---
title: Owens v. State
collection: opinions
id: S26A0817
cite_as: Owens v. State, S26A0817 (Ga. Oct. 14, 2026)
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date: 2026-10-14
status: published
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docket: S26A0817
court: Supreme Court of Georgia
case_type: criminal appeal
case_name_full: Derrion Owens v. The State
authoring_justice: Land
disposition: Judgment affirmed
vote: All the Justices concur
word_count: 6290
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  - constitutional law
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---

# Owens v. State

Supreme Court of Georgia, docket S26A0817, filed 2026-10-14.

## Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

No. S26A0817

Derrion Owens

v.

The State

On Appeal from the Superior Court of Fulton County

No. 21SC178528

Decided: October 14, 2026

LAND, Justice.

Appellant Derrion Owens challenges his 2024 convictions for murder and other crimes in connection with the shooting death of Pierre McCloud and aggravated assault of Devonte Hath- away. 1 Owens argues that the evidence was insufficient to prove that he was the shooter and that the trial court plainly erred in

1 McCloud was killed on December 22, 2020. On July 26, 2021, a Fulton County grand jury indicted Owens for malice murder (Count 1), felony murder (Count 2), two counts of aggravated assault (Counts 3 and 4), and possession of a firearm during the commission of a felony (Count 5). At a trial from Feb- ruary 26 to February 29, 2024, the jury found Owens guilty of all charges. The trial court sentenced Owens to serve life in prison with the possibility of parole for Count 1, 20 years to serve in prison for Count 4 (consecutive to Count 1), and 5 years to serve in prison for Count 5 (consecutive to Count 4). Count 2 was vacated by operation of law and Count 3 merged with Count 1 for sentenc- ing purposes. Owens filed a timely motion for new trial, which was amended by new counsel on January 28, 2025. The trial court held an evidentiary hear- ing on August 25, 2025, and entered a written order denying Owens’s motion for new trial on October 31, 2025. On November 4, 2025, Owens filed a notice of appeal. The case was docketed to this Court’s April 2026 term and submitted for a decision on the briefs.

admitting substitute expert testimony in violation of the Confron- tation Clause. Owens also argues that he was denied constitution- ally effective assistance of counsel in three ways and that he was cumulatively harmed by trial counsel’s errors. For the reasons that follow, we affirm.

1. The evidence presented at trial showed as follows. On December 22, 2020, Hathaway was waiting outside the Grey- hound bus station in downtown Atlanta when he was approached by an unknown man wearing a hat and face mask and carrying a backpack. The man began talking to Hathaway, who told the man he did not have a “problem” with him. Hathaway then saw a per- son later identified as McCloud, whom he knew; Hathaway ap- proached McCloud and began talking. Meanwhile, the man with the hat and mask followed Hathaway, pulled out a handgun, and began shooting at Hathaway and McCloud. Although Hathaway did not see the shooter pull out his gun, he saw McCloud take a step back and heard gunshots; Hathaway ran away and then re- turned to check on McCloud after hearing bystanders yell “he got shot.” Hathaway testified that neither he nor McCloud were armed. McCloud, who was shot in the chest, subsequently died. The medical examiner who performed McCloud’s autopsy testi- fied that the gunshot wound on the left side of McCloud’s chest and resulting internal organ injuries caused his death.

The events preceding the shooting and the shooting itself were captured by surveillance cameras in the area, and portions of the surveillance footage were played for the jury. At trial, Hath- away identified himself, McCloud, and the shooter in the footage. Atlanta Police Department officers responded to the Greyhound station approximately four minutes after the shooting, and crime scene technician Sharon Davis retrieved three 9mm shell casings from the scene, which were sent to the crime lab for ballistics analysis. Meanwhile, the shooter fled to the adjacent MARTA sta- tion, where MARTA surveillance footage showed the shooter travel from the station’s upper concourse, through the fare gates, and down the escalator where he boarded a train. The footage showed the shooter wearing a zebra-striped vest and carrying a light-colored backpack with distinctive black markings. MARTA surveillance footage showed the shooter’s travel on the MARTA train, including the shooter’s removal of his hat and outer jacket, revealing his hairstyle and further revealing his zebra-striped vest. The shooter left the train at another MARTA station and exited using the emergency staircase.

A caretaker for a cemetery in Fulton County testified that, in the early morning of December 30, 2020, he was approaching a tool shed in the cemetery when he saw a man “randomly stand- ing” in the cemetery and asked him what he was doing. The man smiled and responded, “I’m here to do some conjuring on a family grave.” The caretaker told the man that the cemetery was closed and he needed to leave. The man turned to leave but “kept coming back around again” towards the caretaker; when the man finally turned completely around, he had a gun in his hand and began shooting at the caretaker, who testified that he was shot “maybe like 3 or 4 times.” The caretaker was able to flee to a nearby gas station, and APD officers responded to the cemetery to search for the suspect. Davis testified that she found “just one” 9mm shell casing on the scene, which she collected and sent to the lab for ballistics testing. An officer who responded to the cemetery testi- fied that police located the suspect, a male wearing glasses and “zebra clothing,” who was later identified as Owens, and arrested him. 2 When he was arrested, Owens was carrying a light-colored

2 This shooting is the subject of a separate indictment unrelated to this appeal.

bookbag with distinct black markings containing a 9mm Glock 43 handgun. Body camera footage from the arresting officer was played for the jury.

That same day, APD investigators conducted a custodial interview with Owens about the December 30 shooting. Investi- gators provided Owens with Miranda 3 warnings and Owens chose to speak with the investigators without an attorney pre- sent. Portions of the interview were played for the jury in which Owens first claimed that his friend shot the caretaker with Ow- ens’s gun and then returned the gun to Owens but later claimed that he shot the caretaker in self-defense.

After Owens’s arrest in connection with the December 30 shooting, APD Detective Andre Lowe, who was investigating the December 22 shooting, was informed about Owens’s arrest be- cause the zebra-striped vest worn by Owens matched the descrip- tion of the December 22 shooter and he received a notification that there was a “preliminary” match between the casings col- lected at the December 22 and 30 shootings. Detective Lowe then interviewed Owens at the Fulton County jail in connection with the December 22 shooting. During the interview, portions of which were played for the jury, Owens admitted to Detective Lowe that he had been at the Greyhound station on December 22, that he had a Glock 9mm on him at the time, and that he had used the weapon in self-defense. Owens also provided information about the shooting that had not been disclosed to him by the de- tective, including contrasting the race of the victim in the Decem- ber 22 shooting with the victim in the December 30 shooting. 4

3 Miranda v. Arizona, 384 US 436 (1966).

4 Owens told Detective Lowe that police responded to the “graveyard”

Although Owens told investigators that he had been trying to de- fend himself after being “jumped” by a “gang situation,” the sur- veillance footage did not show any type of fight prior to the shoot- ing. And although Owens told Detective Lowe that he had been shot in the hand and leg, Owens would not tell Detective Lowe when he had been shot, did not “have any kind of limp,” and did not have “any kind of bandages or anything on his hands.” After the interview, Detective Lowe took out arrest warrants for Owens related to the December 22 shooting.

At trial, Brian Leppard was qualified as a firearms and tool mark expert. Leppard testified as to the contents of another ex- pert’s ballistics analysis, informing the jury that ballistics analy- sis of the four 9mm shell casings collected at the scenes of the December 22 and 30 shootings showed that the bullets were fired by the same firearm but that the “[c]artridge cases d[id] not pos- sess sufficient unique class characteristics to determine the type of weapon that may have fired them.”

2. Owens argues that the evidence was insufficient to sup- port his convictions because the State failed to prove his identity as the shooter in the December 22 shooting. We disagree.

“When evaluating a challenge to the sufficiency of the evi- dence, we view all of the evidence presented at trial in the light most favorable to the verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.” Jones v. State, 304 Ga. 594, 598 (2018) (citing Jackson v. Virginia, 443 US 307, 318–

shooting within “no more than two minutes” because it was “for a white per- son,” but “for a black person,” police “come late” and that “police didn’t even show up until the last minute” to the December 22 shooting.

19 (1979)). “This Court does not reweigh evidence or resolve con- flicts in testimony but rather defers to the jury’s assessment of the weight and credibility of the evidence.” Davis v. State, 316 Ga. 418, 420 (2023) (quotation marks and citation omitted). “The jury’s verdicts will be upheld as long as some competent evidence, even if contradicted, supports each fact necessary to make out the State’s case.” Sims v. State, 321 Ga. 627, 629 (2025) (citation and punctuation omitted). And “[a]lthough the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence.” Moss v. State, 323 Ga. 143, 147 (2025) (citation omitted). Finally, “when we consider the legal sufficiency of the evidence under Jackson v. Virginia, we consider all the evidence presented at trial, without regard to whether some of that evidence might have been improp- erly admitted.” Jackson v. State, 324 Ga. 497, 505 (2026) (citation and punctuation omitted).

In this case, Owens was convicted of malice murder for kill- ing McCloud, aggravated assault as to Hathaway, and possession of a firearm during the commission of a felony. 5 Under Georgia law, a person is guilty of malice murder if “he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” OCGA § 16-5-1(a). “A person commits

5 Although Owens purports to challenge the sufficiency of the evidence as to all the charges of which the jury found him guilty, he was only sentenced on the charges of malice murder, aggravated assault as to Hathaway, and pos- session of a firearm in the commission of a felony. The other charges were ei- ther merged into his murder conviction or vacated, and any challenge to those counts is moot. See Ellington v. State, 314 Ga. 335, 340 (2022) (“To the extent [the defendant] challenges the sufficiency of the evidence related to counts that were merged for sentencing purposes or vacated by operation of law … such challenges are moot by virtue of those convictions being merged or vacated for purposes of sentencing.”).

the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or ac- tually does result in serious bodily injury.” OCGA § 16-5-21(a)(2). And under OCGA § 16-11-106(b)(1), it is unlawful for any person to “have on or within arm’s reach of his or her person a firearm ... during the commission of, or the attempt to commit ... [a]ny crime against or involving the person of another.”

Here, the evidence presented at trial, when viewed in the light most favorable to the verdicts, was constitutionally suffi- cient to support Owens’s convictions. The December 22 shooting was captured on the Greyhound bus station’s surveillance foot- age, which, although grainy, showed a man wearing a light-col- ored backpack with a distinct pattern shoot at Hathaway and McCloud and flee the scene. Other surveillance footage immedi- ately following the shooting showed the man board and ride a MARTA train during which he removed clothing to reveal a zebra- printed vest. When Owens was arrested a few days later after the December 30 shooting, he was found wearing a similar zebra- printed vest and carrying a backpack with an identical pattern containing a 9mm handgun. Investigators found 9mm shell cas- ings at both shootings that ballistics analysis showed were all fired by the same firearm. Owens also admitted to investigators that he was present at the Greyhound station on December 22, that he possessed a Glock 9mm handgun and used the weapon on that day, and provided information to investigators about McCloud that was not previously disclosed to him. Accordingly, when viewed in the light most favorable to the verdicts, the evi- dence presented at trial was sufficient as a matter of constitu- tional due process to authorize a rational jury to find Owens guilty beyond a reasonable doubt of the crimes for which he was convicted. See Eleby v. State, 319 Ga. 234, 241 (2024) (rejecting appellant’s argument that the evidence was insufficient to sup- port his convictions because it did not reliably establish his iden- tity as a participant in the crimes).

3. Owens argues that the trial court plainly erred in admit- ting substitute expert testimony in violation of the Confrontation Clause. As Owens concedes in his appellate brief, he raised no objection on Confrontation Clause grounds to the substitute ex- pert’s testimony or the original expert’s ballistics report at trial, and our review of his argument on appeal is therefore limited to plain error. See OCGA § 17-8-58(b); Dryden v. State, __ Ga. __ (2026), S26A0659, slip op. at 3 (Ga. Aug. 13, 2026) (2026 WL 2347795) (reviewing “for plain error only” defendant’s argument on appeal that the trial court violated his rights under the Con- frontation Clause where defendant “objected to admission of the [evidence] only on authentication grounds” at trial); Dennis v. State, __ Ga. __, 930 SE2d 556, 560 (2026) (“Although both de- fendants objected to [certain] testimony on hearsay grounds, nei- ther objected that admitting [the testimony] violated the Confron- tation Clause. So, as [the defendant] concedes, we review that claim only for plain error.”).

To show plain error, Owens “must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.” Thompson v. State, 320 Ga. 52, 58–59 (2024) (citation omitted). See also Gates v. State, 298 Ga. 324, 326–27 (2016). “[W]hether an error is considered clear or obvious under the second prong of the plain error test is judged under the law existing at the time of appeal.” Owens v. State, 323 Ga. 842, 848 (2026) (citation and punctuation omitted). Satisfying the plain error test “is difficult, as it should be. This Court does not have to analyze all elements of the plain-error test where an appellant fails to establish one of them.” Stitts v. State, 323 Ga. 109, 114 (2025). As noted below, we have concerns about the admission of the substitute expert testi- mony and Owens’s inability to cross-examine the unavailable ex- pert. Nevertheless, this claim of error fails because Owens has not shown that this alleged error affected the outcome of his trial. See State v. Johnson, 305 Ga. 237, 240 (2019) (“The third prong of the plain error test requires that the error must have affected the ap- pellant’s substantial rights, which in the ordinary case means he must demonstrate that it likely affected the outcome of the trial court proceedings.”).

The substitute expert was Brian Leppard. The unavailable expert was Jay Jarvis. In late 2022, Jarvis, a firearms and ballis- tics expert, reviewed shell casings from both the December 22 and 30 shootings and issued a report (the “Jarvis Report”) concluding that all four casings recovered in the shootings were fired by the same firearm. On February 21, 2024, the State filed a notice of intent pursuant to OCGA §§ 24-7-703 and 24-7-707 to have a sub- stitute expert, Leppard, testify to the Jarvis Report due to Jarvis’s unavailability. 6 Owens then filed a motion in limine to exclude the testimony of both Jarvis and Leppard due to Jarvis’s unavail- ability, arguing that Jarvis was unavailable as defined by OCGA § 24-8-804(a)(4), and that it would be “improper and prejudicial” to allow Jarvis’s opinions to be admitted through another witness

6 Although the State cited to OCGA § 24-7-707 in its notice (and in its appellate briefing), that statute was repealed in 2022, prior to the trial of this case. See OCGA § 24-7-707. Repealed by Laws 2022, Act 743, § 2, eff. July 1, 2022. OCGA § 24-7-702 now governs the admissibility of expert testimony in criminal as well as civil cases. See Ga. L. 2022 at 201 § 1 (amending OCGA § 24-7-702 to apply “in all proceedings” rather than only “in all civil proceed- ings”).

or by the Jarvis Report alone. Owens did not object to the testi- mony on Confrontation Clause grounds.

The trial court took up the issue prior to voir dire. The State proffered that Jarvis had been physically incapacitated and was still recovering and requested that Leppard, who had re- viewed Jarvis’s findings, be allowed to testify as a “peer reviewer.” The State argued that if there was an issue with Leppard testify- ing, the appropriate “remedy is to have a continuance” until Jar- vis had recovered or until the ballistics had been retested. Owens opposed a continuance and asked the trial court to “grant the De- fense’s motion … as it relates to the ballistics in this case,” argu- ing that “a continuance in this matter will just delay it even more.” Owens argued that he had questions that only Jarvis could answer, “as he was the one who actually performed the test,” spe- cifically referencing Jarvis’s conclusion that the shell casings matched but that he could not determine the weapon that fired them. Owens further indicated that he wanted to know if the gun that was collected on the night that he was arrested in connection with the December 30 shooting was tested and compared with the recovered shell casings. In response, the State represented that “[t]hat gun was not tested. The only thing that was tested by Mr. Jarvis was the shell casings.” The trial court ruled that there was “plenty of precedent to allow the substitute peer reviewer’s testi- mony” and that it would allow Leppard’s testimony but that “the failure to test the gun that was taken from the scene that day [was] certainly fair game for cross-examination.”

On the second day of trial, Leppard was qualified as the State’s “firearms and tool mark expert” without objection. Lep- pard testified that he and Jarvis previously worked at the GBI Crime Lab in firearms examination before going into their own respective private practices. Leppard testified that after Jarvis suffered a fall in late 2023, Leppard had taken on some of Jarvis’s work related to firearms testing and peer review. When asked whether he was asked to “do a peer review” of the Jarvis Report, Leppard testified “Yes,” and explained the general process of peer review as “looking at another examiner’s report, their case file, their notes, photos, to [e]nsure that their conclusions on their re- port are supported … as a quality control type of measure.”

Leppard testified that the Jarvis Report concluded that the four 9mm shell casings collected at the scenes of the December 22 and 30 shootings were fired by the same firearm but that the “[c]artridge cases d[id] not possess sufficient unique class charac- teristics to determine the type of weapon that may have fired them.” Leppard testified that he reviewed the Jarvis Report “as well as the photos, evidence photos, comparison photos, and bench notes that [Jarvis] generated during his analysis,” concluded that the Jarvis Report was technically supported, and prepared his own report containing that conclusion. Both reports were intro- duced through Leppard as State’s Exhibits 24 and 25 subject to Owens’s “continuing objection.” 7 On cross-examination, Leppard was asked whether the gun recovered after the December 30 shooting was tested and compared to the recovered casings. Lep- pard testified that nothing in the Jarvis Report suggested that

7 Although Owens concedes that his counsel made no Confrontation Clause objection, it is not entirely clear what objection he did make. Prior to Leppard’s testimony, the parties had an off-the-record bench conference, which was not transcribed. After Leppard was sworn in as a witness, Owens’s trial counsel stated, “the Defense renews its objection to this witness for purposes of the record.” Later in Leppard’s testimony, when asked whether Owens had any objection to State’s Exhibit 24, the Jarvis Report, Owens stated “[j]ust the objection that’s continuing. Subject to that, no.” When asked whether Owens had a “continuing objection to the Court’s previous ruling” as to the admission of State’s Exhibit 25, Leppard’s report, Owens stated, “yes.”

such testing had occurred. 8

In short, the admission of Leppard’s testimony and the Jar- vis Report established that the three 9 mm shell casings recov- ered at the December 22 shooting and the one 9 mm shell casing recovered at the December 30 shooting were fired from the same firearm, thereby linking Owens to the December 22 shooting. Alt- hough we are concerned that the admission of this testimony may have conflicted with controlling United States Supreme Court precedent, see Bullcoming v. New Mexico, 564 US 647 (2011) and Smith v. Arizona, 602 US 779 (2024) 9, Owens has not met his bur- den to show that, absent this evidence, a “reasonable probability” exists that the “outcome of his trial would have been different.” See Johnson v. State, 319 Ga. 562, 572 (2024). Specifically, there was substantial evidence of his guilt in this case, irrespective of the ballistics evidence.

The other evidence of Owens’s guilt included the following. When questioned by investigators following the December 30 shooting, Owens admitted to possessing and firing a Glock 9 mm

8 After the close of evidence, the State informed the trial court that it had just received a report from the GBI related to the recovered firearm and shell casings. According to the GBI report, the shell casings collected from the December 22 shooting and the December 30 shooting matched the firearm re- covered when Owens was arrested on December 30. The State asked the trial court to reopen the evidence and allow its expert to testify to the findings; Ow- ens objected and the trial court denied the State’s request.

9 Under the Confrontation Clause, “[a] State may not introduce the testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the defendant has had a prior chance to cross-examine her.” Smith, 602 US at 802–03. In Smith, the most recent United States Supreme Court opinion on this issue, the Court clarified that the State may not avoid a Confrontation Clause violation by “introduc[ing] those statements through a surrogate analyst who did not participate in their creation.” Id. at 803.

handgun at the Greyhound station on the day of the shooting at issue (December 22). Nine-millimeter shell casings were collected by investigators from the scene of that shooting. When questioned by investigators, Owens correctly volunteered that the victim of the December 22 shooting was a “black person” and he accused police of not responding to that shooting “until the last minute” (unlike the police response to the December 30 shooting, where the victim was a “white person” and according to Owens, police responded in “no more than two minutes”). Further, Owens as- serted an unsupported claim of self-defense when questioned by investigators. His claim that he fired his weapon in self-defense after being “jumped” by a “gang situation” was unsupported by the video evidence of the shooting or any other evidence. The same is true of his claim that he suffered injuries from being shot that day. The video evidence showed no confrontation prior to the shooting, no attack or threatening behavior directed toward Ow- ens by anyone, and no apparent injury as Owens fled the scene. Owens presented no other evidence of self-defense. In sum, the jury received evidence that Owens admitted to shooting a Glock 9 mm handgun at the Greyhound station that day, that 9 mm shell casings were collected from the scene of the shooting, and that Owens knew the race of the shooting victim without being told by investigators, and they received no evidence supporting Owens’s assertions of self-defense. Given the strength of this evidence, Owens has not carried his burden of showing that the outcome of the trial would have been any different if the substitute expert testimony had been disallowed. Accordingly, his claim of plain er- ror fails. See Felton v. State, 322 Ga. 530, 540–41 (2025) (even assuming that it was plain error to admit crime lab analyst’s tes- timony and reports in violation of Confrontation Clause, appel- lant could not show that the error affected his substantial rights in light of substantial evidence of guilt).

4. Owens argues that his trial counsel rendered ineffective assistance in three ways and that he was cumulatively harmed by this ineffective assistance. These claims fail.

To prevail on his claim of ineffective assistance of counsel, Owens must prove both that his counsel’s performance was defi- cient and that this deficient performance resulted in prejudice. See Strickland v. Washington, 466 US 668, 687 (1984). If either prong is not met, “this Court need not examine the other prong.” Fraser v. State, 322 Ga. 544, 547 (2025) (quotation marks omit- ted). “To prove deficient performance, a defendant must show that his attorney performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevail- ing professional norms.” Id. at 546. Decisions “regarding trial tac- tics and strategy” can constitute deficient performance “only if they were so patently unreasonable that no competent attorney would have followed such a course,” and in considering this ques- tion, “every effort [must] be made to eliminate the distorting ef- fects of hindsight.” Id. (quotation marks omitted).

(a) Owens first argues that his trial counsel was ineffec- tive for failing to object to Leppard’s testimony and the Jarvis Re- port. Specifically, Owens argues that although his trial counsel objected to the admission of the Jarvis Report on hearsay grounds, he should have also objected on additional grounds, in- cluding authenticity, chain of custody, and Confrontation Clause grounds. Even assuming, without deciding, that trial counsel was deficient for failing to object to the shell casing evidence on these grounds, Owens has not shown he was prejudiced for the same reasons that his plain error claim fails. See Carter v. State, 317 Ga. 689, 691 (2023) (“This Court has equated the prejudice step of the plain error standard with the prejudice prong for an inef- fective assistance of counsel claim.” (citation omitted)). Given the absence of prejudice, this claim fails.

(b) Owens argues that his trial counsel was ineffective by failing to object on hearsay grounds to police testimony that there was a match between the shell casings collected at the two different crime scenes.

Detective Lowe testified that shell casings collected at the scene of the December 22 shooting were “turned in as evidence,” explaining that APD has a “gun unit” that “test[s] shell casings to see if they match across any other shell casings on other cases.” Detective Lowe testified that although the testing performed in the unit was unofficial, he received a notification that there was a “preliminary” match between the casings collected at the De- cember 22 and 30 shootings. On cross-examination, Owens’s trial counsel asked Lowe if he knew who performed the preliminary test, and Lowe responded that he did not. When asked if a report was generated, Lowe responded, “[t]o my knowledge, I don’t be- lieve I have one.”

At the hearing on Owens’s motion for new trial, trial coun- sel was asked why he did not object to Lowe’s testimony as hear- say. Trial counsel testified that he did not object because “the fact that the shell casings matched [one another] was one thing[,] but it didn’t match[,] at that time[,] the gun.” As such, he did not “think it was necessary to make the objection” because he “felt that through cross-examination we could show some incon- sistency.”

“The decision whether to object or cross-examine a witness is generally a question of trial strategy that does not constitute ineffective assistance.” Bragg v. State, 295 Ga. 676, 679 (2014). Here, trial counsel’s performance was not deficient because he made the reasonable strategic decision to undermine Detective Lowe’s testimony through cross-examination rather than objec- tion, his focus on the fact that there was no evidence linking the shell casings to the recovered firearm was a reasonable one, and he was successful in eliciting testimony from Detective Lowe that the “preliminary” test results showing a match between the shell casings was never reported. See id. (holding that trial counsel’s decision to attack investigators’ testimony on cross-examination rather than objecting during their direct examination fell “within the ambit of reasonable trial strategy”).

(c) Owens also argues that his trial counsel rendered in- effective assistance by failing to request a pause of the trial and a competency evaluation after Owen’s outburst at trial.

On the second to last day of trial, the trial court inquired whether Owens still wished to testify. Against his counsel’s ad- vice, Owens elected to testify, and when he was called to the stand, he became disruptive and refused to take any oath. The jury was excused from the courtroom, and the trial court took a break for Owens to compose himself. After the break, Owens’s trial counsel moved for mistrial “given [Owens’s] outburst and the way that it could be perceived that he was lunging towards the jury.” The trial court denied Owens’s motion for mistrial, noting that Owens had previously “comported himself perfectly with courtroom procedures” until “it was time for him to decide if he was going to testify,” but removed Owens from the trial until he could “behave appropriately.” The following day, Owens was brought back to the courtroom to see if he wanted to be present for closing arguments. However, Owens continued to be disrup- tive and was again removed.

At the motion for new trial hearing, trial counsel testified that Owens was evaluated prior to trial and diagnosed with a mental health condition but was found competent to stand trial.

Trial counsel testified that he was aware of this evaluation and investigated whether there was a family history of mental health issues by speaking to Owens’s aunt and mother, who denied any past history of mental health issues and stated that Owens had not been prescribed any medication. Because Owens “didn’t dis- play anything that would suggest he couldn’t participate and as- sist in his defense,” trial counsel did not explore the matter fur- ther. As for Owens’s outburst during trial, trial counsel testified that while Owens’s behavior “caused [him] concern,” he did not ask to pause the trial or request a second competency evaluation because “up until that point Mr. Owens never displayed any psy- chosis or any inability to … assist in his defense,” was “very help- ful” in jury selection and explaining his theory of the case, and “always treated [trial counsel] with respect and acted in the proper decorum for court.” Trial counsel testified that after Ow- ens was convicted, but prior to sentencing, his grandmother dis- closed for the first time that although Owens had a “mental health imbalance” dating back to his childhood, his family did not seek any mental health treatment. Trial counsel then sought a competency evaluation based on what happened during trial, but “more importantly based on what [trial counsel] learned after the trial, after but before sentencing[,] from his grandmother.”

Dr. Jonathan Hill, a clinical psychologist, testified at the hearing on Owens’s motion for new trial that he performed a com- petency evaluation on Owens in April 2024, almost two months after the trial. 10 Dr. Hill testified that he determined that, at the

10 It is not clear from the record whether Dr. Hill was retained for Ow- ens’s competency evaluation for the trial related to the December 30 shooting, separately for a second competency evaluation after his trial for the December 22 shooting when trial counsel learned additional information, or both.

time of his evaluation, Owens was “in a recovery stage of a psy- chotic episode,” was not competent to stand trial but was a “can- didate for rapid restoration” and “should have been prescribed psychiatric medication to manage his condition.” On cross-exam- ination, Dr. Hill clarified that he “did not mean to imply that [Ow- ens] was not competent at the other trial [for the December 22 shooting] because [he] didn’t evaluate him during that point.” Dr. Hill explained that he “was just saying that [Owens’s] behavior, based on the transcripts, appeared consistent with [his] findings with the second trial [for the December 30 shooting] because [he] did not evaluate his competency over the first trial [for the De- cember 22 shooting].”

In its order denying Owens’s motion for new trial, the trial court found that “in pretrial hearings and until the end of the third day of trial, [Owens] comported himself in accordance with courtroom procedures. He was generally polite, alert, and respon- sive.” The trial court further found that while Owens “appeared and sounded angry and argumentative” when called to the stand, “[t]here was no indication that [Owens] did not understand the proceedings” and “[Owens’s] outbursts appeared to be a purpose- fully disruptive and combative attempt to avoid the conclusion of the trial.” Finally, the trial court concluded that Dr. Hill “could not provide any concrete conclusions about [Owens’s] state at the time of trial because Hill did not evaluate [Owens] at that time.”

Although Owens now argues that trial counsel should have requested another examination during trial, “Strickland calls for an inquiry into the objective reasonableness of counsel’s perfor- mance, not counsel’s subjective state of mind.” Brown v. State, 302 Ga. 813, 815 (2018) (citation omitted). “[G]enerally speaking in non-capital cases, a trial counsel’s decision to forego or curtail fur- ther investigation of an accused’s mental health, even when there has been a previous mental hospitalization, is reasonable when an expert has determined that the defendant is fit to stand trial.” Taylor v. State, 315 Ga. 630, 647 (2023) (cleaned up). And this is not a case in which counsel “made no effort to investigate the po- tential for a defense or plea based on mental health issues, nor is this a case in which counsel relied exclusively upon h[is] own lay evaluation of the mental health of h[is] client.” Arnold v. State, 292 Ga. 268, 271 (2013) (cleaned up). Instead, trial counsel was aware of Owens’s prior competency evaluation and still investi- gated his prior mental health history by speaking to his aunt and mother in addition to making his own assessment of Owens’s mental health throughout trial. Although other attorneys might have explored Owens’s mental health issue further, we cannot conclude that the investigation by and tactical judgment of Ow- ens’s attorney was outside the wide range of reasonably effective assistance. See id. at 269–72 (rejecting a claim that appellant was denied effective assistance of counsel because “his lawyer did not investigate his mental health more thoroughly” when record showed counsel “obtained and reviewed” mental health records, discussed appellant’s mental health with a professional who pre- viously treated him, and confirmed appellant received no addi- tional mental health treatment). See also Brown, 302 Ga. at 815 (“in light of the results of the mental evaluation conducted just months prior to trial, trial counsel’s observations of [the defend- ant] leading up to trial, and the curious timing of the alleged change in [the defendant’s] mental status, it was not objectively unreasonable for trial counsel to decide not to seek a second men- tal evaluation”). Accordingly, Owens’s claim of ineffective assis- tance fails.

(d) Finally, Owens argues that he was cumulatively harmed by his trial counsel’s ineffective assistance. See Schofield v. Holsey, 281 Ga. 809 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 17 (2020). This claim fails. The harm from the trial court’s assumed error in Division 3 and the prejudice from trial counsel’s presumed deficient performance in Division 4(a) are the same, so they do not accumulate, and we have con- cluded that they did not likely affect the outcome of the trial. See Zayas v. State, 319 Ga. 402, 414 (2024) (holding that the appel- lant’s cumulative error claim failed where “the harm from the as- sumed errors and assumed deficiency is the same” (cleaned up)).

Judgment affirmed. All the Justices concur.

## Summaries written by Georgia Commons

The following was written by claude-sonnet-5-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary.

The Supreme Court of Georgia upheld a Fulton County man's murder conviction for a shooting outside Atlanta's Greyhound station. It voiced concern about substitute expert testimony on shell casings but found other strong evidence meant the error did not change the outcome.

### Plain-language summary

A Fulton County jury convicted Derrion Owens of murder and aggravated assault after a December 2020 shooting outside the Greyhound station in downtown Atlanta that killed one man and targeted another. Owens argued the evidence did not prove he was the shooter, that a substitute expert wrongly testified about a ballistics report written by an unavailable expert, and that his lawyer was ineffective.

The Supreme Court of Georgia rejected all of these claims. Surveillance video, his distinctive vest and backpack, his own statements to detectives, and details he knew without being told were enough for a jury. The court worried the substitute expert testimony may have violated the Confrontation Clause, but Owens could not show it changed the result.

### Holding, as summarized

The evidence was enough for a rational jury to find Owens guilty. His unobjected-to Confrontation Clause claim about substitute expert testimony failed under the plain error standard because he could not show a reasonable probability of a different outcome given the other evidence. His ineffective assistance and cumulative harm claims also failed.

### Disposition

Judgment affirmed. All the Justices concur.

### Why it matters

The ruling signals that Georgia courts will look closely at prosecutors using a substitute forensic expert in place of the analyst who did the testing. Defendants who do not object at trial on constitutional grounds face a hard standard on appeal, even when the court has concerns.

> The summarized reasoning, checked quotes, suggested questions (1,830 characters) are at https://georgiacommons.org/opinions/S26A0817.md?full=1