Mack v. State

Decision Date19 August 2019
Docket NumberS19A0947
Citation306 Ga. 607,832 S.E.2d 415
Parties MACK v. The STATE.
CourtGeorgia Supreme Court

Robert Lawrence Persse, 202 Wedgefield Crossing, Savannah, Georgia 31405, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Matthew Breedon, A.D.A., Margaret Ellen Heap, District Attorney, Office of the District Attorney Eastern Judicial Circuit, P.O. Box 2309, Savannah, Georgia 31402, for Appellee.

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 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 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 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 , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 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.

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 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 , 305 Ga. 882, 886 (2) (a), 828 S.E.2d 304 (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 , 304 Ga. 146, 153 (9), 816 S.E.2d 646 (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 , 304 Ga. 553, 556 (2), 820 S.E.2d 1 (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. DecisionOne Corp. , 122 F.3d 997, 1005 (11th Cir. 1997) (punctuation omitted); see also United States v. Dulcio , 441 F.3d 1269, 1274 (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 , 282 Ga. 447, 450 (2), 651 S.E.2d 66 (2007), superseded on other grounds by statute as stated in Stroud v. State , 301 Ga. 807, 804 S.E.2d 418 (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." Id. In determining whether the error was harmless, we "weigh the evidence as we would expect reasonable jurors to have done[.]" Boothe v. State , 293 Ga. 285, 289 (2) (b), 745 S.E.2d 594 (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 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 , 281 Ga. 596, 599-600 (3), 642 S.E.2d 23 (2007) (admission of hearsay not an error in the light of overwhelming evidence of guilt); Bridges v. State , 268 Ga. 700, 708 (6), 492 S.E.2d 877 (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 , 466 U. S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To establish deficient performance, an appellant must overcome the strong presumption that his ... co...

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    ...Commw. v. Fielding , 94 Mass.App.Ct. 718, 119 N.E.3d 328, 332 (2019) (addressing authentication of Facebook photo); Mack v. State , 306 Ga. 607, 832 S.E.2d 415, 416-17 (2019) (discussing admission of third-party comment on the defendant's Facebook page); United States v. Vayner , 769 F.3d 1......
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  • Butler v. State
    • United States
    • Georgia Supreme Court
    • 1 March 2021
    ...Code – does not generally prohibit lay witness testimony on "ultimate issue" grounds. See OCGA § 24-7-704 (a) ; Mack v. State , 306 Ga. 607, 610 (2), 832 S.E.2d 415 (2019) (even if detective's comments "touched on the ultimate issue in the case," they were not subject to exclusion under OCG......
  • Fisher v. State
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    • Georgia Supreme Court
    • 8 September 2020
    ...§ 24-7-704 (a), " ‘abolished the prohibition on [lay] opinion testimony concerning the ultimate issue in a case.’ " Mack v. State , 306 Ga. 607, 609, 832 S.E.2d 415 (2019) (citation omitted). See also Thornton , 307 Ga. at 127-128, 834 S.E.2d 814. The current Evidence Code took effect more ......
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1 books & journal articles
  • An Overview of Ultimate Issue Evidence
    • United States
    • State Bar of Georgia Georgia Bar Journal No. 25-6, June 2020
    • Invalid date
    ...holding is in accord with the modern view as exemplified by Rules 702, 704 of the Federal Rules of Evidence ...." [11] Mack v. State, 306 Ga. 607, 609, 832 S.E.2d 415, 417-18 (2019). [12] FED. R. EVID. 704 provides: (a) In General—Not Automatically Objectionable. An opinion is not objection......

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