Lane v. State ( 2021 )

In the Supreme Court of Georgia
Decided: October 5, 2021
S21A1029. LANE v. THE STATE.
COLVIN, Justice.
Following a jury trial, Tyra Dale Lane was convicted of felony
murder and related offenses in connection with crimes he committed
against Danielle Simpson and Austin Young. 1 Lane appeals,
1 On December 3, 2002, a Fulton County grand jury indicted Lane for the
malice murder (Count 1) and felony murder of Simpson (predicated on
aggravated assault – Count 2 – and armed robbery – Count 3), aggravated
assault of Young (Count 4), false imprisonment of Young (Count 5), aggravated
assault of Simpson (Count 6), armed robbery of Simpson (Count 7), and for
possessing a firearm during the commission of a felony (Count 8). At a jury
trial held from February 23 through 27, 2004, Lane was acquitted of malice
murder but found guilty of all other counts. Lane was sentenced to life in
prison with the possibility of parole for felony murder predicated on aggravated
assault, 20 years consecutive for the aggravated assault of Young, 5 years
consecutive for the false imprisonment of Young, ten years consecutive for the
armed robbery of Simpson, and five years consecutive for the weapon charge.
All remaining counts were either merged or vacated by operation of law for
sentencing purposes.
Lane timely filed a motion for new trial on March 5, 2004, which he later
amended through new counsel on September 10, 2018, and April 24, 2019.
After a hearing, the trial court denied the motion as amended on March 13,
2020. Lane timely filed a notice of appeal. The appeal was docketed to the
alleging that the trial court erred by allowing Champion to testify
regarding a polygraph test, that he was denied constitutionally
effective assistance of counsel, and that the cumulative effect of
these errors prejudiced him. For the reasons set forth below, we
affirm.
The evidence presented at trial showed that, on November 6,
2002, assistant manager Simpson and restaurant employee Young
were working the third shift 2 at a Krystal restaurant in College
Park. The State presented testimony that, prior to this incident,
Lane seemed to be struggling financially and had asked friends for
money.
Around 5:00 a.m., two 911 dispatchers pulled into the
restaurant’s drive-thru to pick up food before heading to work. The
dispatchers saw two employees working behind the counter. A third
person, whom they later identified as Lane, was standing at the
counter wearing a plaid jacket. The dispatchers got their food and
August 2021 term of this Court and submitted for a decision on the briefs.
2 The record shows that the third shift started at 10:00 p.m. and ended
at 6:00 a.m.
2
drove to work. After serving the customers, Simpson went into the
restaurant’s office. Young was preparing food when the person
wearing a plaid jacket brandished a single-shot shotgun and forced
Young into the freezer, where Young remained until he heard
gunshots coming from the direction of the office. He then escaped
from the freezer and ran to a nearby gas station to call for help.
The shooter fled the restaurant, and, shortly thereafter,
restaurant employee William Owens arrived for his shift. Owens
noticed that the door to the restaurant was unlocked, which was
against standard procedure. He found Simpson in the office with a
fatal gunshot wound and immediately called 911. Officers arrived
at the scene and, during their investigation, learned that
approximately $871 was missing from the safe and $75 in bills and
rolled coins had been taken from the cash registers. Young gave
officers a detailed description of his assailant and later identified
Lane in a photo line-up as the perpetrator. Dr. Karen Sullivan
conducted Simpson’s autopsy and concluded that a shotgun wound
to the head caused Simpson’s death.
3
Kristie Miller, Lane’s girlfriend, testified that, around 9:00
a.m. on November 6, Lane called her and told her “he had did
something bad.” Lane’s friend, Bernard Champion, testified that
Lane stopped by for a visit on the morning of November 6. Lane was
wearing a plaid jacket and told Champion to turn on the news.
When the story about the robbery and shooting at the Krystal
appeared, Champion testified that Lane started “fidgeting” and said
he “had did one.” Then Champion and Lane took a taxi to a liquor
store and went to see Miller. Lane paid for everything using cash,
and talked to the taxi driver about various destinations, including
South Carolina. Miller testified that Lane showed up at her home
in Griffin, Georgia, later that day and admitted to her that he had
killed a woman at the Krystal. Lane then gave Miller $50 in cash.
Champion testified that he was present for the conversation
between Lane and Miller and stated that Lane gave him
approximately 50 dollars’ worth of coins in rolled sleeves that
morning.
Herman Anderson, the taxi driver, confirmed at trial that he
4
had driven Lane and Champion around Griffin on the morning of
November 6. He also testified that Lane requested to be driven to a
bus station in North Carolina. When they reached the destination,
Lane paid Anderson in cash and rolled coins.
Lane was eventually arrested at Miller’s apartment. In his
interview with police, Lane admitted that he was at the Krystal on
November 6. He told officers that he was an employee at that
location for approximately one year, that he usually worked the
third shift, and that he remained friends with Simpson even after
he lost his job. Lane said he went to the Krystal that morning with
Champion to ask Simpson about getting his job back. But, Lane
claimed, when they got to the restaurant, Champion grabbed a
shotgun from the back of the car and went inside. Lane denied
entering the restaurant and denied participating in the robbery and
shooting, instead placing the blame entirely on Champion.
1. During Champion’s direct examination, the prosecutor
asked Champion if there was ever a time during his post-incident
interview with officers when he “made offers to the police to show
5
that [he was] telling the truth?” Champion replied, “Yes, ma’am.”
The defense objected and asked to approach the bench. The bench
conference that followed was not transcribed. The prosecutor then
resumed her questioning as follows:
Prosecutor: Again, Bernard, let me ask you that
question again. What did you offer to do?
Champion: Told them, if they chose to, they could
place me on a lie detector test.
Prosecutor: Did they take you up on that offer?
Champion: No.
Lane contends that the trial court erred by allowing Champion
to testify that he told police officers that he was willing to take a
polygraph test. However, Lane failed to place the specific grounds
for his objection on the record at trial, and there is no ruling by the
trial court on Lane’s objection. Because this case was tried in 2004
under Georgia’s old evidence code, plain error review of evidentiary
matters is not available. See Pyatt v. State, 298 Ga. 742, 746, n.7
(784 SE2d 759) (2016) (explaining that “the new Evidence Code[’s
plain error review] explicitly applies only to ‘any motion made or
hearing or trial commenced on or after [January 1, 2013].’ Ga. L.
6
2011, p. 99, § 101”). Therefore, “[t]he new Evidence Code does not
apply in this case, and in the absence of a timely objection, there is
no appellate review of evidentiary rulings under the old Evidence
Code in a case like this one.” Id. at 746, n.7 (citing Durham v. State,
292 Ga. 239, 240 (2) (734 SE2d 377) (2012)). See also Mosley v. State,
298 Ga. 849 n.3 (2) (c) (785 SE2d 297) (2016) (noting that, under
Georgia’s old Evidence Code, “[a]n off-the-record objection does not
preserve an issue for appellate review”). Consequently, this claim is
not preserved.
2. Lane also alleges that he received ineffective assistance
of trial counsel based upon counsel’s failure to: (a) introduce
evidence of Champion’s criminal record at trial, and (b) object to the
State’s closing argument. In order to establish constitutionally
ineffective assistance, a defendant must show that his counsel’s
performance was professionally deficient and that, but for such
deficient performance, there is a reasonable probability that the
result of the trial would have been different. See Strickland v.
Washington, 466 U. S. 668 (III) (104 SCt 2052, 80 LE2d 674) (1984).
7
If the defendant fails to satisfy either prong of the Strickland test,
this Court is not required to examine the other. See Green v. State,
291 Ga. 579 (2) (731 SE2d 359) (2012). With these principles in
mind, we review Lane’s claims of ineffective assistance.
(a) Champion’s criminal record
Lane alleges that trial counsel was ineffective for failing to
introduce copies of Champion’s prior felony convictions that were
entered between 1990 and 2004 for impeachment purposes. Lane
raised this claim in his September 2018 amended motion for new
trial, but the trial court did not issue a ruling on this claim.
“Although the trial court failed to make any specific factual findings
regarding [Lane’s] claim[] of ineffectiveness, remand is not
mandated if we can determine from the record that the defendant
cannot establish ineffective assistance of counsel under the two-
prong test set forth in Strickland.” (Citation and punctuation
omitted.) Burrell v. State, 301 Ga. 21, 24 (2) (799 SE2d 181) (2017).
Turning to Lane’s claim, at the hearing on Lane’s amended
motion for new trial, Lane introduced certified copies of Champion’s
8
prior convictions and sentences for theft by receiving stolen property
(in October 1990; 3 years’ probation); theft by taking and theft by
receiving stolen property (in July 1991; 2 years to serve concurrent
to revocation of 1990 probation sentence); three counts of entering
an auto and one count of theft by taking (in July 1991; 6 years’
probation); criminal attempt to commit theft by taking and giving a
false name to a law enforcement officer (in April 1992; 2 years in
prison reduced to time served); theft by receiving stolen property (in
September 1992; 8 years to serve 3); entering an auto (in August
1996; 5 years to serve 3); theft by taking (in February 2004; 10 years
to serve); and possession of cocaine (in February 2004; 10 years to
serve concurrent to the theft by taking). 3 Trial counsel testified that
his failure to impeach Champion with these convictions was an
oversight and was not done with a strategic purpose; Lane relies on
this testimony in support of his argument that counsel acted
3 Lane attempted to introduce what he alleged to be two additional
certified convictions, but the trial court did not admit them because one exhibit
was a duplicate and the other exhibit showed that the State had nolle prossed
the case.
9
deficiently. However,
we are not limited in our assessment of the objective
reasonableness of lawyer performance to the subjective
reasons offered by trial counsel for his conduct. If a
reasonable lawyer might have done what the actual
lawyer did – whether for the same reasons given by the
actual lawyer or different reasons entirely – the actual
lawyer cannot be said to have performed in an objectively
unreasonable way.
Shaw v. State, 292 Ga. 871, 875 n.7 (742 SE2d 707) (2013).
Here, the record shows that trial counsel thoroughly attacked
Champion’s credibility through other means. During Champion’s
cross-examination, counsel elicited testimony that Champion was
incarcerated and serving a 10-year felony sentence, that he was a
prior convicted felon as well, and that he worked as a confidential
informant “making cases” for the Griffin-Spalding Narcotics Task
Force. Later, during Lane’s direct examination, trial counsel elicited
testimony from Lane that Champion “lied on [him],” that Champion
was the actual shooter, and that Lane went along with Champion’s
plan on the night of the crimes because Lane was scared of
Champion. Finally, during closing arguments, defense counsel
10
emphasized all of this evidence, as well as Champion’s jail attire, in
order to call Champion’s credibility into question.
Based on the foregoing, we cannot say that no competent
attorney would have chosen to forgo impeaching Champion with
additional, decade-old convictions in favor of attacking his
credibility in the manner pursued by counsel in this case.
Accordingly, Lane cannot show that counsel acted deficiently by
failing to impeach Champion with his additional felony convictions.
See Romer v. State, 293 Ga. 339, 344-345 (3) (a) (745 SE2d 637)
(2013) (emphasizing that the extent of cross-examination is a matter
of trial strategy, and holding that, “[i]n light of the cross-
examination [trial counsel] conducted, Appellant has not shown that
it was patently unreasonable [for trial counsel] to decide not to try
to generally impeach [a witness’s] credibility with her prior
convictions”).
(b) The State’s closing argument
During closing arguments, defense counsel argued that the
evidence showed that Champion, and not Lane, was the actual
11
shooter. In support of this argument, counsel emphasized that
Champion was not a credible witness; that he was “smarter” and
“more calculating” than Lane; that he had the motive and the means
to commit the crimes, including access to a shotgun; and that
Champion avoided being charged with murder in this case by
“setting up his buddy [Lane], call[ing] the cops, sa[ying], I know who
did that crime. It’s Tyra Lane.” In response, the prosecutor argued
that Champion was a credible witness, stating, in relevant part:
Bernard offered to take a lie detector test, ladies and
gentlemen, to the police. He told them, if you don’t believe
me, if you think I did it, I will take a lie detector test. They
didn’t feel it necessary to take him up on his offer. If he
was considered a suspect, he wasn’t considered a suspect
as far as being the shooter. At most he was being
considered a suspect as being an accomplice after the fact,
but he was never being considered as the shooter. If they
thought he was lying, ladies and gentlemen, wouldn’t
they have hooked him up to see how he did? He offered.
Trial counsel did not object to this statement. Lane argues that trial
counsel was ineffective for failing to object because, Lane claims, the
statement amounted to an improper argument that bolstered
Champion’s credibility. Even assuming that trial counsel performed
12
deficiently by not objecting to this argument, however, Lane “has
failed to show a reasonable likelihood that, absent the failure of his
lawyer to object to the prosecuting attorney’s statements, the
outcome of the trial would have been different.” (Citation and
punctuation omitted.) Davis v. State, 306 Ga. 140, 149 (3) (i) (829
SE2d 321) (2019). Not only did the State present substantial
evidence of Lane’s guilt, but the trial court also instructed the jury
that closing arguments were not evidence. See id. Accordingly, this
claim fails.
3. Finally, Lane argues that he is entitled to a new trial on
the basis of cumulative prejudice pursuant to State v. Lane, 308 Ga.
10, 14 (1) (838 SE2d 808) (2020). However, because there are no
trial court errors properly before us for appellate review, Lane does
not apply. See Woods v. State, Case No. S21A0862, 2021 WL
3727808 at n.7 (Ga. Aug. 24, 2021). This Court does assess prejudice
based on the cumulative effect of all of trial counsel’s deficiencies.
See Debelbot v. State, 305 Ga. 534, 544 (2) (826 SE2d 129) (2019).
Still, in order to conduct such an analysis, we “evaluate only the
13
effects of matters determined to be error, not the cumulative effect
of non-errors.” (Citation omitted.) Sullivan v. State, 301 Ga. 37, 42
(2) (d) (799 SE2d 163) (2017). Because we have only assumed
deficiency on one claim of ineffective assistance, Lane is not entitled
to relief on this basis.
Judgment affirmed. All the Justices concur.
14