317 Ga. 57 FINAL COPY
S23A0518. YOUNG v. THE STATE.
MCMILLIAN, Justice.
In May 2021, a jury found Tomarkus Mikhail Young guilty of
felony murder and other charges in connection with the shooting
death of Richard Anderson.1 On appeal, Young asserts that the
evidence was constitutionally insufficient to support his convictions;
that the trial court erred in denying his motion to strike a potential
juror; that he received ineffective assistance of counsel; and that
cumulative errors require the grant of a new trial. For the reasons
1 Anderson was killed on or about February 25, 2018. On February 4,
2019, a Wilkes County grand jury indicted Young for felony murder predicated on aggravated assault (Count 1), aggravated assault (Count 2), voluntary manslaughter (Count 3), and possession of a firearm during the commission of a felony (Count 4). At a trial held from May 3 to 7, 2021, a jury found Young guilty on Counts 1, 2, and 4 but not guilty on Count 3. On May 13, 2021, the trial court sentenced Young to serve life in prison with the possibility of parole on Count 1 and five years in prison on Count 4 to be served consecutively; Count 2 was merged with Count 1 for sentencing purposes. Young timely filed a motion for new trial, which was later amended through new counsel on October 19, 2022, and December 20, 2022. Following a hearing, the trial court denied the amended motion on December 29, 2022. Young timely appealed, and his case was docketed to the April 2023 term of this Court and submitted for a decision on the briefs. that follow, we conclude these assertions lack merit and affirm.
Viewed in the light most favorable to the jury’s verdict, the
evidence at trial showed that on February 23, 2018, Anderson
purchased a .40-caliber handgun, which he showed to several people
gathered at a barbershop. When Young saw the handgun, he offered
to purchase it. Anderson told him it was not for sale but that he had
another gun he could sell. Two days later, a group of people were
gathered outside at a local “bootlegger’s” house in Wilkes County.
Young shot dice and drank alcohol with his friends near the gated
entrance to the house. At one point, Anderson pulled up in his car
and approached the group, looking to purchase marijuana. Anderson
also told the group that he had a handgun to sell. He showed them
the handgun after demonstrating that it was not loaded. Anderson
and Young then got into Anderson’s car together, but after Young
exited the vehicle followed by Anderson, Young, who was wearing a
hoodie with a front pocket, pulled out a handgun from either his
pocket or waistband area and shot and killed Anderson.
After Anderson’s death, Young’s friend, Kijuan Vance, agreed
2 to speak with GBI Special Agent Austin Bradshaw and stated that
on the night of the shooting he was among the group of people
gathered outside the bootlegger’s house, where he saw Young sitting
with Anderson in Anderson’s car. Young then got out of the car and
announced that he was taking Anderson’s gun. Anderson followed
after Young, and it appeared to Vance that Anderson, who was
unarmed, was trying to get his gun back from Young. Young pulled
something out of his pocket and pointed it at Anderson. Vance said
he looked away because he “knew what was about to happen,” heard
a gunshot, and turned back to see Anderson on the ground. Everyone
gathered there, including Vance, immediately ran or drove away
after hearing the gunshot. When Vance mentioned to the agent that
he and Young had spoken shortly before the shooting that evening,
Agent Bradshaw asked Vance to take a photograph of his phone’s
call log. Vance agreed, and Agent Bradshaw was able to determine
that Vance’s phone had been in contact with someone saved as
3 “Thrax” several times during the evening of the shooting.2
Raiquan Davis, another of Young’s friends who was present on
the night of the shooting, testified that he saw Young shoot
Anderson in the chest while Anderson was unarmed. It looked to
him that Anderson was trying to get his gun back from Young, who
was also holding his own gun. Davis admitted that he initially lied
to GBI agents several times to protect Young but decided to testify
because it was “the right f**king thing to do.” Terrance Zellars, who
was dating Young’s sister at the time, testified that the morning
after the shooting, Young told him that he “went to the spot last
night and sh** went south” and “I’m not playing with anybody
anymore, if they roll they’re fixing to get it.” Zellars saw that Young
had a handgun with him at that time.
Officers who responded to the scene found Anderson lying on
the street, deceased from an apparent gunshot wound. GBI Special
2 At trial, Vance claimed that he had no memory of the shooting or of
speaking with law enforcement officers about what he had witnessed. However, a recording of his interview with Agent Bradshaw was played for the jury. 4 Agent Carl Murray was called to assist with processing the crime
scene and recovered a gold cell phone about 30 feet from Anderson’s
body. He also recovered an empty gun holster, an empty Kahr
Firearms box, .40-caliber ammunition, and a black cell phone from
inside Anderson’s car. Although the gold cell phone was locked,
officers were able to identify its number and link that phone number
to Young. After Anderson’s girlfriend shared Anderson’s password,
officers were able to unlock the black cell phone found in his car and
identified Young’s cell phone number in his contacts under the name
“Trax.”
Officers arrived at Young’s residence the following morning.
Young agreed to speak with officers after being advised of his rights
under Miranda,3 and a recording of this interview was played for the
jury. Young admitted seeing Anderson at a barbershop a few days
before, but denied talking about a gun and denied being at the
bootlegger’s house on the night of the shooting.
3 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 5 During a search of Young’s house, officers recovered a 9mm
Glock pistol in a chair on the front porch, as well as a .380 Lorcin
pistol and a box of .380-caliber full-metal jacket ammunition from
the bedroom belonging to Young’s mother. During a second search
of Young’s home, officers recovered a sweatshirt with a hoodie and a
front pocket and sweatpants in Young’s room that were similar to
what a witness had described Young wearing on the night of the
shooting.
The owner of a pawn shop in nearby Thomson, Georgia
testified that he sold Anderson a Kahr CT .40-caliber handgun on
February 23, 2018, and a Hi Point .45-caliber handgun on March 22,
2017. Neither gun was ever recovered. After testing, a GBI firearms
examiner was only able to determine that the bullet recovered from
Anderson’s autopsy was a .380-caliber full-metal jacket bullet and
that it was not consistent with having been fired from either gun
recovered from Young’s home. The medical examiner who performed
the autopsy testified that Anderson died from a single gunshot
wound to the right side of his chest. There was no evidence of
6 stippling, indicating that Anderson had been shot from a distance of
greater than three feet.
1. Young contends that the evidence was insufficient as a
matter of constitutional due process to support his convictions
because the State’s evidence was speculative and many of the
witnesses admitted to lying to investigators.
When this Court evaluates the sufficiency of the evidence, “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.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781,
61 LE2d 560) (1979) (emphasis omitted). So viewed, we conclude
that the evidence was constitutionally sufficient to support Young’s
convictions for felony murder and possession of a firearm during the
commission of a felony.
Multiple witnesses testified that Young was at the scene on the
night of the shooting. Several witnesses testified that Young had
previously approached Anderson about purchasing his handgun and
7 that Anderson declined. One eyewitness told officers that Young
pointed a weapon at Anderson, who appeared unarmed,
immediately before he heard a gunshot and ran. A second
eyewitness testified that he saw Young shoot Anderson. Young
abandoned his cell phone at the scene, made incriminating
statements the following morning, and lied to officers about being at
the scene of the shooting.
Even though Young points to inconsistencies in the witnesses’
testimony to argue that the evidence was insufficient, it is well
established that any conflicts in the evidence were for the jury to
resolve. See McIntyre v. State, 312 Ga. 531, 531 (1) (863 SE2d 166)
(2021) (“This Court does not reweigh evidence or resolve conflicts in
testimony; instead evidence is reviewed in a light most favorable to
the verdict, with deference to the jury’s assessment of the weight
and credibility of the evidence.” (citation and punctuation omitted)).
Accordingly, this enumeration of error fails.4
4 To the extent that Young argues that the trial court should have granted a new trial on the general grounds, see OCGA §§ 5-5-20 and 5-5-21,
8 2. Young also argues that the trial court should have excluded
Juror No. 22, a potential juror who was employed at the Wilkes
County jail, for cause. “Striking a juror for cause is a matter
committed to the sound discretion of the trial court, and no error will
be found absent a showing that the discretion was manifestly
abused.” Stephens v. State, 309 Ga. 447, 451 (2) (847 SE2d 139)
(2020) (citation and punctuation omitted).
The record shows that during the first morning of voir dire, the
entirety of which was not transcribed, the trial court questioned
Juror No. 22, who responded that she worked in the Wilkes County
jail, where Young had been housed waiting for trial, but that she
was not a POST-certified officer with arrest powers. Young’s counsel
argued that “she’s aware of my client’s custody position” and some
other charges in relation to a fight in the jail, which counsel thought
“would be very prejudicial,” meaning that she should be struck for
this argument “is not properly addressed to this Court as such a decision is one that is solely within the discretion of the trial court.” Lewis v. State, 314 Ga. 654, 660 (2) n.5 (878 SE2d 467) (2022) (citation and punctuation omitted). And, as it is clear from the record that the trial court applied the correct standard, it did not abuse its discretion. 9 cause. The trial court explained that it would keep Juror No. 22 “in
the panel for right now,” but noted that if defense counsel found
authority for his argument that she should be struck for cause, the
court would address the argument again.
Although not transcribed, it appears that during the parties’
subsequent jury selection at the end of the day, Young struck Juror
No. 22 with one of his nine peremptory strikes. Then, after the jury
had been chosen, but prior to the jury being impaneled, Young
moved for a mistrial based on his having to use a peremptory strike
on Juror No. 22. The trial court granted Young until the following
morning to identify any relevant authority to support the motion for
mistrial. The next morning, Young renewed his motion for mistrial
and offered a 2003 Court of Appeals case holding that it was error
to allow a jailer to serve as a juror.5 After the State argued in
response that this Court’s holding in Willis v. State, 304 Ga. 686 (820
5 See Kier v. State, 263 Ga. App. 347, 348-49 (1) (587 SE2d 841) (2003)
(recognizing that corrections officers are not subject to automatic removal for cause but reversing conviction for including in the panel of potential jurors a jailer who was employed at the jail where the defendant was incarcerated), overruled in part by Willis v. State, 304 Ga. 686 (820 SE2d 640) (2018). 10 SE2d 640) (2018), changed the way for-cause challenges are
analyzed and that Young cured any problem by using a peremptory
strike to strike Juror No. 22, the trial court denied Young’s motion.
The State now argues that, because Young did not obtain a
ruling on his motion to strike Juror No. 22 before the jury was
empaneled, this enumeration was not preserved for appellate
review. See Kennebrew v. State, 304 Ga. 406, 408 n.2 (819 SE2d 37)
(2018) (“[L]egal issues must be raised and ruled on below in order to
be properly considered on appeal.”). However, pretermitting
whether this issue was preserved for ordinary appellate review and
pretermitting whether the trial court erred in denying a challenge
for cause, Young cannot show harm under our holding in Willis. In
that case, we relied on the United States Supreme Court’s holding
that “peremptory challenges to prospective jurors are not of
constitutional dimension” and are instead “one means to achieve the
constitutionally required end of an impartial jury” to conclude that
the erroneous denial of a motion to excuse a prospective juror is
harmless where the juror is subsequently removed by the use of a
11 peremptory strike. Willis, 304 Ga. at 704 (11) (a) (citation and
punctuation omitted). Thus, to prevail on a claim that a challenged
juror should have been removed for cause, an appellant must show
harm, which, in this context, requires an appellant to demonstrate
that a challenged juror who served on the jury was unqualified. See
Jackson v. State, 314 Ga. 751, 758 (2) (879 SE2d 410) (2022).
Here, it is undisputed that Juror No. 22 did not sit on the jury,
and Young has made no argument that any of the jurors who
ultimately served on the jury were ever challenged or were
otherwise unqualified. Because Young obtained the relief that he
requested with respect to Juror No. 22 not being seated on the jury
he cannot demonstrate the requisite harm, and his claim fails. See
Stephens, 309 Ga. at 451 (2) (An “erroneous [ruling on] a challenge
for cause affords no ground of complaint if a competent and unbiased
jury is finally selected.” (citation and punctuation omitted)).
3. Young next argues that he received constitutionally
ineffective assistance of counsel in several respects. We are not
persuaded.
12 To succeed on a claim of ineffective assistance of counsel,
Young must show both that his counsel’s performance was deficient
and that such deficiency prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To satisfy the deficiency prong, Young must demonstrate
that his counsel “performed at trial in an objectively unreasonable
way considering all the circumstances and in the light of prevailing
professional norms.” Bacon v. State, 316 Ga. 234, 239 (3) (887 SE2d
263) (2023) (citation and punctuation omitted). In doing so, Young
must overcome “[a] strong presumption . . . that trial counsel’s
performance was reasonable and that counsel’s decisions and
choices at trial fell within the broad range of professional conduct as
assessed from counsel’s perspective at the time of trial and under
the specific circumstances of the case.” Id. (citation and punctuation
omitted). To establish prejudice, Young “must prove that there is a
reasonable probability that, but for his trial counsel’s deficiency, the
result of the trial would have been different.” Bates v. State, 313 Ga.
57, 62 (2) (867 SE2d 140) (2022). In reviewing a trial court’s ruling
13 on an ineffective assistance of counsel claim, “we accept the trial
court’s factual findings and credibility determinations unless clearly
erroneous, but we independently apply the legal principles to the
facts.” Fuller v. State, 316 Ga. 127, 130 (2) (886 SE2d 798) (2023)
(citation and punctuation omitted). If Young fails to satisfy either
prong of the Strickland test, “this Court is not required to examine
the other.” Bacon, 316 Ga. at 240 (3).
(a) Young first asserts that trial counsel failed to properly
prepare for or support his motion to strike Juror No. 22 for cause,
which he claims would have been granted, thereby avoiding the use
of a peremptory strike. However, as stated in Division 2, Young has
not shown that any juror sworn to hear his case was not a legal and
impartial juror. Therefore, pretermitting any deficiency in counsel’s
performance, Young cannot show that any prejudice resulted from
his counsel’s unsuccessful motion to strike. See Williams v. State,
305 Ga. 776, 780 (2) (b) (827 SE2d 849) (2019) (because nothing in
the record shows that any juror who ultimately served was not a
legal and impartial juror, appellant cannot show that any prejudice
14 resulted from counsel’s failure to object to the State’s motion to
strike a prospective juror for cause).
(b) Young next argues that his trial counsel “seemed wholly
unprepared for and unfamiliar with the Georgia Rules of Evidence
and the Evidence Code in general” and that counsel also displayed
“an argumentative and combative attitude toward witnesses and the
Court which wholly prejudiced Young’s case.”
At the motion for new trial hearing, Young’s trial counsel
testified that he has been licensed to practice law in Georgia since
1974 and estimated that he has tried approximately 800 jury trials,
most of them felony cases. In this case, in addition to reviewing the
police reports, counsel spoke with Young, Young’s brother, the
owner of the house near the crime scene, and other witnesses who
claimed to be present at the time of the shooting. Although he met
with Young 15 to 20 times prior to trial, the conversations were “not
productive,” as Young never told him what happened on the night of
the shooting. Counsel explained that, although his tactics and
demeanor may seem “offensive” to some, it is “how I get not guilty
15 verdicts.”
Young also testified at the motion for new trial hearing and
admitted that counsel visited him “about ten times” and that counsel
went over the witness statements and discovery with him. In
denying the motion for new trial, the trial court found Young’s
testimony to be not credible and counsel’s testimony to be credible.
The trial court also found that trial counsel appeared to be well
versed in the rules of evidence — as demonstrated by numerous
successful objections — and the rules of professional conduct and
that Young had failed to point to “any instances that could not
reasonably be interpreted as either trial tactics or strategy.”
Although Young argues on appeal that “[c]ountless times,
[counsel] contradicted himself, spoke over witnesses, and drew the
ire of both the Office of the District Attorney and of the Court,” he
provides no citations to the record and offers very little context to
support these arguments. The only example Young offers with any
detail is his counsel’s cross-examination of Davis. Young argues
that, had counsel been prepared, he would have provided a certified
16 copy of Davis’s prior conviction. However, Young has presented no
evidence that Davis had a prior conviction, and this Court cannot
conclude that Young’s trial counsel was deficient in failing to present
evidence that has not been shown to even exist. See Thorpe v. State,
304 Ga. 266, 268 (2) (a) (818 SE2d 547) (2018) (“[Appellant] did not
. . . introduce any of [witness’s] alleged prior convictions into
evidence at the motion for new trial hearing, and it was his burden
to show deficient performance and prejudice through competent
evidence, for a silent or ambiguous record is not sufficient to
overcome the strong presumption of reasonable performance.”
(citation and punctuation omitted)). Thus, Young has failed to meet
his burden of showing that his trial counsel performed deficiently in
this regard, and his claim of ineffective assistance on this ground
fails.
(c) Young next asserts that trial counsel failed to timely request
that his motion to suppress cell phone evidence be placed on the trial
court’s calendar for a hearing. Young, however, provides no citation
to the record in support of this claim, and it does not appear that a
17 particularized motion to suppress cell phone evidence was ever filed
in this case. Because counsel cannot be deficient for failing to
request a timely hearing on a non-existent motion, Young has “failed
to show that counsel’s performance was deficient in this respect,
[and] has not carried his burden of demonstrating that his trial
counsel was constitutionally ineffective.” Williams v. State, 315 Ga.
797, 806 (2) (884 SE2d 877) (2023). Cf. Allen v. State, 348 Ga. App.
595, 602-03 (1) (c) (824 SE2d 50) (2019) (“[A]bsent an unequivocal
request to represent himself, the trial court did not err in failing to
conduct a Faretta hearing, and thus trial counsel was not deficient
for failing to request such.”).
We note further that on appeal, Young makes no specific
argument to support why any cell phone evidence in this case was
subject to suppression, so he fails to show that any such motion
would have been successful even if filed. See Roseboro v. State, 308
Ga. 428, 435 (2) (a) (841 SE2d 706) (2020) (“[B]ecause [the appellant]
has not made a showing that had a motion been filed, the evidence
would have been suppressed, . . . trial counsel was not deficient.”).
18 Indeed, the record shows that Young’s cell phone, which was
abandoned at the scene, was never searched by the police, and
Young lacked standing to suppress evidence from Anderson’s cell
phone. See, e.g., Stinski v. State, 281 Ga. 783, 783-84 (1) (642 SE2d
1) (2007).
(d) Young also argues that his counsel was unable to hear and
understand the trial proceedings and would “just lean on Young to
interpret for him what was going on” because he was “confused” and
“couldn’t keep the details straight.” Again, Young provides no
citations to the record to support this assertion. The only example
he offered at the motion for new trial hearing was: “Like when the
DA was talking to the witnesses and stuff like that he would ask me,
like, what they say, what she say, I mean, and stuff like that.” In
ruling on this claim, the trial court noted that Young’s testimony at
the motion for new trial hearing on this point was not credible; that
Young admitted his counsel was “mentally clear” about the case and
“knew everything”; and that trial counsel credibly denied suffering
from any hearing loss or lack of clarity during the trial.
19 Young has failed to show that the trial court’s factual and
credibility findings in this regard were clearly erroneous. See Davis
v. State, 306 Ga. 430, 432 (831 SE2d 804) (2019) (“The trial court
was authorized to credit the testimony of the defendant’s counsel,
and its factual findings and credibility determinations will be
accepted unless clearly erroneous.” (citation and punctuation
omitted)). Young has therefore “failed to defeat the strong
presumption of counsel’s reasonable professional assistance,” Jones
v. State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015), and thus has
not met his burden of showing that his trial counsel was
constitutionally deficient in this regard, so this ineffectiveness claim
fails as well.
4. Young asserts that the cumulative effect of the errors and
deficiencies in his case denied him a fundamentally fair trial. We
reject this assertion.
“When considering the cumulative effect of presumed errors by
trial counsel and the trial court, this Court considers collectively the
prejudicial effect, if any, of trial court errors, along with the
20 prejudice caused by any deficient performance of counsel.” Huff v.
State, 315 Ga. 558, 568 (6) (883 SE2d 773) (2023) (citation and
punctuation omitted). Even assuming that any error in seating
Juror No. 22 is the kind of error that we can aggregate with
evidentiary errors (which we have not identified here) or trial-
counsel deficiencies (one of which we have presumed), Young has not
provided any argument or otherwise “demonstrated a reasonable
probability that, but for these [alleged] failures, the outcome of the
proceeding would have been different.” Payne v. State, 314 Ga. 322,
334 (4) (877 SE2d 202) (2022) (cumulative effect of a presumed clear
error by the trial court not giving an accomplice corroboration
charge, a presumed deficiency by trial counsel for not requesting
that charge, and a presumed deficiency by trial counsel for not
objecting to hearsay was insufficient to establish cumulative error);
see also State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A]
defendant who wishes to take advantage of the [cumulative error
rule] should explain to the reviewing court just how he was
prejudiced by the cumulative effect of multiple errors.”).
21 Judgment affirmed. All the Justices concur.
Decided August 21, 2023.
Murder. Wilkes Superior Court. Before Judge Hammond.
The Abt Law Firm, E. Jay Abt; The Hingerty Law Firm, Katie
A. H. Borodin, for appellant.
William P. Doupé, District Attorney, Rindi L. Harbeson, Terry
L. Lloyd, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Beth A. Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Michael A. Oldham, Assistant
Attorney General, for appellee.