MOSBY v. THE STATE OF GEORGIA

Appellant Leslie Mosby was convicted of murder and other offenses

arising out of the shooting death of Theisen Wynn.1 Viewed in the light most

favorable to the verdict, the trial evidence showed that at the time of the

shooting, Mosby and Pat Burns had been in a romantic relationship for over a

year, but the women began having difficulties in their relationship, and Burns

moved out and befriended Wynn. At approximately 5:00 a.m. on November

13, 2012, as Wynn and Burns were driving into a parking space in the

parking lot of a suites hotel in Fulton County, Mosby drove up and partially

blocked Wynn’s car. Mosby angrily confronted Burns and Wynn about

whether they were involved in a relationship and made threats against Burns.

During this confrontation, Mosby pointed a gun toward Burns and fired it.

Burns was not struck and ran into the hotel lobby, but more shots were fired,

including return fire by Wynn. According to the evidence, Mosby fired a

total of four bullets from her gun and Wynn fired a total of eleven. Wynn

sustained four bullet wounds in the gun battle and later died during surgery.

Mosby was also shot four times, and she fled to a friend’s house from which

she was transported to a hospital by ambulance. As she was fleeing the

scene, Mosby threw away her weapon. In fact, neither gun was recovered.

Mosby underwent surgery to treat her wounds, and immediately after she

awoke from surgery she was read her rights, informed about why she was

being restrained to her hospital bed, and then questioned by an officer who

made an audio recording of the interview that was played to the jury.

At trial, Mosby testified that while she and Burns were arguing in the

parking lot, she saw Wynn “fumbling” with what she believed to be a gun

that he placed in a cloth bag, such as a whiskey bottle bag, and then put in his

coat pocket. Mosby stated she pulled her gun and started backing away to

her car, and that she fired a warning shot at Burns because she wanted her to 2

back off. Mosby then heard a shot ring out and realized Wynn was shooting

at her through his coat pocket. Mosby testified she took cover in her car and

fired back in self-defense.

1. Mosby asserted the affirmative defense of self-defense, and

points to her own testimony and certain other evidence which she claims

supports this defense, including a security surveillance videotape that

captured the events in question. When a defendant effectively raises an

affirmative defense such as self-defense the State bears the burden of

disproving the asserted defense beyond a reasonable doubt. Bennett v. State,

265 Ga. 38, 39 (1) (453 SE2d 458) (1995). With respect to the sufficiency of

the evidence, Mosby asserts the evidence was insufficient to disprove that she

acted in self-defense. For example, according to the medical examiner’s

testimony, the victim sustained a muzzle imprint wound to his left thigh, and

she explained such a wound would be caused by the muzzle of a weapon

being in contact with the body at the time the gun was fired. Mosby asserts

the videotape shows she was never close enough to the victim to cause such a

contact wound. Instead, she argues this wound supports her testimony that

the victim reached for a gun in his pocket, and she further argues this

explains that the shot she heard, which caused her to start firing back and 3

retreat to her car, was the victim accidentally shooting himself with his own

gun as he reached for it. The evidence shows, however, that the victim’s

fatal wound was sustained from a gunshot to his right groin which severed an

artery. Consequently, the State argues that a self-inflicted wound from a

muzzle imprint to the victim’s left thigh “changes nothing,” and, in light of

the other evidence, does not support Mosby’s claim of justification. Mosby,

however, asserts that regardless of the initial “warning shot” she fired toward

Burns, once the victim commenced firing his gun she shot back only in self

defense.

The record reflects that the video was played to the jury multiple times

as various witnesses testified about what the video portrayed, and was also

played at least three times during the jury’s deliberations at its request. The

parties agree that the speed of the video was slowed down for the jury to

view, and possibly that it was played frame by frame. Having reviewed the

video recording, we agree with the State that a jury reasonably could have

found that Mosby’s version of the events was not supported by the video and

other evidence. Instead, the video supports the State’s assertion, and

Mosby’s own testimony, that Mosby fired the first shot. Burns testified the

altercation started when Mosby verbally threatened Burns, and the video 4

appears to show that Mosby pushed Burns before any shooting began. Burns

also testified that Mosby fired the first shot. The security video appears to

show a gun muzzle flash from Mosby’s weapon as the first evidence of any

shot being fired. The video then shows a short gun battle between Mosby

and the victim.

When evaluating the sufficiency of the evidence, this Court does not

reweigh the evidence or resolve conflicting testimony. Instead, this Court

reviews the evidence in a light most favorable to the verdict and defers to the

jury’s assessment of the weight and credibility of the evidence. See Anthony

v. State, 298 Ga. 827, 829 (1) (785 SE2d 277) (2016). An aggressor is not

entitled to a finding of justification. See OCGA § 16-3-21 (b) (3). Further,

the question of whether the circumstances of an alleged confrontation

between a defendant and a victim were such as to excite the fears of a

reasonable person to believe it was necessary to use deadly force against the

victim is an issue for the jury. Howard v. State, 298 Ga. 396, 398 (1) (782

SE2d 255) (2016). It is obvious from the verdict that the jury disbelieved

Mosby’s testimony that she was justified in firing at Wynn, and that the jury

relied upon other evidence, including Burns’s testimony and the events

shown on the videotape, to reach its verdict, as it was entitled to do. See 5

Berrian v. State, 297 Ga. 740, 741-742 (1) (778 SE2d 165) (2015). The

evidence was sufficient to authorize a rational trier of fact to find beyond a

reasonable doubt that Mosby did not act in self-defense and was not

otherwise justified when she shot the victim. See Slaughter v. State, 278 Ga.

896 (608 SE2d 227) (2005). We also conclude the evidence was otherwise

sufficient to sustain the guilty verdict on all other counts for which Mosby

was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt

2781, 61 LE2d 560) (1979).

2. Mosby asserts she is entitled to a new trial due to ineffective

assistance of trial counsel. She argues trial counsel’s performance was

deficient, and failed to meet an objective standard of reasonable professional

judgment, because counsel failed to consult with a crime scene reconstruction

or firearms expert prior to trial or to retain such an expert as a witness to

challenge the testimony or other evidence relating to the shootout.

According to Mosby, an expert’s assistance in reviewing the ballistics

evidence would have enabled counsel to support Mosby’s defense more

effectively. Further, Mosby claims counsel’s failure to present expert

testimony to explain the events seen in the security video rendered counsel’s

presentation of Mosby’s justification defense incompetent. She claims that 6

due to the grainy quality of the video, which was lacking an audio component

for the jury to hear when the victim returned fire, it was necessary to present

expert testimony to explain the events the video portrayed.

Mosby points to the testimony of a witness presented as a firearms and

crime scene reconstruction expert at the motion for new trial hearing. That

witness acknowledged that the video shows Mosby fired the first shot, which

he referred to as a “warning shot.” He testified the video shows the victim

had a gun in his hand when he exited his car, and that Mosby continued to

fire after the warning shot only after the victim commenced approaching her

around the front of Mosby’s vehicle. According to this witness, Mosby fired

a second shot, this time toward the victim, after which the victim rapidly

moved toward Mosby, firing multiple shots into Mosby’s car as she backed

into the driver’s seat before speeding away. Mosby asserts that the autopsy

evidence regarding the trajectory of the fatal bullet wound demonstrates this

bullet was fired as Mosby was inside her car firing back at the victim, who

had pursued her to shoot at her through her car door, but that this argument

was not made at trial due to counsel’s failure to investigate her defense

adequately.

7

First, expert testimony is admissible where the expert’s conclusion is

beyond the ken of the average layman.2 See Bly v. State, 283 Ga. 453, 458 (2)

(660 SE2d 713) (2008). But “where jurors can take the same elements and

constituent factors which guide the expert to his conclusions and from them

alone make an equally intelligent judgment of their own,” then expert opinion

testimony is not admissible. (Citation and punctuation omitted.) Id. See also

Sims v. State, 234 Ga. App. 678, 680-681 (1) (a) (507 SE2d 845) (1998)

(“Expert testimony is not necessary when the jurors may make the

determination on their own.”); Coleman v. State, 257 Ga. 313, 314 (1) (357

SE2d 566) (1987) (holding that a detective’s conclusions about the victim’s

and defendant’s locations when the victim was shot and whether the victim

was holding a knife when shot should have been excluded because the jury

could form its own conclusions about these issues from the physical evidence

presented at trial). Here, the jury could draw its own conclusions about the

events shown on the video, and Mosby failed to show that the testimony of an

expert witness with respect to what the expert observed on the video would

have been admissible or that the jury would have accepted his testimony over

what it observed. In fact, in the order denying the motion for new trial, the

trial court noted that it “did not necessarily see the same things that [the expert

witness] described, most significantly [the victim’s] exiting his vehicle with a

gun in his right hand,” and therefore the court did not give this testimony

much credit. Deficient performance of counsel is not shown by trial counsel’s

failure to present a witness whose testimony would have been inadmissible.

Compare Jones v. State, 296 Ga. 561, 568 (5) (769 SE2d 307) (2015)

(“Deficient performance is not shown by trial counsel’s failure to make an

objection that lacks merit.”). Even if admissible, the jurors could have

disregarded the expert’s testimony about what he saw in the video if it

conflicted with what they saw for themselves; and here the trial court stated

that the expert’s testimony conflicted with what the court, itself, observed in

the video. Regardless of what an expert may have testified that he or she

observed on the video recording had an expert been called as a witness, it was

for the jury to decide whether Mosby was justified in firing her second shot,

this time at the victim, as he walked around the front of her car. See Howard

v. State, supra, 298 Ga. at 398 (2). Mosby has thus failed to establish

9

counsel’s performance was deficient for failure to present this evidence at

trial.

Further, the expert witness who testified at the motion for new trial

hearing directly contradicted Mosby’s testimony in two material details.

First, he testified that the victim had a gun in his right hand, down by his

side, when he exited his car. Mosby, on the other hand, testified she never

saw the victim holding a gun in his hand, but only saw him fumbling with

what she believed to be a gun in a bag that he placed in his pocket. The

expert witness also testified that the only way to account for the muzzle

imprint wound was that the victim may have fired his gun as he fell to the

ground toward the end of the shootout. Mosby, however, testified that the

victim fired his first shot (after her “warning shot”) while attempting to get

the gun out of his pocket, and offered this as the explanation for how he must

have shot himself with his own gun, since, as shown by the video, she was

never close enough to inflict such a wound. She also testified that the only

reason she commenced firing back at the victim was that she heard the

“muzzled” sound of his first shot. Mosby has failed to establish counsel’s

performance was deficient for failing to present the testimony of a witness

who would have contradicted the defendant’s own testimony. 10

Additionally, Mosby asserts trial counsel failed to present the

testimony of a witness who could have established that, based upon the

video, Mosby could not have inflicted the muzzle wound to the victim’s left

leg and therefore could have provided testimony to support Mosby’s

assertion that the victim shot himself accidentally. The trial record reflects,

however, that the medical examiner testified that the muzzle wound to the

victim’s left leg was caused by the gun muzzle making contact with the skin,

and reflects that trial counsel cross-examined the medical examiner with

respect to this factual assertion. The jury was able to determine for itself

whether Mosby was ever close enough to the victim to cause a muzzle

contact wound. Further, it is undisputed that this was not the fatal wound.

Finally, Mosby asserts that pre-trial consultation with an expert witness

would have assisted counsel in utilizing evidence of the trajectory of the fatal

bullet to support her defense and would have helped prepare counsel to cross

examine witnesses concerning the ballistic and other evidence. Even if such

pre-trial consultation would have better prepared trial counsel to establish

that Mosby fired the fatal shot while leaning into her car attempting to flee

from the victim, and even assuming counsel’s representation was deficient in

this regard, Mosby fails to demonstrate a reasonable probability that the trial 11

result would have been different if trial counsel had made such a consultation

and then made this argument to the jury. The undisputed evidence

establishes Mosby fired the first shot and was the aggressor who started the

gunfight. The State did not dispute that the victim returned fire. The jury

was properly instructed, however, that an aggressor is not entitled to a

finding of justification. Consequently, Mosby fails to demonstrate a

reasonable probability that the trial result would have been different even

assuming counsel’s performance was deficient in this regard. That Mosby

fired the fatal shot while trying to get away from the gunfight she started

does not change the analysis regarding the lack of justification of a defendant

who was shown to be the aggressor. See OCGA § 16-3-21 (b) (3).

In order to prevail on a claim of ineffective assistance of trial counsel,

the defendant must establish both deficient performance of counsel and that,

but for the deficiency, a reasonable probability exists that the outcome of the

trial would have been different. Gill v. State, 295 Ga. 705 (763 SE2d 719)

(2014). “‘Judicial scrutiny of counsel’s performance must be highly

deferential.’” State v. Mobley, 296 Ga. 876, 877 (770 SE2d 1) (2015)

(quoting Strickland v. Washington, 466 U. S. 668, 699-690 (III) (A) (104 SCt

2052, 80 LE2d 674) (1984)). With respect to performance of counsel, “[a] 12

strong presumption exists that counsel’s conduct falls within the broad range

of professional conduct.” (Citation and punctuation omitted.) Parks v. State,

300 Ga. 303, 310 (6) (794 SE2d 623) (2016). But, citing Strickland v.

Washington,3 and also relying upon this Court’s opinion in Turpin v.

Helmeci,4 Mosby argues that the presumption in favor of counsel’s trial

strategy decisions applies only to choices made after a thorough investigation

of law and facts. At the motion for new trial hearing in this case trial counsel

testified, in essence, that it did not occur to him to retain an expert in firearms

or crime scene reconstruction. Counsel testified that, instead, his trial strategy

was to emphasize the State’s burden of proof and the State’s failure to present

all the relevant evidence, such as the victim’s clothing, that would have shown

whether the victim shot his gun from inside his pocket. Nevertheless, where,

as here, an appellant fails to show counsel’s strategic decision was

unreasonable, no error is shown by the trial court’s denial of a motion for new

trial based on claims of ineffective assistance of counsel. Parks v. State,

supra, 300 Ga. at 311 (6) (d). Accordingly, Mosby failed to support her

assertion that counsel’s failure to consult with or present an expert witness at

trial to testify about the events shown in the crime scene video demonstrates

deficient performance. Further, with respect to counsel’s failure to consult an

expert with respect to evidence that the fatal wound was inflicted while

Mosby was attempting to flee the victim’s own gunfire, Mosby failed to prove

a reasonable probability exists that the trial result would have been different if

not for counsel’s deficient performance, if any.