William Jamar Belton appeals his convictions for malice murder, theft by taking of a motor vehicle, and burglary. 1 The State adduced evidence at trial to establish the following matters of fact. The 84-year-old victim was found dead in her home by a family member. Her house had been forcibly entered through a window, she had been violently strangled, the house had been ransacked, and the victim’s car was missing. Shoe prints from the scene were matched to shoes recovered from Belton’s Pennsylvania residence after his arrest there for burglary. His fingerprints were on items in the victim’s car, which was recovered in Pennsylvania after a chase by a police officer. A flashlight found in the car was identified as having been stolen from the victim’s home. Statements made by Belton to acquaintances and to Pennsylvania authorities after his arrest there set forth a variety *672 of conflicting versions of how Belton came to be in possession of the victim’s car, but in all versions, he came into possession of the car in close proximity to the victim’s home on the night of the victim’s death.
1. “A conviction based on circumstantial evidence is authorized when every reasonable inference and hypothesis except that of guilt is excluded by the evidence. [Cit.]”
Mullins v. State,
2. Although the trial court had previously granted a motion in limine prohibiting any reference to gangs, the prosecuting attorney asked the first panel of prospective jurors, in the presence of the two other panels available for the trial, whether any of them were members of or related to members of such gangs as the Crips, the Folks, or the Bloods. No jurors responded and the question was not repeated to the other panels. Belton subsequently moved for a mistrial, contending that the question violated the trial court’s order and put his character in issue. The trial court denied the motion, noting that the jurors had not reacted and that the question had been asked only once. Implicit in the trial court’s ruling is an observation that the question had no impact on the jury. “Whether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal ‘unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.’ [Cit.]”
Cowards v. State,
3. In conjunction with a ground of his motion for new trial alleging ineffective assistance of counsel, Belton sought funds to hire an expert to examine biological material recovered from the crime scene. The purported ineffectiveness was trial counsel’s failure to have the material tested before trial. Belton argued to the trial court that before he could show the deficient performance prong of
Strickland v. Washington,
The problem with Belton’s argument is that it depends entirely on hindsight. “To show deficient performance, [a defendant] must demonstrate that . . . counsel’s performance was not reasonable under the circumstances confronting . . . counsel at the time, without resorting to hindsight. [Cit.]”
Turpin v. Mobley,
The question of whether to provide funds for a defendant to obtain expert testimony is a matter of the trial court’s discretion.
Castell v. State,
4. The State presented two witnesses as experts in the identification of shoe prints. Belton objected at trial to the admission of such evidence on the ground that there had been no showing pursuant to
Harper v. State,
The fatal flaw in Belton’s argument on this position is that although the witnesses were presented as experts, it was apparent that their testimony did not deal with scientific principles but with observation and comparison of physical objects, with matters not of science but of skill and experience. See OCGA § 24-9-67. This issue is comparable to that addressed by the Court of Appeals in
Hawkins v. State,
are physical dexterity exercises that common sense, common experience, and the “laws of nature” show are performed less well after drinking alcohol. The screening of these gross motor skills is hardly the type of “scientific principle or technique” to which Harper referred, and this Court will not hold these physical manifestations of impairment, which could be as obvious to the layperson as to the expert, to such a standard of admissibility.
Hawkins, supra at 36. Likewise, the comparison of shoe prints to the external physical characteristics of particular shoes is not a matter of scientific principle or technique. Since Harper and its standards are not applicable to the testimony involved in this case, the trial court did not err in failing to apply it.
5. The State sought to introduce evidence of four independent offenses, all burglaries. Belton enumerates as error the trial court’s decision to permit the introduction of evidence of three of those offenses. In a written order in the record, the trial court set forth its reasons for admitting the evidence, addressing each of the three elements required by
Williams v. State,
6. Contrary to Belton’s argument on appeal, the trial court did not err in refusing to charge the jury on theft by receiving. A defendant is not entitled to an instruction on an offense for which he is not being tried, and which is not a lesser included offense of the one he is defending.
Evans v. State,
Judgment affirmed.
Notes
The crimes were committed on August 31,1995, and Belton was indicted on December 8, 1995, for malice murder, two counts of felony murder, theft by taking, and burglary. He was convicted of all charges at a jury trial conducted March 10-18, 1997, and was sentenced to life imprisonment for malice murder, and to consecutive sentences of 20 years for theft by taking and burglary. The felony murder convictions stood vacated by operation of law. Belton’s motion for new trial, filed April 10, 1997, and subsequently amended, was denied on May 19, 1998. Pursuant to Belton’s notice of appeal filed May 27, 1998, this appeal was docketed in this Corut on June 18, 1998, and was submitted for decision on the briefs.
Though the testimony is not relevant to the issue before the trial court, we note that defense counsel’s recollection of the medical examiner’s testimony was faulty: the medical examiner merely admitted on cross-examination that it was possible that some of the blood or vomit at the scene could have come from someone other than the victim, but testified further that the placement of the blood was consistent with the victim’s injuries.