This case is Calvin Moore’s second appeal related to his conviction for malice murder in connection with the strangulation death of Lucious Harris, Jr. In the previous appeal, we concluded that the evidence was sufficient to support his conviction, but vacated the trial court’s judgment and remanded the case for a proper hearing on similar transaction evidence under Uniform Superior Court Rule 31.3 (B). See Moore v. State,
As detailed more fully in Moore I, Moore had been living with Harris for approximately a year at the time of his death. After receiving a 911 call in the early morning hours of June 11,2004, police found Harris’s body lying on a railroad track near an abandoned street in Tift County. The police later found Moore’s latent thumb print on a metal fence rail 150 yards from where the victim’s body was found. The medical examiner determined that Harris died from crushing chest injuries associated with manual strangulation. Over Moore’s objection, the State presented evidence at trial regarding Moore’s involvement in the 1995 death of Robert Littrell, who suffered from multiple sclerosis. Moore had lived with Littrell for approximately five years, serving as his caretaker. On November 2, 1995, Moore called 911 to report that Littrell was not breathing. The chief medical examiner testified that Littrell had suffered crushing chest injuries and a throat injury consistent with manual strangulation, and a regional medical examiner testified that Littrell’s injuries were similar to the injuries suffered by the victim in this case. Although Moore was not charged at the time, he apparently was indicted for the murder of Littrell after charges were filed against him in this case. See Moore I,
After this Court vacated the judgment and remanded the case, the trial court conducted a Rule 31.3 (B) hearing at which the State
1. Moore first contends that the trial court erred in ruling that the similar transaction evidence was admissible. Under Williams, the State must show that it seeks to introduce the evidence of the independent offense for an appropriate purpose, there is sufficient evidence to establish that the accused committed the independent offense, and there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the independent act tends to prove the crime charged.
At the Rule 31.3 (B) hearing, the prosecutor stated that the State was seeking to introduce the evidence of Littrell’s death to show Moore’s bent of mind and identity as the person who killed Harris and that there was sufficient evidence to establish that Moore caused Littrell’s injuries based on Moore’s admissions to the investigator in that case. The State also argued that there was a sufficient similarity between the independent offense and the crime charged so that proof of the acts related to Littrell tended to prove the crimes related to Harris. Specifically, in Littrell’s case, the 57-year-old victim weighed 126 pounds, was frail from multiple sclerosis, had lived with Moore for five years, and argued with him about finances. In Harris’s case, the 63-year-old victim weighed 127 pounds, was disabled, had lived with Moore for a year, and had argued with him about financial issues, including a disagreement over the power being cut off the day before Harris died. Further, the State noted a medical examiner’s extensive testimony about the victims’ injuries, his conclusion that both victims suffered from throat injuries consistent with manual strangulation, and his determination that the injuries to Littrell were not consistent with CPR, even if performed improperly and forcefully. In response, Moore argued that the two deaths were not similar because there was no evidence that he intentionally killed Littrell.
2. Moore next contends that his right to confront the State’s evidence at the similar transaction hearing was violated when the trial court allowed the State to introduce evidence concerning Littrell’s death and then did not consider Moore’s written argument, which was filed after the hearing. At the hearing, Moore repeatedly objected to the State’s presentation on the grounds that this Court had ruled in Moore I that the similar transaction evidence should not have been admitted. Contrary to Moore’s arguments, our previous opinion did not decide the admissibility of the similar transaction evidence or reverse his conviction based on its admission. Instead, we vacated the judgment on procedural grounds and remanded for the trial court to conduct a similar transaction hearing as required under Rule 31.3 (B) and, if the trial court determined the evidence to be admissible, make the required findings under Williams. See Moore I,
3. Concerning the issues raised in Moore’s first appeal, we initially address the enumerations related to the trial and trial counsel. Moore challenges as a violation of his Fourth Amendment rights the admission of Exhibits 107 and 108, which were cards with his rolled fingerprints taken prior to his arrest. Because Moore did not object to the admission of the fingerprint cards at trial, this issue was not preserved for appellate review. See Acliese v. State,
4. Moore also alleges that the trial court erred in allowing the State’s fingerprint expert, Butch Windham, to testify before the jury after he had testified outside the presence of the jury that the latent fingerprint evidence, Exhibits 109-A to 109-D, had no evidentiary value. Since Moore did not object at trial to the admission of the latent fingerprint evidence or the expert’s testimony, this evidentiary issue was not properly raised and preserved at trial. See Hall v. State,
5. Citing trial counsel’s failure to seek to suppress the fingerprint evidence and other actions, Moore asserts that he was denied his constitutional right to effective assistance of counsel. To establish a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and the deficient performance prejudiced the defense. Strickland v. Washington,
(a) Concerning the admission of the fingerprint cards, Exhibits 107 and 108, trial counsel testified at the motion for new trial hearing that he did not file a motion to suppress the evidence because he did not find a basis for keeping it out. He explained that Moore was living at the victim’s house at the time of his death and Moore had a prior criminal record so that it was inevitable that the State would get his fingerprints from records already on file. Thus, a motion to suppress the fingerprint evidence and an objection to its admission at trial would have been without merit, and the failure to raise a meritless motion or objection is not ineffective assistance of counsel. See Rios v. State,
(c) The next claim of ineffectiveness concerns trial counsel’s alleged failure to pursue the motion for scientific examination of the latent fingerprint evidence, Exhibits 109-A to 109-D, which Moore contends are “xerox copies of a photograph” and not actual latent print lift cards. At the hearing on the motion for new trial, trial counsel testified that he investigated the accuracy of the State’s fingerprint analysis by sending a copy of the print to a former examiner for the Federal Bureau of Investigation in Atlanta for analysis. The FBI examiner confirmed the State’s finding that the thumbprint found on the fence at the crime scene was Moore’s thumbprint. Trial counsel chose not to have this opinion reduced to writing because he did not want to disclose it during discovery. Because trial counsel made a reasonable strategic decision not to pursue additional investigation of the fingerprint evidence after consulting with the FBI examiner, this claim of ineffective assistance of counsel fails. See Smith v. State,
(d) Moore’s final claim of ineffective assistance of counsel alleges that trial counsel performed deficiently by failing to object to the expert testimony of Windham, the fingerprint examiner, and to impeach him with testimony he gave outside the presence of the jury. See Division 4. This claim is premised on Moore’s interpretation of Windham’s report and testimony as stating that the latent prints that the expert received for comparison purposes were unidentifiable and had no evidentiary value for comparison to anyone. On page two of his report and in his testimony, Windham identified the single identifiable latent fingerprint as comparing positively to Moore’s left thumbprint. On page three of his report, Windham wrote: “No identifiable latent print impressions suitable for comparison purposes remain unidentified.” When asked at trial to explain this sentence, he testified: “Of the six latent impressions, only one impression had value for identification purposes or comparison purposes. That fingerprint impression was identified. That did not leave any other identifiable impressions that had not been identified to anyr body.” At the motion for new trial hearing, trial counsel testified that
6. The remaining enumerations of error related to the trial court’s actions during the four hearings on the motion for new trial. Moore complains that the trial court improperly limited him from arguing that Robert Cook, the witness who called 911, was unable to identify Moore at trial, which Moore asserts is exculpatory evidence proving his innocence. We conclude that the trial court did not abuse its discretion in declining to allow Moore to supplement the record by reading portions of Cook’s statement to police, which was not introduced at trial. Based on a pre-trial agreement between the district attorney and Moore’s attorney, Cook was prohibited from identifying Moore at trial as the man he saw that night near the railroad tracks. To the extent Moore is arguing that the evidence was insufficient, it is the jury’s role to decide the weight of the evidence and credibility of the witness who does not make a positive identification at trial. See Harper v. State,
7. Moore next challenges the trial court’s denial of his post-conviction motions to compel the State’s expert to perform a latent print tape lift from a galvanized pipe and to hire an expert to prove Exhibits 109-A to 109-D were photographs rather than latent print cards. The grant or denial of a post-trial request for expert witnesses lies within the sound discretion of the trial court, and the defendant must demonstrate a special need for the witness. Totten v. State,
8. Moore’s contention that the trial court violated OCGA § 17-8-57 by expressing an opinion has no merit. OCGA § 17-8-57 prohibits a judge during the progress of a criminal case or the charge to the jury from expressing an opinion as to what has been proved or the guilt of the accused. The purpose of the statute is to prevent the judge from influencing the jury, and an error occurs only when the trial court’s opinions are made in the presence of the jury. Linson v. State,
9. We also reject Moore’s contention that the trial court erred by interrupting his examination of the State’s fingerprint expert. A review of the record shows that Moore was questioning the expert about his testimony from a prior hearing and the trial court was trying to clarify the pages of the transcript on which the testimony appeared. We find no abuse of discretion in the trial court’s actions. See Casey v. State,
10. Moore’s remaining two challenges seek a dismissal of this case.
(a) We will not dismiss this case due to an omission in the transcript of the hearing on Moore’s motion to dismiss his appellate counsel. Moore’s allegations of a cover-up are not supported by the record, and OCGA § 5-6-41 (f) provides a remedy when any party asserts that the transcript does not accurately or fully disclose what transpired in the trial court.
(b) Similarly, this Court rejects Moore’s request to dismiss based on his unsupported allegation that the latent fingerprint evidence was forged. Unless clearly erroneous, a trial court’s factual findings and credibility determinations related to evidentiary issues will be upheld on appeal. See Leonard v. State,
11. Although Moore seeks in a reply brief to invoke the plain error rule, that rule does not apply in this case. See Scott v. State,
In conclusion, because the trial court properly ruled that the similar transaction evidence was admissible at trial, trial counsel did not render ineffective assistance of counsel, and the trial court did not commit error, we affirm the trial court’s denial of the motion for a new trial and the reinstatement of the judgment of conviction against Moore.
Judgment affirmed.