Massingill v. State, A99A1877.
| Decision Date | 04 November 1999 |
| Docket Number | No. A99A1877.,A99A1877. |
| Parties | MASSINGILL v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Allen & Barber, W. Keith Barber, Marietta, Robert D. Pope, Cartersville, for appellant.
Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.
Johnathan Anthony Massingill appeals from a Cobb County jury verdict finding him guilty of reckless conduct and terroristic threats arising from an incident wherein Massingill became intoxicated; fired a pistol in the air to frighten his brother and his girlfriend, with whom he had been arguing; and then threatened to kill Officer R. Littler, one of the police officers who subsequently answered the "person shot" 911 call. Finding no merit to Massingill's claims of error, we affirm.
1. Massingill contends that the prosecutor improperly referred to Officer Littler as an "expert" because he was not qualified as an expert, and such reference gave undue influence to the officer's testimony. As enumerated, this claim of error was not raised in the court below. Accordingly, it is waived on appeal. Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992).
2. Massingill re-asserts the above-referenced enumeration of error as the basis for a claim of ineffective assistance of trial counsel, because counsel failed to object to the prosecutor's reference to Littler as an "expert."
A motion for new trial was not filed on Massingill's behalf, so a claim of ineffective assistance of counsel was not raised in the court below, and no evidence has been adduced thereon. Further, the record shows that the instant appeal is the "earliest practicable moment" that current counsel could raise an ineffective assistance claim against trial counsel. Notwithstanding, if Massingill's claims can be resolved as a matter of fact or law upon the existing record, we will not remand this case. Gomillion v. State, 236 Ga.App. 14, 512 S.E.2d 640 (1999).
At the beginning of the direct examination of Officer Littler, the State established that the witness had 15 years experience as a Cobb County police officer and is a certified law enforcement officer. During the course of the direct exam, the prosecutor asked Littler numerous questions based upon the officer's "training and experience." Defense counsel, during cross-examination, elicited information from the officer regarding the workings of a .44 magnum pistol containing Black Talon ammunition; this information adduced by the defense was based solely on the officer's knowledge gained through his experience and training as a police officer.
Thereafter, on re-direct, the prosecutor asked Officer Littler whether shooting a gun in the air constituted a gross deviation from the standard of care that a reasonable person would exercise. It was only at this point that defense counsel objected that 1 The State countered that the officer "does have knowledge both that of a layperson and expert because of his experience and training as a police officer." The trial court permitted the testimony.
(a) With 15 years on the force and certification training, the record shows that Officer Littler was qualified to testify as an expert in law enforcement. "To qualify as an expert generally all that is required is that a person must have been educated in a particular skill or profession[;] his special knowledge may be derived from experience as well as study." (Citations and punctuation omitted.) Morrow v. State, 230 Ga.App. 137(3)(b), 140, 495 S.E.2d 609 (1998). Moreover, the officer's expertise was tacitly recognized by all parties during questioning on both direct and cross examinations.
(Citations and punctuation omitted.) In the Interest of C.W.D., 232 Ga.App. 200, 207-208(3)(b), 501 S.E.2d 232 (1998).
As Officer Littler was qualified to testify as an expert in law enforcement, was questioned as such by the defense and the State, and was either tacitly or impliedly accepted as such by the trial court, the prosecutor's reference to him as an "expert" provided no basis for a sustainable objection on the part of Massingill's trial counsel. Trial counsel's failure to pursue a futile objection does not constitute ineffective assistance. Mackey v. State, 235 Ga.App. 209-210, 509 S.E.2d 68 (1998). Thus, on the record, the instant claim of ineffective assistance of trial counsel is without merit.
3. Lastly, Massingill contends that the opinion testimony from Officer Littler invaded the province of the jury. In this case, the objected-to testimony went to an element of the offense of reckless conduct as stated in the indictment,...
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