310 Ga. 608 FINAL COPY
S20A1533. LYNN v. THE STATE.
PETERSON, Justice.
James Morris Lynn, Jr., appeals his conviction for malice
murder and aggravated assault in connection with the beating death
of his wife, Tonya Lynn.1 Lynn argues that we should vacate the trial
1 The crimes occurred sometime between July 26 and July 27, 2011. In
October 2011, a Barrow County grand jury indicted Lynn for malice murder, felony murder predicated on aggravated assault, and aggravated assault. Lynn was convicted of malice murder following a jury trial in June 2012, but we reversed his conviction based on the erroneous exclusion of evidence. See Lynn v. State, 296 Ga. 109 (765 SE2d 322) (2014). Lynn was retried from August 26 to September 3, 2015, and the jury found him guilty on all counts. The trial court sentenced Lynn to life in prison without the possibility of parole for malice murder and to a 20-year concurrent term for aggravated assault; the felony murder count was vacated by operation of law. Lynn timely filed a skeletal motion for new trial, which the trial court denied on November 2, 2016. Substitute appellate counsel filed a motion for out-of-time appeal in March 2019, alleging that Lynn’s prior attorney failed to file a notice of appeal due to an oversight. The trial court granted the motion for out-of-time appeal, and Lynn filed an amended motion for new trial, raising claims that trial counsel was ineffective. See Maxwell v. State, 262 Ga. 541, 542-543 (3) (422 SE2d 543) (1992) (permitting a defendant to file a second motion for new trial following the grant of an out-of-time appeal, and giving the trial court the discretion to refuse to reopen issues decided in the first motion for new trial). On May 1, 2020, the trial court denied Lynn’s amended motion for new trial following a hearing. Lynn timely filed a notice of appeal. His case was docketed to this Court’s August 2020 term and submitted for a decision on the briefs. court’s order denying his motion for new trial for lack of adequate
findings and remand for more detailed findings. He also argues that
the trial court erred in denying his motion for a mistrial, he received
ineffective assistance of trial counsel, and the combined errors
cumulatively prejudiced him. But the trial court was not required to
make detailed findings in denying Lynn’s motion for new trial. The
trial court did not err in denying Lynn’s motion for a mistrial
because the alleged basis for a mistrial posed little prejudice to Lynn
and the court gave a sufficient curative instruction. Lynn’s
ineffective assistance claims fail because he has not established that
trial counsel performed deficiently in any respect. And his
cumulative error argument fails because there are no errors to
cumulate. We vacate Lynn’s sentence for aggravated assault
because this count should have merged with the malice murder
conviction, but we affirm the murder conviction.
The evidence at trial showed the following.2 After Tonya went
2 Because we consider the cumulative prejudice of alleged trial counsel
deficiencies, we present the evidence as jurors reasonably would have viewed it, rather than in the light most favorable to the jury’s verdict. 2 missing, police interviewed Lynn multiple times, and he eventually
admitted killing Tonya by hitting her in the head with a baseball
bat. He led police to a well where he had dumped her body. An
autopsy showed that Tonya died from blunt force trauma to the
head.
The State presented evidence showing that the couple had a
rocky relationship. Lynn and Tonya, who had four children together,
separated and both filed for a divorce in early 2011. During their
separation, Lynn and Tonya each started dating other people. Tonya
began a relationship with David Bulloch, while Lynn began a
relationship with Jennifer Butler. Lynn told Tonya’s aunt that he
was not going to share custody of his children with anyone.
The couple moved back in together in May 2011, but their
troubles continued. On May 13, 2011, Tonya was in her bedroom
watching a movie with one of her daughters and her niece. Tonya’s
niece testified that when Lynn arrived home from work, he began
an argument with Tonya about whether she was texting someone.
Lynn yelled at Tonya and flipped over the mattress Tonya was
3 sitting on, causing her to fall to the floor and injure her knee.
Tonya became increasingly scared of Lynn, telling people he
had said he would kill her before he let her go. One of Tonya’s
cousins explained that Tonya did not immediately leave Lynn
because Tonya was concerned about supporting herself and her
children on her salary, and Lynn controlled access to their bank
accounts. Tonya began taking steps to save money in order to leave
Lynn permanently.
Meanwhile, Lynn continued to communicate with Butler,
stating that he did not want to be a part-time dad and frequently
expressing his frustration with the pending divorce and fear that
Tonya would leave with their children. On June 30, Lynn wrote an
e-mail to Butler, saying, “I have high hopes my problem will soon be
gone for good. I have to be patient and bide my time wisely and
always have a good alibi[.]” In subsequent e-mails, Lynn expressed
his anger about the possibility of Tonya leaving with the children
and said that she “doesn’t deserve to even be living” and that he
thought he would be happy if she were “gone for good.”
4 On July 24, Tonya talked to Bulloch and told him that Lynn
threw her into a doorframe and that, as a result, she planned to
leave Lynn and take the children with her. The next day, Lynn
called Tonya’s cousin, Julie Royster Hollifield, saying that Tonya
wanted to leave him and asking Hollifield to convince Tonya to stay
with him. Hollifield and Tonya talked on July 26, and Tonya said
she had “decided for sure she was leaving” and had packed her
belongings.
The following day, July 27 Tonya failed to show up to work at
6:30 a.m. as scheduled. When Tonya was still absent at 7:30 a.m.,
her supervisor, Stacey Morris, began making phone calls in an
attempt to locate Tonya. Tonya’s co-workers called law enforcement,
and officers began searching for her. Tonya’s family members told
officers that Lynn claimed both that Tonya probably died due to a
heart condition and that one of Tonya’s cousins probably killed her.
Officers asked to interview Lynn and requested that he bring in his
cell phone because it might contain data that could help them in
their investigation. Lynn brought his cell phone, but it had been
5 “completely wiped” of all data.
Tonya’s SUV was found in a library parking lot on July 27, but
there were no signs of Tonya. Surveillance video from the library
showed that the vehicle was left there around 1:38 a.m. on July 27,
and that the male subject driving the SUV got into a truck that was
later determined to be owned by Butler. Police interviewed Butler,
who testified at trial that she went to the library to pick up Lynn
after he called her. After Butler’s interview, the police arrested Lynn
on obstruction charges because he had lied about not knowing how
Tonya’s vehicle came to be left at the library. During an interview
conducted after his arrest, Lynn admitted killing Tonya with a
baseball bat and told police where they could find her body.
Lynn testified in his defense at trial, claiming that he killed
Tonya in the heat of passion and in self-defense. His story was as
follows. Lynn and Tonya separated in early 2011 because she was
having an affair with Bulloch, he believed she continued the affair
after he and Tonya reconciled, and he and Tonya argued repeatedly
about his suspicions. On July 26, 2011, he confronted Tonya with
6 information that confirmed his suspicions about her continuing an
affair and told her that he was going to contact his divorce attorney.
Tonya became extremely upset and taunted Lynn, saying that,
because he could not satisfy her sexually, she was having sex with
multiple men. Tonya retrieved a baseball bat and took a swing at
him while he was in the bathroom. Lynn caught the bat with his
hands, snatched it away, and immediately swung back at her,
hitting her twice. Lynn left the room, returned after a few minutes,
and noticed that Tonya was not breathing and did not have a pulse.
Lynn then wiped up the blood on the floor, rolled Tonya up in a
blanket, slid her down the stairs, put her in the back of his vehicle,
and drove around town for a while before returning home to clean
the house and the bathroom. Several hours later, Lynn got ready
for work and, on his way there, he decided to dump Tonya’s body.
1. Lynn does not challenge the sufficiency of the evidence to
support his convictions, but we have independently reviewed the
evidence presented at trial and conclude that the evidence was
legally sufficient to authorize a rational trier of fact to find beyond a
7 reasonable doubt that he was guilty of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979); see also Shaw v. State, 292 Ga. 871, 872 (1)
(742 SE2d 707) (2013) (“[I]ssues of witness credibility and
justification are for the jury to decide, and the jury is free to reject a
defendant’s claim that he acted in self-defense.” (citation and
punctuation omitted)).3
Lynn also does not challenge his sentence on appeal, but we do
recognize a merger error in his sentence. See Dixon v. State, 302 Ga.
691, 696-697 (4) (808 SE2d 696) (2017) (“We have the discretion to
correct merger errors sua sponte . . . because a merger error results
in an illegal and void judgment of conviction and sentence.” (citation
omitted)). As set out in footnote 1 above, Lynn was sentenced on the
aggravated assault count that was based on hitting Tonya in the
head with a baseball bat. This is the very act that caused her death,
3 We remind litigants that the Court will end our practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, 309 Ga. 385, 399 (4) (b) (846 SE2d 83) (2020). The Court began assigning cases to the December term on August 3, 2020. 8 so the aggravated assault count should have merged with the malice
murder conviction. See Culpepper v. State, 289 Ga. 736, 739 (2) (a)
(715 SE2d 155) (2011) (unless there is a “deliberate interval”
between infliction of a non-fatal injury and a fatal one, the
aggravated assault count merges with malice murder). We therefore
vacate Lynn’s sentence for aggravated assault.
2. Lynn argues that we should vacate the trial court’s order
denying his motion for new trial for lack of adequate findings and
remand for more detailed findings. We disagree.
Lynn argues that, in the absence of detailed findings, we
cannot conduct a meaningful review of the claims raised in his
motion, especially his claims of ineffective assistance of counsel.
Lynn cites cases in which we have remanded for further findings,
but none of those cases involve motions for new trial. It is well
settled that a trial court is not required to issue written findings of
fact and conclusions of law when deciding a motion for new trial. See
Treadaway v. State, 308 Ga. 882, 886 (2) (843 SE2d 784) (2020). And
this principle applies no differently when a motion raises claims of
9 ineffective assistance of counsel. See id. We decline to vacate and
remand for a more detailed order.
3. Lynn argues that the trial court erred in denying his motion
for a mistrial when the State elicited testimony referencing a
polygraph test in violation of a pretrial agreement between the
parties. We disagree.
At trial, the prosecutor asked Detective Rachel Love about
Lynn’s interview in 2011 after he was arrested. In response to a
question about who initiated the interview, Detective Love replied,
“I started it because he had asked to speak with me by myself. He
actually had a polygraph scheduled for that day, as well.” Lynn
objected and moved for a mistrial. The trial court denied the motion
and issued a curative instruction instead, telling the jury that a
polygraph test was offered to Lynn, he agreed to take it, the test was
never administered, and the jury was to disregard any mention of
the test and not consider it in its deliberations.
“When prejudicial matter is improperly placed before the jury,
a mistrial is appropriate if it is essential to the preservation of the
10 defendant’s right to a fair trial.” White v. State, 268 Ga. 28, 32 (4)
(486 SE2d 338) (1997). But a trial court “can negate the potentially
harmful effect of improperly introduced evidence by prompt curative
instructions rather than by granting a mistrial.” Walker v. State, 306
Ga. 44, 49 (4) (829 SE2d 121) (2019). “Whether to grant a mistrial is
within the trial court’s discretion, which an appellate court will not
disturb unless there is a showing that a mistrial is essential to the
preservation of the right to a fair trial.” Jones v. State, 305 Ga. 750,
755 (3) (827 SE2d 879) (2019) (citation and punctuation omitted).
Even assuming that the detective’s non-responsive and passing
reference to a polygraph was prejudicial, any prejudice was low
given that the trial court informed the jury that Lynn had agreed to
take a polygraph but there were no results, either positive or
negative, to report. And the trial court’s prompt curative instruction
negated any prejudice by telling the jury to disregard the reference,
an instruction that we presume the jury followed. See Walker, 306
Ga. at 49 (4). There was no abuse of discretion in denying Lynn’s
motion for a mistrial.
11 4. Lynn makes several arguments as to why his trial counsel
was ineffective. To prevail on any of his claims, Lynn must show
both that his counsel’s performance was constitutionally deficient
and that he was prejudiced by this deficient performance. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984). To establish deficient performance, Lynn 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.” Mims v. State, 304 Ga. 851, 855 (2) (823
SE2d 325) (2019) (citation and punctuation omitted). “[D]ecisions
regarding trial tactics and strategy may form the basis for an
ineffectiveness claim only if they were so patently unreasonable that
no competent attorney would have followed such a course.” Richards
v. State, 306 Ga. 779, 781 (2) (833 SE2d 96) (2019) (citation and
punctuation omitted). Our inquiry focuses on the objective
reasonableness of counsel’s performance. See Bozzie v. State, 302
Ga. 704, 714 (5) (808 SE2d 671) (2017). To demonstrate prejudice,
12 Lynn must establish “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.” Mims, 304 Ga. at 855 (2)
(citation and punctuation omitted).
If Lynn fails to meet his burden in establishing one prong of
the Strickland test, we need not review the other, because a failure
to meet either of the prongs is fatal to an ineffectiveness claim. See
Smith v. State, 296 Ga. 731, 733 (2) (770 SE2d 610) (2015). In
considering an ineffectiveness claim, we review a trial court’s factual
findings for clear error and its legal conclusions de novo. See
Lawrence v. State, 286 Ga. 533, 534 (2) (690 SE2d 801) (2010).
(a) Lynn argues that his trial counsel was ineffective for failing
to obtain a ruling on a second motion for a mistrial made by counsel
when the State played a portion of Lynn’s recorded custodial
interview in which the polygraph was mentioned a second time. We
disagree.
13 Lynn makes no showing that the trial court would have
granted the second motion for a mistrial had trial counsel made a
request for a definite ruling. When listening to the recording more
closely as part of the mistrial motion, the trial court said it did not
hear the polygraph reference, and asked if Lynn wanted a curative
instruction. Trial counsel declined, saying she did not want to draw
more attention to the issue.
Regardless of whether the reference was discernible, there is
no dispute that the recording mentioned nothing more than a
scheduled polygraph. On appeal, Lynn argues that the repeated
reference to the polygraph was prejudicial because it tended to show
that, in 2011, Lynn was prepared to stand by his version of events,
which the State argued changed by the time of his trial in 2015. But
the record does not show that the State used the polygraph reference
against Lynn, and the State’s ability to point out inconsistencies in
Lynn’s versions of the events did not depend on the fact that a
polygraph was scheduled, but not taken.
14 Because these circumstances do not show that a mistrial was
necessary to preserve Lynn’s right to a fair trial, Lynn has not shown
that the court would have granted a mistrial had trial counsel
obtained a ruling on his mistrial motion. Thus, trial counsel’s failure
to obtain a ruling does not constitute deficient performance. See
Yancey v. State, 292 Ga. 812, 818-819 (4) (740 SE2d 628) (2013) (no
deficient performance in failure to make meritless objection, and
thus no ineffectiveness in failing to make objection that the trial
court “would not have been required to sustain”); see also Billings v.
State, 293 Ga. 99, 106 (7) (745 SE2d 583) (2013) (same, citing
Yancey).
(b) Lynn argues that trial counsel was ineffective for failing to
move for a mistrial when a reference to a prior “jury” was made when
a witness for the prosecution read Lynn’s testimony from the first
trial. This claim fails.
When the jury reference was made, trial counsel asked for a
bench conference and asked the court to direct the witness to avoid
saying the term “jury.” Trial counsel specifically declined a limiting
15 instruction, saying that such an instruction would draw more
attention to the issue. After noting that there might be other
objectionable material in Lynn’s prior testimony, the trial court
instructed the prosecutor to instruct her witness to read certain
lines rather than read the entirety of Lynn’s testimony.
At the motion for new trial hearing, one of Lynn’s trial counsel
testified that she and co-counsel did not move for a mistrial because
they had already made two motions (based on the polygraph
reference) and that another would be “distracting to the jury and
interrupting.” She repeated that she and co-counsel did not ask for
a limiting instruction because they did not want to draw more
attention to the issue and hoped the jurors did not notice the
reference. Considering that the “jury” reference was brief and co-
counsel’s explanations for not moving for a mistrial were reasonable,
Lynn has not shown that trial counsel’s decision not to move for a
mistrial was constitutionally deficient. See Sweet v. State, 278 Ga.
320, 325 (8) (602 SE2d 603) (2004) (trial counsel’s decision not to
move for a mistrial was reasonable where counsel believed motion
16 would have emphasized the prejudicial matter to the jury); Wright
v. State, 276 Ga. 419, 422 (5) (d) (577 SE2d 782) (2003) (trial
counsel’s decision not to object to a passing reference to defendant’s
post-arrest silence “was a valid exercise of professional judgment”
where counsel testified that an objection would “focus the jury’s
attention” on the testimony).
(c) Lynn argues that trial counsel was ineffective for failing to
object to three sets of out-of-court statements made by Tonya. Lynn
argues that his trial counsel should have objected to the three sets
of statements on hearsay grounds and to one of the sets of
statements on Confrontation Clause grounds. None of Lynn’s
arguments prevail because the statements either fell within a
hearsay exception or were cumulative of other statements that were
properly admitted.
A Confrontation Clause violation occurs when an out-of-court
statement admitted into evidence is “testimonial” in nature and the
declarant is unavailable at trial and was not previously subject to
cross-examination. See Crawford v. Washington, 541 U.S. 36, 68
17 (124 SCt 1354, 158 LE2d 177) (2004). “Hearsay” is an out-of-court
statement that a party offers into evidence “to prove the truth of the
matter asserted” in the statement. OCGA § 24-8-801 (c); see also
Carter v. State, 302 Ga. 200, 204 (2) (b) (805 SE2d 839) (2017).
(i) Lynn argues that trial counsel should have challenged the
admission of Tonya’s petition for a temporary protective order
(“TPO”) filed after Lynn threw her off a bed, as well as testimony as
to the petition’s contents. He argues that this evidence was
inadmissible on hearsay and Confrontation Clause grounds because
the sworn, out-of-court statements in the petition were testimonial
in nature and Lynn did not have the opportunity to cross-examine
Tonya.4 Lynn also argues that trial counsel should have objected on
hearsay grounds when three other witnesses ⸺ Travis Royster,
Bulloch, and Hamilton Hudson ⸺ testified about what Tonya told
them about the mattress incident. Lynn’s ineffectiveness claim on
this ground fails.
4 The TPO was granted ex parte but was later dismissed after Tonya
failed to appear for a hearing. 18 Before introducing the challenged testimony, the State had
already presented eyewitness testimony about Lynn throwing
Tonya off a bed. Tonya’s niece testified early in the trial that she was
present when Lynn began an argument with Tonya about texts he
thought she sent. The niece also testified that she left the room
during the argument, she returned when she heard Tonya scream,
and she found Tonya on the floor crying and Lynn with his hands
underneath the mattress. Lynn does not challenge this testimony,
nor could he. See Favors v. State, 296 Ga. 842, 845-846 (3) (770 SE2d
855) (2015) (“A witness who personally observed the event to which
she is testifying may state her impressions drawn from, and
opinions based upon, the facts and circumstances observed by her.”
(citation and punctuation omitted)).
Even if trial counsel was deficient for failing to object to the
admission of additional evidence about the bed incident, Lynn was
not prejudiced as a result, because the additional evidence was
cumulative of the niece’s testimony that was already before the jury.
See Koonce v. State, 305 Ga. 671, 675 (2) (c) (827 SE2d 633) (2019)
19 (defendant failed to show prejudice resulting from failure to object
to certain testimony that was “largely cumulative of other,
unobjected-to evidence of the same facts”); Wilson v. State, 297 Ga.
86, 87-88 (2) (772 SE2d 689) (2015) (trial counsel’s failure to raise
hearsay and Confrontation Clause objections to certain testimony
was not prejudicial where the challenged testimony was cumulative
of other evidence).
(ii) Lynn argues that trial counsel should have raised hearsay
objections to the testimony of three witnesses ⸺ Morris, Hollifield,
and Marsha Saunders ⸺ about Tonya’s car hood flying up while she
was driving. Trial counsel was not deficient because the challenged
testimony did not include hearsay, fell within an exception to the
hearsay rule, or was cumulative of other admissible evidence.
(A) Morris, Tonya’s supervisor, generally described measures
her department took to protect Tonya after the bed incident and
after Tonya reported that she was afraid that Lynn would hurt her.
Morris said that Tonya was generally on time for work, always
called or sent a text message if she was ever going to be late, and
20 made Morris promise to start looking for her if she unexpectedly
failed to show up for work. When Morris testified about the morning
of Tonya’s disappearance, she said that, as she was trying to locate
Tonya, she received a call from Lynn that “rocked [her] to the core”
because she had spoken to him only one other time, when Lynn
called to ask if Tonya had arrived at work on a day that Tonya had
previously called Morris to say “that she wasn’t there yet because
the hood of her car flew up for the second time on her way to work,
and she was waiting for the police.”
Lynn complains that Morris’s testimony about the car hood
included impermissible hearsay, because Tonya’s out-of-court
statement was offered to prove that he was responsible for the
malfunctioning of the car hood. But the State did not offer Tonya’s
statement to prove that the hood of Tonya’s car flew up, and Tonya’s
statement to Morris did not even blame Lynn. Rather than trying to
prove that the car hood malfunctioned, or that Lynn was to blame,
the State introduced the evidence in an attempt to give context to
Morris’s actions after Tonya failed to show up for work and explain
21 why Morris became scared after receiving Lynn’s call on the
morning of Tonya’s disappearance. Morris’s testimony about
Tonya’s statement to Morris about the car hood was not hearsay.
See Carter v. State, 302 Ga. 200, 204 (2) (b) (805 SE2d 839) (2017)
(out-of-court statements were not hearsay when offered to give
context to defendant’s statements). Trial counsel was therefore not
deficient for failing to object to Morris’s testimony. See Jackson v.
State, 288 Ga. 213, 216 (2) (d) (702 SE2d 201) (2010) (“Trial counsel
was not deficient for failing to object to admissible evidence.”).
(B) Hollifield testified that Tonya told her repeatedly that
Tonya was afraid that Lynn was trying to kill her, and that Tonya
was convinced Lynn had attempted to do so but could not prove it.
Hollifield then gave the now-challenged testimony in which she
described the day that Tonya’s car hood malfunctioned, saying:
[Tonya] was convinced that [Lynn] had done something to the car so the hood would fly open, thinking that then she would wreck and that would be a way out, you know. So she was convinced that day. She called me when she got to work and told me [Lynn] had tried to kill her that morning and that’s how she felt.
22 Even if the statement was offered to prove that Lynn had
actually tried to kill Tonya by tampering with her car hood, the trial
court still could have admitted the statement under the excited
utterance exception to the hearsay rule. OCGA § 24-8-803 (2) (“Rule
803 (2)”) provides that “[a] statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event or condition” shall not be excluded
by the hearsay rule. For this exception to apply, a statement need
not be made contemporaneously with the startling event, but it must
be made while the declarant was still under the stress of excitement
of that event. See Robbins v. State, 300 Ga. 387, 389-390 (2) (793
SE2d 62) (2016).
From the evidence, a trial court could reasonably conclude that
having a car hood fly up while driving would qualify as a startling
event. Tonya’s statement to Hollifield was made as soon as she got
to work after the event, so her statement that she believed Lynn had
tried to kill her would qualify as an excited utterance. See Blackmon
v. State, 306 Ga. 90, 95 (2) (829 SE2d 75) (2019) (victim’s statement
23 relating to defendant’s threat to shoot at the car she was in if she
did not return home fell under excited utterance exception because
the statement was made soon after defendant intercepted the victim
when she tried to escape and threatened to shoot the car). Because
Hollifield’s testimony about the car hood was admissible, trial
counsel was not deficient for failing to object to it. See Walker v.
State, 306 Ga. 637, 645 (2) (b) (832 SE2d 783) (2019) (“[T]he failure
to make a meritless objection is not deficient performance.”).
(C) Saunders’s testimony about the car hood was materially
identical to Morris’s testimony in that Tonya’s statement to
Saunders merely described the incident without blaming Lynn for
the occurrence. Even if there were a reason to object to Saunders’s
testimony, trial counsel’s failure to do so did not prejudice Lynn
given that the testimony was cumulative of Tonya’s statement to
Morris. See Wilson, 297 Ga. at 87-88 (2).
(iii) The last alleged hearsay statement challenged by Lynn
concerns Bulloch’s testimony that Tonya told him a few days before
her death that Lynn threw Tonya against a doorframe. Bulloch gave
24 this testimony as an example of why Tonya was becoming
increasingly scared of Lynn. Bulloch testified that Tonya was upset
and crying during the conversation, and that she told him she
needed to “get out,” leave Lynn, and take the children with her.
Lynn argues that Tonya’s statement about being thrown
against a doorframe was elicited not just to show that she had a fear
of Lynn, but that her fear was rational because it was based on the
fact that he committed acts of violence against her. The State argues
that Tonya’s statement fell under the excited utterance and state-
of-mind exceptions to the rule against hearsay.
Pretermitting whether Tonya’s statement would have been
admissible as an excited utterance under Rule 803 (2) or under the
state-of-mind exception listed in OCGA § 24-8-803 (3), any failure to
object to evidence of the incident did not prejudice Lynn given the
strength of the evidence against him.
Lynn admitted that he killed Tonya. It is highly unlikely the
jury rejected his defenses that he killed her in self-defense and out
of provocation simply because it heard brief testimony that he
25 pushed her into a doorframe a few days earlier. There was ample
evidence in the record showing that Lynn was upset by the
possibility that Tonya would leave with their children, and that
Tonya feared that Lynn would kill her before he let her go. Lynn
admitted that after killing Tonya, rather than calling the police, he
cleaned up the scene, put Tonya into his truck, rode around in his
truck with her body, and ultimately decided to dump her body in a
well several hours after her death. After Tonya’s death, Lynn lied to
police about how Tonya’s vehicle came to be in the library parking
lot, and he also erased all the data on his phone before giving his
phone to the police when they requested it. Given this strong
evidence of guilt, there is no reasonable probability that the result
of the proceeding would have been different had trial counsel
objected to the evidence regarding Lynn pushing Tonya into a
doorframe. See Henderson v. State, 304 Ga. 733, 738 (3) (d) (822
SE2d 228) (2018) (no reasonable probability that the outcome of
defendant’s trial would have been more favorable had the jury been
prevented from hearing hearsay statements where evidence against
26 defendant was strong); Bozzie, 302 Ga. at 711 (4) (a) (given the
strong evidence of guilt, the defendant failed to establish prejudice
from trial counsel’s decision to introduce defendant’s prior
convictions); see also Virger v. State, 305 Ga. 281, 294 (7) (a) (824
SE2d 346) (2019) (the strong evidence of defendant’s guilt “easily
offset any prejudice” resulting from testimony regarding an act of
domestic violence).5
Judgment affirmed in part and vacated in part. Melton, C. J., Nahmias, P. J., and Boggs, Bethel, Ellington, and McMillian, JJ., concur. Warren, J., not participating.
DECIDED DECEMBER 21, 2020. Murder. Barrow Superior Court. Before Judge Booth. Jacob D. Rhein, for appellant. James B. Smith, District Attorney, Patricia J. Brooks, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.
5 Our conclusion remains the same even when we aggregate the prejudice
resulting from the assumed trial counsel deficiencies in Division 4 (c) (i) and (c) (ii) (C). See Jones v. State, 305 Ga. 750, 757 (4) (e) (827 SE2d 879) (2019) (the prejudice resulting from trial counsel’s deficient performance is viewed cumulatively). There are no trial court errors to consider in a cumulative prejudice analysis, so Lynn’s claim in this respect fails. 27