In the Supreme Court of Georgia
Decided: October 5, 2021
S21A0774. TYSON v. THE STATE.
BOGGS, Presiding Justice.
After a 2008 jury trial, LeMichael Tyson was convicted of
felony murder and cruelty to children in connection with the beating
death of his girlfriend’s 22-month-old daughter, Kei’Mariona
Bradley. He appeals, asserting 11 enumerations of error. For the
reasons stated below, we affirm. 1
1 The murder occurred on April 14, 2007. On June 22, 2007, an Oglethorpe County grand jury indicted Tyson for malice murder, felony murder based on cruelty to a child in the first degree, and two counts of cruelty to a child in the first degree. Tyson was tried before a jury from May 27 to 29, 2008. The trial court directed a verdict of acquittal as to one of the child-cruelty counts; the jury found Tyson not guilty of malice murder but guilty of felony murder and the remaining child-cruelty charge. On June 4, 2008, Tyson was sentenced to serve life in prison for felony murder; the trial court merged the child-cruelty charge into the felony murder conviction. On June 9, 2008, Tyson’s trial counsel filed a timely motion for new trial, which was amended by his first appellate counsel on October 26, 2012, and by his second appellate counsel on October 14, 2019. After a hearing on October 28, 2019, the motion for new trial was denied on December 31, 2019. Tyson’s notice of appeal was filed on January 14, 2020, and the case was docketed in this Court for the term beginning in April 2021 and submitted for decision on the briefs.
The evidence at trial showed that in April 2006, Tyson and the
victim’s mother, Crystal Bradley, became involved in a romantic
relationship. In February 2007, Tyson moved in with Bradley. On
April 13, 2007, after finishing her shift as a certified nursing
assistant at Quiet Oaks Nursing Home in Crawford, Bradley picked
up Kei’Mariona from her babysitter. Kei’Mariona was sick that day
and had been vomiting, but showed no other signs of injury. That
evening, Bradley gave Kei’Mariona a bath before putting her to bed.
Bradley testified that because her daughter was in daycare, she
would check her “from head to toe” for any bruises or scratches; that
evening, she observed no bruises, scratches or marks.
The next morning, Bradley left for work at 6:00 a.m., and Tyson
had Kei’Mariona in his care for the rest of the day. At approximately
5:00 p.m., Tyson called Bradley and told her that “Kei’Mariona had
stopped breathing.” At 5:39 p.m., Tyson called 911 to report that
Kei’Mariona was not breathing, and ambulances were dispatched.
Bradley returned home and found the paramedics already at the
apartment.
2
A paramedic testified that Kei’Mariona was unresponsive,
without a pulse, and limp, but she put the child on a respirator and
started CPR. The paramedic observed bruises on the child’s chest.
At Athens Regional Hospital, medical staff pointed out bruises and
marks on the child that Bradley had not seen before. From Athens
Regional, the child was transported to Egleston Children’s Hospital
in Atlanta and remained unresponsive en route.
The next morning, Kei’Mariona was pronounced dead from
blunt force injuries. The medical examiner testified that
Kei’Mariona had significant hemorrhage in her eyes consistent with
violent shaking of her body, as well as contusions on her head and
internal bleeding and swelling of the brain indicating trauma. The
medical examiner concluded that Kei’Mariona’s death resulted from
“significant traumatic injuries of the head,” normally seen in a car
accident, a fall from a very significant height, or an assault. She
testified that the fatal injuries would have caused immediate severe
effects and abnormal behavior, and that the injuries were not
accidental but were inflicted deliberately.
3
Tyson was interviewed by GBI agents and confirmed that
Kei’Mariona was with him for the entire day while he retrieved her
car seat from Bradley’s car at the nursing home, visited his mother’s
house, and ran several errands before returning home. Tyson stated
that as he was driving back to the apartment with Kei’Mariona, he
saw Bradley leaving the post office going back to her job, and he
confirmed that no one else was at the apartment with him except
Kei’Mariona. After they returned home, they had lunch, and then
Kei’Mariona watched TV upstairs while he put things away. On one
of several trips upstairs, Tyson found that Kei’Mariona had had a
bowel movement, so he took her to the bathroom, cleaned her up,
and put her in her bed. He went back downstairs, put some things
away, watched a movie, and talked to his parents on the phone. At
about 5:00 p.m., when he went to wake the child from her nap, she
was non-responsive, he could not feel a heartbeat, and he did not
think she was breathing. When confronted with the fact that the
victim died from blunt force injuries inflicted within 24 hours of her
death, Tyson stated, “I will be honest with you. I really don’t know
4
what happened.”
At trial, Tyson asserted in his defense that if someone hurt
Kei’Mariona, it must have been Bradley. Tyson did not testify, but
called a long-time friend, Becky Roberts, as a witness. Roberts had
observed Bradley at a social gathering at Roberts’ lake house to
which Bradley brought her own niece, who was in her care. Roberts
testified that Bradley teased her niece to the point of tears by
repeatedly saying, “‘I am leaving’ – and this went on five or six times
until the child wept and cried and [her] arms were outstretched.”
After being instructed by the trial court that she could not “testify
what someone else says,” Roberts testified that Bradley’s behavior
was “tormenting a child and it was funny to her and it was
embarrassing to [Tyson], it was embarrassing to us, and it was
frightening to this little child. And it happened one more time, she
got in the car and then got back out of the car and did it one more
time.” The witness then testified that in her opinion this behavior
was not consistent with what anyone in the medical field should do.
She also observed that Bradley did not correct or discipline her niece
5
and did not take proper care of her while they were boating on the
lake, not watching her or holding her, so that the witness had to
intervene several times to keep the child from falling overboard.
1. In Tyson’s first enumeration of error, he contends that he
was denied a fair trial based on juror bias, because the jury foreman
worked at Bradley’s place of employment and knew her. He asserts
that the juror deceitfully concealed his knowledge of Bradley during
voir dire and that the juror was biased in favor of Bradley.
Voir dire was not taken down, but the juror testified at the
hearing on Tyson’s motion for new trial as follows. On voir dire, the
juror was asked where he was employed, and responded, “Quiet
Oaks Health Care.” He was asked if he knew the parties involved,
and testified in individual voir dire questioning that he “was aware
of Ms. Bradley, that I had worked with her, and I knew her.” The
juror was asked during voir dire if he had formed any opinion of the
guilt of the accused, and he responded that he had not done so. He
also was asked in voir dire whether he had any bias or prejudice and
responded that he had none. The juror further testified that he and
6
Bradley were not close friends and did not socialize outside of work,
and that he had no knowledge of her reputation as a mother.2 In its
order denying Tyson’s motion for new trial, the trial court
specifically found that the juror “disclosed his knowledge and work
relationship with the victim’s mother.”
As Tyson acknowledges, in order to obtain a new trial based on
juror misconduct in voir dire, he must show that “(1) the juror failed
to answer honestly a material question on voir dire and (2) a correct
response would have provided a valid basis for a challenge for
cause.” (Citation and punctuation omitted.) Anderson v. State, 302
Ga. 74, 77 (2) (805 SE2d 47) (2017). See also Glover v. State, 274 Ga.
213, 214 (2) (552 SE2d 804) (2001). 3
2 At the time of the hearing on Tyson’s motion for new trial, the juror was the administrator of the nursing home and its custodian of records. But he testified at the hearing that at the time of trial, he was “the social worker” and worked on a different schedule from Bradley. He estimated that at the time of trial, he saw her approximately three days a week.
3 The Attorney General’s contention that Tyson’s claim is not preserved
due to his failure to make a contemporaneous motion to excuse the juror, see Veal v. State, 301 Ga. 161, 163 (2) (800 SE2d 325) (2017), is without merit because Tyson alleges here that the juror concealed information during questioning. See, e.g., Anderson, 302 Ga. at 80 nn. 2 & 3 (2) (a) (citing federal case law regarding intentional misrepresentation or concealment of
7
Here, Tyson has not shown that the juror in question concealed
his relationship with Bradley. While Tyson asserts that the trial
court’s finding with respect to the juror’s disclosure was
“conclusory,” it was directly supported by the juror’s testimony at
the hearing on Tyson’s motion for new trial. Tyson complains that
the trial court gave no reason in its order for discounting his trial
counsel’s testimony that he would have struck any prospective juror
who knew Bradley or was familiar with the nursing home at which
she worked. But “[t]he credibility of the witnesses at the motion for
new trial hearing was for the trial court to determine.” (Citations,
punctuation, and footnote omitted. State v. Thomas, 311 Ga. 407,
416 (3) (a) (858 SE2d 52) (2021). And “[i]t is also well established
that the trial court’s findings of fact on motion for new trial are
upheld unless clearly erroneous.” (Citations and punctuation
omitted.) Strother v. State, 305 Ga. 838, 850 (6) (828 SE2d 327)
(2019).
information by prospective jurors).
8
Here, the trial court made a specific factual finding, and we
cannot say that the trial court clearly erred in crediting the direct
and positive testimony of the juror, rather than relying on trial
counsel’s testimony to reach the indirect and speculative conclusion
that, because counsel would have struck any juror who had a
relationship with Bradley or with the nursing home, the juror
therefore must have deceptively failed to reveal such a relationship. 4
Because [Tyson] has failed to demonstrate that [the juror]
answered questions dishonestly during voir dire, he has
failed to meet the requirements of the first prong of the
two-pronged test set forth in Glover for determining
whether a defendant is entitled to a new trial for juror
misconduct — that the juror failed to give honest answers
to voir dire questions. The trial court did not err in
denying the motion for new trial on this ground.
Anderson, 302 Ga. at 80 (2) (a).
2. In two related enumerations of error, Tyson contends that
the failure to take down and transcribe the jury voir dire in its
4 Tyson also makes the alternative claim that if counsel failed to “ask any questions that would reveal this close relationship or missed the disclosure, then counsel was ineffective in failing to explore this further during voir dire and requesting that [the juror] be excused for cause.” We address this contention in Division 6 (a).
9
entirety was error and a due process violation.5 But, as we recently
held after a review of the applicable law with respect to the
takedown and transcription of voir dire, “our precedent holds
otherwise for non-death penalty cases like [Tyson]’s, and he offers
no compelling reason to overturn that precedent.” Allen v. State, 310
Ga. 411, 419 (6) (851 SE2d 541) (2020). Moreover, “if a defendant
wants a more complete record of voir dire, he must make a specific
request to that effect. This holding has been reiterated many times.”
(Citations omitted.) Id. at 420 (6).
Tyson relies upon Sheard v. State, 300 Ga. 117 (793 SE2d 386)
(2016), but that case is distinguished on its facts. In Sheard, the
original trial transcript was discovered to be incomplete, and
“[t]hough some portions were recovered, the entire transcript was
never located.” Id. at 119 (2). In particular, the transcript of a
Saturday session, including the trial court’s instructions to the jury,
was never recovered. Id. In holding that a new trial was required,
5 The trial court’s general qualification questions to the prospective jurors are included in the trial transcript.
10
this Court noted that
while certain portions of a trial, such as voir dire and
opening statements, need not be transcribed in non-death
cases, the jury charge – which is missing here – is a
crucial portion of trial in which jurors are instructed on
the applicable law, on how to evaluate the evidence, and
on how to deliberate and reach a verdict.
(Citations and footnote omitted; emphasis supplied.) Id. at 121 (2).
Here, by contrast, the court reporter was not required to
“exactly and truly record or take stenographic notes of” nor
transcribe the material complained of. OCGA § 17-8-5 (a).6 See also
Pearson v. State, 311 Ga. 26, 32 (4) (855 SE2d 606) (2021).
6 That subsection provides:
On the trial of all felonies the presiding judge shall have the
testimony taken down and, when directed by the judge, the court
reporter shall exactly and truly record or take stenographic notes
of the testimony and proceedings in the case, except the argument
of counsel. In the event of a verdict of guilty, the testimony shall
be entered on the minutes of the court or in a book to be kept for
that purpose. In the event that a sentence of death is imposed, the
transcript of the case shall be prepared within 90 days after the
sentence is imposed by the trial court. Upon petition by the court
reporter, the Chief Justice of the Supreme Court of Georgia may
grant an additional period of time for preparation of the transcript,
such period not to exceed 60 days. The requirement that a
transcript be prepared within a certain period in cases in which a
sentence of death is imposed shall not inure to the benefit of a
defendant.
11
Tyson also asserts that significant portions of the transcript
other than the individual voir dire questions appear to be missing,
but this statement is belied by the record. 7 Moreover, when an
appellant claims that some parts of a transcript are missing, he
generally has the burden of completing the record to support his
contentions, see Pearson, 311 Ga. at 33 (4), and the proper remedy
for any alleged omissions is provided by OCGA § 5-6-41 (f).8 See id.;
7 For example, Tyson asserts with respect to the testimony of a GBI agent that “it is clear that something is missing from this transcription” because one of his answers consisted of only two words. However, the question put to the witness was, “The question begins with what two words?” thus explaining the brief response. Tyson also complains that the transcript does not contain opening statements, but he did not request that they be transcribed, and “the argument of counsel” has been explicitly excluded from the requirements of the relevant statute since at least 1876. See OCGA § 17-8-5 (a); Allen v. State, 310 Ga. 411, 420 n.9 (6) (851 SE2d 541) (2020).
8 That subsection provides:
Where any party contends that the transcript or record does not
truly or fully disclose what transpired in the trial court and the
parties are unable to agree thereon, the trial court shall set the
matter down for a hearing with notice to both parties and resolve
the difference so as to make the record conform to the truth. If
anything material to either party is omitted from the record on
appeal or is misstated therein, the parties by stipulation, or the
trial court, either before or after the record is transmitted to the
appellate court, on a proper suggestion or of its own initiative, may
direct that the omission or misstatement shall be corrected and, if
necessary, that a supplemental record shall be certified and
transmitted by the clerk of the trial court.
12
Johnson v. State, 302 Ga. 188, 197-198 (3) (c) (805 SE2d 890) (2017).
Here, Tyson correctly sought to supplement the record
regarding voir dire by calling the juror in question as a witness at
the hearing on his motion for new trial. But he has not sought to
supplement the trial transcript or otherwise perfect the record with
respect to any other material that he now speculates may be
missing. 9 See Pearson, 311 Ga. at 32-33 (4) (appellant’s due process
rights not violated when he made no effort to supplement record
through testimony of trial counsel); see also Morris v. State, 308 Ga.
520, 526 n.4 (2) (842 SE2d 45) (2020) (appellant could not show error
when he failed to move to amend or correct purportedly inaccurate
transcript). Moreover, Tyson’s speculation that additional portions
of the trial transcript may be incomplete is insufficient by itself to
warrant reversal in the absence of a showing of harm. “[M]ere
9 Tyson contends that he could not obtain testimony regarding events at trial because the trial judge, the court reporter, and a courtroom deputy have died. But Tyson’s trial counsel was available and testified at the hearing on Tyson’s motion for new trial with regard to various matters that occurred at trial. And nothing in the record indicates that the prosecutors at trial or other relevant witnesses were unavailable for further perfection of the record.
13
speculation that inaccuracies or omissions exist” in a transcript is
not sufficient to establish harm. (Citation omitted.) Morris, 308 Ga.
at 526.
3. Tyson asserts that his right to due process was violated by
the eleven-and-a-half-year delay in his appeal. An initial motion for
new trial was filed by Tyson’s trial counsel on June 9, 2008, and the
trial transcript was completed and certified less than 30 days later.
Tyson’s first appellate counsel, Stephen Bailey Wallace II, appeared
on his behalf on February 25, 2009, and requested a hearing on the
motion. The matter was set by the trial court for a hearing several
times in 2010 and 2011 at Wallace’s request, but the hearings were
postponed after Wallace filed conflict letters. On October 26, 2012,
Wallace filed an amended motion for new trial, but never requested
a hearing. Nothing more appears in the record until the trial court
issued a rule nisi on September 7, 2018, for a status conference on
October 9, 2018.10 Five days later, on September 12, 2018, Tyson’s
10In the interim, Wallace was suspended from the practice of law on June 30, 2015, and disbarred on April 26, 2016, for willfully abandoning a
14
current appellate counsel entered an appearance, and on October 5,
2018, the trial court issued a rule nisi for a hearing on March 5,
2019. Appellate counsel sought and obtained a continuance to
complete their investigation, and the hearing was rescheduled for
August 26, 2019. Appellate counsel moved, unopposed, for a further
continuance due to not having received the rule nisi for the August
26 hearing, and Tyson’s motion for new trial was eventually heard
on October 28, 2019 and denied on December 31, 2019.
“Substantial delays in the appellate process implicate due
process rights, and we review appellate due process claims under
the four-factor analysis used for speedy trial claims set forth in
Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).”
Veal v. State, 301 Ga. 161, 167 (3) (800 SE2d 325) (2017). “In
assessing a due process claim premised on a post-conviction delay,
we generally look at four factors: the length of the delay, the reason
for the delay, the defendant’s assertion of his right, and prejudice to
different client and engaging in dishonesty or misrepresentation. See In the Matter of Wallace, 299 Ga. 3 (785 SE2d 534) (2016).
15
the defendant.” (Citations, punctuation, and footnote omitted).
Dawson v. State, 308 Ga. 613, 623 (4) (842 SE2d 875) (2020).
“Importantly, we have repeatedly found . . . the failure to make this
showing of prejudice in an appellate delay claim to be fatal to the
claim, even when the other three factors weigh in the appellant’s
favor.” (Citations and punctuation omitted.) Id. Here, the record
demonstrates that Tyson has failed to show prejudice.
The prejudice necessary to establish a due process
violation based on post-conviction direct appeal delay is
prejudice to the ability of the defendant to assert his
arguments on appeal and, should it be established that
the appeal was prejudiced, whether the delay prejudiced
the defendant’s defenses in the event of retrial or
resentencing.
(Citations and punctuation omitted.) Loadholt v. State, 286 Ga. 402,
406 (4) (687 SE2d 824) (2010). And “in determining whether an
appellate delay violates due process, prejudice, unlike in the speedy
trial context, is not presumed but must be shown.” (Citations and
punctuation omitted.) Glover v. State, 291 Ga. 152, 155 (3) (728 SE2d
221) (2012).
Tyson’s claims of prejudice lack merit. With respect to the issue
16
of the conduct of voir dire, Tyson claims this information is
unavailable due to the death of the original trial judge and the court
reporter. But Tyson has not shown prejudice because witnesses were
available at the time of the hearing on his motion for new trial,
including Tyson’s trial counsel and the juror in question, to provide
testimony from which the trial court could determine what occurred
during the questioning of that juror. See Division 1, above. With
respect to Tyson’s claim that the delay made it impossible for him to
determine whether his trial counsel should have obtained Bradley’s
cell phone records, Tyson did not question trial counsel regarding
this issue at the hearing on his motion for new trial. Moreover, at
that hearing, the trial court excluded from evidence a copy of
unspecified cell phone records tendered by Tyson because they did
not include an affidavit showing the evidentiary foundation for the
introduction of a business record, as required by OCGA § 24-8-803
(6), and the contents of that excluded material are unknown. It was
Tyson’s burden to demonstrate the significance of these records and
any prejudice flowing therefrom on his motion for new trial. He has
17
failed to do so.
Finally, Tyson contends that because a deputy sheriff has died,
he cannot question him regarding whether he brought Tyson into
the courtroom in shackles while the jury was present. But Tyson
never questioned his trial counsel, the juror, or any other witness or
observer regarding this matter. Moreover, Tyson himself did not
testify to being shackled or offer any other evidence that he was in
fact shackled in the courtroom. Any such assertion therefore
amounts to speculation, and Tyson has failed to demonstrate any
prejudice. See Morris, 308 Ga. at 526 (2) (“mere speculation that
inaccuracies or omissions exist” insufficient to establish prejudice).
Even assuming that the other three factors all weigh in Tyson’s
favor, in the absence of any showing of prejudice his claim is without
merit. See Dawson, 308 Ga. at 623 (4).
4. Acknowledging that the plain error standard of OCGA §
17-8-58 (b) applies because he raised no objection to the jury
instruction at trial, Tyson contends that the trial court committed
plain error by instructing the jury that it “should consider with great
18
care and caution the evidence of any statement made by the
Defendant.”11 He contends that this instruction was incompatible
with another portion of the charge, which he requested, instructing
the jury that it “should settle [any] conflict [in the evidence], if you
can, without believing that any witness made a false statement,” 12
because the instruction effectively told the jury that Tyson’s
statement was to be given less weight than the statements of other
witnesses, such as Bradley, and the jury therefore was instructed to
believe Bradley over Tyson.
The four elements of plain error are that the error not be
11 This instruction stated in full:
You should consider with great care and caution the evidence of
any statement made by the Defendant. The Jury may believe any
statement in whole or in part, believing that which you find to be
true and rejecting that which you find to be untrue. Upon you alone
rests the duty to apply the general rules for testing the
believability of witnesses, and to decide what weight should be
given to all or any part of such evidence.
12 This instruction stated in full:
When you consider the evidence in this case if you find a conflict,
you should settle this conflict, if you can, without believing that
any witness made a false statement. If you cannot do so, then you
believe that witness or those witnesses whom you think are best
entitled to belief. You must determine what testimony you will
believe and what testimony you will not believe.
19
affirmatively waived, that it be clear and not open to reasonable
dispute, that it likely affected the outcome of the proceedings, and,
finally, that the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” (Citations and
punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d
232) (2011). Here, Tyson has failed to demonstrate that the alleged
error was clear and not open to reasonable dispute.
In Holmes v. State, 311 Ga. 698, 702 (2) (859 SE2d 475) (2021),
we concluded that a “great care and caution” instruction with
respect to a defendant’s out-of-court statements was not clear error,
noting that
because the charge was given immediately after
instructions about evaluating whether the defendant’s
custodial statements were made voluntarily and with full
knowledge of his constitutional rights, a reasonable jury
would likely have understood the charge to encourage
skepticism only of [appellant’s] custodial statements.
(Citation omitted.) Id. Here, the charge complained of was part of a
much longer instruction informing the jury that “a statement that a
Defendant allegedly made at the arrest” could not be considered “for
20
any purpose” until the jury determined that Tyson was informed of
his constitutional rights and that his statement was clearly
voluntary, noting that the burden of proof was on the State to
establish these facts. Immediately before the charge complained of,
the trial court instructed the jury, “If you fail to find any one of the
conditions that I have just described, you must disregard the
statement entirely and give it no consideration in reaching your
verdict.” The trial court further instructed the jury that it was
authorized to believe the statement in whole or in part and to “apply
the general rules for testing the believability of witnesses.”
Considering the instructions in context, see Campbell v.
State, 292 Ga. 766, 769 (3) (740 SE2d 115) (2013), a
reasonable jury would not have understood the
instruction to mean that it should be more skeptical of
[Tyson’s] . . . exculpatory statements than testimony of
other witnesses.
(Citation omitted.) Holmes, 311 Ga. at 702 (2). Particularly in light
of the context in which the complained-of instruction was given,
Tyson has failed to demonstrate plain error.
5. Tyson contends that the trial court erred, both at trial and
21
at the hearing on his motion for new trial, in excluding on the ground
of hearsay part of the testimony of his trial witness, Roberts. 13 For
the reasons explained below, we affirm the trial court’s decision,
although we do so on a different ground than that relied upon by the
trial court. See State v. Mondor, 306 Ga. 338, 345 (2) (830 SE2d 206)
(2019) (affirming trial court’s exclusion of evidence under right-forany-reason rule); Drews v. State, 303 Ga. 441, 448 (3) (810 SE2d 502)
(2018) (we need not “explore existential questions” of admissibility
when evidence is inadmissible for another reason). Here, regardless
of whether the excluded testimony was hearsay, the trial court did
not abuse its discretion by excluding it.
It is well established that
a criminal defendant is entitled to introduce relevant and
admissible evidence implicating another person in the
commission of the crime or crimes for which the defendant
is being tried. However, the proffered evidence must raise
13 As noted above in connection with the testimony at trial, Roberts testified to her observations of Bradley’s interaction with Bradley’s niece, stating her opinion that Bradley was indifferent to the child’s safety and behaved inappropriately, “tormenting” and teasing the child in a manner that was embarrassing, frightening, and inconsistent with her work as a medical caregiver. Tyson complains, however, that the witness was not permitted to testify about Bradley’s exact words at the time.
22
a reasonable inference of the defendant’s innocence, and
must directly connect the other person with the corpus
delicti, or show that the other person has recently
committed a crime of the same or similar nature.
Evidence that merely casts a bare suspicion on another or
raises a conjectural inference as to the commission of the
crime by another, is not admissible.
(Citations and punctuation omitted; emphasis supplied.) Heard v.
State, 295 Ga. 559, 567-568 (4) (761 SE2d 314) (2014). See also
Griffin v. State, 311 Ga. 579, 586 (5) (858 SE2d 688) (2021).
Here, Tyson was able to introduce at trial, and at the hearing
on the motion for new trial, a significant amount of testimony
regarding Bradley’s treatment of her niece, so that any testimony by
the witness regarding the exact words used by Bradley would have
been largely cumulative. 14 More importantly, Tyson acknowledged
to the police that Kei’Mariona was in his sole care throughout the
day while Bradley was at work and that no one else was at the
14At the hearing on Tyson’s motion for new trial, Roberts testified again about Bradley’s conduct, as well as about additional statements Bradley made at the time. Only thereafter was an objection raised and sustained that Bradley’s conduct with someone other than the victim was irrelevant. In his motion for new trial, as he does here, Tyson relied primarily upon Gilreath v. State, 298 Ga. 670, 674 (2) (784 SE2d 388) (2016), but as discussed below, that decision is inapposite.
23
apartment that day. And no evidence was presented at trial that
Bradley had access to Kei’Mariona during the hours preceding the
child’s injuries, which because of their severity would have produced
immediate effects. In the absence of evidence that Bradley was
present at the apartment during this time, “the proffered evidence
does not raise a reasonable inference of [Tyson]’s innocence,” and the
trial court did not abuse its discretion in excluding it. De La Cruz v.
State, 303 Ga. 24, 27-28 (3) (810 SE2d 84) (2018).
In De La Cruz, we found that the evidence presented “merely
cast[] a bare suspicion” on a proposed perpetrator because it showed
no direct connection with the corpus delicti and there was no
evidence that the individual was at the scene of the crime on the
night of the murder. Id. at 28 (3). And in De La Cruz, we further
contrasted those facts with Gilreath v. State, 298 Ga. 670 (784 SE2d
388) (2016), also cited by Tyson, in which the evidence raised a
reasonable inference of innocence and the person in question was
connected with the corpus delicti as the only other individual with
access to the child during the time that the fatal injuries were
24
inflicted. See id. at 674 (2); De La Cruz, 303 Ga. at 28 (3). Here, as
in De La Cruz, no evidence presented by Tyson suggested that
Bradley had any opportunity to inflict the child’s severe injuries
during the time in question. 15 See Whitaker v. State, 291 Ga. 139,
143-144 (3) (728 SE2d 209) (2012) (“[A]s to failing to call certain
witnesses, any evidence that the mother abused the child in the past
would have been irrelevant because the injuries were acute and
Appellant was the only adult present during the time these injuries
were administered.”). This enumeration is without merit.
6. Tyson asserts that his trial counsel provided constitutionally
15 In his reply brief, Tyson contends for the first time that he did not have Kei’Mariona under direct observation at all times during the day, particularly while the child was upstairs as he was watching TV and putting items away. Tyson suggests, in effect, that Bradley could have come home from work, entered the apartment without Tyson’s knowledge, gone upstairs, fatally injured the child, and left the apartment, again without his knowledge. But Tyson also told police that he repeatedly saw the child as he was walking upstairs and past her bedroom while putting things away. Moreover, he told police that while he was running errands with the child, he got a car seat out of Bradley’s car at work, that on his way back to the house with the child he met Bradley pulling out of the post office returning to work, and that he called Bradley at work when he discovered the child was not breathing. In support of the defense theory that Bradley injured the child, trial counsel closely questioned a GBI agent as to why he had not investigated Bradley more thoroughly, and the agent pointed to Tyson’s and Bradley’s consistent statements showing that Bradley was at work at the relevant times.
25
ineffective assistance at trial. To prevail on a claim of ineffective
assistance, Tyson must prove both that the performance of his
lawyer was constitutionally deficient and that he was prejudiced by
this deficient performance. See Strickland v. Washington, 466 U. S.
668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To prove deficient
performance, he must show that his attorney “performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.” (Citation omitted.)
Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). This
requires a defendant to “overcome the strong presumption that
counsel’s performance fell within a wide range of reasonable
professional conduct, and that counsel’s decisions were made in the
exercise of reasonable professional judgment.” (Citation and
punctuation omitted.) Marshall v. State, 297 Ga. 445, 448 (2) (774
SE2d 675) (2015). And to prove prejudice, Tyson “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
26
undermine confidence in the outcome.” Strickland, 466 U. S. at 694
(III) (B). “If either Strickland prong is not met, this Court need not
examine the other prong.” Palmer v. State, 303 Ga. 810, 816 (IV)
(814 SE2d 718) (2018). For the reasons stated below, we conclude
that Tyson’s counsel did not render ineffective assistance.
(a) Tyson asserts that his trial counsel was constitutionally
deficient in “failing to explore” the alleged bias of the juror who
worked at Bradley’s place of employment or to “have him excused
for cause.” See Veal, 301 Ga. at 163 (2). We conclude that Tyson has
failed to make the required showing under Strickland.
As we observed in Veal,
we have long ruled that a juror’s knowledge of, or nonfamilial relationship with, a party is not a per se
disqualification. Instead, a juror’s knowledge of, or nonfamilial relationship with, a witness, attorney, or party
provides a basis for disqualification only if it is shown that
it has resulted in the juror having a fixed opinion of the
accused’s guilt or innocence or a bias for or against the
accused.
(Citations and punctuation omitted.) Veal, 301 Ga. at 164 (2) (a).
And Tyson has the burden of overcoming the presumption that any
27
potential juror was impartial. See id. at 165 (2) (b).
At the hearing on Tyson’s motion for new trial, the juror
testified that he had not formed any opinion as to Tyson’s guilt and
that he had no bias or prejudice, and that he had testified to that
effect during voir dire. Tyson “offered no reason to discredit those
responses,” and as a result, no basis was shown to excuse the juror
for cause and Tyson has failed to demonstrate that his trial counsel
was constitutionally deficient in failing to make a meritless motion.
Id. 16
Moreover, even if we assume that counsel was deficient in
“failing to explore” the alleged bias of the juror or to “have him
excused for cause,” as Tyson alleges, Tyson has failed to show
In his reply brief, Tyson argues that even though the juror “may have
16
answered truthfully during voir dire that he had not formed an opinion about Mr. Tyson’s guilt, that was before he knew that the defense was going to be” that Bradley killed the child. Tyson contends the juror demonstrated that he was biased in favor of Bradley because, at the hearing on Tyson’s motion for new trial hearing, he responded affirmatively to appellate counsel’s questions as to whether Bradley was good at her job and whether he would consider her trustworthy and a good caregiver. This, Tyson argues, shows that the juror was biased. But even assuming that the juror had formed this opinion 11 years earlier, before he became the administrator of the nursing home and thus privy to Bradley’s work record, it is not dispositive of whether trial counsel was ineffective.
28
prejudice because no evidence was ever presented that the juror was
in fact biased. See Cade, 289 Ga. 805, 809 (4) (716 SE2d 196) (2011);
see also Simpson v. State, 298 Ga. 314, 319 (4) (781 SE2d 762) (2016)
(appellant did not demonstrate that juror was not qualified or
“harbored any prejudice toward [appellant] or was disinclined to
acquit him based on reasons other than the arguments and evidence
presented at trial,” and therefore failed to affirmatively show that
he was prejudiced by trial counsel’s failure to use a peremptory
strike on juror).
(b) Citing two decisions of our Court of Appeals criticizing the
“great care and caution” jury instruction given by the trial court
here, 17 Tyson asserts that his trial counsel was ineffective in failing
to object to that instruction. But those decisions were issued after
Tyson’s trial in May 2008. See Pincherli v. State, 295 Ga. App. 408
(671 SE2d 891) (2008) (decided December 31, 2008); McKenzie v.
State, 293 Ga. App. 350 (667 SE2d 142) (2008) (decided August 21,
17 Tyson’s assertion of plain error with respect to this jury instruction is rejected in Division 4.
29
2008).
[I]n making litigation decisions, there is no general duty
on the part of defense counsel to anticipate changes in the
law, and only in a rare case would it be ineffective
assistance by a trial attorney not to make an objection
that would be overruled under prevailing law. Although
this Court has held that a new decision applies to the
admission of evidence in cases pending on direct review
at the time that opinion was issued, that does not alter
the long-standing precedent that, when addressing a
claim of ineffectiveness of counsel, the reasonableness of
counsel’s conduct is examined from counsel’s perspective
at the time of trial. Thus, a new decision does not apply in
a manner that would require counsel to argue beyond
existing precedent and anticipate the substance of the
opinion before it was issued.
(Citations and punctuation omitted.) Reed v. State, 307 Ga. 527, 534-535 (2) (b) (837 SE2d 272) (2019). Trial counsel therefore was not
deficient in not objecting to the instruction. See id.
(c) Tyson contends that his trial counsel was ineffective in
failing to object on the basis of improper character evidence when a
witness mentioned that Tyson owned a gun and another witness
testified that she knew Bradley from church. But even “evidence
that [a defendant] owned and frequently carried a pistol does not
impute to him generally bad character.” (Citation omitted.)
30
Marshall, 297 Ga. at 449 (2) (b). And testimony was elicited that
Tyson also attended the church in question, and that church
members supported both Tyson and Bradley after Kei’Mariona’s
death. Moreover, trial counsel testified that “when something like
that comes out you have to make a decision am I going to object and
ring the bell, alert the jury, that I don’t like it,” and that unless such
testimony was “outcome determinative,” his general practice was
not to object. “The matter of when and how to raise objections is
generally a matter of trial strategy.” (Citations and punctuation
omitted.) Snipes v. State, 309 Ga. 785, 792 (3) (b) (i) (848 SE2d 417)
(2020). We cannot say that trial counsel’s decision to forego an
objection to this testimony “was so patently unreasonable that no
competent lawyer would have made the same decision.” (Citations
omitted.) Id.
(d) Tyson further contends his trial counsel was ineffective in
failing to object or request a curative instruction after testimony
from a witness who lived in a neighboring apartment and observed
Tyson come out of the apartment holding Kei’Mariona. The witness,
31
who worked at the local hospital, asked Tyson if there was
“something wrong with the baby,” and took the baby from him to try
to revive her. Asked what Tyson did when she took the baby, she
responded, “He stepped back towards the door; he wasn’t upset or
anything, you know. With a baby like that I would have thought he
would be upset, but then the ambulance got there.”18 Tyson asserts
that trial counsel’s failure to object was deficient, but “[t]he mere
fact that present counsel would have pursued a different strategy
does not render trial counsel’s strategy unreasonable.” (Citation and
punctuation omitted.) Stanley v. State, 283 Ga. 36, 41 (2) (c) (656
SE2d 806) (2008). Trial counsel testified at the hearing on Tyson’s
motion for new trial that whether or not to object to this testimony
was “a difficult choice,” but that he concluded that he did not want
to “ring the bell” or “highlight[] to the jury that I don’t want the
information considered” and therefore “kept [his] seat.” This was not
18 Counsel had made an earlier motion in limine, before the first witness was called, with respect to any testimony regarding Tyson’s demeanor. The trial court indicated that it would limit any testimony to what the witnesses observed, but would not allow testimony on “whether or not it was normal for [Tyson].”
32
a patently unreasonable decision. See Snipes, 309 Ga. at 792 (3) (b).
(e) Tyson contends that his trial counsel should have requested
a mistrial and that the trial court should have granted it when the
trial court improperly inquired about a battery instruction in the
presence of the jury. 19 The transcript, however, does not reflect any
inquiry on the part of the trial court. Rather, as the trial court was
nearing the end of its instructions to the jury, it informed the jury
that a verdict form had been prepared, and described the contents
of that form to the jury. As the trial judge began to describe Count 2
and Count 3, he stopped and then stated, “Counsel approach.” 20
19 Any argument that the trial court erred in not granting a mistrial was waived for appellate review. “If the defendant did not make a contemporaneous motion for a mistrial at the time the defendant became aware of the matter giving rise to the motion, then the defendant has waived review of this issue on appeal.” (Citations and punctuation omitted.) Thomas v. State, 310 Ga. 579, 581 (2) (853 SE2d 111) (2020). And a sua sponte mistrial was not demanded here. “There is no evidence that the jurors heard the substance of the sidebar conversation. Consequently, the circumstances fall far short of demonstrating the manifest necessity for the trial court to [sua sponte] declare a mistrial.” (Citations and punctuation omitted.) Atkinson v. State, 301 Ga. 518, 524 (5) (801 SE2d 833) (2017).
20 The verdict form from which the trial court was reading shows, under
“Count 3, Cruelty to a Child in the first degree,” an option for a finding of guilty or not guilty of the “Lesser offense of battery.”
33
Thereafter, the transcript indicates that a discussion took place “at
bench outside hearing of jury” regarding whether Tyson had
requested an instruction on battery as a lesser included offense of
Count 3, cruelty to a child, and Tyson’s counsel indicated that he
was “not sure.”21 After some discussion regarding that and other
matters in the jury instructions, a copy of the battery instruction
was found, and the instructions resumed “back in hearing of jury”
with the giving of the requested instruction. The trial court then
asked, “Is that sufficient, gentlemen?” and both counsel responded,
“Yes, sir.”
Here, the transcript does not show that the trial court made
any verbal inquiry in the hearing of the jury. But Tyson asserts that,
in the period of time between the trial court’s instruction to the jury
regarding the verdict form and the direction for counsel to approach
the bench, what could be described as a non-verbal exchange took
place. He further asserts that this was witnessed by the jury before
21 The record reflects that Tyson had filed a written request to charge on battery.
34
the trial court instructed counsel to approach, and that it was
prejudicial to him. At the hearing on Tyson’s motion for new trial,
trial counsel testified that he thought the judge was “looking at” him
in a way that he believed indicated to the jury that the judge was
asking whether the defense wanted the battery charge included.
Trial counsel testified that he therefore “tried to play it off like, oh
maybe it was [the prosecutor’s] request, and maybe can we
approach” in order to get a bench conference.22
At the hearing on the motion for new trial, Tyson’s trial counsel
testified repeatedly regarding his reasons for not seeking a mistrial.
His primary concern was that a retrial would give the State the
22 At trial, in response to the trial court’s request for any objections at the conclusion of the jury instructions, trial counsel responded in part, “I do not think it was a reasonable approach to ask me in . . . front of the jury whether or not I had requested a charge on battery.” A discussion ensued, in which the trial court noted, “I don’t think I asked you about that. I think I asked you was there a charge on battery,” and trial counsel responded, “Yes sir.” The prosecutor added, “You asked if one was submitted.” Asked if he had “anything else,” trial counsel responded, “No sir.” To the extent this amounted to an objection to the trial court’s earlier question or conduct, however, it was not contemporaneous. See Wilson v. State, 268 Ga. 527, 529-530 (5) (491 SE2d 47) (1997) (appellant waived right to assert claim under OCGA § 17-8-57 regarding trial court’s remark to jury “because he did not contemporaneously object or move for a mistrial on that ground.” (Citation omitted.)).
35
opportunity to investigate Bradley more thoroughly and eliminate
the opportunity for counsel to argue that Bradley was the actual
perpetrator: “It was the last thing I wanted. We had shown our
hand. And the state would have corrected the errors that they made
in not investigating [Bradley] on the first instance.”
This was a reasonable strategic choice, so Tyson has not shown
that the decision not to move for a mistrial was constitutionally
deficient. See Cox v. State, 306 Ga. 736, 742-743 (2) (d) (832 SE2d
354) (2019) (reasonable strategic choice not to move for mistrial
when counsel did not want to draw attention to allegedly improper
argument and “thought we were in a decent position at that point in
time.”). See also State v. Goff, 308 Ga. 330, 335 (2) (840 SE2d 359)
(2020) (reversing trial court’s conclusion that trial counsel was
ineffective in failing to seek a mistrial when trial counsel testified
he did not want a mistrial because he thought “‘we had a pretty good
jury and a pretty good trial going’” and holding that “we cannot say
that trial counsel’s assessment was objectively unreasonable”);
McClendon v. State, 299 Ga. 611, 614 (2) (791 SE2d 69) (2016) (trial
36
counsel’s strategic decision not to seek mistrial not objectively
unreasonable when he believed that cross-examination of State’s
key witness would be less effective on retrial).
(f) With respect to the exclusion of a portion of his witness
Roberts’ testimony regarding the exact words Bradley had used in
teasing her niece, Tyson asserts that his trial counsel “should have
done more, or insisted on making a proffer” of the excluded
testimony. But, as noted in Division 5, above, the limited proffer
made at the hearing on Tyson’s motion for new trial shows that the
trial court did not abuse its discretion in excluding this testimony,
and trial counsel was not deficient in failing to pursue a meritless
course of action. See Carter v. State, 310 Ga. 559, 564 (2) (a) (852
SE2d 542) (2020); see also Johnson v. State, 310 Ga. 685, 691-692
(3) (853 SE2d 635) (2021) (counsel not ineffective in failing to make
meritless motion or objection).
7. In two enumerations of error, Tyson asserts that the
cumulative effect of his trial counsel’s errors and the cumulative
effect of the trial court’s errors and deficient performance by his trial
37
counsel require a new trial. But here, we have assumed deficiency
with respect to only one alleged instance of ineffective assistance of
trial counsel, concluding that Tyson was not prejudiced thereby, and
we have identified no trial court error. There are accordingly no
multiple errors from which to assess any cumulative harm. See Cox,
306 Ga. at 743 (2) (e) (“[W]e evaluate only the effects of matters
determined to be error, not the cumulative effect of non-errors.”
(Citation and punctuation omitted.)).
Judgment affirmed. All the Justices concur.
38