Plain Error at the Time of Appeal—With a Prospective Caveat: Georgia High Court Holds Daubert Inapplicable to Pre‑2022 Criminal Trials and Reaffirms Harper/Belton for Footwear Testimony

Introduction

In Profet v. State (Supreme Court of Georgia, Oct. 15, 2025), the Court affirmed convictions for malice murder, armed robbery, aggravated assault, and possession of a firearm arising from the 2014 shooting death of Latonya Morris‑Figg. The case arises from a largely circumstantial record featuring surveillance timestamps, footwear impression analysis, DNA evidence, and timeline inconsistencies.

On appeal, Christopher Profet raised five main issues: constitutional and statutory sufficiency of the evidence; the absence of an on‑the‑record waiver of his right to testify; trial‑court restrictions on his “failure to investigate” defense; admission of expert footwear testimony under Georgia’s expert‑evidence standards; and the jury’s viewing of enlarged crime‑scene photographs during deliberations. He also claimed cumulative error.

The opinion is notable for its clarifying rule on how Georgia appellate courts conduct plain‑error review when the governing law changed between trial and appeal. Specifically, the Court held that, although plain‑error review generally applies “the law at the time of appellate review,” when the General Assembly has made a later statute expressly prospective—such as Georgia’s 2022 Daubert amendments to OCGA § 24‑7‑702—those prospective limitations are themselves “the law at the time of appeal.” Thus, for trials commenced before July 1, 2022, the former Harper framework—not Daubert—controls the admissibility of expert evidence, and footwear comparison testimony of the sort given here is not plainly erroneous under pre‑2022 law.

Summary of the Opinion

Sufficiency: The Court deemed challenges to malice murder and firearm possession abandoned under Supreme Court Rule 22 for lack of developed argument. As to armed robbery, the evidence—Kroger/Walmart surveillance, the victim’s cashing of money orders, lack of cash at the scene, and appellant’s sudden access to funds—allowed a rational jury to find beyond a reasonable doubt that Profet took the victim’s cash; OCGA § 24‑14‑6’s circumstantial-evidence standard was satisfied.
Right to testify: Reaffirming Jones v. State (2024), the Court held that trial courts are not required to obtain an on‑the‑record waiver of a defendant’s right to testify; while better practice, it is not mandatory.
“Failure to investigate” defense: The claim was abandoned for lack of specific identification of the challenged rulings and developed argument.
Expert/footwear evidence and Daubert: Because the 2022 Daubert amendments to OCGA § 24‑7‑702 apply prospectively to motions or trials commenced on/after July 1, 2022, the admissibility of the 2017 trial evidence is governed by former Rule 707 and Harper. Under Belton v. State, footwear comparison of external characteristics is not scientific testimony and may be admitted without Harper gatekeeping; thus, no plain error.
Jury’s viewing of enlarged photos: The continuing‑witness rule does not apply to photographs. Allowing jurors to view an enlarged admitted exhibit in the courtroom during deliberations was proper.
Cumulative error: Fails because no individual error was shown.

Case Background

The State’s case placed Profet with the victim throughout the late morning of May 15, 2014, including surveillance showing both at Kroger at 12:23 p.m. (with money orders cashed) and at Walmart at 12:43–12:52 p.m. The victim planned to buy a $1,000 car with discounted cash, having approximately $1,200 in money orders. Her body was discovered at about 3:15 p.m. on a rural dirt/gravel road; her purse, phone, cash, and money orders were not found at the scene. The autopsy revealed fatal gunshot wounds, with ballistics consistent with a Hi‑Point .45 caliber weapon.

Multiple witnesses saw Profet that day in gray shirt and shorts with Nike flip‑flops; GBI photographed numerous footwear impressions at the muddy scene. A forensic footwear examiner concluded the impressions were consistent with one of three models of Nike slides, cautioning that similar tread patterns could be shared by counterfeit/knock‑off footwear. Investigators never recovered Profet’s flip‑flops or the clothing seen on surveillance. DNA recovered from the victim’s body included Profet’s DNA; he had described the relationship as involving sex “a couple of times,” but the DNA timing evidence could be consistent with intercourse within 72 hours.

Timeline inconsistencies undermined Profet’s statements to investigators (e.g., his claim to have dropped the victim in Fairburn by 1:15 p.m. was impossible given the Snellville Walmart exit time and the 45‑minute drive). The day after the homicide, Profet told his girlfriend he had money for a trip despite previously lacking funds. No .45 caliber firearm was found at his home. Tire impressions at the scene did not match the tires photographed on his truck; a grandmother’s out‑of‑court statement that tires were replaced in Baton Rouge was later recanted at trial.

Detailed Analysis

Precedents Cited and Their Role

Jackson v. Virginia, 443 U.S. 307 (1979): Sets the constitutional sufficiency standard—whether any rational trier of fact could find guilt beyond a reasonable doubt when viewing the evidence in the light most favorable to the verdict.
OCGA § 24‑14‑6; Lee v. State, __ Ga. __, 917 S.E.2d 683 (2025): When the State relies on circumstantial evidence, it must exclude every other reasonable hypothesis save the guilt of the accused; reasonableness of alternatives is for the jury unless insupportable as a matter of law.
Anderson v. State, 319 Ga. 56 (2024): Confirms the deference owed to jury determinations on weight and credibility.
Supreme Court Rule 22; Byrd v. State, 321 Ga. 222 (2025); Pierce v. State, 319 Ga. 846 (2024): Appellate claims are deemed abandoned when not supported by argument, authority, and record citation; vague, underdeveloped assertions are insufficient.
Jones v. State, 319 Ga. 140 (2024): No requirement for trial courts to advise defendants of the right to testify or to secure an on‑the‑record waiver; securing a waiver is “better practice” but not mandatory.
Johnson v. Zerbst, 304 U.S. 458 (1938): Distinguished; relates to waiver of counsel, not the right to testify. The Court declines to import a new on‑the‑record waiver requirement for testimony and notes stare decisis (Wasserman v. Franklin County, 320 Ga. 624).
OCGA § 24‑1‑103(d); Burke v. State, 320 Ga. 706 (2025); McCalop v. State, 316 Ga. 363 (2023): Plain‑error framework for unobjected‑to evidentiary issues; defendant must show clear/obvious error affecting substantial rights; court then asks whether fairness/integrity/public reputation is seriously affected.
State v. Herrera‑Bustamante, 304 Ga. 259 (2018); Henderson v. United States, 568 U.S. 266 (2013); Schooner Peggy (1801): For plain error, courts apply “the law at the time of appellate review,” a manifestation of the general rule that an appellate court applies the law in effect when it renders its decision.
Gates v. State, 298 Ga. 324 (2016); State v. Kelly, 290 Ga. 29 (2011): Georgia’s plain‑error doctrine derives from federal Rule 52(b) and Rule 103(d); Georgia adopted the federal standard.
Rivers v. Roadway Express, 511 U.S. 298 (1994); Lyman v. State, 301 Ga. 312 (2017): Judicial constructions clarify what statutes have always meant; applicable “law at the time of appeal” embraces current authoritative interpretations.
Anthony v. Penn, 212 Ga. 292 (1956); Ga. Const. Art. I, Sec. I, Par. X; Southern States Chemical Inc. v. Tampa Tank, 316 Ga. 701 (2023): When the legislature makes a statute expressly prospective, courts give it only prospective effect; retroactivity is constrained by constitutional limits.
Ga. L. 2022, p. 201 §§ 1, 3; OCGA § 24‑7‑702(f): Georgia’s 2022 Daubert amendments apply to motions made or hearings/trials commenced on/after July 1, 2022.
Former OCGA § 24‑7‑707; Harper v. State, 249 Ga. 519 (1982); Robinson v. State, 309 Ga. 729 (2020); Nundra v. State, 316 Ga. 1 (2023): Pre‑2022 criminal expert‑evidence gatekeeping follows Harper; Rule 707’s repeal does not retroactively govern trials commenced before the effective date.
Belton v. State, 270 Ga. 671 (1999): Comparison of shoeprints to the external characteristics of shoes is not a matter of scientific principle; such evidence may be admitted without scientific‑reliability gatekeeping and may be the subject of lay testimony.
Roberts v. State, 282 Ga. 548 (2007); Davis v. State, 285 Ga. 343 (2009); Rainwater v. State, 300 Ga. 800 (2017): The continuing‑witness rule forbids written statements going back with the jury, but it does not apply to photographs; the rule survived the Evidence Code overhaul.
Moore v. State, 315 Ga. 263 (2022): Cumulative‑error analysis applies only when multiple errors have been shown.

Legal Reasoning

1) Sufficiency of the Evidence

The Court applied Jackson v. Virginia and OCGA § 24‑14‑6. Two sufficiency challenges (malice murder and firearm possession) were abandoned under Rule 22 due to lack of argument. On armed robbery, the State’s circumstantial proof was robust: the victim cashed money orders while with Profet; her cash and wallet were missing at the scene; she never returned to buy the car; Profet soon had unexpected funds; he did not contact the victim after May 15 despite over 200 communications in prior months; and his timeline was inconsistent with surveillance and travel time. The jury could reject, as unreasonable, the hypothesis that she spent the money on a car that day.

2) Right to Testify and Waiver

Reaffirming Jones, the Court held there is no constitutional or statutory requirement that a trial judge advise a defendant of the right to testify or obtain an on‑the‑record waiver. The Court declined to create such a rule, distinguishing Johnson v. Zerbst (right to counsel) and invoking stare decisis principles (Wasserman). Even assuming the claim was preserved, the absence of an on‑the‑record waiver was not error.

3) “Failure to Investigate” Defense

Appellate review requires that alleged evidentiary errors be identified with specificity, supported by developed argument and record citation. Because Profet did not identify the precise rulings excluding his “failure to investigate” evidence, the Court deemed the claim abandoned under Rule 22, Byrd, and Pierce.

4) Expert Footwear Testimony: Plain Error, Timing, and Which Standard Applies

The centerpiece of the opinion is its treatment of plain‑error review across a statutory transition. Profet did not object to the footwear examiner’s qualifications; thus, the claim was reviewed for plain error under OCGA § 24‑1‑103(d). While plain‑error review generally applies “the law at the time of appeal” (Henderson; Herrera‑Bustamante), the Court explained a critical qualification: when intervening legislative enactments specify prospective operation, those effective‑date limits themselves define what “the law at the time of appeal” requires. The 2022 amendments adopting Daubert for criminal cases apply to motions and trials commenced on or after July 1, 2022 (Ga. L. 2022, p. 201 §§ 1, 3). Profet’s trial occurred in 2017. Therefore, the governing law is former OCGA § 24‑7‑707 and Harper, not Daubert.

Under Harper and Belton, footwear comparison of external physical features is not “science” demanding Harper’s verifiable‑certainty showing; it may be admitted as non‑scientific opinion, even lay opinion. The examiner here described tread features (herringbone lines, Nike swoosh, perimeter squares, heel lines), searched a database, and concluded the prints were consistent with three possible models of Nike slides, with an express caveat about possible “knock‑offs.” Given Belton and Robinson’s continuity between pre‑2013 and pre‑2022 rules, any error in admitting such testimony was not “clear or obvious.” Without a clear error, the plain‑error claim fails at step one (Burke).

Importantly, the Court did not opine on whether similar testimony would satisfy Daubert in trials commenced after July 1, 2022; that question is left for future cases governed by OCGA § 24‑7‑702(f).

5) Jury’s Viewing of Enlarged Photographs and the Continuing‑Witness Rule

The jury asked to see a crime‑scene shoe‑print photograph that had been displayed clearly on courtroom monitors but was not as clear in the copies they had. The court allowed the jurors to return to the courtroom to view the admitted image. The continuing‑witness rule prevents written statements from being taken back during deliberations to avoid undue emphasis; it does not apply to photographs (Davis; Roberts; Rainwater). Because the exhibit was an admitted photograph, the rule was inapplicable, and there was no error.

6) Cumulative Error

Because no individual claim of error succeeded, there could be no cumulative prejudice (Moore).

Impact and Practical Implications

A. Clarified Timing Rule for Plain‑Error Review Across Statutory Changes

Appellants cannot leverage Daubert retroactively on plain‑error review to challenge evidentiary rulings from criminal trials commenced before July 1, 2022. The “law at the time of appeal” includes the legislature’s prospective‑only directive; thus, Harper controls those earlier trials.
This clarification will streamline appellate adjudication of many legacy cases tried before 2022, foreclosing arguments that Daubert applies merely because appeals are pending post‑July 2022.

B. Footwear and Pattern‑Evidence Testimony in Georgia

Under Harper/Belton, comparison of shoe impressions to the external features of footwear is non‑scientific and need not clear scientific gatekeeping. That is sufficient to defeat plain‑error claims in pre‑2022 trials.
For trials commenced on or after July 1, 2022, trial courts must apply Daubert (OCGA § 24‑7‑702(f)). Expect more rigorous challenges to footwear, tire, and other pattern‑evidence testimony, with possible demands for validation data, error rates, and limitations on expressions of certainty.

C. Practice Pointers for Trial and Appeal

Preservation is paramount: contemporaneous objections to expert qualifications and reliability are essential to avoid the stringent plain‑error standard on appeal.
Appellate briefing must strictly comply with Rule 22—developed arguments, pinpoint record citations, and supporting authority. Undeveloped or generalized claims risk abandonment.
Right to testify: Although not required, defense counsel should consider memorializing the client’s decision on the record to minimize later disputes; prosecutors and trial judges should be aware that failure to secure an on‑the‑record waiver is not error in Georgia.
Exhibits in deliberations: Photographs, including enlarged versions of admitted images, may be reviewed by the jury; the continuing‑witness rule does not bar this. Parties should ensure clarity and quality of admitted photographic exhibits, anticipating juror review needs.

Complex Concepts Simplified

Plain error: A demanding appellate standard for unpreserved errors. The appellant must show a clear, obvious error that likely affected the outcome; only then will the court consider whether the error seriously affected the fairness or integrity of proceedings.
“Law at the time of appeal”: Generally, appellate courts apply the current law when deciding cases. But if the legislature has clearly made a new rule apply only prospectively, that limitation governs; older trials are judged under the older rules.
Daubert vs. Harper: Daubert requires trial judges to ensure expert testimony is relevant and reliable, often focusing on testing, peer review, error rates, and general acceptance. Harper asked whether a technique had reached “verifiable certainty” and, in some areas, treated certain topics as non‑scientific (thus not requiring such gatekeeping).
Continuing‑witness rule: Georgia doctrine preventing written statements from going to the jury during deliberations to avoid undue emphasis. It does not apply to photographs, which are exhibits rather than written testimony.
Circumstantial evidence and “every other reasonable hypothesis”: When all the evidence is circumstantial, the State must exclude every reasonable alternative to guilt. The jury decides what is “reasonable,” and appellate courts do not second‑guess those determinations unless they are legally insupportable.
Abandonment on appeal: If an appellant fails to support a claimed error with argument, authorities, and record citations, the court treats the claim as abandoned and will not review it.
Right to testify: The decision belongs to the defendant after consultation with counsel. Georgia does not require judges to secure an on‑the‑record waiver of this right.

Conclusion

Profet v. State reaffirms several bedrock principles and clarifies an important procedural point with widespread implications. On the merits, the Court found the circumstantial evidence sufficient to sustain an armed‑robbery conviction, rejected challenges to the right‑to‑testify waiver and to juror access to photographic exhibits, and deemed certain claims abandoned for inadequate briefing. The Court’s most consequential contribution is its careful articulation of how “the law at the time of appeal” operates in plain‑error review when the law changes between trial and appeal due to legislative action: prospective‑only statutes like Georgia’s 2022 Daubert amendments do not retroactively govern pre‑2022 trials. That means the admissibility of expert evidence in those earlier criminal trials—and appellate review of unpreserved expert‑evidence claims—remains anchored in Harper and decisions like Belton.

Going forward, litigants in post‑2022 trials must meet Daubert’s rigor, especially in pattern‑evidence domains like footwear impressions. But for legacy cases, Profet provides a clear doctrinal roadmap: apply the controlling law of the trial’s time when the legislature has said the new rule applies only prospectively. The decision thus brings coherence to Georgia’s transitional era of expert‑evidence law and provides practical guidance on preservation, appellate briefing, and the handling of exhibits in jury deliberations.

Key Takeaways

Daubert does not retroactively apply to Georgia criminal trials commenced before July 1, 2022; Harper governs those cases on appeal.
Footwear comparison of external features, as presented here, is non‑scientific under Belton and was not plainly erroneous under pre‑2022 law.
No on‑the‑record waiver of the right to testify is required in Georgia, though it remains better practice to obtain one.
Photographs are not subject to the continuing‑witness rule; jurors may view admitted photographic exhibits during deliberations, including in enlarged form.
Preservation and robust appellate briefing are essential; undeveloped claims risk abandonment.