Carter v. State

FINAL COPY

                  S20A1367. CARTER v. THE STATE.


      NAHMIAS, Presiding Justice.

      Appellant Marquerius Dandre Carter was convicted of malice

murder and two firearm offenses in connection with the shooting

death of Sarferaz Khan. 1 He appeals, arguing that the evidence

presented at his trial was insufficient to support his convictions and

that his trial counsel provided ineffective assistance by failing to

object to lay witness opinion and hearsay testimony. We affirm.2


      1 The victim’s first name is spelled inconsistently in the record and briefs.

This opinion uses the spelling used in the medical documents in the record.
       2 The crimes occurred on February 7, 2016. In May 2016, a Crisp County

grand jury indicted Appellant for malice murder, felony murder, aggravated
assault, possession of a firearm during the commission of a felony, and
possession of a firearm by a convicted felon. His trial began on November 14,
2016, and on the next day the jury found him guilty on all counts. (The count
for possession of a firearm by a convicted felon had been bifurcated, and after
the main trial a brief additional proceeding was held where the jury found
Appellant guilty of that charge.) The trial court sentenced Appellant to serve
life in prison without the possibility of parole for malice murder, five
consecutive years for possession of a firearm during the commission of a felony,
and five concurrent years for possession of a firearm by a convicted felon. The
court originally merged both the felony murder count and the aggravated
assault count into the malice murder conviction, but the court later vacated
the felony murder count. Appellant filed a timely motion for new trial, which
he amended twice with new counsel. After an evidentiary hearing, the trial

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     1. (a) When viewed in the light most favorable to the verdicts,

the evidence presented at Appellant’s trial showed the following.

Around 1:00 a.m. on February 7, 2016, Khan was closing the grocery

store he owned in Cordele. Two of his employees, Lynda Rowe and

her son Otis Rowe, were helping. While the Rowes were outside the

store’s doors locking up, Khan picked up trash in the parking lot.

Otis saw a person coming around the corner of the store, and both

Otis and Lynda heard a man yell, “Don’t move, don’t move,” followed

by multiple gunshots.

     Surveillance video recordings of the parking lot show the man,

later identified as Appellant, running into the parking lot with a

white t-shirt wrapped around his face and a gun in his hand.

Appellant ran toward Khan and fired at least two shots at Khan as

Khan ran away, drew his own gun, and fired at least one shot.

Appellant then caught up to Khan and the two men collided and fell




court denied the motion in November 2019. Appellant filed a timely notice of
appeal, and the case was docketed to the August 2020 term of this Court and
submitted for a decision on the briefs.

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to the ground, where additional shots were fired.3

      The Rowes testified that after the two men fell, they struggled

on the ground. Appellant had dropped his .380 pistol; he tried to

regain control of it, but Lynda, who had run toward the men,

grabbed it, pointed it at Appellant, and told him, “Don’t move.” After

Otis called 911, Lynda handed him Appellant’s gun, and Otis started

repeatedly kicking Appellant. Lynda and Otis also took the t-shirt

off Appellant’s face. Appellant told Otis, “I’m sorry, Bro, I’m sorry. I

didn’t mean to do it.” Meanwhile, Lynda checked on Khan, saw his

.40-caliber pistol, picked it up, and kept it until she went to the police

department later that morning. Khan was not moving or speaking

when Lynda checked on him. The surveillance video recordings are




      3 The Rowes both testified that Appellant fired the first shot, but they

acknowledged that they did not actually see the first shot being fired. Otis
testified that he knew that Appellant shot first because of what he heard;
Lynda did not explain how she knew that Appellant shot first. The video
recordings do not have audio, but gunshots are indicated by flashes of light, at
least where the guns were fired at angles captured by the videos. Appellant
argued at trial that the video recordings do not clearly show whether he or
Khan fired the first shot; the State argued that the videos clearly depict
Appellant firing the first shot. It appears from the videos that Appellant’s gun
flashed before the flash from Khan’s gun.


                                       3
consistent with this testimony.

     Police officers quickly arrived at the store. The first officer to

arrive placed Appellant in handcuffs. Otis gave the officer

Appellant’s gun. Appellant asked about Khan’s status and said, “I

didn’t mean to,” “I don’t know how I got here,” and “I’m on some bad

drugs.” Appellant had a gunshot wound in his left thigh; while being

treated in an ambulance, he said that he was sorry and again asked

about Khan’s status.

     Emergency medical personnel found Khan lying face down in

the parking lot with no detectable pulse. He took three or four

gasping breaths, but then he stopped breathing and could not be

revived. Khan had been shot three times: once in the chest, once in

the left thigh, and once in the right knee.

     At the scene, investigators found seven cartridge cases fired

from a .380 pistol and two .40-caliber cartridge cases. Investigators

also found a series of shoeprints in the wet mud along a narrow path

between the store and the neighboring building; the shoeprints led

toward the corner of the store where Otis saw Appellant entering


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the parking lot.

     Appellant did not testify at trial. His primary argument was

that he acted in self-defense because Khan shot first. In the second

part of the bifurcated trial, the State presented evidence of

Appellant’s prior felony conviction for robbery by intimidation.

     (b) Appellant disputes the legal sufficiency of the evidence

supporting his convictions, arguing that the Rowes were not credible

witnesses and that the State failed to prove that he killed Khan with

malicious intent rather than in self-defense. As we have explained

many times before, however:

           When evaluating the sufficiency of the evidence, this
     Court does not reweigh the evidence or resolve conflicting
     testimony. Instead, this Court reviews the evidence in a
     light most favorable to the verdict[s] and defers to the
     jury’s assessment of the weight and credibility of the
     evidence.

Mosby v. State, 

 (

) (2017). See also Lay

v. State, 

 (

) (2019) (“[A] jury is free to

disbelieve the defendant’s evidence of self-defense.”).

     Moreover, even if the jury believed Appellant’s argument at



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trial that Khan fired first, there was sufficient evidence for the jury

to conclude that Appellant was the initial aggressor in the

confrontation, as he entered the grocery store parking lot at 1:00

a.m. and ran toward Khan with his gun drawn and a t-shirt wrapped

around his face, shouting “Don’t move.” See OCGA § 16-3-21 (b) (3)

(“A person is not justified in using force [in self-defense] if he . . .

[w]as the aggressor[.]”); Mosby, 

 (“An aggressor is not

entitled to a finding of justification.”). When viewed in the light most

favorable to the verdicts, the evidence presented at trial was

sufficient to authorize a rational jury to reject Appellant’s claim of

self-defense and find him guilty beyond a reasonable doubt of the

malice murder of Khan as well as the two firearm offenses of which

he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979).

     2. Appellant argues that his trial counsel provided ineffective

assistance by failing to object to lay witness opinion and hearsay

testimony. To prevail on these claims,

     Appellant must establish that his counsel’s performance


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        was professionally deficient and that he suffered
        prejudice as a result. To show deficient performance,
        Appellant must prove that his lawyer performed his
        duties in an objectively unreasonable way, considering all
        the circumstances and in the light of prevailing
        professional norms. In particular, decisions regarding
        trial tactics and strategy constitute deficient performance
        only if they were so patently unreasonable that no
        competent attorney would have followed such a course. To
        establish prejudice, Appellant must prove that there is a
        reasonable probability that, but for counsel’s deficiency,
        the result of the trial would have been different.

Barboza v. State, 

 (

) (2020)

(citations and punctuation omitted). Appellant’s two claims fail this

test.

        (a) At trial, GBI Agent David Bryan Smith gave the following

testimony comparing the shoeprints found on the path leading to the

grocery store parking lot with the Nike athletic shoes that Appellant

was wearing when he was arrested in the parking lot after the

shooting:

        PROSECUTOR: Now, what was State’s Exhibit 57? What
        did this photograph show?
        AGENT SMITH: The subject involved in this case, his
        shoes.
        PROSECUTOR: And did you, yourself, look at the bottom
        of those shoes?


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     AGENT SMITH: I did.
     PROSECUTOR: And I know, just visually, you didn’t do
     any kind of scientific comparison but did you look at the
     bottom of those shoes and look at your footprints that you
     found out there in that narrow path beside the store?
     AGENT SMITH: Yes, sir. Visually, looking at the two side
     by side, there are a number of characteristics similar in
     the pattern of the shoe and in the pattern of the shoe
     impressions.

Appellant’s counsel did not object to this testimony.

     Appellant now asserts that his trial counsel should have

objected to this evidence as improper lay witness testimony under

OCGA § 24-7-701 (a), which says:

           If the witness is not testifying as an expert, the
     witness’s testimony in the form of opinions or inferences
     shall be limited to those opinions or inferences which are:
                (1) Rationally based on the perception of the
witness;
                (2) Helpful to a clear understanding of the
     witness’s testimony or the determination of a fact in issue;
     and
                (3) Not based on scientific, technical, or other
     specialized knowledge within the scope of Code Section
     24-7-702.

Appellant does not dispute that Agent Smith’s testimony meets the

requirement in paragraph (a) (1), as the testimony was “rationally




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based on [the agent’s] perception” of the bottom of Appellant’s shoes

and the shoeprints found at the crime scene.

     Appellant argues that Agent Smith’s testimony does not satisfy

paragraph (a) (2), however, because the jury could have made its

own comparison of Appellant’s shoes and the shoeprints. But Agent

Smith was in a better position than the jury to compare the

shoeprints found at the scene to the Appellant’s shoe treads,

particularly because the jury was not shown any pictures of

Appellant’s shoe treads and none were entered into evidence. See

United States v. Shields, 

 (6th Cir. 2012)

(holding under Federal Rule of Evidence 701 that the jury benefitted

from a police officer’s shoeprint-comparison testimony because the

officer had “more time to study and compare the evidence” than the

jury had). See also Bullard v. State, 

 (

)

(2019) (explaining that if the trial court had “some basis for

concluding that a witness [was] more likely than the jury” to

correctly compare a defendant with an individual depicted in

relevant photographs, then the witness’s testimony identifying the


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defendant in the photographs was properly admissible under OCGA

§ 24-7-701 (a)).4

      Appellant also argues based on OCGA § 24-7-701 (a) (3) that

this sort of testimony could be given only by a qualified shoeprint-

identification expert. The kind of basic visual shoeprint comparison

done by Agent Smith does not, however, require specialized

knowledge. See Shields, 

.5 For these reasons,

an objection to Agent Smith’s testimony as improper lay witness

testimony would have been properly overruled, and Appellant’s trial

counsel did not perform deficiently by failing to make a meritless




      4 Because Federal Rule of Evidence 701 was the model for OCGA § 24-7-

701 (a), we look to decisions of the federal appellate courts for guidance when
considering the meaning of this Georgia evidence rule. See Bullard, 

.
      5 Although OCGA § 24-7-701 (a) (3) refers to the expert testimony

provision in OCGA § 24-7-702, § 24-7-702 applies only in civil cases. See OCGA
§ 24-7-702 (a). OCGA § 24-7-707 governs qualified expert testimony in criminal
cases, carrying forward a provision of Georgia’s former Evidence Code. See
Winters v. State, 

, 227 n.2 (

) (2019). When applying
the former provision, this Court held that a basic comparison of shoeprints
with the external characteristics of particular shoes is not a matter of scientific
principle or technique. See Belton v. State, 

 (

)
(1999).

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objection. See Johnson v. State, 

 (

)

(2019).

     Moreover, even assuming that Agent Smith’s testimony could

have been excluded, Appellant has not shown that the exclusion of

the shoeprint comparison would have changed the result of his trial.

There was no real dispute that Appellant had come from the side of

the grocery store into the parking lot to confront Khan: a single

series of fresh shoeprints were found in the wet mud on the path by

the grocery store leading to the parking lot; Otis Rowe testified that

he saw Appellant enter the parking lot from around the corner of the

store; the surveillance video recordings show Appellant entering the

parking lot and running toward the victim with his gun drawn; and

Appellant was arrested there after the shooting. Accordingly, the

agent’s testimony that the shoeprints were Appellant’s was of

negligible importance, and the other evidence of Appellant’s guilt

was compelling. Appellant has therefore also failed to show

prejudice resulting from this testimony.

     (b) Appellant contends that his trial counsel provided


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ineffective assistance by failing to object to hearsay testimony from

Officer Thomas Moore, the officer to whom Lynda Rowe gave Khan’s

gun at the police station. Officer Moore gave the following account

of his interaction with Lynda at the police station:

           When we arrived, Ms. [Lynda] Rowe came forward
     and advised me that she had the [victim’s] gun in her
     possession. She explained that, during the altercation, or
     during this incident, she then gained access to the
     firearm, and so she picked it up and kept it on her
     possession to try to, I guess, make the scene safer. She
     then advised me that it was in her sleeve. She was
     wearing long sleeves. I believe it was a sweatshirt. But
     she advised me it was in her sleeve. She, then, removed
     the gun and turned it over to me.

Appellant’s counsel did not object to this testimony. Earlier in the

trial, both Lynda and Otis had testified that Lynda took Khan’s gun

after his altercation with Appellant. Lynda also testified that she

later turned Khan’s gun over to the police at the police station.

     Appellant argues that Officer Moore’s testimony was hearsay

that bolstered Lynda’s testimony. But the officer’s description of

Lynda giving him Khan’s gun at the police station was not hearsay,

and even if we assume that his account of what Lynda said at that



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time was objectionable hearsay, the issue of what Lynda did with

Khan’s gun was not disputed or important. In short, this testimony

was not detrimental to Appellant, and he has failed to show that his

trial counsel’s decision not to object to this insignificant testimony

was objectively unreasonable. See, e.g., Jones v. State, 

 (

) (2013). He has failed to show prejudice for

the same reason.

     Judgment affirmed. Melton, C. J., and Boggs, Peterson, Bethel,
Ellington, and McMillian, JJ., concur. Warren, J., not participating.



                   DECIDED DECEMBER 7, 2020.
          Murder. Crisp Superior Court. Before Judge Chasteen.
          Randall P. Sharp, for appellant.
          Bradford L. Rigby, District Attorney; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Alex M. Bernick, Assistant Attorney General, for appellee.




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