Smith v. State

NOTICE: 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.

In the Supreme Court of Georgia

Decided: December 20, 2022

S22A1109. SMITH v. THE STATE.

ELLINGTON, Justice.

A Lamar County jury found Ronald Eugene Smith guilty of

malice murder and other crimes in connection with the shooting

death of Charles Adams.1 Smith appeals from the denial of his

1On December 15, 2009, a Lamar County grand jury indicted Smith for
malice murder (Count 1); felony murder predicated on aggravated assault
(Count 2); aggravated assault (Count 3); possession of a firearm during the
commission of a felony (Count 4); possession of a firearm by a convicted felon
(Count 5); and tampering with evidence (Count 6). A bifurcated jury trial
commenced on January 25, 2010. After the jury found Smith guilty of Counts
1-4 and 6 in the first part of the trial, the jury heard evidence on Count 5 and
returned a guilty verdict. The trial court sentenced Smith to life in prison for
murder; five years in prison for possession of a firearm during the commission
of a felony, consecutive to Count 1; five years in prison for possession of a
firearm by a convicted felon, consecutive to Count 4; and ten years in prison
for tampering with evidence, consecutive to Count 5. The trial court purported
to merge both the felony murder and aggravated assault counts into the malice
murder conviction for sentencing purposes. Id. The felony murder count,
however, did not merge with the malice murder count but was vacated by
operation of law. See Malcolm v. State, 263 Ga. 369 (5) (434 SE2d 479) (1993).
Smith filed a timely motion for a new trial through trial counsel on
February 26, 2010. That motion was amended by new counsel on May 17, 2021,
and January 20, 2022. Following a hearing held on January 6, 2022, the trial
court issued an order on Smith’s amended motion for new trial on May 5, 2022.
motion for a new trial, contending that the evidence was insufficient

to support the jury’s verdicts, that the trial court erred in admitting

Smith’s custodial statements and in giving or refusing to give

certain jury instructions, and that his trial counsel was ineffective.

Because Smith’s claims of error are without merit, we affirm.

1. Smith contends that the evidence supporting his conviction

for malice murder was constitutionally insufficient. 2 He also argues

that the evidence offered on the issue of his criminal intent to

The court denied all grounds for relief except Smith’s contention that the
sentence on Count 6, tampering with evidence, was incorrect. The trial court
agreed and resentenced Smith to serve twelve months on probation to run
concurrently with the malice murder conviction (Count 1). Smith filed a timely
notice of appeal from the trial court’s order. The appeal was docketed to the
August 2022 term of this Court and submitted for a decision on the briefs.
2 Although Smith claims he is challenging the sufficiency of the evidence

supporting his “convictions,” his argument pertains only to the sufficiency of
the evidence supporting his conviction for malice murder. In Davenport v.
State, 309 Ga. 385, 391-399 (4) (846 SE2d 83) (2020), we explained that this
Court no longer will sua sponte consider evidence sufficiency in non-death
penalty cases, starting with cases docketed to the term of Court that began in
December 2020. Further, Supreme Court Rule 22 provides, in pertinent part,
that “[a]ny enumerated error not supported by argument or citation of
authority in the brief shall be deemed abandoned.” Thus, Smith’s unsupported
claim of error pertaining to the sufficiency of the evidence of his remaining
convictions is deemed abandoned. Id. See also Davenport, 309 Ga. at 391-399
(4); Gay v. State, 235 Ga. 240, 240 (1) (219 SE2d 156) (1975) (reviewing
sufficiency of evidence as to murder conviction as argued, but deeming any
argument as to other conviction abandoned).
2
commit murder was entirely circumstantial and did not rule out the

reasonable hypothesis that the shooting was accidental, as Smith

claimed in a statement to investigators. When reviewing the

sufficiency of the evidence as a matter of constitutional due process,

we view the evidence in the light most favorable to the verdicts, see

Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)

(1979), and do not resolve conflicts in the evidence, leaving those

within the province of the jury, see Lowery v. State, 310 Ga. 360, 362

(1) (a) (851 SE2d 538) (2020). Also, former OCGA § 24-4-6 provided:

“To warrant a conviction on circumstantial evidence, the proved

facts shall not only be consistent with the hypothesis of guilt, but

shall exclude every other reasonable hypothesis save that of the

guilt of the accused.” 3 “However, not every hypothesis is a

reasonable one, and the evidence need not exclude every conceivable

inference or hypothesis – only those that are reasonable.” (Emphasis

3 Smith was tried in 2010 under Georgia’s former Evidence Code.
Georgia’s new Evidence Code applies to trials conducted after January 1, 2013.
See Ga. L. 2011, p. 99, § 101. Former OCGA § 24-4-6 was carried forward into
the new Evidence Code, and it now can be found at OCGA § 24-14-6.
3
in original.) Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d 855)

(2009). Whether an alternative hypothesis raised by the defendant

is “reasonable” is a question committed principally to the jury, “and

where the jury is authorized to find that the evidence, though

circumstantial, was sufficient to exclude every reasonable

hypothesis save that of the guilt of the accused, we will not disturb

that finding unless it is insupportable as a matter of law.” (Citations

omitted.) Carter v. State, 276 Ga. 322, 323 (577 SE2d 787) (2003). So

viewed, the evidence presented at trial shows the following.

On the morning of January 30, 2009, LaTonya Harris and her

two children walked out the front door of their duplex home in

Barnesville, Lamar County. Harris, who lived next door to Adams,

was about to drive her children to the school bus stop. As they

stepped onto the left side of the front porch, Harris’s son saw a

plastic tube sliding across the right side of the porch toward Adams’s

front door. Harris testified that she heard a rustling noise near the

ground on the right side of the duplex, the side where Adams lived.

She saw a man crouched by the edge of the porch, pointing a rifle at

4
Adams’s front door. Harris’s son also saw the gunman. The gunman

told Harris to “get [her] kids and go inside. This is a rifle.” Harris

and her children quickly retreated inside, hid, and called the police.

Less than a minute after they went inside, Harris and her children

heard a gunshot. Harris and her son later identified Smith as the

gunman.

When the police arrived at the duplex, they found Adams lying

across the threshold of his front doorway in a pool of his blood, dead.

Though his upper body fell outside onto the porch, his feet and

ankles were inside the house. The police immediately interviewed

Adams’s neighbors. Smith, who lived across the street from Adams,

was one of the people who spoke to the police. He told an officer that

his friend Mickey told him that the shooting was a suicide.

The police searched the area around the duplex with a K9 unit

to determine the path the gunman took to and from the duplex.

Police dogs following the gunman’s scent led officers around the

right side of the duplex into the backyard, then through some bushes

and into a bare area in the woods behind the duplex. The path then

5
wound back to the edge of the street, ending at Smith’s home. Along

the path, the police found pieces of a silver buckle. The police later

matched the buckle pieces to a pair of red suspenders (which were

missing a buckle) recovered during a consent search of Smith’s

home. The police later obtained a warrant for a more expansive

search of the home and surrounding grounds. Investigators found

spent shell casings for a 30-06 rifle near Smith’s driveway. The

police recovered a Remington 30-06 rifle from the creek behind

Smith’s house. They also found a pair of wet shoes in Smith’s

basement that they later matched to shoe prints found in the sand

by the creek. The rifle’s open carrying case was found near a ditch

in Smith’s front yard.

On January 30, 2009, the police arrested Smith pursuant to a

bench warrant on an unrelated misdemeanor charge. While in

custody, Smith signed a waiver of rights form and agreed to answer

questions about Adams’s death. Smith denied any involvement in

the shooting. The next day, Smith filled out a form requesting to

speak with law enforcement. After signing a second waiver of rights

6
form, Smith admitted walking up to the duplex from the right side,

standing on the ground by the front porch of the duplex, sliding a

plastic tube across the porch to strike Adams’s front door, seeing and

speaking to Harris and her children, pulling the trigger and shooting

Adams, and hiding the rifle in the creek. Smith also admitted that

the shoes he wore the morning of the shooting were his wife’s, and

that he told his wife to tell the police that any footprints found in the

yard were hers. Smith claimed, however, that the shooting was

accidental. He said that, after Harris took her children inside,

Adams walked out onto the porch to talk with him about buying the

rifle he was carrying. Smith, a former Marine sniper, repeatedly

asserted that the rifle discharged while he was showing Adams how

to use it. Smith said that he removed the rifle’s magazine, pulled the

rifle bolt back, and then, believing the rifle was unloaded, pressed

the trigger.

In his custodial statements,4 Smith explained that he wanted

4 It is unclear from the record exactly which portions of Smith’s recorded
statements were played at trial for the jury. However, the record reflects that
the jury was allowed to review the transcripts of both statements.
7
to get rid of the rifle and was in the process of removing contraband

from his house (including drugs, needles, and drug paraphernalia)

because he was afraid that Mickey, a man who often stayed with

Adams, planned to “call the police on him.” Smith admitted that he

had served three years in prison for a drug conviction and should

not have had a rifle in his possession. Smith thought Mickey might

report him to the police because Smith owed Mickey money for drugs

that Mickey had “fronted” to him but for which he refused to pay

because the drugs were “no good.” At trial, the State argued based

on this evidence that Smith intended to kill Mickey but shot Adams

instead.

A firearms expert was able to match the bullet that killed

Adams with the Remington 30-06 rifle recovered from the creek,

where Smith admitted hiding it. The expert also determined that

two shell casings found on the ground outside Adams’s home were

fired from the same Remington 30-06 rifle used to shoot Adams. The

firearms expert explained that the rifle, which was functioning

properly, would not have accidentally discharged in the manner

8
Smith described during his custodial interview. According to the

expert, it is impossible to pull the bolt back and have it stay back

without the magazine attached. Further, pulling the bolt back, as

Smith claims he did, would have ejected the round in the chamber.

The only way to make the rifle fire is to pull the trigger while a

loaded magazine is attached.

The medical examiner testified that Adams suffered severe

brain trauma as a result of the shooting and died instantly. The

autopsy revealed significant skull fracturing consistent with a high-

velocity bullet fired from a rifle. The medical examiner testified that

the bullet that killed Adams was fired from at least two feet away.

The bullet entered Adams’s right cheek and exited the left side of

his head. The trajectory of the bullet was slightly upward, consistent

with the rifle being fired from an area lower than the entry wound

on the victim’s head. Based on his review of the evidence, including

investigators’ descriptions of the location and position of the body,

the medical examiner testified that Adams was standing in the

doorway of his home, not out on the porch, when he was shot. Adams

9
would have fallen immediately and would not have been able to

move at all following the shooting.

The evidence presented at trial was sufficient to allow a

rational jury to find beyond a reasonable doubt that Smith was

guilty of malice murder. Moreover, the evidence, including expert

testimony that the rifle could not have been fired in the way Smith

claimed, was sufficient under OCGA § 24-14-6 to authorize a jury to

reject as unreasonable Smith’s hypothesis that the shooting was

accidental and, instead, to find that he intentionally and with malice

aforethought shot and killed Adams. See, e.g., Yeager v. State, 281

Ga 1, 2 (1) (635 SE2d 704) (2006) (The evidence was sufficient as a

matter of constitutional due process to reject the defendant’s

accident defense and to convict her of malice murder; the jury could

have inferred that the shooting was intentional based on expert

testimony rebutting the claim that the weapon discharged

accidentally.) (decided under former OCGA § 24-4-6). See also Jones

v. State, 314 Ga. 400, 405-407 (2) (877 SE2d 232) (2022) (accord).

2. Smith contends the trial court erred in admitting evidence

10
of his custodial interviews because his statements were the product

of an illegal detention and violated his rights under the Fourth

Amendment to the United States Constitution. Smith argues that

he was illegally detained after he posted bond following his arrest

on a misdemeanor charge unrelated to Adams’s murder. The record

and trial transcript show that Smith did not challenge the

lawfulness of his arrest or of his continued detention during his

Jackson-Denno 5 hearing or at trial. Instead, he raised it for the first

time in his motion for a new trial. Because this challenge to the

admissibility of Smith’s statements was not timely made, it is

waived for purposes of appellate review. 6 See, e.g., Davis v. State,

255 Ga. 588, 591 (1) (a) (340 SE2d 862) (1986) (“We decline to

address alleged deficiencies in the state’s showing of probable cause

5 See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
6 Under the former Evidence Code, to preserve for appellate review a
claim that the trial court improperly admitted or excluded evidence under a
particular theory, a defendant was required to argue at trial that the evidence
should be admitted or excluded under that particular theory. See, e.g., Cross v.
State, 309 Ga. 705, 709 (2) (848 SE2d 455) (2020); Brown v. State, 295 Ga. 804,
814 (764 SE2d 376) (2014). Compare OCGA § 24-1-103 (d) (providing for plain
error review of unpreserved evidentiary objections under the current Evidence
Code).
11
to arrest when the state could not reasonably have been aware that

it was necessary to establish probable cause, and when the state

might well have decided to make a more complete evidential

presentation if it had been aware that a Fourth Amendment issue

was being raised.”); Williams v. State, 270 Ga. App. 480, 481-482

(606 SE2d 671) (2004) (A defendant who does not timely assert a

Fourth Amendment objection to the admissibility of his statements

to police waives this issue for purposes of appeal.).

3. Smith contends the trial court erred in denying his written

request for a jury instruction on involuntary manslaughter. Smith’s

requested involuntary manslaughter instruction was predicated on

Smith having allegedly committed the misdemeanor offenses of

discharging a firearm while under the influence of drugs or alcohol,

OCGA § 16-11-134,7 and discharging a firearm on the property of

7 OCGA § 16-11-134 provides, in pertinent part:
(a) It shall be unlawful for any person to discharge a firearm
while:
(1) Under the influence of alcohol or any drug or any
combination of alcohol and any drug to the extent that it is unsafe
for the person to discharge such firearm except in the defense of

12
another, OCGA § 16-11-104. 8 The trial court denied the request,

noting that the defense failed to present slight evidence warranting

a charge on involuntary manslaughter. Defense counsel did not

object to the trial court’s ruling or express any exceptions to the final

charge. Consequently, as Smith concedes, this claim of instructional

error may be reviewed for plain error only. 9 See OCGA § 17-8-58 (b);

Blackwell v. State, 302 Ga. 820, 822 (2) (809 SE2d 727) (2018).

Review for plain error means that we will reverse the trial court

life, health, and property;
(2) The person’s alcohol concentration is 0.08 grams or more
at any time while discharging such firearm or within three hours
after such discharge of such firearm from alcohol consumed before
such discharge ended; or
(3) Subject to the provisions of subsection (b) of this Code
section, there is any amount of marijuana or a controlled
substance, as defined in Code Section 16-13-21, present in the
person’s blood or urine, or both, including the metabolites and
derivatives of each or both without regard to whether or not any
alcohol is present in the person’s breath or blood.
8 OCGA § 16-11-104 provides, in pertinent part:

(a) It shall be unlawful for any person to fire or discharge a
firearm on the property of another person, firm, or corporation
without having first obtained permission from the owner or lessee
of the property.
9 Although this case was tried in 2010 under the former Evidence Code,

plain error review of claims of instructional error began in 2007 with the
enactment of OCGA § 17-8-58. See Ga. L. 2007, p. 597, § 5 (“This Act . . . shall
apply to all trials which occur on or after July 1, 2007.”).
13
“only if there was an instructional error that was not affirmatively

waived, was obvious beyond reasonable dispute, likely affected the

outcome of the proceedings, and seriously affected the fairness,

integrity, or public reputation of judicial proceedings.” (Citation and

punctuation omitted.) Blackwell, 302 Ga. at 823 (2). Smith has “the

burden of showing a clear or obvious error and further making an

affirmative showing that the error probably did affect the outcome

below.” Id. See also Palencia v. State, 313 Ga. 625, 627 (872 SE2d

681) (2022).

“Involuntary manslaughter” is defined in OCGA § 16-5-3
(a) as “caus[ing] the death of another human being
without any intention to do so by the commission of an
unlawful act other than a felony.” (Emphasis supplied.)
“[A] charge on involuntary manslaughter should be given,
upon a proper request, when there is slight evidence to
support it.” Cash v. State, 297 Ga. 859, 863-864 (778 SE2d
785) (2015) (citation and punctuation omitted).
Conversely, where evidence presented at trial shows “the
commission of [a] completed offense . . . or the commission
of no offense, the trial court is not required to charge the
jury on a lesser included offense.” Id. at 864 (citation and
punctuation omitted).

Moon v. State, 311 Ga. 421, 424 (2) (858 SE2d 18) (2021).

The trial court did not err in denying the requested instruction

14
under these circumstances. Pretermitting whether slight evidence

existed supporting Smith’s argument that he was committing either

of the alleged predicate misdemeanor offenses, the evidence shows

that Smith was a convicted felon when he shot Adams. 10 Therefore,

the evidence shows he was committing a felony by simply holding

the rifle in his hand. See OCGA § 16-11-131 (b) (felon in possession

of a gun is a felony offense). “And that felony precluded any

instruction on involuntary manslaughter as a matter of law.” Moon,

311 Ga. at 424 (2). See also Finley v. State, 286 Ga. 47, 49-50 (685

SE2d 258) (2009) (holding that the trial court did not err when it

denied the defendant’s requested involuntary manslaughter jury

instruction because the evidence at trial “did not reflect that the

killing resulted from an act other than a felony, given [the

defendant’s] status as a convicted felon and his admission that he

possessed a gun, however briefly”). Given that the evidence shows

10In addition to Smith’s statements concerning his prior drug conviction,
the record shows that the State submitted a certified copy of Smith’s 2007
felony conviction for possession of methamphetamine in the second portion of
the bifurcated trial.
15
that Smith was a convicted felon in possession of a rifle when he

admittedly shot Adams, the trial court did not err, let alone plainly

err, by refusing to instruct the jury on involuntary manslaughter.

See Moon, 311 Ga. at 424 (2).

4. Smith contends the trial court erred in instructing the jury

on transferred intent. The trial court gave the following jury charge:

“If one intentionally commits an unlawful act, yet the act harmed a

victim other than the one intended, it is not a defense that the

defendant did not intend to harm the actual person injured.” Again,

Smith concedes that, because he did not object to the trial court’s

ruling, this claim of error may be reviewed for plain error only. See

OCGA § 17-8-58 (b); Blackwell, 302 Ga. at 822 (2).

Under the doctrine of transferred intent, when an
unintended victim is struck down as a result of an
unlawful act actually directed against someone else, the
law prevents the actor from taking advantage of his own
wrong and transfers the original intent from the one
against whom it was directed to the one who actually
suffered from it.

(Citation omitted.) Boatright v. State, 289 Ga. 597, 601 (713 SE2d

829) (2011). Smith argues that the trial court committed plain error

16
in charging the jury on transferred intent because the State failed

to present any evidence that Smith intended to shoot anyone. We

disagree.

The State presented evidence that Smith bought drugs from a

person named Mickey who sometimes stayed at Adams’s home.

Smith admitted that he owed Mickey money for drugs but was not

planning to pay him because the drugs were of poor quality. Smith

also feared that Mickey was going to report him to the police, which

was why Smith claimed he was trying to sell Adams the rifle. This

evidence supports the State’s theory that Smith had a motive to

shoot Mickey and likely intended to, particularly when the evidence

showed that Adams was shot almost immediately upon opening his

front door – evidence from which the jury could infer that Smith may

not have had time to identify who opened the door. Because there

was at least slight evidence to support giving the charge, there is no

error and, therefore, no plain error. See Baptiste, 288 Ga. at 658 (4)

(“A trial court is authorized to give a requested jury instruction if

there was produced at trial slight evidence supporting the theory of

17
the jury charge.”) (citation omitted).

5. Smith contends his trial counsel was constitutionally

ineffective. To prevail on his claim of ineffective assistance of trial

counsel, Smith must prove both that counsel’s performance was

professionally deficient and that he was prejudiced by the deficient

performance. See Strickland v. Washington, 466 U. S. 668, 687 (III)

(104 SCt 2052, 80 LE2d 674) (1984); Terry v. State, 284 Ga. 119, 120

(2) (663 SE2d 704) (2008). To prove deficient performance, Smith

must show that his counsel performed in an “objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344

(3) (745 SE2d 637) (2013). “[R]easonable trial strategy and tactics do

not amount to ineffective assistance of counsel.” Johnson v. State,

286 Ga. 787, 791 (2) (692 SE2d 575) (2010). To prove prejudice,

Smith “must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466

18
U. S. at 694 (III) (B). “This burden is a heavy one.” Young v. State,

305 Ga. 92, 97 (5) (823 SE2d 774) (2019). And if Smith fails to show

either deficiency or prejudice, this Court need not examine the other

prong of the Strickland test. See Palmer v. State, 303 Ga. 810, 816

(IV) (814 SE2d 718) (2018).

Smith contends that trial counsel’s performance was deficient

in the following four respects.

(a) Smith contends that his trial counsel should have objected

when the investigator who interviewed Smith gave the following

trial testimony: “If he’s going to admit he’s there, he pulls the

trigger, that’s fine with me. Do I believe it’s an accident? No, I do

not.” Smith contends the officer’s statement invaded the province of

the jury, which was to decide an ultimate issue in the case, that is,

whether the shooting was accidental.

Under our former Evidence Code, it was settled that “a witness

ordinarily may not express his opinion as to an ultimate fact,

because to do so would invade the province of the jury.” (Citation

and punctuation omitted.) Pyatt v. State, 298 Ga. 742, 755 (6) (b)

19
(784 SE2d 759) (2016). For purposes of this appeal, we assume,

without deciding, that the testimony at issue was objectionable on

“ultimate issue” grounds. We also assume, again, without deciding,

that the failure to raise such an objection was unreasonable. Even

so, Smith still must show that the failure to object was prejudicial.

See id. We conclude that Smith has failed to make that showing.

Although it may have been improper for the investigator to

share her subjective belief that the shooting was not accidental, any

rational juror would have surmised that she believed as much. As

we have explained before, “[s]uch comments upon the patently

obvious generally pose little, if any, danger of prejudice.” Butler v.

State, 292 Ga. 400, 407 (3) (a) (738 SE2d 74) (2013). Also, the

investigator’s comment was brief and made in the context of

explaining her investigatory technique of pretending to believe

Smith’s account of events in order to encourage him to keep talking.

The record shows that the investigator did not elaborate on why she

thought the shooting was not accidental, and the prosecutor moved

20
on to another line of questioning. 11 The record does not reflect that

the prosecutor made any improper use of the investigator’s

testimony. In this brief exchange, there was little, if any, danger of

prejudice. See Pyatt, at 757. Further, if Smith’s lawyer had objected,

the trial court might well have sustained the objection and

responded with curative instructions, charging the jury that

determining guilt, assessing the credibility of the evidence, resolving

11 The record shows that the prosecutor did not ask the investigator to
give her opinion about whether the shooting was accidental. Rather, the
prosecutor asked the investigator to explain why she told Smith that she
believed his account of the shooting.
PROSECUTOR: Several times during the interview, both
you, yourself, and [another investigator] talk about basically [“]I
believe you, I understand,[”] things such as that. I know that might
be a little confusing to the jury. Can you tell them, is that
something you commonly do in interviews? Does that necessarily
mean you do believe what the person is telling you?
INVESTIGATOR: No, sir. It doesn’t mean that I believe him.
He came to us and wanted to talk to us, so we’re not going to tell
him okay. If he’s going to tell me that’s it’s an accident and he’s
going to say [“]I was at the scene.[”] He places himself at the scene,
he admits he’s crouched down by the banister, which is consistent
with the witnesses. He admits that he pulled the trigger. His story
is consistent. I’m not going to stop him. He’s talking. [“]Okay. Yes,
sir. We understand you.[”] He’s telling us all that. It’s kind of like
baby steps. If he’s going to admit he’s there, he pulls the trigger,
that’s fine with me. But do I believe it’s an accident, no, I do not.
PROSECUTOR: But, at this point, what you’re trying to do
is gather as much evidence as possible.

21
conflicts in the evidence, and weighing the evidence are tasks solely

for the jury. The record shows that the trial court gave those sorts of

instructions at the close of the case, essentially addressing any claim

of prejudice that would have been raised in an objection but without

drawing undue attention to the investigator’s statement.

Given the facts of this case, we conclude that Smith has failed

to show a reasonable probability that, if only his lawyer had objected

to the investigator’s statement on direct examination that she did

not believe the shooting was accidental, the outcome of the case

would have been different. Consequently, Smith has failed to show

that he was prejudiced by the allegedly deficient performance of his

lawyer.

(b) Smith contends that his trial counsel should have objected

to or requested redactions of statements the investigator made to

Smith during the custodial interview concerning the “ultimate

issue” of whether the shooting was accidental. During her interview,

the investigator told Smith: “What I’m saying is the gun didn’t just

accidentally go off. You understand what I’m saying.” Trial counsel

22
was not deficient for failing to have this statement redacted from the

recorded interview. The statement was not an opinion on an

ultimate issue; it was a comment designed to prompt Smith into

defending his account of how the shooting occurred.

As we have explained before, law enforcement
interrogations are, by their very nature, attempts to
determine the ultimate issue and the credibility of
witnesses. Comments made in such an interview and
designed to elicit a response from a suspect do not amount
to opinion testimony, even when testimony reflecting the
comments is admitted at trial.

(Citations and omitted.) Butler v. State, 292 Ga. 400, 405 (738 SE2d

74) (2013). As such, an ultimate-issue objection to statements the

investigator made during the custodial interview would have been

meritless, and the failure to make a meritless objection is not

deficient performance. See Stafford v. State, 312 Ga. 811, 819-820

(865 SE2d 116) (2021).

(c) Smith contends that trial counsel was deficient for failing

to object to the jury instruction on transferred intent, arguing that

the State presented no evidence that Smith intended to shoot

anyone. As explained in Division 4, the trial court did not err in

23
giving the charge because it was adjusted to the evidence supporting

the State’s theory that Smith intended to shoot Mickey. Because

there was at least slight evidence to support the State’s theory of

transferred intent, an objection raised on these grounds would have

been without merit, and the failure to make a meritless objection is

not deficient performance. See Stafford, 312 Ga. at 819-820.

(d) Smith contends that trial counsel was deficient for failing

to object to or to request redactions of Smith’s statements concerning

“prior difficulties” between himself and Mickey. In his custodial

interview, Smith told investigators that he was concerned that

Mickey was going to “call the cops” on him and get him in trouble.

Consequently, Smith felt the need to remove drug and firearm

contraband from his house, which is why he went to see whether

Adams would buy the rifle. Smith contends that the trial court

would have excluded this evidence had counsel objected because the

State failed to provide the required notice of its intent to use

evidence of “prior difficulties” and the trial court had not held a

hearing to determine the evidence’s admissibility.

24
 In 2010, before a trial court could admit any evidence of a prior

difficulty into evidence, the State was required to give timely notice

to the defendant or have the untimeliness excused by the court. See

Ragan v. State, 264 Ga. 190, 192 (442 SE2d 750) (1994). In addition,

before such evidence could be admitted, the trial court was required

to make certain on-the-record findings required by this Court. See

Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) (1991).

However, an exception existed where evidence of other criminal

transactions was a part of the “res gestae.” See, e.g. Fulton v. State,

278 Ga. 58, 60, (597 SE2d 396) (2004) (“The trial court admitted the

testimony as res gestae evidence, which is not subject to the notice

and hearing requirements of USCR 31.1. USCR 31.3 (E).”).12

The statements Smith made during his custodial interview

12 Our current Evidence Code limits the admission of evidence of other
criminal acts, see OCGA § 24-4-404 (b), but those limitations do not apply to
“intrinsic evidence.” Smith v. State, 302 Ga. 717, 725 (4) (808 SE2d 661) (2017)
(citation and punctuation omitted). “Intrinsic evidence” is defined as evidence
that (1) pertains to an uncharged offense arising from the same transaction or
series of transactions as the charged offense; (2) is necessary to complete the
story of the crime; or (3) is inextricably intertwined with the evidence
regarding the charged offense. See Harris v. State, 310 Ga. 372, 377 (2) (b) (850
SE2d 77) (2020).
25
concerning his difficulties with Mickey constituted relevant, res

gestae evidence. Under the former rules of evidence that apply here,

the State is entitled to present evidence of the entire res
gestae of the crime. Even though a defendant is not
charged with every crime committed during or near the
time of a criminal transaction, every aspect of it relevant
to the crime charged may be presented at trial. This is
true even if the defendant’s character is incidentally
placed in issue. A statement of an eyewitness as to what
occurred shortly before or shortly after the commission of
the murder, even if it shows the commission of an
additional uncharged crime, generally was admissible
under those rules as relevant res gestae evidence.

(Citations and punctuation omitted.) Johnson v. State, 292 Ga. 785,

789 (4) (741 SE2d 627) (2013).

In this case, the State argued that Smith shot Adams in the

mistaken belief that Adams was Mickey. In his custodial

statements, Smith admitted that he owed Mickey money, that he

believed Mickey intended to report him to the police, and that he

was removing contraband from his home to avoid getting in trouble.

This evidence was relevant to show Smith’s motive for shooting

Adams (whom he believed was Mickey), as well as the chain of

events leading up to the shooting. Those events occurred near in

26
time and were related to the charged crimes. As such, the evidence

was admissible as part of the res gestae. See Johnson, 292 Ga. at

789 (4) (defendant’s alleged involvement in a marijuana transaction

was admissible res gestae evidence explaining his presence at the

scene of the crime and to show his motive and state of mind).

Therefore, trial counsel’s “prior difficulties” objection would have

been meritless. Deficient performance cannot be based on an

objection that would have been meritless. See Stafford, 312 Ga. at

819-820.

Because Smith has failed to carry his burden of demonstrating

that he was denied the effective assistance of counsel, he is not

entitled to a new trial on that ground.

Judgment affirmed. All the Justices concur.

27