Head v. State

[[COURTLISTENER_SUBOPINION {"id":"11146900","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
319 Ga. 267
FINAL COPY

                 S24A0263. HEAD v. THE STATE.


     BOGGS, Chief Justice.

     Appellant Nicholas Bernard Head challenges his convictions

for malice murder and other crimes in connection with the shooting

death of Quintavia Wade. Appellant contends that his rights under

the Confrontation Clause of the Sixth Amendment to the United

States Constitution were violated when the State read into evidence

prior testimony given about the murder weapon by Emily Bagwell,

the State’s firearms expert, and that the trial court committed plain

error in allowing another firearms examiner, Kyle Wheelus, to

testify as a “verifier” of Bagwell’s analysis about the bullet recovered

in Wade’s autopsy. We conclude that, even assuming that there was

error with regard to the admission of Bagwell’s prior testimony

about the murder weapon, any error was harmless beyond a

reasonable doubt given the overwhelming evidence against

Appellant, including the testimony of two police officers who
witnessed the shooting. Additionally, because Wheelus’s testimony

was based on his own ballistics analysis, there was no plain error in

allowing his testimony. Accordingly, we affirm.1

      1.    The evidence presented at trial showed the following.2 On




      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 15 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 Because of the harmless error analysis undertaken in Division 2, we

set 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).
                                        2
October 16, 2017, Appellant’s former girlfriend, Courtney Williams,

went to retrieve some of her clothes from the home that she and

Appellant formerly shared. Her friend Wade was with her, though

Williams and Wade drove separately. Williams was scared to be

around Appellant, and when she arrived at the home, she thought

she saw someone inside the house by the window. Believing

Appellant to be there, she drove away and called 911. Officers

responded and while an officer was standing next to Williams,

Williams answered a call from Appellant. The officer spoke loudly

and said that if Appellant was in the house, he needed to come out

and talk to the officers. Appellant told Williams he was not in the

house, and officers later confirmed that fact. After receiving

information from the officer about how to obtain a temporary

protective order, Williams and Wade went to the courthouse in

Wade’s car, but Williams did not have her ID and could not apply for

the TPO. Wade then drove Williams back to Williams’s home, and

while en route, Wade received a call from someone named Jeff who

asked for a ride. After picking up Jeff, Wade dropped Williams back

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off at Williams’s home.

     Later that afternoon, after Wade had returned to her own

apartment, Appellant arrived at Wade’s apartment. Yasmeen

White, Wade’s friend and co-worker, arrived at Wade’s apartment

sometime after Appellant arrived. White parked her car on the

street, and when she exited her car, she saw Appellant and Wade

outside the apartment on the back patio, which faced the street.

Appellant was pushing Wade against the apartment wall, and as

White walked toward the back patio, Appellant said “what’s up,

Yas?” White entered the apartment through the back patio door and

saw that Appellant had a pistol in his back pocket. White heard

Appellant tell Wade that he wanted Wade to call Williams and tell

Williams to come to the apartment. Wade said that she could not

call Williams because Appellant had her phone, and Appellant told

Wade to use White’s phone. White gave her phone to Wade. Wade

called Williams and told her that Appellant had “ripped her bra, and

put a gun to her head”; that Appellant “was going to kill her” if

Williams did not come to Wade’s apartment; and that if the police

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came, Appellant was going to shoot Wade. Wade gave the phone

back to White, and White saw that Wade had typed “911” on the

keypad and understood from Wade’s nod of her head that Wade

wanted White to call 911 without alerting Appellant. White went

inside a closet, called 911, and told the operator that a man had a

gun and was threatening to kill Wade. After the phone call between

Williams and Wade ended, Williams also called 911 and reported

that Appellant was at Wade’s apartment and was threatening to kill

her. The jury heard both 911 calls.

     Officers Shawn Denmark and Edward Herron, both of the

Athens-Clarke County Police Department, responded to the 911

calls. As they arrived, they saw Appellant and Wade on the back

patio. Officer Herron testified that his initial thought was that

Appellant and Wade “were playing.” However, he then saw Wade

walking backward while Appellant had “something like a gun in his

hand,” and he observed Wade “swatting at” Appellant to “redirect or

. . . swing at his arms.” Wade’s hands were open, and she did not hit

the gun or ever gain control of the gun. He saw Appellant shoot

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Wade, and in response, Officer Herron fired his service weapon, a

nine-millimeter Glock, in the direction of the back patio. Appellant

was not hit and retreated into the apartment. Appellant then

stepped back onto the patio with one foot but remained partially out

of view. Officer Herron repeatedly told Appellant to drop the gun

and put his hands up. Appellant did not comply. Instead, he yelled

something indistinguishable at the officers, and then shot himself in

the face. After Appellant shot himself, the gun he was holding

discharged again. As Appellant fell to the ground, he appeared to

fall on top of the gun.3

     The State played body camera footage from Officer Herron,

although the recording does not show what happened on the back

patio. However, the recording included Officer Herron’s statements

over his radio and to other officers describing the shooting moments

after it occurred. Officer Herron first said, “I shot off three rounds

after he shot her.” Shortly thereafter, Officer Herron said that “the


     3 The trial testimony does not make clear whether Appellant fired the

gun again after shooting himself and then dropped it or whether he dropped
the gun after shooting himself and the gun discharged accidentally.
                                    6
male shot the female” as Officer Herron was getting out of the car

and that they were “tussling over the gun; he shot himself when I

told him to get on the ground.” Officer Herron acknowledged during

his testimony that in a use-of-force investigation with GBI agents

that occurred the same day as the shooting, he said that he never

actually saw a gun and that he was not able to see Wade’s head

clearly for part of the time.4

      Officer Denmark testified that he saw Appellant shoot Wade in

the head. He described Appellant and Wade as being in a “physical

altercation,” with Appellant walking backward, with his left hand

on Wade’s right shoulder, dragging Wade onto the patio and holding

her in a “bent over” position. Officer Denmark acknowledged that in

prior testimony, he said that he was not looking directly at

Appellant and Wade. Officer Wang of the Athens-Clarke County

Police Department was the first officer to approach the patio after

Appellant shot himself; Appellant and Wade were both lying on the



      4 A portion of Officer Herron’s interview with GBI agents was played for

the jury, but the record does not indicate precisely which portion was played.
                                      7
ground. The gun was not visible at first, but when Officer Wang

stepped close to Appellant’s shoulder, Officer Wang saw the gun

“right beside [Appellant] on the other side of his body.” Officer Wang

picked up the gun, which was a Taurus nine-millimeter handgun.

Appellant was arrested and taken to a hospital, where he recovered

from the self-inflicted gunshot wound.

     The medical examiner who conducted Wade’s autopsy

recovered several parts of a bullet from Wade’s head and concluded

that the cause of death was a single gunshot wound to the top of

Wade’s head. The medical examiner also examined Wade’s hands

and found no evidence of defensive wounds or bruises or scrapes on

her hands.

     GBI firearms examiner Emily Bagwell, whose testimony from

a prior probation revocation hearing was read into evidence at trial

by the State, served as the primary firearms examiner in this case.

In that capacity, she examined the bullet that the medical examiner

extracted from Wade’s head. She also examined and test-fired the

Taurus nine-millimeter handgun that Officer Wang found next to

                                  8
Appellant. Bagwell concluded that the bullet recovered during

Wade’s autopsy was shot from the Taurus handgun and that the

bullet could not have been fired from a Glock handgun. She also

conducted a trigger pull test and concluded that the Taurus did not

have a “hair trigger,” which she described as a “very light trigger” or

one that will fire with around one pound of pressure or less. She

concluded that the Taurus would need a pull force of at least four

and one-half pounds to fire; she did not conduct a test to see if the

gun would fire if dropped. She explained that to fire the gun, a

person would have to pull backward on the slide to load a cartridge

into the chamber and then pull the trigger.

     After Bagwell completed her examination of the bullet and the

Taurus, GBI firearms examiner Kyle Wheelus performed the next

stage of the GBI’s standard examination, which involved serving as

a “verifier” of some of Bagwell’s findings. Wheelus testified at trial

that he used a microscope to examine the bullet received from the

medical examiner and concluded that the bullet could not have been

fired from a Glock and could have been fired from a nine-millimeter

                                  9
gun made by one of seven manufacturers, including Taurus.

Wheelus did not determine whether the bullet was fired from the

Taurus recovered at the scene and did not test or fire the Taurus.

Mark Tanner, a firearms examiner with the GBI, also served as a

“verifier” and testified at trial. He compared the bullet from the

autopsy and a bullet that was test-fired from the Taurus and

concluded that the bullet recovered in the autopsy was fired from

the Taurus. Tanner did not examine the Taurus.

     Appellant did not testify at trial, and his counsel argued for an

acquittal based on accident. In opening arguments, Appellant’s

counsel told the jury that Appellant did not bring a gun to the

apartment; that the gun was already at the apartment and was

likely left there by “Jeff,” the man to whom Wade had given a ride;

and that Wade picked up the gun, Appellant “grabbed for” the gun

because he wanted her to put it away, they wrestled over it, and the

gun went off. In closing arguments, Appellant’s counsel again

argued that Appellant did not bring a gun to the apartment; that

Appellant “was one of two people tussling over the gun”; that the

                                 10
gun went off when Wade had her hands on it; and that Appellant

was “grabbing at [Wade] trying to push the gun away.” The jury was

charged that if it found “that the incident . . . occurred as a result of

misfortune or accident and not as a result of a criminal undertaking

or criminal negligence, then it would be your duty to acquit the

Defendant.”

     2.    Appellant contends that the admission of Bagwell’s prior

testimony about the Taurus handgun — that it did not have a “hair

trigger” and that it required at least four and a half pounds of

pressure to fire — violated his rights under the Confrontation

Clause of the Sixth Amendment to the United States Constitution.

See Crawford v. Washington,
541 U.S. 36, 54
(
124 SCt 1354
, 158

LE2d 177) (2004) (Confrontation Clause prohibits the introduction

of testimonial statements by a nontestifying witness, unless the

witness is “unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.”). As noted above, Appellant

asserted a defense of accident, relying on Officer Herron’s

statements that he initially believed Appellant and Wade were

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playing and that he saw them “tussling” over the gun. Appellant

contends that the error in admitting Bagwell’s testimony was

harmful because the “trigger pull” testimony allowed the jury to

reject his accident theory. The State argues that Appellant failed to

preserve this claim for ordinary appellate review because he did not

specifically rely on the Confrontation Clause in any of his objections

at the pretrial hearing or at trial and that regardless, any error was

harmless. As explained below, we assume, without deciding, that

the claim was preserved and that there was error, but we conclude

that any error was harmless beyond a reasonable doubt.

     At a pretrial hearing on August 3, 2021, approximately one

week before trial, the State indicated for the first time that it

intended to read into evidence at trial Bagwell’s testimony from

Appellant’s probation revocation hearing, which took place

approximately three years earlier.5 The prosecutor informed the




     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.
                                    12
trial court that on July 22, 2021, his office tried to subpoena Bagwell

by e-mail and received an automated response stating that Bagwell

was “not available.” After contacting a GBI manager, the prosecutor

learned that Bagwell began maternity leave in early July and would

not return until October 1, 2021. Appellant objected, arguing, in

part, that the State had not served Bagwell with a subpoena; that

Bagwell had not traveled out of the country; that maternity leave,

by itself, did not constitute unavailability or inability to testify; and

that while Bagwell was subject to cross-examination at the prior

hearing, counsel would have a different approach and strategy at

trial and that “the availability for cross-examination is not

equivalent.” The trial court ruled that Bagwell was “unavailable”

and that her prior testimony could be read into evidence at trial.

Prior to Bagwell’s testimony being read at trial by an employee of

the District Attorney’s office, Appellant renewed his prior objection.

     We assume, without deciding, that Appellant sufficiently

preserved his Confrontation Clause objection for ordinary appellate

review. Compare OCGA § 24-1-103 (a) (1) (Party challenging

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admission of evidence must state “specific ground of objection, if the

specific ground was not apparent from the context[.]”); Durham v.

State,
296 Ga. 376, 379
(
768 SE2d 512
) (2015) (noting “distinct

difference” between hearsay and Confrontation Clause objections to

admission of evidence), disapproved of on other grounds, Leonard v.

State,
316 Ga. 827
, 835 n.6 (
889 SE2d 837
) (2023). Nevertheless, we

need not resolve whether the State met its burden to show that

Bagwell was unavailable and whether the admission of Bagwell’s

prior testimony violated Appellant’s right of confrontation. See Ohio

v. Roberts,
448 U.S. 56, 74-75
(
100 SCt 2531
, 65 LE2d 597) (1980)

(prosecution bears burden of establishing whether witness is

unavailable for Confrontation Clause purposes), overruled on other

grounds, Crawford,
541 U.S. at 60-69
. See also State v. Hamilton,
308 Ga. 116, 121-122
(
839 SE2d 560
) (2020) (proponent of hearsay

evidence of “unavailable” witness under OCGA § 24-8-804 bears the

burden of proving unavailability). Even an error of constitutional

dimension, such as the denial of the right of confrontation, may be

harmless if “the State proves beyond a reasonable doubt that the

                                 14
error did not contribute to the verdict, such as . . . when the evidence

against the defendant is overwhelming.” Jones v. State,
314 Ga. 605,

616
(
878 SE2d 505
) (2022) (cleaned up).

     Here, any error was harmless beyond a reasonable doubt

because the evidence was overwhelming. As noted above, the jury

was charged on Appellant’s theory that the shooting was an

accident. See OCGA § 16-2-2 (“A person shall not be found guilty of

any crime committed by misfortune or accident where it

satisfactorily appears there was no criminal scheme or undertaking,

intention, or criminal negligence.”). The jury also heard Appellant’s

theory of accident in opening and closing arguments. However, the

evidence that Appellant intentionally shot Wade was overwhelming.

White testified that when she first saw Appellant and Wade,

Appellant was pushing Wade against the apartment wall, and White

saw a gun in Appellant’s back pocket. White and Williams both

testified about Appellant’s threats to shoot Wade, and the jury heard

911 calls detailing those threats. Minutes after the 911 calls,

Appellant pulled or pushed Wade on to the patio, forcing her to bend

                                  15
over. Officers Herron and Denmark both testified that they saw

Appellant shoot Wade. The jury also heard Officer Herron’s

statements moments after the fatal shooting in which he said that

Appellant shot Wade. Officer Herron further testified that he could

see Wade’s hands, which were open and were not on the gun. This

testimony contradicted Appellant’s theory that the shooting was an

accident that occurred during the struggle over the gun. Moreover,

the jury heard the medical examiner’s testimony that the bullet

entered the top of Wade’s head and that Wade had no defensive

wounds on her hands. Finally, the State did not reference Bagwell’s

“trigger pull” testing on the Taurus in opening or closing arguments.

Reviewing this record de novo and weighing the evidence as a

reasonable juror would, see Moore v. State,
315 Ga. 263, 271
(
882

SE2d 227
) (2022), we conclude that the State has carried its burden

of showing beyond a reasonable doubt that the admission of

Bagwell’s prior testimony about the “trigger pull” of the murder

weapon did not contribute to the verdict and thus that any error was

harmless beyond a reasonable doubt. See, e.g., Jones,
314 Ga. at 615
-

                                 16
616 (pretermitting whether trial court erred in limiting cross-

examination of witness in violation of defendant’s right of

confrontation and concluding any error was harmless beyond a

reasonable doubt in light of substantial evidence against the

defendant); Soto v. State,
285 Ga. 367, 370-372
(
677 SE2d 95
) (2009)

(error in admitting out-of-court statement to police in violation of

the defendant’s right of confrontation was harmless beyond a

reasonable doubt in light of overwhelming evidence against the

defendant).

     3. Appellant contends that the trial court committed plain

error in allowing Wheelus to testify as a “verifier” of Bagwell’s

ballistics analysis. To show plain error, Appellant must identify an

error that was not affirmatively waived; that was clear and obvious

beyond reasonable dispute; that affected his substantial rights,

which generally requires an “affirmative showing” that the error

probably did affect the outcome below; and that the error seriously

affected the fairness, integrity, or public reputation of judicial

proceedings. Ruthenberg v. State,
317 Ga. 227, 230-231
(
892 SE2d

                                17
728) (2023). We need not analyze all prongs of plain error review

where appellant fails to establish one of them. See Williams v. State,
315 Ga. 490, 496
(
883 SE2d 733
) (2023).

     Here, Appellant’s argument appears to be that Wheelus was

merely a “surrogate” for Bagwell and that his testimony was

inadmissible because he did not examine the Taurus. See generally

Disharoon v. State,
291 Ga. 45, 47-48
(
727 SE2d 465
) (2012)

(discussing Bullcoming v. New Mexico,
564 U.S. 647, 652
(
131 SCt

2705
, 180 LE2d 610) (2011), and holding that expert with significant

personal connection to forensic test could testify in lieu of scientist

who actually conducted it). However, Appellant fails to recognize

that Wheelus performed his own analysis and testified about his

own examination of the bullet received from the autopsy. Wheelus

did not testify, for example, about Bagwell’s “trigger pull” test.

Rather, based on his independent analysis, he concluded that the

bullet could not have been fired from a Glock but could have been

fired from a gun made by one of seven manufacturers, including

Taurus. Under these circumstances, we conclude that Appellant has

                                  18
failed to show trial court error, much less plain error, in permitting

Wheelus to testify about his own examination of the bullet recovered

from the autopsy.

     Judgment affirmed. All the Justices concur.




                       Decided June 11, 2024.

     Murder. Clarke Superior Court. Before Judge Haggard.

     David T. Douds, for appellant.

     Deborah Gonzalez, District Attorney; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Clint C.

Malcolm, Meghan H. Hill, Senior Assistant Attorneys General, Grace

G. Griffith, Assistant Attorney General, for appellee.




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