Relying on these code provisions, we have held that as a general matter a lay witness may offer opinion testimony based on experience even if the testimony touches upon an ultimate issue to be decided by the jury. See Grier v. State, 305 Ga. 882, 884-86 (2) (a), 828 S.E.2d 304 (2019) (witnesses’ opinion that defendant "must have been the one to kill the victims" was not inadmissible for "invad[ing] the jury’s province and comment[ing] upon the ultimate issue" but was admissible under OCGA §§ 24-7-701 (a) and 704 (a)); see also Mack v. State, 306 Ga. 607, 609-10 (2), 832 S.E.2d 415 (2019) (no error in admitting comments by detective that touched on the ultimate issue of accident in a fatal shooting where the comments were offered as lay opinion and to counter the defense’s theory); Taylor v. State, 365 Ga. App. 30, 32-33, 877 S.E.2d 286 (2022)
Moreover, Neal's opinion that Snipes must have been the one to cause Ty'Qwan’s injuries was based on her perceptions and personal knowledge, including that she had seen Snipes inflict multiple forms of physical punishment previously and that Neal had been out of the house while Snipes had been with Ty'Qwan most of the day before his death. See Grier v. State , 305 Ga. 882, 885-86 (2) (a), 828 S.E.2d 304 (2019) (witness's opinion testimony admissible where it is rationally based on his perception and helpful to understanding his testimony); OCGA § 24-7-704 (a) ("Except as provided in subsection (b) of this Code section, testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact."). Thus, any objection would have been meritless, and "[t]rial counsel cannot be deficient for failing to object to admissible testimony."
Under our new Code, which applied to Appellant's 2015 trial, lay opinion testimony is not objectionable simply because it addresses an ultimate issue. See OCGA § 24-7-704 (a) (explaining that, subject to an exception not relevant here, "testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact"); Grier v. State , 305 Ga. 882, 886, 828 S.E.2d 304 (2019). See also United States v. Beverley , 775 Fed. Appx. 468, 474 (11th Cir. 2019) ; United States v. Campo , 840 F.3d 1249, 1266-1267 (11th Cir. 2016).
This alleged error is not preserved for our review because Clark did not raise any objection below to the trial court's handling of the juror issue. See Grier v. State , 305 Ga. 882, 887 (3), 828 S.E.2d 304 (2019) (failure to object at trial to alleged error results in waiver of appellate review). And this is not the kind of alleged error for which plain-error review is available.
Because the trial court properly would have overruled a continuing witness objection, trial counsel was not deficient for failing to raise such an objection, and thus was not ineffective. See Grier v. State , 305 Ga. 882, 886 (2) (a), 828 S.E.2d 304 (2019) (trial counsel is not ineffective for failing to object when such objection would be without merit). In the handwritten letter, Cobb asked to talk with the State about a murder case in exchange for help getting out of jail.
But Corley did not object to these comments at trial, so this enumeration of error is not properly before our Court for review. See Grier v. State, 305 Ga. 882, 887 (3), 828 S.E.2d 304 (2019) ("The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.") (Citation and punctuation omitted.). Both in her brief and in her motion for new trial (as amended), the only "comment[ ]" that Corley mentions is a question posed to a police officer about having the "unfortunate task[ ] of ... having to tell these nice folks that their daughter died."
In the case of lay witness testimony, "an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue[.]" OCGA § 24-7-704 (a) ; see also Grier v. State , 305 Ga. 882, 886 (2) (a), 828 S.E.2d 304 (2019) ("And even though [the witnesses’] opinion about who killed the victims addressed an ultimate issue in the case, that alone does not make the testimony objectionable." (citation and punctuation omitted)); Thompson v. State , 304 Ga. 146, 153 (9), 816 S.E.2d 646 (2018) (a detective’s opinion testimony indicating she believed appellant to be the shooter "did not violate the ultimate issue rule in the new Evidence Code"); cf. OCGA § 24-7-704 (b) (prohibiting expert testimony on certain "ultimate issues" reserved "for the trier of fact alone").
Defense counsel continued with his examination, without requesting a curative instruction or moving for a mistrial.In context, the detective's testimony is most fairly seen as an attempt to explain her own conduct in interviewing T. H. at the hospital (in response to challenges by defense counsel) rather than an opinion on the ultimate issue of whether Oates had raped T. H. See generally Grier v. State , 305 Ga. 882, 885-886 (2) (a), 828 S.E.2d 304 (2019) (lay witnesses’ testimony that the defendant must have been the killer was rationally based on their perceptions and helpful to understanding their testimony). Further, because the detective was a lay witness, her remark was not barred even if it touched on the ultimate issue in the case.
Later-the phones of Jordan-Southern-and Willis all made or received calls near the armed robbery and near the murder. See Grier v. State-305 Ga-882-884 (1)-828 S.E.2d 304 (2019) (cell-phone records placing defendant near crime scene contributed to evidence authorizing guilty verdict). Still later-all the codefendants’ phones were active back in Decatur-near where several of them lived-in the same area where Hagood’s stolen phone was used and where his stolen car was recovered.
(Citation and punctuation omitted.) Grier v. State , 305 Ga. 882, 885, 828 S.E.2d 304 (2019). See also OCGA § 24-7-701 (a).