Mosby v. State

• Decision Date: 23 January 2017
• Docket Number: S16A1580
• Parties: MOSBY v. The STATE.
• Court: Georgia Supreme Court

300 Ga. 450

796 S.E.2d 277

MOSBY

v.The STATE.

S16A1580

Supreme Court of Georgia.

Decided: January 23, 2017

Jessica A. Seares, T. Natasha Crawford, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Marc A. Mallon, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Jason M. Rea, Asst. Atty. Gen., for Appellee.

Benham, Justice.

Appellant Leslie Mosby was convicted of murder and other offenses arising out of the shooting death of Theisen Wynn.¹ Viewed in the light most favorable to the verdict, the trial evidence showed that at the time of the shooting, Mosby and Pat Burns had been in a romantic relationship for over a year, but the women began having difficulties in their relationship and Burns moved out and befriended Wynn. At approximately 5:00 a.m. on November 13, 2012, as Wynn and Burns were driving into a parking space in the parking lot of a suites hotel in Fulton County, Mosby drove up and partially blocked Wynn's car. Mosby angrily confronted Burns and Wynn about whether they were involved in a relationship and made threats against Burns. During this confrontation, Mosby pointed a gun toward Burns and fired it. Burns was not struck and ran into the hotel lobby, but more shots were fired, including return fire by Wynn. According to the evidence, Mosby fired a total of four bullets from her gun and Wynn fired a total of eleven. Wynn sustained four bullet wounds

in the gun battle and later died during surgery. Mosby was also shot four times, and she fled to a friend's house from which she was transported to a hospital by ambulance. As she was fleeing the scene, Mosby threw away her weapon. In fact, neither gun was recovered. Mosby underwent surgery to treat her wounds

, and immediately after she awoke from surgery she was read her rights, informed about why she was being restrained to her hospital bed, and then questioned by an officer who made an audio recording of the interview that was played to the jury.

At trial, Mosby testified that while she and Burns were arguing in the parking lot, she saw Wynn "fumbling" with what she believed to be a gun that he placed in a cloth bag, such as a whiskey bottle bag, and then put in his coat pocket. Mosby stated she pulled her gun and started backing away to her car, and that she fired a warning shot at Burns because she wanted her to back off. Mosby then heard a shot ring out and realized Wynn was shooting at her through his coat pocket. Mosby testified she took cover in her car and fired back in self-defense.

1. Mosby asserted the affirmative defense of self-defense, and points to her own testimony and certain other evidence which she claims supports this defense, including a security surveillance videotape that captured the events in question. When a defendant effectively raises an affirmative defense such as self-defense the State bears the burden of disproving the asserted defense beyond a reasonable doubt. Bennett v. State , 265 Ga. 38, 39 (1), 453 S.E.2d 458 (1995). With respect to the sufficiency of the evidence, Mosby asserts the evidence was insufficient to disprove that she acted in self-defense. For example, according to the medical examiner's testimony, the victim sustained a muzzle imprint wound

to his right thigh, and she explained such a wound would be caused by the muzzle of a weapon being in contact with the body at the time the gun was fired. Mosby asserts the videotape shows she was never close enough to the victim to cause such a contact wound. Instead, she argues this wound supports her testimony that the victim reached for a gun in his pocket, and she further argues this explains that the shot she heard, which caused her to start firing back and retreat to her car, was the victim accidentally shooting himself with his own gun as he reached for it. The evidence shows, however, that the victim's fatal wound was sustained from a gunshot to his right groin which severed an artery. Consequently, the State argues that a self-inflicted wound from a muzzle imprint to the victim's right thigh "changes nothing," and, in light of the other evidence, does not support Mosby's claim of justification. Mosby, however, asserts that regardless of the initial "warning shot" she fired toward Burns, once the victim commenced firing his gun she shot back only in self-defense.

The record reflects that the video was played to the jury multiple times as various witnesses testified about what the video portrayed, and was also played at least three times during the jury's deliberations at its request. The parties agree that the speed of the video was slowed down for the jury to view, and possibly that it was played frame by frame. Having reviewed the video recording, we agree with the State that a jury reasonably could have found that Mosby's version of the events was not supported by the video and other evidence. Instead, the video supports the State's assertion, and Mosby's own testimony, that Mosby fired the first shot. Burns testified the altercation started when Mosby verbally threatened Burns, and the video appears to show that Mosby pushed Burns before any shooting began. Burns also testified that Mosby fired the first shot. The security video appears to show a gun muzzle flash from Mosby's weapon as the first evidence of any shot being fired. The video then shows a short gun battle between Mosby and the victim.

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 and defers to the jury's assessment of the weight and credibility of the evidence. See Anthony v. State , 298 Ga. 827, 829 (1), 785 S.E.2d 277 (2016). An aggressor is not entitled to a finding of justification. See OCGA § 16–3–21 (b) (3). Further, the question of whether the circumstances of an alleged confrontation between a defendant and a victim were such as to excite the fears of a reasonable person to believe it was necessary to use deadly force against the victim is an issue for the jury. Howard v. State , 298 Ga. 396, 398 (2), 782 S.E.2d 255 (2016). It is obvious from the verdict that the jury disbelieved Mosby's testimony that she was justified in firing at Wynn, and that the jury relied upon other evidence, including Burns's testimony and the events shown on the videotape, to reach its verdict, as it was entitled to do. See Berrian v. State , 297 Ga. 740, 741–742 (1), 778 S.E.2d 165 (2015). The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Mosby did not act in self-defense and was not otherwise justified when she shot the victim. See Slaughter v. State, 278 Ga. 896, 608 S.E.2d 227 (2005). We also conclude the evidence was otherwise sufficient to sustain the guilty verdict on all other counts for which Mosby was convicted. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Mosby asserts she is entitled to a new trial due to ineffective assistance of trial counsel. She argues trial counsel's performance was deficient, and failed to meet an objective standard of reasonable professional judgment, because counsel failed to consult with a crime scene reconstruction or firearms expert prior to trial or to retain such an expert as a witness to challenge the testimony or other evidence relating to the shootout. According to Mosby, an expert's assistance in reviewing the ballistics evidence would have enabled counsel to support Mosby's defense more effectively. Further, Mosby claims counsel's failure to present expert testimony to explain the events seen in the security video rendered counsel's presentation of Mosby's justification defense incompetent. She claims that due to the grainy quality of the video, which was lacking an audio component for the jury to hear when the victim returned fire, it was necessary to present expert testimony to explain the events the video portrayed.

Mosby points to the testimony of a witness presented as a firearms and crime scene reconstruction expert at the motion for new trial hearing. That witness acknowledged that the video shows Mosby fired the first shot, which he referred to as a "warning shot." He testified the video shows the victim had a gun in his hand when he exited his car, and that Mosby continued to fire after the warning shot only after the victim commenced approaching her around the front of Mosby's vehicle. According to this witness, Mosby fired a second shot, this time toward the victim, after which the victim rapidly moved toward Mosby, firing multiple shots into Mosby's car as she backed into the driver's seat before speeding away. Mosby asserts that the autopsy evidence regarding the trajectory of the fatal bullet wound

demonstrates this bullet was fired as Mosby was inside her car firing back at the victim who had pursued her to shoot at her through her car door, but that this argument was not made at trial due to counsel's failure to investigate her defense adequately.

First, expert testimony is admissible where the expert's conclusion is beyond the ken of the average layman.² See Bly v. State , 283 Ga. 453, 458 (2), 660 S.E.2d 713 (2008). But "where jurors can take the same elements and constituent factors which guide the expert to his conclusions and from them alone make an equally intelligent judgment of their own," then expert opinion testimony is not admissible. (Citation and punctuation omitted.) Id. See also Sims v. State , 234 Ga.App. 678, 680–681 (1) (a), 507 S.E.2d 845 (1998) ("Expert testimony is not necessary when the jurors may make the determination on their own."); Coleman v. State , 257 Ga. 313, 314 (1), 357 S.E.2d 566 (1987)(holding that a detective's conclusions about the victim's and defendant's locations when the victim was shot and whether the victim was holding a knife when shot...