297 Ga. 89
FINAL COPY


                    S15A0341. LAMAR v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Kevin Deshawn Lamar was found guilty of murder,

felony murder, aggravated assault, possession of a firearm during the

commission of a felony, and possession of a firearm by a convicted felon with

regard to the murder of Rickey McCrae. Lamar was also found guilty of the

aggravated assault of Marc Williams.1 Lamar appeals, contending among other

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        On July 7, 2009, with regard to the death of McCrae, Lamar was indicted
for malice murder, two counts of felony murder, aggravated assault, possession
of a firearm during the commission of a felony, and possession of a firearm by
a convicted felon. With regard to the confrontation with Williams, Lamar was
indicted for aggravated assault and possession of a firearm by a convicted felon.
After a jury trial on November 16-20, 2009, Lamar was found guilty of all
charges. For the murder of McCrae, Lamar was sentenced to life imprisonment
and five consecutive years for the possession of a firearm during the
commission of a felony. The felony murder charges were vacated by operation
of law. Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). Lamar was
also sentenced to twenty additional consecutive years for the aggravated assault
of Williams and five consecutive years for the possession of a firearm by a
convicted felon. The remaining charges merged for purposes of sentencing.
Lamar filed a motion for new trial on November 23, 2009, and, after retaining
new counsel, filed an amended motion on November 21, 2013. The motion was
denied on March 21, 2014. Lamar filed a timely notice of appeal, and his case
was docketed to the January 2015 term of this Court for decision on the briefs.
things, that the evidence was insufficient to support the verdict and that he

received ineffective assistance of counsel. For the reasons set forth below, we

affirm.

      1. Viewed in the light most favorable to the verdict, the record shows that,

on the evening of March 17, 2009, a man wearing a cap, athletic jacket, and

backpack approached McCrae while he was attending a barbeque cookout. The

approaching man pulled out a handgun, fatally shot McCrae, and fled the scene.

Approximately a week after the shooting, Brandon Snow informed police that

he was at a small apartment complex a short walking distance from the scene of

the crime on the night of McCrae’s murder. Snow recounted that Lamar,

wearing a backpack, ran up to him and exclaimed that he had just done “some

real hot sh-t” and needed a ride out of the area. Testimony at Lamar’s trial

indicated that “doing some real hot sh-t” is a euphemism for shooting someone.

In addition, Antwan Davis informed police that he had been with Lamar

immediately before the shooting, and Lamar told him that he “had to go do

something and he didn't know how it was going to turn out.”

      A few days after the shooting, Lamar and Williams got into an altercation

when Williams went to pick up one of his children at Lamar’s apartment, where

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Lamar lived with Davis and others. In the middle of the argument, which

occurred on Lamar’s doorstep, Lamar went inside for a moment and returned

with a handgun. Williams testified that he felt threatened by the handgun, and

Davis stated that Lamar waved the gun around. Williams left the apartment

momentarily, but returned with police. Lamar opened the door with the gun in

his hand, but, before he was detained and arrested by the police, he apparently

threw the handgun into a trash can. Davis informed police that Lamar routinely

carried this handgun. Davis also told police that Lamar normally wears a

backpack wherever he goes. The gun that Lamar was holding during his

confrontation with Williams was subjected to ballistic testing and determined

to be the weapon that was used to kill McCrae.

      This evidence was sufficient to enable the jury to find Lamar guilty of the

crimes for which he was charged beyond a reasonable doubt. Jackson v.

Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Nonetheless,

Lamar maintains that Broderick Stallings actually killed McCrae. Lamar argues

that Stallings had the motive to commit the crime because McCrae had been in

an altercation with Stallings’s father on the day of the murder. At trial, however,

Stallings was thoroughly examined by Lamar, and, though Lamar argued that

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Stallings was guilty, the jury believed Stallings’s alibi testimony rather than

Lamar’s accusations. As the arbiter of witness credibility, the jury was entitled

to make this determination. See Hall v. State, 264 Ga. 85 (1) (441 SE2d 245)

(1994).

      2. Lamar contends that the trial court erred by admitting evidence of two

similar transactions. We disagree.

      Under the law applicable at the time of Lamar’s trial,2 evidence of a

similar transaction may be admitted if the State shows that

      (1) it seeks to introduce the evidence not to raise an improper
      inference as to the accused's character, but for some appropriate
      purpose which has been deemed to be an exception to the general
      rule of inadmissibility; (2) there is sufficient evidence to establish
      that the accused committed the independent offense or act; and (3)
      there is a sufficient connection or similarity between the
      independent offense or act and the crime charged so that proof of
      the former tends to prove the latter.

(Citation and punctuation omitted.) Matthews v. State, 294 Ga. 50, 52 (3) (751

SE2d 78) (2013). On review, the factual findings of the trial court are accepted

unless clearly erroneous, and the decision to admit the similar transaction


      2
       Because Lamar was tried before January 1, 2013, Georgia's old Evidence
Code applies in his appeal. Under the new Evidence Code, admissibility of this
category of evidence is governed by OCGA § 24-4-404 (b).
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evidence will be affirmed unless there has been an abuse of discretion. Reed v.

State, 291 Ga. 10 (3) (727 SE2d 112) (2012).

      The two similar transactions in question may be summarized in the

following manner. First, on March 13, 1998, Timothy Cauley witnessed Lamar

shoot Richard Marsh in the back at an elementary school near Vine City in

Fulton County. A bullet also went through a minivan and hit the arm of a mother

dropping off her children. Lamar pled guilty to two aggravated assault charges.

With regard to the second similar transaction, on January 16, 2009, Anthony

Hudson heard someone outside his apartment shooting a weapon. He

subsequently called 911 and gave the operator a description of the individual he

observed. Officers responded to the scene and found a man who matched the

description given. The man told officers that his name was Antwan Davis.

Officers later discovered the man was actually Lamar, who was ultimately

arrested for providing a false name.

      These two transactions were offered for the proper purposes of showing

“course of conduct, intent, and lack of mistake,” and the trial court did not abuse

its discretion by admitting them, despite Lamar’s arguments that they were not

sufficiently similar to the crimes for which he was on trial. “The proper focus

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is on the similarities, not the differences, between the crimes charged and the

prior acts.” (Citation omitted.) Brown v. State, 295 Ga. 804, 816 (8) (764 SE2d

376) (2014). With regard to the 1998 school shooting, Lamar opened fire with

a handgun in a public setting. With regard to the 2009 arrest, Lamar was arrested

for giving a false name and, once again, investigated for opening fire with a

handgun in a public setting. It cannot be said that the trial court abused its

discretion by admitting both of these prior offenses as similar transactions.

Matthews, supra.

      3. Lamar contends that his trial counsel rendered ineffective assistance by

failing to object to four comments made by the prosecutor throughout trial.

Again, we disagree.

             In order to succeed on his claim of ineffective assistance,
      [Lamar] must prove both that his trial counsel's performance was
      deficient and that there is a reasonable probability that the trial
      result would have been different if not for the deficient
      performance. Strickland v. Washington, 466 U. S. 668 (104 SCt
      2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her
      burden of proving either prong of the Strickland test, the reviewing
      court does not have to examine the other prong. Id. at 697 (IV);
      Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In
      reviewing the trial court's decision, “‘[w]e accept the trial court's
      factual findings and credibility determinations unless clearly
      erroneous, but we independently apply the legal principles to the
      facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313)

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         (2003).

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

         First, Lamar maintains that trial counsel should have objected when the

prosecutor asked Stallings on redirect examination whether he wanted to go to

jail for a murder he did not commit and how it felt to be falsely accused of a

murder he did not commit. Specifically, Lamar contends that the prosecution

purposefully bolstered Stallings’s credibility by asking these questions. Even

if we were to assume that the prosecutor’s questions were objectionable on this

basis,

         the vouching in this case was only implied and occurred in only
         [two] question[s] [following an intense cross-examination in which
         Lamar’s counsel asked Stallings about his desire to avoid a return
         to prison]. The jury was properly instructed that the credibility of
         the witnesses was for them to determine considering all the facts
         and circumstances of the case, and that the evidence in the case does
         not include the opening statements or closing arguments by the
         attorneys or the questions asked by the attorneys. Given the
         substantial evidence of [Lamar's] guilt, [including the fact that he
         stated that he had done “some real hot sh-t” while leaving the scene
         of the crime and that he was later found with the murder weapon,]
         we agree with the trial court's conclusion that failure to object to the
         complained-of question[s] in this case did not undermine the
         fundamental fairness of the trial [and that Lamar’s trial counsel was
         not ineffective].

Bell v. State, 294 Ga. 443, 446 (2) (754 SE2d 327) (2014).

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      Second, Lamar argues that trial counsel should have objected when the

prosecutor asked a detective about his conclusion regarding Stallings during the

course of the detective’s investigation. The officer responded that, at a certain

point in his investigation, he “was confident that Mr. Stallings was not involved

in this homicide.” Lamar maintains that the investigating officer was thereby

allowed to testify regarding the ultimate issue at trial. “Ordinarily, a witness may

not express his opinion as to an ultimate fact, because to do so would invade the

province of the jury.” (Citation omitted.) Fordham v. State, 254 Ga. 59 (4) (325

SE2d 755) (1985). In this instance, the investigating officer testified only

regarding the course of his investigation concerning Stallings. He did not testify

regarding the ultimate issue in question, namely whether Lamar shot and killed

McCrae.

      Third, Lamar contends that trial counsel should have objected during

closing arguments when the prosecutor stated that, if Stallings had murdered

McCrae, the prosecution would not have been able to get Stallings to testify.

The permissible range of closing argument, however, is very wide. Conner v.

State, 251 Ga. 113 (6) (303 SE2d 266) (1983). “[A] prosecutor is granted wide

latitude in the conduct of closing argument, the bounds of which are in the trial

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court's discretion; within the scope of such latitude is the prosecutor's ability to

argue reasonable inferences from the evidence, including any that address the

credibility of witnesses.” (Citation omitted.) Scott v. State, 290 Ga. 883, 885 (2)

(725 SE2d 305) (2012). See also Varner v. State, 285 Ga. 300, 301 (2) (c) (676

SE2d 189) (2009) (noting that counsel have “ ‘wide leeway . . . to argue all

reasonable inferences that may be drawn from the evidence during closing

argument’ ” (citations omitted)). Because the prosecutor’s argument was proper,

trial counsel’s decision not to object in this instance was not ineffective

assistance.

      Fourth and finally, with regard to the aggravated assault of Williams,

Lamar argues that trial counsel should have objected during closing arguments,

contending, without citation, that the prosecutor misstated the law when she

stated that “having a fistfight with somebody is not a forcible felony where you

get to pull out a handgun.” A review of the transcript, however, shows that

Lamar has taken this statement out of context, as the prosecutor went on to point

out that, under the facts of this case, there was not even a fistfight prior to the

time that Lamar retrieved a gun. Therefore, even if we assumed that the

prosecutor’s statement, at least in isolation, was improper, Lamar has wholly

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failed to show any prejudice from the comment. This is even more so given the

fact that the trial court instructed the jury on self-defense, the definition of

forcible felonies, and the fact that the arguments of the prosecutor could not be

considered as evidence.

      Accordingly, the trial court did not err in rejecting Lamar’s claims that he

received ineffective assistance of counsel.

      Judgment affirmed. All the Justices concur.



                            Decided May 11, 2015.

      Murder. Fulton Superior Court. Before Judge Schwall.

      S. Cindy Wang, for appellant.

      Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Arthur C.

Walton, Assistant District Attorneys; Samuel S. Olens, Attorney General,

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

Assistant Attorney General, Clint C. Malcolm, Assistant Attorney General, for

appellee.




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