¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: June 11, 2024
¶4 S24A0263. HEAD v. THE STATE.
¶5 BOGGS, Chief Justice.
¶6 Appellant Nicholas Bernard Head challenges his convictions
¶7for malice murder and other crimes in connection with the shooting
¶8death of Quintavia Wade. Appellant contends that his rights under
¶9the Confrontation Clause of the Sixth Amendment to the United
¶10States Constitution were violated when the State read into evidence
¶11prior testimony given about the murder weapon by Emily Bagwell,
¶12the State’s firearms expert, and that the trial court committed plain
¶13error in allowing another firearms examiner, Kyle Wheelus, to
¶14testify as a “verifier” of Bagwell’s analysis about the bullet recovered
¶15in Wade’s autopsy. We conclude that, even assuming that there was
¶16error with regard to the admission of Bagwell’s prior testimony
¶17about the murder weapon, any error was harmless beyond a reasonable doubt given the overwhelming evidence against
¶18Appellant, including the testimony of two police officers who
¶19witnessed the shooting. Additionally, because Wheelus’s testimony
¶20was based on his own ballistics analysis, there was no plain error in
¶21allowing his testimony. Accordingly, we affirm. 1
¶22 1 Wade was killed on October 16, 2017. On June 26, 2018, a Clarke County grand jury indicted Appellant for malice murder and other crimes in connection with Wade’s death. That indictment was nolle prossed. On April 13, 2021, a Clarke County grand jury indicted Appellant for the following crimes related to the death of Wade: malice murder, three counts of felony murder, aggravated assault with a deadly weapon, false imprisonment, possession of a firearm during the commission of a felony, and two counts of possession of a firearm by a first offender probationer. It also indicted Appellant for an earlier aggravated assault and simple battery against Courtney Williams. One felony murder count was quashed, and at a trial from August 9-12, 2021, the jury acquitted Appellant of the counts involving Williams and found him guilty on all remaining counts. The trial court sentenced Appellant to serve life in prison with the possibility of parole for malice murder and consecutive terms of imprisonment totaling fifteen years for two of the weapons charges. The felony murder verdicts were vacated by operation of law, and the trial court merged the other counts for sentencing. See Dixon v. State, 302 Ga. 691, 696-698 (808 SE2d 696) (2017). On August 16, 2021, Appellant filed a motion for new trial, which he amended with new counsel on October 4, 2022. After an evidentiary hearing on November 2, 2022, the trial court entered an order denying the motion on May 5, 2023. The trial court twice vacated and reentered the order denying the motion for new trial (once because the order was not served on Appellant’s counsel and once for a technical glitch with an e-filing system), and Appellant filed a timely notice of appeal. The case was docketed in this Court to the term beginning in December 2023 and submitted for a decision on the briefs. 2 1. The evidence presented at trial showed the following. 2 On
¶23October 16, 2017, Appellant’s former girlfriend, Courtney Williams,
¶24went to retrieve some of her clothes from the home that she and
¶25Appellant formerly shared. Her friend Wade was with her, though
¶26Williams and Wade drove separately. Williams was scared to be
¶27around Appellant, and when she arrived at the home, she thought
¶28she saw someone inside the house by the window. Believing
¶29Appellant to be there, she drove away and called 911. Officers
¶30responded and while an officer was standing next to Williams,
¶31Williams answered a call from Appellant. The officer spoke loudly
¶32and said that if Appellant was in the house, he needed to come out
¶33and talk to the officers. Appellant told Williams he was not in the
¶34house, and officers later confirmed that fact. After receiving
¶35information from the officer about how to obtain a temporary
¶36protective order, Williams and Wade went to the courthouse in
¶37 2 Because of the harmless error analysis undertaken in Division 2, we
¶38set out the evidence in detail rather than recounting it in the light most favorable to the jury’s verdict. See Moore v. State, 315 Ga. 263, 264 n.2 (882 SE2d 227) (2022). 3 Wade’s car, but Williams did not have her ID and could not apply for
¶39the TPO. Wade then drove Williams back to Williams’s home, and
¶40while en route, Wade received a call from someone named Jeff who
¶41asked for a ride. After picking up Jeff, Wade dropped Williams back
¶42off at Williams’s home.
¶43 Later that afternoon, after Wade had returned to her own
¶44apartment, Appellant arrived at Wade’s apartment. Yasmeen
¶45White, Wade’s friend and co-worker, arrived at Wade’s apartment
¶46sometime after Appellant arrived. White parked her car on the
¶47street, and when she exited her car, she saw Appellant and Wade
¶48outside the apartment on the back patio, which faced the street.
¶49Appellant was pushing Wade against the apartment wall, and as
¶50White walked toward the back patio, Appellant said “what’s up,
¶51Yas?” White entered the apartment through the back patio door and
¶52saw that Appellant had a pistol in his back pocket. White heard
¶53Appellant tell Wade that he wanted Wade to call Williams and tell
¶54Williams to come to the apartment. Wade said that she could not
¶55call Williams because Appellant had her phone, and Appellant told
¶56 4 Wade to use White’s phone. White gave her phone to Wade. Wade
¶57called Williams and told her that Appellant had “ripped her bra, and
¶58put a gun to her head”; that Appellant “was going to kill her” if
¶59Williams did not come to Wade’s apartment; and that if the police
¶60came, Appellant was going to shoot Wade. Wade gave the phone
¶61back to White, and White saw that Wade had typed “911” on the
¶62keypad and understood from Wade’s nod of her head that Wade
¶63wanted White to call 911 without alerting Appellant. White went
¶64inside a closet, called 911, and told the operator that a man had a
¶65gun and was threatening to kill Wade. After the phone call between
¶66Williams and Wade ended, Williams also called 911 and reported
¶67that Appellant was at Wade’s apartment and was threatening to kill
¶68her. The jury heard both 911 calls.
¶69 Officers Shawn Denmark and Edward Herron, both of the
¶70Athens-Clarke County Police Department, responded to the 911
¶71calls. As they arrived, they saw Appellant and Wade on the back
¶72patio. Officer Herron testified that his initial thought was that
¶73Appellant and Wade “were playing.” However, he then saw Wade
¶74 5 walking backward while Appellant had “something like a gun in his
¶75hand,” and he observed Wade “swatting at” Appellant to “redirect . .
¶76. or swing at his arms.” Wade’s hands were open, and she did not hit
¶77the gun or ever gain control of the gun. He saw Appellant shoot
¶78Wade, and in response, Officer Herron fired his service weapon, a
¶79nine-millimeter Glock, in the direction of the back patio. Appellant
¶80was not hit and retreated into the apartment. Appellant then
¶81stepped back onto the patio with one foot but remained partially out
¶82of view. Officer Herron repeatedly told Appellant to drop the gun
¶83and put his hands up. Appellant did not comply. Instead, he yelled
¶84something indistinguishable at the officers, and then shot himself in
¶85the face. After Appellant shot himself, the gun he was holding
¶86discharged again. As Appellant fell to the ground, he appeared to
¶87fall on top of the gun. 3
¶88 The State played body camera footage from Officer Herron,
¶89although the recording does not show what happened on the back
¶90 3 The trial testimony does not make clear whether Appellant fired the
¶91gun again after shooting himself and then dropped it or whether he dropped the gun after shooting himself and the gun discharged accidentally. 6 patio. However, the recording included Officer Herron’s statements
¶92over his radio and to other officers describing the shooting moments
¶93after it occurred. Officer Herron first said, “I shot off three rounds
¶94after he shot her.” Shortly thereafter, Officer Herron said that “the
¶95male shot the female” as Officer Herron was getting out of the car
¶96and that they were “tussling over the gun; he shot himself when I
¶97told him to get on the ground.” Officer Herron acknowledged during
¶98his testimony that in a use-of-force investigation with GBI agents
¶99that occurred the same day as the shooting, he said that he never
¶100actually saw a gun and that he was not able to see Wade’s head
¶101clearly for part of the time. 4
¶102 Officer Denmark testified that he saw Appellant shoot Wade in
¶103the head. He described Appellant and Wade as being in a “physical
¶104altercation,” with Appellant walking backward, with his left hand
¶105on Wade’s right shoulder, dragging Wade onto the patio and holding
¶106her in a “bent over” position. Officer Denmark acknowledged that in
¶107 4 A portion of Officer Herron’s interview with GBI agents was played for
¶108the jury, but the record does not indicate precisely which portion was played. 7 prior testimony, he said that he was not looking directly at
¶109Appellant and Wade. Officer Wang of the Athens-Clarke County
¶110Police Department was the first officer to approach the patio after
¶111Appellant shot himself; Appellant and Wade were both lying on the
¶112ground. The gun was not visible at first, but when Officer Wang
¶113stepped close to Appellant’s shoulder, Officer Wang saw the gun
¶114“right beside [Appellant] on the other side of his body.” Officer Wang
¶115picked up the gun, which was a Taurus nine-millimeter handgun.
¶116Appellant was arrested and taken to a hospital, where he recovered
¶117from the self-inflicted gunshot wound.
¶118 The medical examiner who conducted Wade’s autopsy
¶119recovered several parts of a bullet from Wade’s head and concluded
¶120that the cause of death was a single gunshot wound to the top of
¶121Wade’s head. The medical examiner also examined Wade’s hands
¶122and found no evidence of defensive wounds or bruises or scrapes on
¶123her hands.
¶124 GBI firearms examiner Emily Bagwell, whose testimony from
¶125a prior probation revocation hearing was read into evidence at trial
¶126 8 by the State, served as the primary firearms examiner in this case.
¶127In that capacity, she examined the bullet that the medical examiner
¶128extracted from Wade’s head. She also examined and test-fired the
¶129Taurus nine-millimeter handgun that Officer Wang found next to
¶130Appellant. Bagwell concluded that the bullet recovered during
¶131Wade’s autopsy was shot from the Taurus handgun and that the
¶132bullet could not have been fired from a Glock handgun. She also
¶133conducted a trigger pull test and concluded that the Taurus did not
¶134have a “hair trigger,” which she described as a “very light trigger” or
¶135one that will fire with around one pound of pressure or less. She
¶136concluded that the Taurus would need a pull force of at least four
¶137and one-half pounds to fire; she did not conduct a test to see if the
¶138gun would fire if dropped. She explained that to fire the gun, a
¶139person would have to pull backward on the slide to load a cartridge
¶140into the chamber and then pull the trigger.
¶141 After Bagwell completed her examination of the bullet and the
¶142Taurus, GBI firearms examiner Kyle Wheelus performed the next
¶143stage of the GBI’s standard examination, which involved serving as
¶144 9 a “verifier” of some of Bagwell’s findings. Wheelus testified at trial
¶145that he used a microscope to examine the bullet received from the
¶146medical examiner and concluded that the bullet could not have been
¶147fired from a Glock and could have been fired from a nine-millimeter
¶148gun made by one of seven manufacturers, including Taurus.
¶149Wheelus did not determine whether the bullet was fired from the
¶150Taurus recovered at the scene and did not test or fire the Taurus.
¶151Mark Tanner, a firearms examiner with the GBI, also served as a
¶152“verifier” and testified at trial. He compared the bullet from the
¶153autopsy and a bullet that was test-fired from the Taurus and
¶154concluded that the bullet recovered in the autopsy was fired from
¶155the Taurus. Tanner did not examine the Taurus.
¶156 Appellant did not testify at trial, and his counsel argued for an
¶157acquittal based on accident. In opening arguments, Appellant’s
¶158counsel told the jury that Appellant did not bring a gun to the
¶159apartment; that the gun was already at the apartment and was
¶160likely left there by “Jeff,” the man to whom Wade had given a ride;
¶161and that Wade picked up the gun, Appellant “grabbed for” the gun
¶162 10 because he wanted her to put it away, they wrestled over it, and the
¶163gun went off. In closing arguments, Appellant’s counsel again
¶164argued that Appellant did not bring a gun to the apartment; that
¶165Appellant “was one of two people tussling over the gun”; that the
¶166gun went off when Wade had her hands on it; and that Appellant
¶167was “grabbing at [Wade] trying to push the gun away.” The jury was
¶168charged that if it found “that the incident . . . occurred as a result of
¶169misfortune or accident and not as a result of a criminal undertaking
¶170or criminal negligence, then it would be your duty to acquit the
¶171Defendant.”
¶172 2. Appellant contends that the admission of Bagwell’s prior
¶173testimony about the Taurus handgun — that it did not have a “hair
¶174trigger” and that it required at least four and a half pounds of
¶175pressure to fire — violated his rights under the Confrontation
¶176Clause of the Sixth Amendment to the United States Constitution.
¶177See Crawford v. Washington, 541 U.S. 36, 54 (124 SCt 1354, 158
¶178LE2d 177) (2004) (Confrontation Clause prohibits the introduction
¶179of testimonial statements by a nontestifying witness, unless the
¶180 11 witness is “unavailable to testify, and the defendant had had a prior
¶181opportunity for cross-examination.”). As noted above, Appellant
¶182asserted a defense of accident, relying on Officer Herron’s
¶183statements that he initially believed Appellant and Wade were
¶184playing and that he saw them “tussling” over the gun. Appellant
¶185contends that the error in admitting Bagwell’s testimony was
¶186harmful because the “trigger pull” testimony allowed the jury to
¶187reject his accident theory. The State argues that Appellant failed to
¶188preserve this claim for ordinary appellate review because he did not
¶189specifically rely on the Confrontation Clause in any of his objections
¶190at the pretrial hearing or at trial and that regardless, any error was
¶191harmless. As explained below, we assume, without deciding, that
¶192the claim was preserved and that there was error, but we conclude
¶193that any error was harmless beyond a reasonable doubt.
¶194 At a pretrial hearing on August 3, 2021, approximately one
¶195week before trial, the State indicated for the first time that it
¶196intended to read into evidence at trial Bagwell’s testimony from
¶197Appellant’s probation revocation hearing, which took place
¶198 12 approximately three years earlier.5 The prosecutor informed the
¶199trial court that on July 22, 2021, his office tried to subpoena Bagwell
¶200by email and received an automated response stating that Bagwell
¶201was “not available.” After contacting a GBI manager, the prosecutor
¶202learned that Bagwell began maternity leave in early July and would
¶203not return until October 1, 2021. Appellant objected, arguing, in
¶204part, that the State had not served Bagwell with a subpoena; that
¶205Bagwell had not traveled out of the country; that maternity leave,
¶206by itself, did not constitute unavailability or inability to testify; and
¶207that while Bagwell was subject to cross-examination at the prior
¶208hearing, counsel would have a different approach and strategy at
¶209trial and that “the availability for cross-examination is not
¶210equivalent.” The trial court ruled that Bagwell was “unavailable”
¶211and that her prior testimony could be read into evidence at trial.
¶212Prior to Bagwell’s testimony being read at trial by an employee of
¶213 5 At the time of the offenses against Wade, Appellant was serving a sentence of probation under a first-offender plea. The probation revocation petition sought to revoke Appellant’s first-offender status based on his commission of the offenses against Wade. 13 the District Attorney’s office, Appellant renewed his prior objection.
¶214 We assume, without deciding, that Appellant sufficiently
¶215preserved his Confrontation Clause objection for ordinary appellate
¶216review. Compare OCGA § 24-1-103 (a) (1) (Party challenging
¶217admission of evidence must state “specific ground of objection, if the
¶218specific ground was not apparent from the context[.]”); Durham v.
¶219State, 296 Ga. 376, 379 (768 SE2d 512) (2015) (noting “distinct
¶220difference” between hearsay and Confrontation Clause objections to
¶221admission of evidence), disapproved of on other grounds, Leonard v.
¶222State, 316 Ga. 827, 835 n.6 (889 SE2d 837) (2023). Nevertheless, we
¶223need not resolve whether the State met its burden to show that
¶224Bagwell was unavailable and whether the admission of Bagwell’s
¶225prior testimony violated Appellant’s right of confrontation. See Ohio
¶226v. Roberts, 448 U.S. 56, 74-75 (100 SCt 2531, 65 LE2d 597) (1980)
¶227(prosecution bears burden of establishing whether witness is
¶228unavailable for Confrontation Clause purposes), overruled on other
¶229grounds, Crawford, 541 U.S. at 60-69. See also State v. Hamilton,
¶230308 Ga. 116, 121-122 (839 SE2d 560) (2020) (proponent of hearsay
¶231 14 evidence of “unavailable” witness under OCGA § 24-8-804 bears the
¶232burden of proving unavailability). Even an error of constitutional
¶233dimension, such as the denial of the right of confrontation, may be
¶234harmless if “the State proves beyond a reasonable doubt that the
¶235error did not contribute to the verdict, such as . . . when the evidence
¶236against the defendant is overwhelming.” Jones v. State, 314 Ga. 605,
¶237616 (878 SE2d 505) (2022) (cleaned up).
¶238 Here, any error was harmless beyond a reasonable doubt
¶239because the evidence was overwhelming. As noted above, the jury
¶240was charged on Appellant’s theory that the shooting was an
¶241accident. See OCGA § 16-2-2 (“A person shall not be found guilty of
¶242any crime committed by misfortune or accident where it
¶243satisfactorily appears there was no criminal scheme or undertaking,
¶244intention, or criminal negligence.”). The jury also heard Appellant’s
¶245theory of accident in opening and closing arguments. However, the
¶246evidence that Appellant intentionally shot Wade was overwhelming.
¶247White testified that when she first saw Appellant and Wade,
¶248Appellant was pushing Wade against the apartment wall, and White
¶249 15 saw a gun in Appellant’s back pocket. White and Williams both
¶250testified about Appellant’s threats to shoot Wade, and the jury heard
¶251911 calls detailing those threats. Minutes after the 911 calls,
¶252Appellant pulled or pushed Wade on to the patio, forcing her to bend
¶253over. Officers Herron and Denmark both testified that they saw
¶254Appellant shoot Wade. The jury also heard Officer Herron’s
¶255statements moments after the fatal shooting in which he said that
¶256Appellant shot Wade. Officer Herron further testified that he could
¶257see Wade’s hands, which were open and were not on the gun. This
¶258testimony contradicted Appellant’s theory that the shooting was an
¶259accident that occurred during the struggle over the gun. Moreover,
¶260the jury heard the medical examiner’s testimony that the bullet
¶261entered the top of Wade’s head and that Wade had no defensive
¶262wounds on her hands. Finally, the State did not reference Bagwell’s
¶263“trigger pull” testing on the Taurus in opening or closing arguments.
¶264Reviewing this record de novo and weighing the evidence as a
¶265reasonable juror would, see Moore v. State, 315 Ga. 263, 271 (882
¶266SE2d 227) (2022), we conclude that the State has carried its burden
¶267 16 of showing beyond a reasonable doubt that the admission of
¶268Bagwell’s prior testimony about the “trigger pull” of the murder
¶269weapon did not contribute to the verdict and thus that any error was
¶270harmless beyond a reasonable doubt. See, e.g., Jones, 314 Ga. at 615-
¶271616 (pretermitting whether trial court erred in limiting cross-
¶272examination of witness in violation of defendant’s right of
¶273confrontation and concluding any error was harmless beyond a
¶274reasonable doubt in light of substantial evidence against the
¶275defendant); Soto v. State, 285 Ga. 367, 370-372 (677 SE2d 95) (2009)
¶276(error in admitting out-of-court statement to police in violation of
¶277the defendant’s right of confrontation was harmless beyond a
¶278reasonable doubt in light of overwhelming evidence against the
¶279defendant).
¶280 3. Appellant contends that the trial court committed plain
¶281error in allowing Wheelus to testify as a “verifier” of Bagwell’s
¶282ballistics analysis. To show plain error, Appellant must identify an
¶283error that was not affirmatively waived; that was clear and obvious
¶284beyond reasonable dispute; that affected his substantial rights,
¶285 17 which generally requires an “affirmative showing” that the error
¶286probably did affect the outcome below; and that the error seriously
¶287affected the fairness, integrity, or public reputation of judicial
¶288proceedings. Ruthenberg v. State, 317 Ga. 227, 230-231 (892 SE2d
¶289728) (2023). We need not analyze all prongs of plain error review
¶290where appellant fails to establish one of them. See Williams v. State,
¶291315 Ga. 490, 496 (883 SE2d 733) (2023).
¶292 Here, Appellant’s argument appears to be that Wheelus was
¶293merely a “surrogate” for Bagwell and that his testimony was
¶294inadmissible because he did not examine the Taurus. See generally
¶295Disharoon v. State, 291 Ga. 45, 47-48 (727 SE2d 465) (2012)
¶296(discussing Bullcoming v. New Mexico, 564 U.S. 647, 652 (131 SCt
¶2972705, 180 LE2d 610) (2011), and holding that expert with significant
¶298personal connection to forensic test could testify in lieu of scientist
¶299who actually conducted it). However, Appellant fails to recognize
¶300that Wheelus performed his own analysis and testified about his
¶301own examination of the bullet received from the autopsy. Wheelus
¶302did not testify, for example, about Bagwell’s “trigger pull” test.
¶303 18 Rather, based on his independent analysis, he concluded that the
¶304bullet could not have been fired from a Glock but could have been
¶305fired from a gun made by one of seven manufacturers, including
¶306Taurus. Under these circumstances, we conclude that Appellant has
¶307failed to show trial court error, much less plain error, in permitting
¶308Wheelus to testify about his own examination of the bullet recovered
¶309from the autopsy.
¶310 Judgment affirmed. All the Justices concur.
¶311 19