FIFTH DIVISION MERCIER, C. J., MCFADDEN, P. J., and RICKMAN, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 1, 2024
In the Court of Appeals of Georgia A24A0126. MCCLOUD v. THE STATE.
MCFADDEN, Presiding Judge.
On February 6, 2019, three-week-old A. M. was hospitalized with numerous,
serious acute and healing injuries, including multiple fractures. Medical experts
determined that the infant had sustained non-accidental blunt force trauma over a
period of time, and the state jointly charged his parents, both individually and as
parties to a crime, with several counts of family-violence aggravated battery (OCGA
§ 16-5-24) and cruelty to children in the first degree (OCGA § 16-5-70).
This appeal concerns the convictions of A. M.’s father, Jarrett McCloud, for
those crimes. McCloud argues that the trial court erred in denying his motion for
directed verdict, because the evidence of his guilt was circumstantial and did not exclude the reasonable hypothesis that another person, such as A. M.’s mother,
injured the infant. We hold, however, that the evidence was sufficient to support
McCloud’s convictions.
McCloud also argues that the trial court erred in permitting evidence of his
marijuana use on the day A. M. was taken to the hospital, but we hold that the
evidence was admissible as intrinsic to the charged offenses. He argues that the trial
court erred in failing to grant him a mistrial sua sponte in response to purported
misconduct by the jurors and the bailiff, but we hold that he has not preserved those
claims of error for appellate review. Finally, he argues that his trial counsel rendered
constitutionally ineffective assistance in failing to request a mistrial both in response
to the juror and bailiff issues and in response to the state’s allegedly improper closing
argument, but we hold that he has not met his burden of showing both deficient
performance and prejudice.
So we affirm.
1. Directed verdict
We review the trial court’s denial of McCloud’s motion for a directed verdict
under the same standard as that used “for determining the sufficiency of the evidence
2 to support a conviction. Under that standard, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Shelton v. State, 313 Ga. 161, 168 (2) (869 SE2d 377) (2022) (citations and
punctuation omitted). (Some of the evidence discussed below is the trial testimony of
A. M.’s mother, Megan Richmond, who was indicted with McCloud. Whether she
was McCloud’s accomplice, such that her testimony would require corroboration to
establish a fact in this case, was a question for the jury, which was instructed on that
issue. See Caldwell v. State, 313 Ga. 640, 643 (1) (872 SE2d 712) (2022).)
So viewed, the evidence showed that A. M. was born on January 14, 2019, and
was discharged from the hospital two days later. At that time, he had no physical
injuries.
From January 16 to January 25, A. M. and his mother, Richmond, stayed with
McCloud in a room within a small mobile home that McCloud shared with other
family members. McCloud was one of the infant’s caregivers and on at least one
occasion during this time period A. M. was in his sole care. A. M. had some visible
scratches and other abrasions on his body during this time period. He also cried a lot
3 and showed signs of discomfort whenever his body was moved or manipulated, such
as when his clothes were being changed. Richmond discussed some of these issues
with A. M.’s pediatrician and on January 21 searched the internet for “why [her]
baby’s eye [was] swollen.” McCloud did not attend any of A. M.’s pediatrician
appointments.
Between January 25 and January 31, 2019, A. M. and Richmond visited
Richmond’s parents. McCloud did not accompany them and had no contact with A.
M. during those days. A. M. did not display any new injuries during the visit.
On January 31, 2019, A. M. and Richmond returned to the room in the mobile
home that they shared with McCloud, and McCloud again had access to the infant.
The next day, Richmond noticed bruises on the infant’s face. A. M. also sustained a
cut near his eye while he was in McCloud’s sole care. A photograph of A. M. taken
on February 3 showed the infant with a noticeable cut under his eye and bruises on his
face. McCloud told Richmond that the injuries were normal and that the infant had
inflicted them on himself. Richmond continued to have concerns about A. M.’s
physical condition and sought answers from her parents, from a friend, and through
4 internet searches on issues such as the presence of blood in a baby’s stool and why a
baby’s joints popped.
On February 5, 2019, McCloud yanked A. M. out of Richmond’s arms during
an argument. Upset, Richmond walked out of the room, leaving the infant in
McCloud’s care for a bit. Later Richmond noticed that one of A. M.’s legs was badly
swollen and larger than his other leg. During the night, she tried to discover the cause
by conducting internet searches such as “why is my baby’s thigh swollen?” and
sending her close friend a picture of A. M.’s leg. Richmond told McCloud that she
thought A. M. needed medical attention, but McCloud disagreed and the two got into
an argument about it. McCloud refused to let Richmond leave the room with A. M.,
stating that the infant had a blood clot that could be addressed by massaging the
swollen leg.
The next morning, February 6, 2019, another resident of the mobile home
stated that she would call 911 if Richmond did not seek medical care for A. M., and
later that day, Richmond and McCloud’s mother took A. M. to the hospital. McCloud
did not go with them, having stated that “it was a bad idea” and that “DFCS would
get involved and take [A. M.] away.”
5 When A. M. arrived at the hospital on February 6, 2019, he had significant
injuries. Many of the injuries were immediately visible, including severe bruising,
several scratches, and dried blood on his face; bruising and discoloration on numerous
other parts of his body; his eye injury; and his badly swollen leg. Initial scans revealed
that A. M. also had several fractures, including a broken leg.
Suspecting child abuse, hospital personnel immediately notified law
enforcement and took custody of A. M. Law enforcement asked McCloud to come to
the hospital, and when he arrived McCloud appeared to be under the influence and
stated that he had been smoking marijuana.
A. M. was transferred to a specialized children’s hospital, where additional
observation, scans, and other testing revealed that he had numerous serious injuries,
including blunt force trauma to his “diaper area”; trauma to his brain, tissues, and
abdomen; and various fractures. Some of his injuries, including a fracture to his right
clavicle, were in the process of healing, meaning that they had occurred sometime
between his birth and January 28. Other injuries were acute and had not yet begun to
heal, meaning that they had occurred sometime between January 24 and February 6,
when A. M. was hospitalized. Still other injuries could not be dated.
6 A doctor who examined A. M. at the children’s hospital and who was an expert
in child abuse pediatrics opined that the infant’s injuries were non-accidental trauma,
meaning that they had been intentionally inflicted upon him. Some, such as the leg
injury, were caused by significant force. The doctor testified that A. M.’s right femur
(or upper leg) was “significantly displaced,” meaning “the bone was literally bent,”
and his right tibia and fibula (or lower leg) had a type of fracture caused by “forceful
yanking, twisting, or shearing.” Those fractures would have occurred shortly before
A. M.’s leg started swelling. The doctor testified that the infant could not have
inflicted the injuries on himself, and the injuries would not have occurred in a single
incident.
McCloud argues that he was entitled to a directed verdict because this evidence
was insufficient to support his convictions. Because the trial court merged several of
the convictions for sentencing, we consider only the convictions for which McCloud
was sentenced. See Rivera v. State, 317 Ga. 398, 405 (1) (893 SE2d 696) (2023);
McIntyre v. State, 312 Ga. 531, 534 (1) n. 5 (863 SE2d 166) (2021). Those convictions
are for family-violence aggravated battery for injuring A. M.’s right clavicle between
January 16 and January 25 (Count 1); first-degree child cruelty for causing fractures
7 to A. M. between January 16 and January 25 (Count 15); and first-degree child cruelty
for causing multiple injuries to A. M., including fractures, bruises, and scratches,
between January 31 and February 6 (Count 17).
McCloud argues that there was only circumstantial evidence that he was the
person who injured A. M. and that the evidence did not exclude the reasonable
hypothesis that another person, such as Richmond, inflicted the injuries. Although we
agree that there is only circumstantial evidence of McCloud’s guilt, the evidence
nevertheless authorized his convictions.
As an initial matter, we do not address whether the circumstantial evidence
authorized McCloud’s convictions on a theory that he was a party to the crimes,
because even though the state charged McCloud both individually and as a party to
the crimes, the trial court instructed the jury that “the party-to-a-crime doctrine [did]
not apply to this case.” (We discuss that instruction in more detail below, in
connection with one of McCloud’s claims for ineffective assistance of counsel.) We
note, however, that our Supreme Court has recently held that where a young child
sustained fatal injuries while in the exclusive care of her mother and her mother’s
boyfriend, and the defendant boyfriend downplayed and failed to account for those
8 injuries, the circumstantial evidence was sufficient to show either that he personally
injured the child or that he was a party to inflicting those injuries. Payne v. State, 318
Ga. 249, 252-254 (2) (897 SE2d 809) (2024).
“To warrant a conviction on circumstantial evidence, the proved facts shall not
only be consistent with the hypothesis of guilt, but shall exclude every other
reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. But
not every hypothesis is reasonable, and the evidence does not have to exclude every conceivable inference or hypothesis; it need rule out only those that are reasonable. The reasonableness of an alternative hypothesis raised by a defendant is a question principally for the jury, and when the jury is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of the accused’s guilt, [an appellate court] will not disturb that finding unless it is unsupportable as a matter of law.
Hamilton v. State, 309 Ga. 1, 6 (2) (843 SE2d 840) (2020) (citation and punctuation
omitted). Accord Frazier v. State, 308 Ga. 450, 453 (2) (a) (841 SE2d 692) (2020).
“We leave to the jury the resolution of conflicts or inconsistencies in the evidence,
credibility of witnesses, and reasonable inferences derived from the facts. Likewise,
we allow the jury to decide whether the defense theory was reasonable and not
9 excluded by the other evidence.” Butler v. State, 310 Ga. 892, 895 (1) (855 SE2d 551)
(2021) (citations and punctuation omitted).
The jury could infer from the circumstantial evidence presented at trial that
between January 16 and January 25, McCloud caused the broken clavicle and other
fractures alleged in Counts 1 and 15, and that between January 31 and February 6,
McCloud caused the fractures, bruises, and scratches alleged in Count 17. That
evidence included: (1) expert opinion testimony that A. M. could have sustained the
injuries during periods in which he was in McCloud’s care; (2) expert opinion
testimony that the injuries “were the result of non-accidental, significant force
generated by multiple blows[,]” Rashad v. State, 318 Ga. 199, 207 (2) (897 SE2d 760)
(2024); (3) evidence that A. M.’s serious leg injury became apparent soon after
McCloud yanked him from Richmond’s arms and then spent time alone with him; (4)
evidence that the large scratch under A. M.’s eye occurred while he was in
McCloud’s sole care; (5) evidence that McCloud downplayed or offered unreasonable
explanations for the injuries, such as that A. M. had injured himself; (5) evidence that
McCloud displayed a nonchalant, indifferent attitude about his health, especially when
the infant was in obvious need of immediate medical attention; and (6) evidence that
10 McCloud displayed callousness toward A. M. in other ways, such as referring to the
infant as “it” or as an “obnoxious motherfucker,” cussing at the infant, and telling
the infant to “shut the fuck up.” See Rashad, supra (evidence that the defendant had
physically hurt the child victim on an earlier occasion supported the finding that the
defendant was the person who later murdered the child); Moore v. State, 314 Ga. 351,
354-355 (877 SE2d 174) (2022) (evidence that the defendant downplayed a child’s
injuries and displayed “apparent indifference” to and a nonchalant attitude about the
child’s general health and condition after being injured supported a finding of
sufficient circumstantial evidence of the defendant’s role in the child’s death); Scott
v. State, 307 Ga. 37, 40 (1) (a) (834 SE2d 88) (2019) (finding evidence sufficient to
support defendant’s conviction for felony murder of a child where there was expert
testimony that the injuries sustained by the child while in the care of the defendant
were non-accidental). Cf. Payne, 318 Ga. at 254 (2) (evidence that the defendant
downplayed the injuries of a child in his care and “failed to account for the extensive
damage to [the child’s] body” supported a finding that the defendant was guilty of
crimes related to the child’s death, either by inflicting the injuries himself or as a party
to the crime).
11 McCloud argues that this evidence did not exclude other reasonable
hypotheses. He asserts that A. M.’s injuries could have occurred during the time
when A. M. and Richmond were staying with Richmond’s parents and McCloud did
not have access to the infant. And he asserts that no matter when the injuries
occurred, Richmond or someone else could have been responsible.
But the evidence authorized the jury to reject these hypotheses. For example,
there was evidence that while A. M. was staying with Richmond and her parents he
did not sustain any additional injuries, but once he returned to McCloud’s residence
he incurred new and significant injuries, such as facial bruises, the cut to his eye, and
the damage to his leg. And there was evidence that Richmond, unlike McCloud, was
puzzled and concerned by the injuries; she researched potential causes, asked others
for advice, pushed for A. M. to get medical care, and sought updates from hospital
personnel.
“Accordingly, the jury was not required to conclude that the hypothes[es]
proposed by [McCloud were] reasonable.” Hamilton, 309 Ga. at 6 (2) (citation and
punctuation omitted). Instead, to the extent there was evidence questioning the timing
or cause of A. M.’s injuries, “the jury was entitled to discredit [that evidence] and
12 find that [McCloud] inflicted the . . . injur[ies alleged in Counts 1, 15, and 17] during
the window[s] of time in which the medical experts estimated the blunt-force trauma
occurred.” Moore, 314 Ga. at 354-355.
2. Evidence of marijuana use
McCloud argues that the trial court erred by allowing the introduction of
evidence of his marijuana use. In a ruling on a motion in limine, the trial court
permitted such evidence but limited it to evidence about McCloud’s appearance and
statements at the hospital. The state introduced1 the evidence through a hospital
security officer, who testified that when McCloud arrived at the hospital he appeared
to be under the influence of marijuana and that he admitted having smoked marijuana
because “he was nervous. . . . Just what all was going on with [A. M.] He was nervous
about everything.”
McCloud contends that this was improper character evidence that should have
been excluded under OCGA § 24-4-404 (b). But the trial court held that it was
1 Under questioning from McCloud’s counsel, a friend of McCloud also testified that McCloud sometimes used marijuana. To the extent McCloud also complains that the jury heard his friend’s testimony, that claim has no merit because the testimony was elicited by his counsel. See Adkins v. State, 301 Ga. 153, 154-157 (2) (800 SE2d 341) (2017). 13 admissible as intrinsic evidence, which our Supreme Court has held is “outside the
reach of Rule 404 (b)” even if it incidentally puts the defendant’s character at issue.
Smith v. State, 307 Ga. 263, 272 (2) (c) (834 SE2d 1) (2019) (citation and punctuation
omitted). We review this ruling for abuse of discretion, see Abbott v. State, 311 Ga.
478, 482 (2) (858 SE2d 696) (2021), and find no error.
“‘Intrinsic evidence’ is defined as evidence that (1) pertains to an uncharged
offense arising from the same transaction or series of transactions as the charged
offense; (2) is necessary to complete the story of the crime; or (3) is inextricably
intertwined with the evidence regarding the charged offense.” Abbott, 311 Ga. at 482
(2). “In assessing whether evidence is necessary in this context, [our Supreme Court
has] noted that ‘necessary’ is not used in a strictly literal sense, but rather, refers to
what evidence is reasonably necessary for the [s]tate to complete the story of the
crime.” Jennings v. State, __ Ga. __ (1) (__ SE2d __) (Case No. S24A0095, decided
Mar. 5, 2024) (citation and punctuation omitted). Evidence that advances the state’s
theory of the case can be “necessary to complete the story of the crime for the jury.
. . .” Harris v. State, 310 Ga. 372, 379 (2) (b) (850 SE2d 77) (2020) (citation and
punctuation omitted). If it is relevant to the defendant’s guilt on the charged crimes,
14 it is intrinsic. See Wilson v. State, 315 Ga. 728, 740 (8) (a) n. 4 (883 SE2d 802) (2023);
see also Roberts v. State, 315 Ga. 229, 236 (2) (a) (880 SE2d 501) (2022) (citing United
States v. Battle, 774 F3d 504, 511 (II) (8th Cir. 2014), for the proposition that “[w]hen
evidence of other crimes tends logically to prove any element of the crime charged,
it is admissible as an integral part of the immediate context of the crime charged and
is not extrinsic”) (citation and punctuation omitted). This is so even if the evidence
concerns the defendant’s use of illicit drugs. See Smith v. State, 302 Ga. 717, 725-726
(4) (808 SE2d 661) (2017).
The state’s case against McCloud rested in part on the theory that McCloud
had a nonchalant attitude about A. M.’s well-being and medical care. As discussed
above, McCloud’s attitude towards the infant was relevant to the question of whether
McCloud was the person who injured him. See Moore, 314 Ga. at 355. His attitude also
was relevant to one of the child-cruelty charges, which alleged his failure to seek
timely medical care for the infant. (That charge merged with another child-cruelty
count for sentencing.)
McCloud’s decision to smoke marijuana instead of accompanying his badly
injured infant to the hospital was part of a larger body of evidence that addressed this
15 theory of the case. The state presented evidence that McCloud did not attend A. M.’s
pediatrician appointments and that he attempted to convince Richmond not to seek
medical care for the infant’s obvious leg injury. The state presented opinion testimony
from A. M.’s examining physician, who was also an expert in child abuse pediatrics,
that McCloud’s appearance at the hospital under the influence of marijuana after
earlier choosing not to go to the hospital with the infant was “significant” in assessing
the risk of child abuse. The state elicited similar testimony from a licensed clinical
social worker, who stated that in assessing the risk of child abuse, it was “clinically
concerning” for McCloud to choose to smoke marijuana rather than to accompany A.
M. to the hospital.
Under these circumstances, the trial court did not abuse his discretion in
determining that the evidence of McCloud’s marijuana use — which, as noted above,
the trial court limited to McCloud’s appearance and statements at the hospital — was
intrinsic to the charges against him. See Johnson v. State, 312 Ga. 481, 491-492 (4)
(863 SE2d 137) (2021) (holding that evidence of the defendant’s involvement in
uncharged shootings was intrinsic to the charged crime of criminal gang activity
because the evidence was probative of the state’s theory that the defendant was
16 involved in other shootings as part of his gang “work”, and so it was reasonably
necessary to complete the story of the charged crime); Smith, 307 Ga. at 271-272 (2)
(c) (holding that evidence that the defendant and another person had been seen using
and possibly selling drugs on the street corner where a shooting occurred was intrinsic
to the charged crimes connected with that shooting because the evidence advanced
the state’s theory that the shooting was the culmination of a series of drug-related
robberies). See also Roberts, 315 Ga. at 236-237 (2) (b) (limited evidence of an
uncharged crime may be admissible as intrinsic even if evidence of the crime as a
whole is not intrinsic).
Cases cited by McCloud that concern evidence of drug use by a victim rather
than a defendant — such as Gill v. State, 296 Ga. 351 (765 SE2d 925) (2014) and
Crowe v. State, 277 Ga. 513 (591 SE2d 829) (2004) — are inapposite, because the
admissibility of evidence implicating a victim’s character is subject to a different
analysis. See White v. State, 307 Ga. 882, 885 (2) (838 SE2d 828) (2020)
(“Admissibility of evidence of a victim’s character is now governed by OCGA §§ 24-
4-404 (a) (2) and 24-4-405 (a), which generally limit evidence of a victim’s character
to reputation or opinion and not specific bad acts.”).)
17 “Because th[e] evidence was intrinsic to the crimes charged, it was [not] barred
by Rule 404 (b). . . . And although the evidence may have incidentally placed
[McCloud’s] character at issue, its probative value was not substantially outweighed
by the danger of unfair prejudice under these circumstances.” Williams v. State, 302
Ga. 474, 487 (IV) (d) (807 SE2d 350) (2017). See Johnson, 312 Ga. at 491 (4) (“the
exclusion of relevant evidence under Rule 403 is an extraordinary remedy that trial
courts should grant only sparingly”) (citation and punctuation omitted).
3. Juror and bailiff issues
During the state’s case-in-chief the courtroom bailiff informed the trial court
that he had seen notes on the jury room’s chalkboard (also referred to in the record
as a whiteboard). The notes suggested to the bailiff that the jurors were already
discussing the case. The bailiff stated that he told the jurors to erase the notes and
informed them that they could not discuss the case until the trial court instructed
them to do so. The trial court then gave the jurors an instruction, agreed to by the
prosecutor and McCloud’s counsel, that they could not begin deliberating until the
court told them to do so after the close of the evidence, and that until such time they
must keep their notes to themselves and not discuss the case with each other.
18 In two enumerations of error, McCloud argues that the trial court should have
declared a mistrial sua sponte because the jury had improperly engaged in
deliberations before the close of the evidence and because the bailiff, by telling the jury
to erase their notes, “had caused the destruction of evidence of juror misconduct
without any direction from the court or parties.”
These claims of error are not subject to our review. McCloud did not preserve
them for ordinary appellate review because he “did not raise any objection below to
the trial court’s handling of [this] issue.” Clark v. State, 315 Ga. 1, 5 (2) (b) (880 SE2d
201) (2022) (concerning alleged juror misconduct). See also Hill-Blount v. State, 339
Ga. App. 92, 94 (1) (793 SE2d 436) (2016) (concerning alleged improper
communication between bailiff and juror). And McCloud is not entitled to plain-error
review, which
is limited to the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, . . . a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b), and, for cases tried after January 1, 2013, . . . rulings on evidence . . . affecting substantial rights [as provided under] OCGA § 24-1-103 (d).
19 Keller v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d 22) (2020) (citation and
punctuation omitted). See Clark, supra (declining to apply plain-error review to a
claim “that the trial court should have sua sponte conducted its own investigation into
[a] juror’s alleged [misconduct]” rather than simply reminding the jurors to avoid
contact with persons outside the jury).
4. Ineffective assistance of counsel
McCloud argues that his trial counsel rendered ineffective assistance for failing
to request a mistrial (1) in response to the juror and bailiff issues discussed above and
(2) when the state made an allegedly improper closing argument. To prevail on this
claim, McCloud
must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. To prove that the performance of his lawyer was deficient, [McCloud] must show that the lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. And to prove that he was prejudiced by the performance of his lawyer, [McCloud] must show 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 undermine confidence in the outcome. This burden is a heavy one.
20 Simpson v. State, 298 Ga. 314, 318 (4) (781 SE2d 762) (2016) (citations and
punctuation omitted). As detailed below, McCloud has not met this burden.
(a) Failure to seek a mistrial in response to the juror and bailiff issues
McCloud argues that his trial counsel was ineffective for “failing to move for
a mistrial when it was discovered that jurors had been improperly deliberating prior
to the close of the state’s evidence and that the bailiff in this case had destroyed
evidence of this deliberation making the ability to ascertain details of this improper
conduct impossible.” Instead, trial counsel expressly waived any objection and agreed
to a curative instruction. McCloud has not shown that his trial counsel performed
deficiently.
McCloud argues that his trial counsel should have moved for a mistrial because
the chalkboard notes seen by the bailiff indicated improper jury deliberations, the
extent of which could not be determined because the notes had been erased. In his
order on McCloud’s motion for new trial, the trial court appears to have concluded
that the jury did, in fact, engage in premature discussions about the case.
Nevertheless, the trial court found that trial counsel had not performed deficiently in
failing to request a mistrial, citing trial counsel’s testimony at the motion-for-new-trial
21 hearing that he thought the case was going well for McCloud; that, in his experience,
a retrial of a case usually was “worse for the defense the second time”; and that he
believed proceeding with the trial would be in McCloud’s best interest.
McCloud has not shown that no reasonable lawyer would have made a similar
decision. See McClendon v. State, 299 Ga. 611, 614-615 (2) (791 SE2d 69) (2016)
(finding no merit in appellant’s claim that his trial counsel was ineffective for failing
to ask for a mistrial after co-defendant’s counsel commented on appellant’s right to
remain silent; trial counsel had testified that he did not want to risk a less effective
second cross-examination of the state’s key witness on retrial, and appellant did not
show that no reasonable counsel would have failed to move for a mistrial under the
circumstances). Although he argues that it was the state’s burden “to disprove the
prejudicial nature of any deliberations or discussion,” he cites no authority for this
proposition in support of his argument that his trial counsel performed deficiently by
not asking for a mistrial. And we are not persuaded that the authorities he cites in
support of his separate claims that the trial court should have declarated a mistrial sua
sponte require a finding of ineffective assistance of counsel. Those authorities address
presumptions of harm when jurors engage in irregular conduct and bailiffs engage in
22 improper jury communication. See, e. g., Lockridge v. State, 260 Ga. 528, 529-530 (397
SE2d 695) (1990); Battle v. State, 234 Ga. 637, 638 (217 SE2d 255) (1975). They do not
address the reasonableness of an attorney’s decision to not seek a mistrial despite the
possible occurrence of irregular or improper conduct.
Consequently, McCloud did not show that his trial counsel performed
deficiently for failing to seek a mistrial in response to the juror and bailiff issues.
(b) Failure to seek a mistrial in response to the state’s closing argument
During closing argument, the prosecutor told the jurors that the trial court
would “instruct [them] regarding parties to a crime[,]” and then began to explain that
concept, stating: “A person can be committed [sic] for a crime to which they are a
party. A person is a party to a crime even if he does not directly commit the crime. If
he intentionally helps in the commission of a crime, or if he intentionally advises –.”
At that point McCloud’s counsel objected on the ground that the state had not
requested a parties-to-a-crime jury charge, and the trial court then gave the jury the
following curative instruction: “Ladies and gentlemen, just prior to your break,
counsel for the state argued that a person can be held responsible for a crime, even if
they did not commit the crime, if they were a party to it. You are to disregard
23 counsel’s statements because the party-to-a-crime doctrine does not apply to this
case.” McCloud’s trial counsel appears to have drafted that instruction and did not
object to the trial court giving it in response to his objection.
McCloud argues that this constituted ineffective assistance by his trial counsel.
Instead, McCloud asserts, his trial counsel should have requested a mistrial under
OCGA § 17-8-75, which permits a trial court to either give a curative instruction or
grant a mistrial when a prosecuting attorney “make[s] statements of prejudicial
matters which are not in evidence[.]”
Whether to grant a mistrial, either under OCGA § 17-8-75 or for another
reason, is a matter within the trial court’s discretion. Harper v. State, 318 Ga. 185, 194
(2) (897 SE2d 818) (2024); Samuels v. State, 335 Ga. App. 819, 824 (2) (783 SE2d
344) (2016). And McCloud has not shown that the trial court was required to grant a
mistrial in this case. To the contrary, although the state does not argue the point, it is
not apparent to us that OCGA § 17-8-75 applies to an objection about a legal concept
raised in closing argument. See Elliott v. State, 275 Ga. App. 359, 362 (2) (620 SE2d
584) (2005) (OCGA § 17-8-75 “concerns the introduction of facts not in evidence”)
(emphasis supplied).
24 Nor is it apparent to us that there was anything else objectionable about the
prosecution’s closing argument. As discussed above, the state indicted McCloud both
individually and as a party to a crime. And notwithstanding the trial court’s curative
instruction that the party-to-a-crime doctrine did not apply in this case, the trial court
later charged the jury on aspects of that doctrine. The trial court charged the jury that
“[k]nowledge on the part of the defendant that the crimes of aggravated battery and
cruelty to children in the first degree were being committed and that the defendant
knowingly and intentionally participated or helped in the commission of such crime must
be proved by the state beyond a reasonable doubt.” (Emphasis supplied.) The trial
court also charged the jury that “should you find, beyond a reasonable doubt, that the
defendant had knowledge that the crime was being committed and that the defendant
knowingly and intentionally participated or helped in the commission of it, then you would
be authorized to convict the defendant.” (Emphasis supplied.) And the trial court
charged the jury:
[T]he accused’s presence at the scene of a crime, even when coupled with knowledge and approval of the act, not amounting to encouragement, is not sufficient to show that the accused is a party to the crime. In order to find that the accused was a party to the crime, it is
25 necessary that there be proof that the accused shared a common criminal intent to commit the crime with the actual perpetrator.
(Emphasis supplied.) See generally OCGA § 16-2-20 (a) (“[e]very person concerned
in the commission of a crime is a party thereto and may be charged with and convicted
of commission of the crime[,]”); OCGA § 16-2-20 (b) (3), (4) (“[a] person is
concerned in the commission of a crime[, among other ways,] if he . . . [i]ntentionally
aids or abets in the commission of the crime; or . . . [i]ntentionally advises,
encourages, hires, counsels, or procures another to commit the crime”).
Trial counsel is “not deficient in failing to pursue a meritless course of action.”
Tyson v. State, 312 Ga. 585, 602 (6) (f) (864 SE2d 44) (2021). Here, McCloud’s trial
counsel was able to obtain a favorable curative instruction in response to an objection
of questionable merit on a matter within the trial court’s discretion. Under such
circumstances, McCloud
has not carried his burden of showing that his trial counsel performed deficiently by failing [instead] to move for a mistrial. . . . Because the trial court would have acted within [his] discretion in denying a motion for mistrial, the failure of [McCloud’s] trial counsel to make a motion that the trial court was authorized to deny does not establish ineffective assistance by that counsel.
26 Vallejo v. State, 362 Ga. App. 33, 42 (3) (a) (865 SE2d 640) (2021). See Hill v. State,
310 Ga. 180, 189-190 (6) (850 SE2d 110) (2020) (defendant did not show that trial
counsel was deficient for failing to ask for a mistrial in response to the presentation of
bad character evidence, where the trial court would have been authorized to deny such
a motion and the trial court had, on the defendant’s objection, given a curative
instruction).
Judgment affirmed. Mercier, C. J., and Rickman, J., concur.