297 Ga. 261
FINAL COPY

                     S15A0591. DAUGHTIE v. THE STATE.

       THOMPSON, Chief Justice.

       Appellant James Daughtie was convicted on all eight counts of an

indictment, which included malice murder and theft by receiving stolen

property.1 He appeals, asserting, inter alia, the evidence was insufficient to

support the verdict. Except for his conviction for theft by receiving stolen

property, we find no error and affirm.

       1. Viewed in a light favorable to the verdict, we find the following: The

victims, Ozzie Brian Jones and Dontrell Kyler, went to two different nightclubs

and a diner on the night in question. Appellant, who was driving his mother’s


       1
         The crimes occurred on August 19, 2010. Appellant was indicted on charges of
malice murder, felony murder predicated on the underlying felony of aggravated assault,
criminal attempt to commit armed robbery, aggravated assault, two counts of possession of
a firearm during the commission of a crime, theft by receiving stolen property and possession
of a firearm by a convicted felon. Trial commenced on May 3, 2011, and appellant was
found guilty on all charges on May 5. The trial court sentenced appellant to life in prison for
malice murder and consecutive terms of ten years for criminal attempt to commit armed
robbery, ten years for theft by receiving stolen property, twenty years for aggravated assault,
five years for each count of possession of a firearm during the commission of a crime, and
five years for possession of a firearm by a convicted felon. Appellant filed a motion for new
trial on May 10, 2011, which was amended on August 26, 2013, and again on October 4,
2013. The trial court denied the motion, as amended, on March 25, 2014. Appellant filed
a notice of appeal on April 15, 2014. The appeal was docketed in this Court for the January
2015 term and orally argued on March 3, 2015.
dark green Chevrolet Trail Blazer, visited one of the clubs, as well as the diner,

the same evening. Kyler and Jones left the diner in the early morning hours;

Jones was driving, Kyler was in the passenger seat.

      Jones noticed a dark-colored Trail Blazer following them. As Jones

stopped to drop off Kyler, the Trail Blazer turned in front of his vehicle. Two

men exited the Trail Blazer; one of them cocked his gun, stated “you know what

it is,” and began shooting. Jones grabbed his own gun and began shooting back

until his gun either ran out of bullets or jammed. At that point, Jones and Kyler

crouched down to “play dead,” but the shooting continued. Jones was wounded;

Kyler was killed. Once the shooting stopped, Jones continued to play dead.

Then one of the assailants opened the driver’s side door and began to search

Jones’ pocket. Jones slammed his foot on the accelerator and crashed into the

back of a building. Jones jumped out of his vehicle, ran to hide under a house,

and called police. He remained under the house until police arrived on the

scene.

      Thereafter, at approximately 4:45 a.m., appellant, who had been shot in

the leg, called police to report a robbery. At that time, appellant was at his

mother’s house; however, he told police he was robbed earlier at a gas station.

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      Police took appellant to a hospital; meanwhile, they obtained his mother’s

permission to search her house. Police found blood-stained clothes and towels,

a stolen 9mm handgun, and Timberland boots during the search. The evidence

demonstrated that the handgun fired the bullet recovered from Kyler’s body and

that the size and tread pattern of the boots could have made a shoe print

discovered at the murder scene.

      With the exception of his conviction for theft by receiving stolen property,

see Division 2, infra, the evidence was sufficient to enable a rational jury to find

appellant guilty beyond a reasonable doubt of the crimes for which he was

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

(1979). See also Blevins v. State, 291 Ga. 814, 816 (733 SE2d 744) (2012)

(conviction based solely on circumstantial evidence need not exclude every

conceivable hypothesis, only those that are reasonable).

      2. Under OCGA § 16-8-7, a person commits theft by receiving stolen

property when he disposes of, receives or retains stolen property which he

knows or should know is stolen. Thus, to convict appellant of theft by receiving

the handgun used to kill Kyler, it was incumbent upon the State to prove beyond

a reasonable doubt that appellant knew, or should have known, the gun was

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stolen when he received and retained it. Knowledge that the gun was stolen

“‘may be inferred from circumstances, when the circumstances would excite

suspicion in the minds of ordinarily prudent persons.’” Martin v. State, 300 Ga.

App. 39, 40 (684 SE2d 111) (2009) (citation omitted). See also Stacey v. State,

292 Ga. 838, 840 (741 SE2d 881) (2013). However, “[k]nowledge that a gun

was stolen cannot be inferred even when the defendant bought a gun on the

street at a reduced price, [Cits.], or when the gun was labeled for law

enforcement use. [cit.]” Stacey, supra. Nor can such knowledge be inferred

when “there is only evidence that [defendant] found a gun that had been

reported stolen.” Id.

      At trial, the State called the owner of the handgun as a witness. He

testified the gun was stolen from him in North Carolina by a friend. The only

other evidence introduced by the State concerning the stolen gun was an orally

recorded statement appellant made in response to police questioning at the

station house. Asked where he obtained the handgun, appellant told police he

found it behind a club in North Carolina, adding “the way [he] found it, looks

like somebody put it there.” Because this evidence sheds no light on appellant’s

knowledge of the provenance of the handgun, we find it insufficient to enable

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a rational jury to find appellant guilty beyond a reasonable doubt of theft by

receiving stolen property. Stacey, supra.

      The State urges us to find the evidence sufficient to convict appellant of

theft by receiving based on appellant’s statement to police that he found the gun.

In this regard, the State argues that the jury could have regarded appellant’s

statement as substantive evidence of guilt if the jury rejected it as false. See

Ferguson v. State, 307 Ga. App. 232, 235-236 (704 SE2d 470) (2010).

      In Ferguson, the defendant was convicted of several crimes, including

automobile theft. Testifying at trial, Ferguson denied he committed the theft

and, on appeal, he claimed the evidence was insufficient to prove guilt beyond

a reasonable doubt. The Court of Appeals affirmed, finding the evidence

sufficient for several reasons. First, the appellate court pointed to video

surveillance evidence from which the jury could conclude that Ferguson was the

individual that stole the vehicle. Second, the court observed that Ferguson’s

conviction was supported by similar transaction evidence. Finally, relying, inter

alia, upon Wright v. West, 505 U. S. 277, 297 (112 SCt 2482, 120 LE2d 225)

(1992) (plurality opinion), and United States v. Jiminez, 564 F3d 1280, 1285

(11th Cir. 2009), the court held that because Ferguson testified at trial, and

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      [b]ecause we must view the evidence in the light most favorable to

      the State, we must assume that the jury concluded that Ferguson

      was untruthful when he denied stealing the Camry, and we must

      allow that the jury could infer from the untruthfulness of his

      testimony that Ferguson did, in fact, steal the [automobile].



Ferguson, 307 Ga. App. at 236.

      Although Ferguson set forth a correct principle of law, it has no place here

because, unlike Ferguson, there is no other evidence of appellant’s guilt in this

case. As the Court of Appeals for the Eleventh Circuit observed in United

States v. McCarrick, 294 F3d 1286, 1293 (11th Cir. 2002):

             [W]e reject the government’s assertion that the jury’s
      purported disbelief of McCarrick’s testimony can be used as the
      sole basis to support a conviction beyond a reasonable doubt, even
      in the absence of any other probative government evidence. . . . In
      [United States v.] Brown, [53 F3d 312 (11th Cir. 1995)], we held
      that, in combination with other evidence, the jury’s disbelief of a
      defendant’s testimony may be used to help establish his guilt. We
      explained that “a statement by a defendant, if disbelieved by the
      jury may be considered as substantive evidence of the defendant’s
      guilt . . . at least where some corroborative evidence exists for the
      charged offense . . . .

(emphasis in original). See also United States v. Williams, 390 F3d 1319 (11th

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Cir. 2004) (concurring opinion).

      If the State were correct that jury disbelief of a testifying defendant could

sustain a conviction without anything more, it would render appellate review of

the sufficiency of the evidence meaningless in any case in which the defendant

exercised his right to testify. As the Court of Appeals for the District of

Columbia Circuit observed:

            [A] decision along the lines the government proposes would
      mean that in cases in which defendants testify, the evidence
      invariably would be sufficient to sustain the conviction. We would
      in each such case assume the jury correctly evaluated the evidence.
      In explaining how this could be so in light of the defects in the
      government’s proof, we would reason backwards to the only
      explanation available — the defendant’s demeanor. This sort of
      approach, beginning with the hypothesis that the jury must have
      gotten things right, contradicts the reason why appellate courts
      review convictions for sufficiency of evidence — that juries
      sometimes get things wrong. Jackson v. Virginia, supra at 317.

United States v. Zeigler, 994 F2d 845, 849 (D.C. Cir. 1993).2

      Because Ferguson can be of no help to the State in the absence of other




      2
        Because we hold that inferences drawn from the disbelief of a defendant’s testimony
cannot support a conviction in the absence of other evidence of guilt, we cannot endorse
Zeigler to the extent it holds that such an inference can never be considered when an
appellate court assesses the sufficiency of the evidence.


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evidence,3 and because the other evidence is insufficient to sustain appellant’s

conviction for theft by receiving stolen property, we reverse that conviction.

Stacey v. State, supra.

       3. Appellant contends the trial court should have granted his motion for

new trial because he introduced evidence at the motion hearing demonstrating

that Kyle Felix, a GBI firearms examiner, misled the jury when he testified that

appellant’s 9mm handgun fired the bullet recovered from Kyler. In this regard,

appellant argues the evidence adduced at the motion hearing shows Felix failed

to inform the jury that in addition to his own test-fire of the handgun, he

examined several test-fires performed by Chris Robinson, another firearms

examiner who had been discharged for misappropriation of funds.4 Continuing

the argument, appellant posits that this new evidence casts doubt on the

credibility of Felix and the reliability of the test-fires performed on the handgun.

Finally, completing the argument, appellant asserts that, in considering his


       3
         In passing, we note that unlike the defendant in Ferguson, appellant merely gave a
recorded statement to police; he did not testify at trial. In view of our holding, we need not
decide whether a jury can infer the truth is the opposite of a defendant’s story based solely
upon a defendant’s out-of-court statement, i.e., when the jury is given no opportunity to
assess a defendant’s demeanor on the witness stand.
       4
           Felix was not asked at trial whether he personally performed the test-fires.

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motion for new trial upon the general grounds, the trial court failed to weigh the

evidence as a “thirteenth juror,” see White v. State, 293 Ga. 523, 524 (753 SE2d

115) (2013) (even when evidence is legally sufficient to sustain conviction, trial

judge must assess motion for new trial as a thirteenth juror using OCGA §§ 5-5-

20 and 5-5-21); Walker v. State, 292 Ga. 262, 264 (737 SE2d 311) (2013) (trial

court does not exercise its discretion properly when it evaluates general grounds

using Jackson v. Virginia standard), and that, had it done so, it would have

granted appellant’s motion. We disagree.

      A review of the trial court’s order demonstrates it was satisfied with the

jury’s verdict and exercised its discretion appropriately as a thirteenth juror by

explicitly applying OCGA §§ 5-5-20 (trial court may grant new trial if verdict

is contrary to principles of justice and equity) and 5-5-21 (trial court may grant

new trial if verdict is decidedly and strongly against the weight of the evidence).

See also Sutton v. State, 295 Ga. 350, 352 (759 SE2d 846) (2014) (trial court

did not err in refusing to grant motion for new trial on the basis of newly

discovered evidence demonstrating that firearms examiner who testified at trial

fabricated data in another, unrelated case).

      4. Appellant claims trial counsel provided ineffective assistance in two

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respects. First, appellant asserts trial counsel should have objected to the

testimony of an expert who opined that appellant’s boots could have made the

boot print found at the scene of the crimes. Second, appellant claims trial

counsel should have investigated, interviewed and cross-examined the GBI

firearms examiner, Kyle Felix, about the circumstances underlying the ballistics

tests performed on appellant’s handgun. To prevail on these grounds, appellant

must show both that his counsel’s performance was deficient and that, but for

counsel’s unprofessional errors, there is a reasonable probability that the

outcome of the trial would have been different. Strickland v. Washington, 466

U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “[T]here is no reason for

a court deciding an ineffective assistance claim to approach the inquiry in the

same order or to address both components of the inquiry if the defendant makes

an insufficient showing on one.” Id. at 697. As to the first prong, counsel is

“strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id.

at 690.

      Appellant argues the boot expert’s testimony was irrelevant and would

have been excluded upon objection because the expert could not definitively

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match the boots to the print and was only able to say the boots could have made

the impression. We disagree. The expert’s testimony was admissible; its weight

was a matter for the jury to consider. See Hanson v. State, 263 Ga. App. 45, 47-

48 (587 SE2d 200) (2003) (decided under former OCGA § 24-9-67).5

Accordingly, counsel was not obligated to object to it. See Moore v. State, 293

Ga. 676, 679 (748 SE2d 419) (2013) (failure to raise meritless objection does

not constitute ineffective assistance). Moreover, trial counsel testified at the

motion for new trial hearing that she made a strategic decision not to object

because the fact that the boots and the print could not be matched conclusively

strengthened appellant’s case. That decision was within the exclusive province

of the attorney and did not amount to ineffective assistance. See Robinson v.

State, 278 Ga. 31, 36 (597 SE2d 386) (2004) (whether and how to raise an

objection is generally a matter of trial strategy); Fairclough v. State, 276 Ga.

602, 605 (4) (581 SE2d 3) (2003) (strategic decisions are within the exclusive

province of the attorney after consultation with the client and do not constitute

ineffective assistance). The fact that another attorney may have pursued a


      5
        The former Evidence Code is applicable here because appellant was tried prior to
January 1, 2013, the effective date of the new Evidence Code.

                                          11
different strategy does not render trial counsel ineffective. Smith v. State, 283

Ga. 237, 239 (657 SE2d 523) (2008).

      With regard to the testimony of Kyle Felix, appellant asserts that if trial

counsel had prepared for trial more thoroughly, she would have been able to

have excluded the firearms examiner’s testimony because she would have

discovered that Felix was merely a conduit for the opinion of the previous

examiner, Chris Robinson.6 See generally Cobb v. State, 283 Ga. 388, 390 (658

SE2d 750) (2008) (expert’s opinion must be his own; he cannot serve as a mere

conduit for the opinions of other experts); Byrd v. State, 261 Ga. App. 483, 484

(583 SE2d 170) (2003) (same). We reject this assertion. The evidence adduced

at the hearing upon appellant’s motion for new trial shows that Felix did not

examine Robinson’s test-fires until after he conducted his own test-fire; and that

he did not look at Robinson’s report until he completed his own analysis and

made his own determination that appellant’s handgun was the murder weapon.

Moreover, Felix testified that his report and Robinson’s differed in some

respects. Thus, Felix did not serve as a conduit for Robinson’s conclusions. On

the contrary, he testified on the basis of his own examinations and observations.

      6
          See Division 3, supra.

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It follows that, even if trial counsel can be faulted for failing to discover that

Felix examined Robinson’s test-fires, Felix’s testimony would have been

admitted in evidence, see Hanson v. State, 263 Ga. at 47-48, and the outcome

of the trial would not have been different.

       5. Lastly, appellant complains he was denied his right to be in the

courtroom when, during a bench conference, the parties discussed a redacted CD

containing the statement appellant made to police. See generally Sammons v.

State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005) (defendant has constitutional

right to be present during critical stage of proceedings). However, although

there was a brief discussion about the CD7 after appellant left the courtroom, and



       7
         That discussion took place between the prosecutor and defense counsel and, in its
entirety, reads:
        PROSECUTOR: [Counsel] did you have any objection to the redacted CD.
        COUNSEL: No. Other than my objections to the whole thing.
        PROSECUTOR: Right. But I got everything out that you wanted out.
        COUNSEL: Yeah, you got everything out this time.
To the extent appellant may be complaining about this colloquy (in addition to what was
discussed at the bench conference), we would find no error because it concerned only a
housekeeping matter and appellant’s presence would not have been useful. See Parks v.
State, 275 Ga. 320, 322-325 (565 SE2d 447) (2002) (“right to be present exists where there
is a reasonably substantial relation to the fullness of opportunity to defend against the charge
and to the extent that a fair and just hearing would be thwarted by the defendant’s absence”);
Smith v. State, 319 Ga. App. 590, 596 (737 SE2d 700) (2013) (defendant’s presence during
housekeeping or legal discussions would not have been useful to the resolution of any
matter).

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before the bench conference, nothing in the record indicates the subject matter

of the conference, which was not transcribed. Asked at the motion for new trial

hearing if she could recall what was discussed at the bench conference, trial

counsel could only speculate. Speculation as to what may have been discussed

at the conference cannot serve as the basis for the grant of a new trial. See Huff

v. State, 274 Ga. 110, 112 (549 SE2d 370) (2001).

      Judgment affirmed in part and reversed in part. All the Justices concur.



                             Decided June 1, 2015.

      Murder. Richmond Superior Court. Before Judge Overstreet.

      Jana W. Jacobson, for appellant.

      Ashley Wright, District Attorney, Madonna M. Little, Joshua B. Smith,

Titus T. Nichols, Assistant District Attorneys; Samuel S. Olens, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney

General, for appellee.




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