel was not

deficient for doing at trial exactly what Mack now says he should

have done.

     (d) Mack argues that his trial counsel was ineffective for failing

to object to the prosecutor’s closing argument, which mentioned the

trial court’s options in sentencing. But trial counsel did object.

     During closing arguments, Mack’s counsel asked the jury to

convict Mack of only involuntary manslaughter. The prosecutor’s

response in closing included the following:

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           And [trial counsel] brought this up when we talk
     about these [lessers] and moving up the chain, you’re only
     concerned with guilt or innocence, you’re not to concern
     yourself with punishment. That’s because some people
     might not see — see the involuntary and say, you know,
     this deserves a lot more than these [lessers], you know,
     reckless conduct misdemeanors. And some people might
     see the malice and say, but he doesn’t deserve to be
     punished for that, he doesn’t deserve a sentence for that.
     The [lessers], the middle of felony murder, and you don’t
     have to worry about punishment. All of those things that
     we just talked about, those concerns on both ends, the
     Judge will take them into consideration and return a
     sentence that is appropriate based on those
     considerations. The Judge will do that, that’s what she
     does.

     Immediately after     the   prosecutor   finished   his   closing

argument, trial counsel objected to the State’s implication that

felony murder carries a lesser sentence, and he requested an

instruction that the jury is not to concern itself with punishment

and that malice murder and felony murder have the same

punishment. The judge overruled the objection and stated that the

standard charge that “they are not to consider punishment should

resolve the issue.” Once more, trial counsel was not deficient for

doing at trial exactly what Mack now says he should have done.


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     To the extent that Mack complains that his trial counsel did

not raise the right objection — that he should have also objected to

the implication that the judge would resolve any sentencing issues,

diminishing the consequences of the verdicts in the mind of the

jurors — he has failed to show prejudice. In the light of the

overwhelming evidence of Mack’s guilt, and the fact that the jury

found him guilty of malice — not felony — murder, Mack has failed

to demonstrate how raising a somewhat different objection would

have changed the outcome of the trial. See Humphrey v. Riley, 

 (II) (K) (

) (2012).

     But let there be no misunderstanding: if the prosecutor’s

statements did imply that the punishment for felony murder was

less than for malice murder, they would have been plainly

inappropriate. See OCGA § 16-5-1. On this cold record, we cannot

easily determine whether that is the best interpretation, and

resolving Mack’s claims does not require us to decide the question.

We simply remind the State of its responsibility to avoid such

arguments in future cases.

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Judgment affirmed. All the Justices concur.




                 DECIDED AUGUST 19, 2019.

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     Murder. Chatham Superior Court. Before Judge Freesemann.
     Robert L. Persse, for appellant.
     Meg E. Heap, District Attorney, Matthew Breedon, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew D. O’Brien, Assistant Attorney
General, for appellee.




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