Trey Dinkins appeals his convictions for malice murder and
other crimes related to the shooting death of DaJohn
Milton. On the day in question, John Robbins drove
the victim to an apartment complex in Warner Robbins. During
the ride over, the victim allegedly used Robbins' phone
to tell someone that he would be arriving in a few minutes.
Upon arriving at the complex, appellant walked up as the
victim was exiting the vehicle and told Robbins to leave.
Marquis Lowe arrived as Robbins was leaving. Debra Davidson,
who lived at the complex, testified she heard gunshots. When
she went out to see what was going on, she saw two
African-American men, wearing white shirts and jeans,
standing over a lump on the ground. One of the men had a gun.
Davidson told the police the man with the gun was the taller
of the two, but at trial she denied being able to discern any
difference in height. However, a police officer who
investigated the case and who was familiar with both Lowe and
appellant, testified appellant was shorter than Lowe.
said she saw the man with the gun walking away but that he
returned and fired additional shots at the lump on the
ground. The two men fled and Davidson went to investigate the
lump and discovered it was the victim who had been shot.
Davidson asked the victim who shot him and he replied
"Trey Deuce." Authorities later determined
"Trey Deuce" was appellant's nickname. While
the police were investigating on scene, two women approached
asking whether appellant had been shot. These two women were
later identified as appellant's mother and girlfriend.
Upon receiving a phone call, appellant's mother told
police appellant and Lowe had fled to Macon.
who lived near the apartment complex said he saw two black
males, one tall and the other short, walking by. The man saw
the shorter man talking on a cell phone and saw both men
change out of the white t-shirts they were wearing, replacing
them with black t-shirts. The man said the two males placed
their discarded shirts in some bushes near his home. An
officer recovered the white t-shirts near where the two men
had been seen walking, as well as two guns-- a .38 special
revolver and a Bersa .380 pistol -- which were wrapped in the
t-shirts. The firearms examiner testified the .380 bullets
extracted from the victim's body and recovered from the
crime scene were fired from the recovered Bersa .380 pistol.
During their on-scene investigation, police also recovered a
cell phone which was later determined to belong to Lowe.
victim was treated at a local hospital, but died from his
injuries a day after the shooting. The medical examiner
stated the victim had numerous gunshot wounds to his torso,
some of which were incurred while the victim was on the
ground. The medical examiner testified that, in spite of
medical intervention, the victim died from the loss of blood
caused by the numerous gunshot wounds he sustained.
testified at trial. He denied shooting the victim, claiming
he was at his cousin's house at the time the shooting
took place. He admitted, however, that he was with Lowe
shortly after the shooting took place because Lowe had come
by to pick him up from his cousin's house. Several
witnesses confirmed appellant and Lowe were together a short
time after the shooting.
evidence adduced at trial and summarized above was sufficient
to authorize a rational trier of fact to find appellant
guilty beyond a reasonable doubt of the crimes for which he
was convicted. Jackson v. Virginia, 443 U.S. 307 (99
S.Ct. 2781, 61 L.Ed.2d 560) (1979).
was tried and convicted a month prior to the time
appellant's trial commenced. The judge who presided over
Lowe's trial was the same judge presiding over
appellant's trial. Appellant subpoenaed Lowe to give
testimony at trial. Outside the presence of the jury, the
trial court stated it had been in touch with Lowe's
appellate counsel and that appellate counsel had advised
that, because Lowe had a pending appeal, Lowe should invoke
his Fifth Amendment right against self-incrimination. The
trial court then specifically asked Lowe whether he would be
invoking his right; he replied in the affirmative; and the
trial court dismissed him from appellant's trial. The
only objection appellant made at that time was that Lowe
should have been made to invoke the Fifth Amendment in front
of the jury. The trial court overruled the objection and
appellant proceeded with his next witness.
appeal, appellant contends the trial court erred when it
failed to discern from Lowe whether there were any questions
he could answer without incriminating himself. Specifically,
appellant alleges Lowe could have testified as to his height.
Lowe's height was an issue because Davidson told police
that, of the two males she saw near the victim, the taller
male was the shooter. Appellant's allegation of error,
however, is not properly before this Court because he did not
raise a contemporaneous objection to the manner in which the
trial court handled Lowe's invocation of his Fifth
Amendment rights. Benton v. State, __ Ga.__ (2) (794
S.E.2d 97) (2016) ("Generally, to preserve appellate
review of a claimed error, 'there must be a
contemporaneous objection made on the record at the earliest
possible time. Otherwise, the issue is deemed waived on
appeal.' Spickler v. State, 276 Ga. 164, 167-168
(5) (575 S.E.2d 482) (2003)."). Accordingly, this
allegation of error is waived. Id.
Appellant alleges the prosecution engaged in misconduct by
knowingly eliciting false testimony. We disagree. At trial,
John Robbins testified he drove the victim to the apartment
where the shooting took place at three o'clock or four
o'clock in the afternoon. During the ride, Robbins
testified he let the victim use his phone and said the victim
spoke to someone, telling that person he was on his way and
would arrive in a few minutes. Phone records showed that
Robbins' phone number showed up at 4:27 p.m. as a missed
call on a phone linked to Lowe. The dispatch records showed
that the first 911 call reporting the shooting came in at
4:28 p.m. Appellant argues that Robbins could not have been
telling the truth about the timeline of events because the
shooting would have been taking place at the same time the
victim was using Robbins' phone to call someone. Also,
because the call from Robbins' phone was a missed call,
appellant asserts there is an implication that Robbins'
testimony that the victim spoke to someone while on
Robbins' phone was also untrue. Appellant contends that
because the State had Robbins' phone records, it must
have known Robbins was being dishonest when he testified as a
witness for the State.
Robbins' testimony, the phone records, and the 911
dispatch records certainly create discrepancies, such
discrepancies do not indicate the prosecution engaged in
misconduct. Indeed, such inconsistencies and how they may
impact the credibility or veracity of witnesses are for a
jury to reconcile. See Vega v. State, 285 Ga. 32 (1)
(673 S.E.2d 223) (2009) ("'It was for the jury to
determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.'"
(Citation omitted.)). Moreover, since no objection was made
at trial about any alleged prosecutorial misconduct, any
purported error is waived. Benton v. State,
supra, __ Ga. At __ (2).
Appellant next argues that trial counsel was constitutionally
ineffective because he failed to object to the manner in
which the trial court handled Lowe's invocation of his
Fifth Amendment rights; failed to impeach Robbins as to his
faulty testimony; and failed to impeach Davidson about her
inconsistent testimony as to the relative heights of the
shooter and the other perpetrator. In order to prevail on a
claim of ineffective assistance of counsel, appellant
must show counsel's performance was deficient and that
the deficient performance prejudiced him to the point that a
reasonable probability exists that, but for counsel's
errors, the outcome of the trial would have been different. A
strong presumption exists that counsel's conduct falls
within the broad range of professional conduct.
(Citation and punctuation omitted.) Pruitt v. State,
282 Ga. 30, 34 (4) (644 S.E.2d 837) (2007). Appellant cannot