303 Ga. 414 FINAL COPY
S17A1748. GOODRUM v. THE STATE.
GRANT, Justice.
Following a jury trial in the Superior Court of Troup County, Demario
Goodrum was found guilty of felony murder and related offenses in
connection with the shooting death of Tarvanisha Boyd. In this appeal,
Goodrum argues that the trial court violated his constitutional right to be
present at all critical stages of his trial, and that he received ineffective
assistance of trial counsel. We affirm. 1
I.
Viewed in the light most favorable to the verdicts, the evidence showed
that, in December 2014, Boyd and Kristal Sinkfield hosted a party at their
home. Boyd, Sinkfield, Goodrum, and several others were in the kitchen 1 The victim was killed on December 12, 2014. On March 11, 2015, Goodrum was indicted by a Troup County grand jury for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault by shooting Boyd with a gun (Count 3), possession of a firearm during the commission of a felony (Count 4), possession of a firearm by a convicted felon during the commission of a crime (Count 5), driving under the influence (less safe) (Count 6), driving under the influence (per se) (Count 7), and failure to stop at a stop sign (Count 8). At the conclusion of a trial held December 15-17, 2015, the jury acquitted Goodrum of malice murder but found him guilty of Counts 2-4, 6, and 8. Counts 5 and 7 were nolle prossed by the State. The trial court sentenced Goodrum to imprisonment for life without parole for Count 2, five years consecutive for Count 4, 12 months concurrent for Count 6, and 12 months concurrent for Count 8. Count 3 merged with Count 2 for sentencing. See Green v. State, 283 Ga. 126, 130 (657 SE2d 221) (2008). On December 21, 2015, Goodrum filed a motion for new trial, which he amended on October 20, 2016, after the appearance of new counsel. Following a hearing, the trial court denied the motion for new trial on November 10, 2016. Goodrum filed a timely notice of appeal on November 15, 2016, and the case was docketed in this Court to the August 2017 term and submitted for a decision on the briefs. playing cards when Goodrum and Boyd got into a heated argument. The two
exchanged blows, and Sinkfield stepped between them and pushed Goodrum
back. According to Goodrum’s testimony at trial, the entire group of people
then advanced toward him, backing him up against the stove. Goodrum also
claimed that he saw someone hand Boyd a gun, but four eyewitnesses
testified that neither Boyd nor anyone else in the room besides Goodrum had
a gun that night. Goodrum pulled out a 9 millimeter handgun and shot Boyd
in the chest; he then ran out of the house, got into his car, and drove away.
Later that night, police investigators found several .40 caliber cartridges, a
.380 bullet, and a .25 caliber casing in the front yard, and a possible bullet
hole in Goodrum’s car. Boyd was taken to the hospital, but later died from
the gunshot wound to the chest.
Police officer William Jones was responding to Sinkfield’s 911 call
when he saw Goodrum run a stop sign and crash into an elementary school.
Officer Jones stopped and questioned Goodrum, who said he had been at a
party with his brother-in-law when “they” started shooting, so he left. When
Officer Jones asked who was shooting, Goodrum said he didn’t know.
Goodrum smelled strongly of alcohol, and his speech was slow and slurred.
2 Although Goodrum does not challenge the sufficiency of the evidence
admitted at trial, it is our practice in murder cases to review the record and
determine whether the evidence was legally sufficient under the standard set
out in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
Having done so, we conclude that the evidence introduced at trial and
summarized above was legally sufficient to authorize a rational trier of fact to
find beyond a reasonable doubt that Goodrum was guilty of the crimes for
which he was convicted. See id. at 319.
II.
Goodrum contends that his state constitutional right to be present at all
critical stages of the trial proceedings was violated when the trial court
dismissed one of the trial jurors after a discussion in chambers at which he
was not present. But Goodrum acquiesced to his absence from that
proceeding.
After closing arguments, the judge told the jury that there would be a
“short break” before they received their instructions. The jury and Goodrum
then left the courtroom. When the jury and Goodrum returned to the
courtroom some time later, the judge explained:
3 All right, ladies and gentlemen, I know that was a long few minutes that you were in the jury room, but an issue came up while you were out that we had to deal with. And as a result of that issue, it became necessary for me to excuse Mr. Tullis from the jury. So now we’re down to 12 jurors. The 12 of you in the box will be the 12 jurors who will be deciding this case.
Goodrum did not express any concern about or objection to what had
occurred to his counsel or the court, and the judge then charged the jury.
After the jury returned their verdicts, the judge sentenced Goodrum and
the jury returned to the jury room to be dismissed. The judge then put on the
record in open court more details about what had occurred during the pre-
charge break. The judge explained that at some point before the break, the
district attorney’s office received information that juror Tullis had been
previously convicted of a felony; he apparently had acknowledged that fact in
the jury assembly room but indicated that he believed his civil rights had
been restored. The prosecutor and the court were unable to verify the
restoration of the juror’s civil rights, so the judge excused the juror, noting
that an alternate juror was available. There again is no indication that
Goodrum expressed any concern about or objection to the procedure used to
excuse the juror.
4 Goodrum’s counsel did not object to Goodrum’s absence from the
discussion about the juror’s removal, but counsel’s waiver of Goodrum’s
asserted right to be present is binding on Goodrum only if it was made at his
express direction or in open court in his presence or if he acquiesced to the
waiver. See Williams v. State, 300 Ga. 161, 165 (794 SE2d 127) (2016).
Because the first two options clearly were not satisfied, we examine if
Goodrum acquiesced to the waiver. “As our precedents explain,
acquiescence, which is a tacit consent to acts or conditions, ‘may occur when
counsel makes no objection and a defendant remains silent after he or she is
made aware of the proceedings occurring in his or her absence.’” Burney v.
State, 299 Ga. 813, 820 (792 SE2d 354) (2016) (citation omitted). See also
Ward v. State, 288 Ga. 641, 646 (706 SE2d 430) (2011) (“Acquiescence
means a tacit consent to acts or conditions, and implies a knowledge of those
things which are acquiesced in.” (citations and punctuation omitted)).
The asserted right at issue in this case was Goodrum’s “constitutional
right to be present during the proceedings at which one of the jurors trying
his case was removed.” Zamora v. State, 291 Ga. 512, 518 (731 SE2d 658)
(2012). Immediately after the discussion from which Goodrum was excluded,
the trial court advised him and everyone else in the courtroom that an issue
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303 Ga. 414 FINAL COPY
S17A1748. GOODRUM v. THE STATE.
GRANT, Justice.
Following a jury trial in the Superior Court of Troup County, Demario
Goodrum was found guilty of felony murder and related offenses in
connection with the shooting death of Tarvanisha Boyd. In this appeal,
Goodrum argues that the trial court violated his constitutional right to be
present at all critical stages of his trial, and that he received ineffective
assistance of trial counsel. We affirm. 1
I.
Viewed in the light most favorable to the verdicts, the evidence showed
that, in December 2014, Boyd and Kristal Sinkfield hosted a party at their
home. Boyd, Sinkfield, Goodrum, and several others were in the kitchen 1 The victim was killed on December 12, 2014. On March 11, 2015, Goodrum was indicted by a Troup County grand jury for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault by shooting Boyd with a gun (Count 3), possession of a firearm during the commission of a felony (Count 4), possession of a firearm by a convicted felon during the commission of a crime (Count 5), driving under the influence (less safe) (Count 6), driving under the influence (per se) (Count 7), and failure to stop at a stop sign (Count 8). At the conclusion of a trial held December 15-17, 2015, the jury acquitted Goodrum of malice murder but found him guilty of Counts 2-4, 6, and 8. Counts 5 and 7 were nolle prossed by the State. The trial court sentenced Goodrum to imprisonment for life without parole for Count 2, five years consecutive for Count 4, 12 months concurrent for Count 6, and 12 months concurrent for Count 8. Count 3 merged with Count 2 for sentencing. See Green v. State, 283 Ga. 126, 130 (657 SE2d 221) (2008). On December 21, 2015, Goodrum filed a motion for new trial, which he amended on October 20, 2016, after the appearance of new counsel. Following a hearing, the trial court denied the motion for new trial on November 10, 2016. Goodrum filed a timely notice of appeal on November 15, 2016, and the case was docketed in this Court to the August 2017 term and submitted for a decision on the briefs. playing cards when Goodrum and Boyd got into a heated argument. The two
exchanged blows, and Sinkfield stepped between them and pushed Goodrum
back. According to Goodrum’s testimony at trial, the entire group of people
then advanced toward him, backing him up against the stove. Goodrum also
claimed that he saw someone hand Boyd a gun, but four eyewitnesses
testified that neither Boyd nor anyone else in the room besides Goodrum had
a gun that night. Goodrum pulled out a 9 millimeter handgun and shot Boyd
in the chest; he then ran out of the house, got into his car, and drove away.
Later that night, police investigators found several .40 caliber cartridges, a
.380 bullet, and a .25 caliber casing in the front yard, and a possible bullet
hole in Goodrum’s car. Boyd was taken to the hospital, but later died from
the gunshot wound to the chest.
Police officer William Jones was responding to Sinkfield’s 911 call
when he saw Goodrum run a stop sign and crash into an elementary school.
Officer Jones stopped and questioned Goodrum, who said he had been at a
party with his brother-in-law when “they” started shooting, so he left. When
Officer Jones asked who was shooting, Goodrum said he didn’t know.
Goodrum smelled strongly of alcohol, and his speech was slow and slurred.
2 Although Goodrum does not challenge the sufficiency of the evidence
admitted at trial, it is our practice in murder cases to review the record and
determine whether the evidence was legally sufficient under the standard set
out in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
Having done so, we conclude that the evidence introduced at trial and
summarized above was legally sufficient to authorize a rational trier of fact to
find beyond a reasonable doubt that Goodrum was guilty of the crimes for
which he was convicted. See id. at 319.
II.
Goodrum contends that his state constitutional right to be present at all
critical stages of the trial proceedings was violated when the trial court
dismissed one of the trial jurors after a discussion in chambers at which he
was not present. But Goodrum acquiesced to his absence from that
proceeding.
After closing arguments, the judge told the jury that there would be a
“short break” before they received their instructions. The jury and Goodrum
then left the courtroom. When the jury and Goodrum returned to the
courtroom some time later, the judge explained:
3 All right, ladies and gentlemen, I know that was a long few minutes that you were in the jury room, but an issue came up while you were out that we had to deal with. And as a result of that issue, it became necessary for me to excuse Mr. Tullis from the jury. So now we’re down to 12 jurors. The 12 of you in the box will be the 12 jurors who will be deciding this case.
Goodrum did not express any concern about or objection to what had
occurred to his counsel or the court, and the judge then charged the jury.
After the jury returned their verdicts, the judge sentenced Goodrum and
the jury returned to the jury room to be dismissed. The judge then put on the
record in open court more details about what had occurred during the pre-
charge break. The judge explained that at some point before the break, the
district attorney’s office received information that juror Tullis had been
previously convicted of a felony; he apparently had acknowledged that fact in
the jury assembly room but indicated that he believed his civil rights had
been restored. The prosecutor and the court were unable to verify the
restoration of the juror’s civil rights, so the judge excused the juror, noting
that an alternate juror was available. There again is no indication that
Goodrum expressed any concern about or objection to the procedure used to
excuse the juror.
4 Goodrum’s counsel did not object to Goodrum’s absence from the
discussion about the juror’s removal, but counsel’s waiver of Goodrum’s
asserted right to be present is binding on Goodrum only if it was made at his
express direction or in open court in his presence or if he acquiesced to the
waiver. See Williams v. State, 300 Ga. 161, 165 (794 SE2d 127) (2016).
Because the first two options clearly were not satisfied, we examine if
Goodrum acquiesced to the waiver. “As our precedents explain,
acquiescence, which is a tacit consent to acts or conditions, ‘may occur when
counsel makes no objection and a defendant remains silent after he or she is
made aware of the proceedings occurring in his or her absence.’” Burney v.
State, 299 Ga. 813, 820 (792 SE2d 354) (2016) (citation omitted). See also
Ward v. State, 288 Ga. 641, 646 (706 SE2d 430) (2011) (“Acquiescence
means a tacit consent to acts or conditions, and implies a knowledge of those
things which are acquiesced in.” (citations and punctuation omitted)).
The asserted right at issue in this case was Goodrum’s “constitutional
right to be present during the proceedings at which one of the jurors trying
his case was removed.” Zamora v. State, 291 Ga. 512, 518 (731 SE2d 658)
(2012). Immediately after the discussion from which Goodrum was excluded,
the trial court advised him and everyone else in the courtroom that an issue
5 had arisen during the break that the court and others had to deal with and, as
a result of that issue, the court had excused juror Tullis from the jury that
would be deciding Goodrum’s case. Thus, the court made it clear that
Goodrum had not been present during a proceeding at which one of the jurors
trying his case was removed. Goodrum did not express any concern about or
objection to his absence during that discussion, nor did he ask for more
details about the matter. Moreover, even when, after being found guilty by
the jury from which juror Tullis had been removed, Goodrum was told the
details of the discussion and the reason for the juror’s removal, he did not
express any concern about the matter or his absence from the discussion to
his counsel or the court, and the trial was adjourned.
Under these circumstances, Goodrum acquiesced in his counsel’s
waiver of his claimed right to be present for the discussion about juror Tullis.
See, e.g., Burney, 299 Ga. at 820-821 (finding acquiescence to the appellant’s
absence from a proceeding involving juror notes and citing other cases
similarly finding acquiescence to an appellant’s absence during the
discussion of juror issues). Compare Ward, 288 Ga. at 646 (“Since appellants
were not informed of the ex parte excusal of the juror, they could not
knowingly acquiesce to the waiver on the part of their attorneys.”); Sammons
6 v. State, 279 Ga. 386, 388 (612 SE2d 785) (2005) (holding that there was no
acquiescence where the appellant questioned her counsel about the juror
removal as soon as she was informed of the meeting held in her absence).
III.
Goodrum also alleges that his trial counsel provided ineffective
assistance when he failed to object to portions of the State’s closing
argument. To succeed on this claim, Goodrum must show that trial counsel’s
performance was deficient and that he was prejudiced by his attorney’s
errors. Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80
LE2d 674) (1984). In order to meet the first prong of the Strickland test,
Goodrum must “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.’” Simmons v. State, 299 Ga. 370, 375 (788 SE2d
494) (2016) (citations omitted). Decisions made as a matter of trial strategy
and tactics do not amount to ineffective assistance of counsel unless “they
were so patently unreasonable that no competent attorney would have
followed such a course.” Id.; see Scott v. State, 290 Ga. 883, 889 (725 SE2d
305) (2012).
7 To meet the second prong, prejudice, Goodrum must show that there is
a reasonable probability that, but for the deficiency in counsel’s performance,
the outcome of the trial would have been different. Strickland, 466 U. S. at
694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. The failure to make the required showing
on either prong of the Strickland test is fatal to an ineffective assistance of
counsel claim. Trimble v. State, 297 Ga. 180, 183 (773 SE2d 188) (2015).
During the State’s closing argument, the prosecutor argued that if
Goodrum really had shot Boyd in self-defense, he would have called 911
after the shooting. Goodrum contends that the prosecutor’s comments
violated the “bright line rule” articulated in Mallory v. State, 261 Ga. 625
(409 SE2d 839) (1991), overruled on other grounds as recognized in Clark v.
State, 271 Ga. 6, 10 (515 SE2d 155) (1999), in which this Court cited a
former rule of evidence and held that it is impermissible to comment on a
criminal defendant’s pre-arrest silence, even where the accused had not
received Miranda warnings and where the defendant testifies at trial (as
Goodrum did). 2 But here the issue relevant to Goodrum’s ineffective
assistance claim is not whether the prosecutor’s comments were improper;
2 To date, this Court has declined to decide Mallory’s continuing validity under the current Evidence Code. See, e.g. Dublin v. State, 302 Ga. 60, 62 (805 SE2d 27) (2017). As a decision on that issue is not necessary to resolve Goodrum’s appeal, we again decline to examine it here.
8 rather, the question is whether counsel’s decision not to object to the
comments was objectively unreasonable under the circumstances of the case
and in light of prevailing professional norms. See Hartsfield v. State, 294
Ga. 883, 887 (757 SE2d 90) (2014). We cannot say that it was.
At the motion for new trial hearing, Goodrum’s trial counsel testified
that he chose not to object to the prosecutor’s comments because he thought
that the argument was “absurd,” given the short—and evidently
eventful—period of time between the shooting and Goodrum’s arrest.
Instead of objecting during the State’s argument, counsel responded by
highlighting the absurdity of the argument in his own closing—pointing out
that Goodrum had fled from the house in a hail of bullets and crashed only a
few blocks away, after which the police arrived within seconds. Goodrum
has not shown that this tactical decision was “so patently unreasonable that
no competent attorney would have followed such a course.” Simmons, 299
Ga. at 375; see Smith v. State, 296 Ga. 731, 735-736 (770 SE2d 610) (2015)
(counsel’s decision to remain silent and comment on prosecutor’s closing
argument “theatrics” in his own closing did not amount to ineffective
assistance). His claim of ineffective assistance therefore fails.
Judgment affirmed. All the Justices concur.
9 NAHMIAS, Justice, concurring.
I join the Court’s opinion, including its holding in Division II that
Goodrum acquiesced to his absence for the discussion during which the trial
court removed one of the jurors trying his case. I write separately to
recognize that it “has long been established that ‘(p)roceedings at which the
jury composition is selected or changed are . . . critical stage(s) [of a trial] at
which the defendant is entitled to be present.’” Zamora v. State, 291 Ga.
512, 518 (731 SE2d 658) (2012) (quoting Sammons v. State, 279 Ga. 386,
387 (612 SE2d 785) (2005)). “Accordingly, [Goodrum] clearly had a
constitutional right to be present during the proceedings at which one of the
jurors trying his case was removed.” Id.
The State contends that the proceeding from which Goodrum was
excluded involved a purely legal question akin to the issues discussed during a charge conference or a bench conference on evidentiary or procedural
issues. See, e.g., Heywood v. State, 292 Ga. 771, 774 (743 SE2d 12) (2013);
Huff v. State, 274 Ga. 110, 111 (549 SE2d 370) (2001). That is incorrect.
To begin with, a sitting juror could not be excused without a factual showing
of cause — in this case whether juror Tullis had been previously convicted of
a felony and, if so, whether his civil right to serve on a jury had been
restored. All of the evidence regarding those facts was developed outside
Goodrum’s presence, including during the break at which the juror was
questioned in chambers and the prosecutor and the trial court sought
unsuccessfully to verify his belief that his rights had been restored. The court
may also have heard legal arguments from counsel and made a ruling
applying the law to the facts as the court viewed them, but the proceeding
was not limited to purely legal issues.
In addition, this Court’s precedents to date have not drawn a distinction
between factual and legal issues with regard to a defendant’s right to be
present during discussions about a juror’s removal. See, e.g., Williams v.
State, 300 Ga. 161, 165 (794 SE2d 127) (2016) (holding that, although the
appellant was present when a juror asked to be excused for hardship based on
his travel plans and when the trial court announced that the juror was being
2 excused for that reason, the appellant “had the right to be present at the
[intervening] bench conference at which the juror’s excusal was discussed”);
Smith v. State, 298 Ga. 406, 409 (782 SE2d 269) (2016) (holding that,
although the appellant was present for the factual development of the reason
for a juror’s removal, he had a right to be present when the court asked for
legal argument and then removed the juror); Heywood, 292 Ga. at 774
(holding that, although the appellant did not have a right to be present at 12
bench conferences discussing “legal arguments regarding objections and
proper trial procedure or logistical matters,” he did have a right to be present
at the one bench conference during which “the topic included whether to
replace the prospective jurors”). Accordingly, our decision should not be
read to cast doubt on the “well established” rule that a defendant who is not
allowed to see and hear a proceeding during his trial “at which a juror is
discussed and dismissed is not ‘present’ to the extent required under the
federal and state Constitutions.” Murphy v. State, 299 Ga. 238, 240 (787
SE2d 721) (2016). With this understanding, I join the Court’s opinion in full.
I am authorized to state that Presiding Justice Melton and Justice
Hunstein join in this concurrence.
3 Decided March 15, 2018 – Reconsideration
denied March 29, 2018.
Murder. Troup Superior Court. Before Judge Hightower.
Matthew K. Winchester, for appellant.
Peter J. Skandalakis, District Attorney, Monique L. Kirby, Edward A.
Case III, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant
Attorney General, for appellee.