Alexander v. State ( 2022 )

In the Supreme Court of Georgia
Decided: March 15, 2022
S21G0112. ALEXANDER v. THE STATE.
BETHEL, Justice.
A Banks County jury found Stephen Alexander guilty of
several sexual offenses against his stepdaughters, both of whom
were minors during Alexander’s trial. At trial, the two victims and
a child advocate testified in a courtroom that was partially closed to
spectators at the direction of the trial court.
As discussed below, the improper closure of a courtroom is
considered a “structural” error that results in reversal of a
defendant’s conviction on direct appeal if the error was committed
over objection. Alexander’s trial counsel, however, did not object.
Thus, this case involves a criminal defendant who is seeking to
challenge the closure of a courtroom solely through a Sixth
Amendment claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d
674) (1984).
Relying on this Court’s decision in Reid v. State, 286 Ga. 484,
488 (3) (b) (690 SE2d 177) (2010), the trial court and the Court of
Appeals determined that the proper Strickland analysis requires a
defendant in this posture to demonstrate actual prejudice to prevail
and rejected Alexander’s claim of ineffective assistance of counsel for
failure to show any such prejudice. See Alexander v. State, 356 Ga.
App. 392, 394-395 (2) (a) (847 SE2d 383) (2020). Alexander
maintains that post-Reid authority from the Supreme Court of the
United States requires a different analysis, see Weaver v.
Massachusetts, __ U. S. __ (137 SCt 1899, 198 LE2d 420) (2017), and
urges us to revisit the question of what a defendant must
demonstrate when challenging a courtroom closure through a claim
of ineffective assistance of counsel. We granted certiorari to
determine the soundness of Reid in light of Weaver.
Although Weaver discussed a “fundamental unfairness” test as
a potential alternative to demonstrating prejudice arising from
2
counsel’s failure to object to a courtroom closure, the United States
Supreme Court neither adopted that test in Weaver nor held that
such a test was satisfied in the case before it. In short, Weaver’s
discussion of a fundamental unfairness test was merely dicta, and it
created no binding Sixth Amendment precedent. Moreover, we view
our decision in Reid as a faithful application of Strickland and its
requirement that the defendant demonstrate a reasonable
probability that an alleged error by counsel affected the outcome of
his trial. Thus, as discussed more fully below, we adhere to the
holding of Reid that a showing of actual prejudice is required to
establish a claim of ineffective assistance of counsel arising from the
failure to object to a courtroom closure and affirm.
1. Factual Background
We briefly recount facts of this case that are relevant to the
issue before us. Alexander was charged with multiple sexual
offenses against his two stepdaughters, both of whom were under
the age of 16 at the time of Alexander’s trial. Before trial, the State
requested that the “courtroom be cleared” during the victims’
3
testimony without stating any grounds for this request. Alexander’s
counsel replied, “I certainly don’t oppose that. I think it would be
appropriate.” The trial court immediately announced that the
courtroom gallery would be cleared when those witnesses testified.
The prosecutor then informed the trial court that the victims
requested that their uncle be permitted to remain in the courtroom
during their testimony. After the uncle was identified in the
courtroom gallery, the trial court replied, “Okay. All right.”
After opening statements, the trial court excused the jury and
then announced, “I am going to, on request from counsel from both
sides, go ahead and ask that the gallery be cleared, except for the
uncle, and we’ll go from there.” The older victim testified first,
followed by the child advocate who had interviewed her after she
disclosed the abuse. Then the younger victim testified. During the
testimony of these three witnesses, the courtroom’s gallery was
cleared of all spectators except the victims’ uncle. Alexander’s
4
parents were among those who were asked to leave the courtroom.1
The victims testified at length about a years-long history of
sexual abuse by Alexander. The child advocate, who was qualified
as an expert in forensic interviewing and child sexual abuse,
testified generally about the process of conducting forensic
interviews of suspected victims of child sexual abuse and specifically
about his interview of the older victim after she disclosed the abuse.
An audio and video recording of the interview was admitted during
the advocate’s testimony and played for the jury. The advocate
testified that, based on his experience, it was his opinion that the
older victim’s “disclosure and interview are consistent with a child
who’s experienced sexual abuse.”
After the testimony of the younger victim, the spectators who
had been asked to leave the gallery were invited back into the
1 Alexander testified at the hearing on his motion for new trial that he
thought other members of his family — including his sister, brother, and son
— were present and had been asked to leave the courtroom but that he was
“not sure.”
5
courtroom. 2 The remaining witnesses for the State and defense
testified with the courtroom open. 3 The jury ultimately found
Alexander guilty of multiple counts of rape, statutory rape,
2 The trial court stated, “I know we had cleared the gallery. . . . Well,
they’re welcome to come back in. . . . [T]hose who were in the gallery, if they
want to come back in, then they can come back in.” Later, at the close of the
day’s proceedings, the trial court stated the following on the record:
I do want to perfect the record with respect to one other matter. It
becomes a little sensitive from time to time. Let me just pull this
out. You know, this is one of those cases where there can be an
exception to one of the major rules that we hold near and dear to
criminal cases, criminal trials, and that is open courtrooms. And,
of course, we had here — in this case we had witnesses who were
under the age of 16, who were called upon to testify — two of them,
and by agreement of counsel, we invited the folks in the gallery to
leave for those witnesses. The Court had absolutely no intention to
require anyone to remain outside of the courtroom beyond those
two witnesses, as the statute suggests and requires, really, and
frankly was unaware as to whether there were still folks here. But
I do want to point out that the Court certainly had no intention of
preventing anyone from — who otherwise could be in the gallery
from being in the gallery. And I would ask — and I don’t know
what remains or if there’s a possibility that anyone might be
recalled, especially some of these witnesses who are minors, but I
would ask that counsel, and for that matter court security officers,
just assist the Court to make sure that the courtroom is not
inadvertently closed off to the public, who have a right to be here.
3 The State called seven additional witnesses: a forensic biologist from
the GBI, a different child advocate (who was also admitted as an expert in
forensic interviewing and child sexual abuse) who had interviewed the younger
victim, the victims’ mother (Alexander’s former wife), two investigators from
the Banks County Sheriff’s Office, a digital forensic investigator from the GBI,
and a sexual assault nurse examiner. The defense presented the testimony of
four witnesses: a co-worker of the victims’ mother, one of the investigators
called by the State, a medical doctor who specialized in forensic pathology, and
Alexander.
6
aggravated child molestation, aggravated sexual battery, incest, and
false imprisonment, and the trial court sentenced him to serve life
in prison without the possibility of parole plus 125 years.
Alexander thereafter moved for a new trial. At the hearing on
the motion, Alexander testified that he asked one of his trial
attorneys why his family members had to leave the courtroom.
Alexander testified that his attorney said “We’ll check into it.”
Alexander testified that he wanted his family members to be in the
courtroom and did not want them to be removed. Alexander also
testified that his mother and father, who were asked to leave the
courtroom, had “a good relationship” with the victims and that he
believed their presence in the courtroom “would have helped maybe
get the truth out.”
One of Alexander’s trial attorneys likewise testified that
“[Alexander] wanted his family to be in the courtroom at all times.”
Counsel explained that he “should have objected to [the partial
closure] because . . . I knew then and I know now what the law is
and I should have objected, but I did not.” Counsel also testified that
7
there was no strategic reason to withhold an objection and that “[i]t
just did not occur to [him].”
Relying on this Court’s decision in Reid, the trial court rejected
Alexander’s claim of ineffective assistance arising from the failure
to object to the partial courtroom closure. Alexander appealed, but,
also relying on Reid, the Court of Appeals affirmed that ruling. See
Alexander, 356 Ga. App. at 394-395 (2) (a). We granted Alexander’s
petition for a writ of certiorari.4
2. The Right to a Public Trial, Structural Error, and Ineffective
Assistance of Counsel
The Sixth Amendment to the United States Constitution
provides that “the accused shall enjoy the right to a . . . public trial[.]”
Before excluding the public from any stage of a criminal trial, the
party seeking to close the courtroom “must advance an overriding
interest that is likely to be prejudiced” if the courtroom remains
open. (Citation omitted.) Presley v. Georgia, 558 U. S. 209, 214 (130
SCt 721, 175 LE2d 675) (2010). In addition, “the closure must be no
4The Court of Appeals also rejected other claims raised by Alexander.
He did not seek this Court’s review of those issues, and we do not address them.
8
broader than necessary to protect that interest,” and “the trial court
must consider reasonable alternatives” to the closure, even “when
they are not offered by the parties.” (Citation omitted.) Id. The trial
court “must make findings adequate to support the closure.”
(Citation omitted.) Id. The Sixth Amendment right to a public trial
is applicable to the states. See Purvis v. State, 288 Ga. 865, 866 (1)
(708 SE2d 283) (2011).
The Georgia Constitution also limits the authority of the trial
court to close a courtroom. Article I, Section I, Paragraph XI (a)
provides that, in criminal cases, the defendant “shall have a public .
. . trial[.]” As we discussed in Purvis,
Georgia law regarding the public aspect of hearings in
criminal cases is more protective of the concept of open
courtrooms than federal law. Our state constitution point-
blankly states that criminal trials shall be public. We see
no friction between these state and federal constitutional
provisions, properly interpreted, since the objectives of
both are identical: access to judicial hearings for the
public and fair trials for criminal defendants.
(Emphasis in original; citation and punctuation omitted.) Id.Georgia statutory law mandates the partial closure of a
9
courtroom when a person under the age of 16 testifies in a criminal
case concerning a sexual offense, although the statute permits
certain individuals, including the defendant’s immediate family
members, to remain in the courtroom. See OCGA § 17-8-545; see also
Scott v. State, 306 Ga. 507, 513 (832 SE2d 426) (2019) (Peterson, J.,
concurring) (noting that OCGA § 17-8-54 imposes a mandatory
closure rule and discussing concerns about the constitutionality of
such a rule). 6
Here, Alexander argues that his counsel performed deficiently
by failing to object to the trial court’s partial closure of the
courtroom. He argues that the partial closure deprived him of his
public-trial right under the Sixth Amendment when the trial court
5 OCGA § 17-8-54 provides:
In the trial of any criminal case, when any person under the age of
16 is testifying concerning any sexual offense, the court shall clear
the courtroom of all persons except parties to the cause and their
immediate families or guardians, attorneys and their secretaries,
officers of the court, victim assistance coordinators, victims’
advocates, and such other victim assistance personnel as provided
for by [OCGA § 15-18-14.2], jurors, newspaper reporters or
broadcasters, and court reporters.
6 No issue regarding the constitutionality of OCGA § 17-8-54 is presented
in this case.
10
failed to conduct any inquiry or make any findings pursuant to
Presley regarding the interests to be advanced by the closure,
whether the closure was broader than necessary to advance those
interests, and whether there were alternatives to closure. See
Weaver, 137 SCt at 1909 (II) (B) (noting that a public-trial violation
can occur “simply because the trial court omits to make the proper
findings before closing the courtroom, even if those findings might
have been fully supported by the evidence” (citing Presley, 558 U. S.
at 215)); Jackson v. State, 339 Ga. App. 313, 319 (2) (b) (793 SE2d
201) (2016) (holding that the closure of the courtroom in that case
“did not comply with [federal] constitutional requirements because
the trial court made no findings adequate to support the closure,
including a consideration of reasonable alternatives”).
Moreover, Alexander argues, had his trial counsel objected to
the partial closure and had the objection been overruled, Alexander
would have been entitled to have his convictions reversed on direct
appeal without the need to show actual harm because a courtroom
closure during witness testimony in violation of a defendant’s right
11
to a public trial under the Sixth Amendment is a “structural” error.
See Reid, 286 Ga. at 488 (3) (c).
Structural error is a defect affecting the framework
within which the trial proceeds, rather than simply an
error in the trial process itself. As such, structural errors
are not subject to harmless error analysis [when properly
raised at trial and on direct appeal].
(Citation and punctuation omitted) Berry v. State, 282 Ga. 376, 378
(3) (651 SE2d 1) (2007). 7
When no objection to an alleged error is raised at trial and the
error is raised only through a claim of ineffective assistance of
counsel, however, Strickland ordinarily requires the defendant to
show not only that his counsel performed deficiently by not objecting
but also that the deficiency caused prejudice, meaning a reasonable
probability that, but for the deficiency, the outcome of the trial
would have been different. See Strickland, 466 U. S. at 694 (III) (B).
Applying Strickland, this Court held in Reid that even when a
7 Alexander also argues that the partial closure of the courtroom violated
OCGA § 17-8-54 and his right to a public trial under the Georgia Constitution.
But Alexander makes no argument that a different test applies to claims of
ineffective assistance of counsel arising from the failure to object to a
courtroom closure on those grounds, so we do not analyze that question further.
12
courtroom closure would necessitate reversal had an objection been
preserved, in order to satisfy the prejudice prong of the Strickland
test, the defendant is required to demonstrate a reasonable
probability that the outcome of the trial would have been different
had his counsel objected to the closure. See Reid, 286 Ga. at 487-489
(3) (b).
In Reid, the trial court temporarily closed the courtroom for the
trial testimony of two witnesses. See id. at 487 (3) (c). The defendant
did not object but later challenged the courtroom closure through a
claim of ineffective assistance of counsel. See id. In reviewing the
defendant’s claim, this Court stated that, assuming the failure to
object constituted deficient performance, the defendant “still must
show that he was prejudiced by counsel’s decision not to object to the
brief closing of the courtroom. . . . [P]rejudice will not be presumed.”
Id. at 487-488 (3) (c). Thus, this Court stated that even though “[t]he
improper closing of a courtroom is a structural error requiring
reversal . . . if the defendant properly objected at trial and raised the
issue on direct appeal,” when challenged in the context of a claim of
13
ineffective assistance of counsel, the defendant “must prove a
reasonable probability of a different result” had counsel objected. Id.
at 488 (3) (c). Because the defendant in Reid had not done so, his
claim of ineffective assistance failed. See id. at 488-489 (3) (c). 8
As noted previously, both the trial court and the Court of
Appeals relied on Reid in denying Alexander’s claim of ineffective
assistance. See Alexander, 356 Ga. App. at 394-395 (2) (a).
Alexander argues that, despite Reid, Weaver allows him to establish
his claim of ineffective assistance by showing that his counsel’s
8 This Court and the Court of Appeals have applied Reid in the context
of claims of ineffective assistance of counsel arising from the failure to object
to courtroom closures occurring at various stages of trial proceedings, including
during jury selection, witness testimony at trial, closing arguments, the trial
court’s final charge to the jury, and witness testimony at a sentencing hearing.
See, e.g., Morris v. State, 308 Ga. 520, 530-531 (6) (842 SE2d 45) (2020) (closure
of courtroom during trial court’s final charge to jury); Walker v. State, 308 Ga.
33, 41 (3) (c) (838 SE2d 792) (2020) (closure of courtroom during closing
argument and final jury charge); Benson v. State, 294 Ga. 618, 622 (3) (a) (754
SE2d 23) (2014) (closure of courtroom during jury voir dire); State v. Abernathy,
289 Ga. 603, 609-611 (5) (715 SE2d 48) (2011) (jury voir dire conducted
partially in private room); Whatley v. State, 342 Ga. App. 796, 801-804 (3) (b)
(805 SE2d 599) (2017) (exclusion of public from courtroom during jury
selection); Freeman v. State, 328 Ga. App. 756, 760-761 (4) (760 SE2d 708)
(2014) (closure of courtroom during witness testimony at sentencing hearing);
Davis v. State, 323 Ga. App. 266, 269-270 (3) (746 SE2d 890) (2013)
(defendant’s family excluded from courtroom during victim’s testimony).
14
failure to object to the partial courtroom closure rendered his trial
fundamentally unfair. We turn now to that question.
3. The Scope and Applicability of Weaver
Weaver involved a criminal case in Massachusetts in which
“the courtroom was occupied by potential jurors and closed to the
public for two days of the jury selection process.” 137 SCt at 1905. 9
“Defense counsel neither objected to the closure at trial nor raised
9As the United States Supreme Court detailed:
The pool of potential jury members was large, some 60 to 100
people. The assigned courtroom could accommodate only 50 or 60
in the courtroom seating. As a result, the trial judge brought all
potential jurors into the courtroom so that he could introduce the
case and ask certain preliminary questions of the entire venire
panel. Many of the potential jurors did not have seats and had to
stand in the courtroom. After the preliminary questions, the
potential jurors who had been standing were moved outside the
courtroom to wait during the individual questioning of the other
potential jurors. The judge acknowledged that the hallway was not
“the most comfortable place to wait” and thanked the potential
jurors for their patience. The judge noted that there was simply
not space in the courtroom for everybody. As all of the seats in the
courtroom were occupied by the venire panel, an officer of the court
excluded from the courtroom any member of the public who was
not a potential juror. So when petitioner’s mother and her minister
came to the courtroom to observe the two days of jury selection,
they were turned away.
Weaver, 137 SCt at 1906 (I).
15
the issue on direct review.” Id. at 1905. 10 The Court noted that
Weaver came before the court “on the assumption that, in failing to
object, defense counsel provided ineffective assistance.” Id.
The Court suggested, however, that a defendant’s failure to
demonstrate a reasonable probability that the lack of objection to
the courtroom closure affected the outcome of his trial might not
always be fatal to his claim of ineffective assistance of counsel. The
Court recognized a disagreement among federal courts of appeal and
state courts of last resort about whether a defendant must
demonstrate prejudice in a case in which an objection to a structural
error is not preserved. See id. at 1907 (I). The Court explained that
“[s]ome courts have held that when a defendant shows that his
attorney unreasonably failed to object to a structural error, the
defendant is entitled to a new trial without further inquiry, whereas
10 The Court noted that “in the case of a structural error where there is
an objection at trial and the issue is raised on direct appeal, the defendant
generally is entitled to automatic reversal regardless of the error’s actual effect
on the outcome.” (Citation and punctuation omitted.) Weaver, 137 SCt at 1910
(III). However, the Court noted the critical distinction between a case in which
the claim was properly preserved as error and raised on direct appeal and a
case like Weaver in which there was no objection at trial and the error is raised
only through a claim of ineffective assistance of counsel. See id.
16
other courts, including this Court in Reid, “have held that the
defendant is entitled to relief only if he or she can show prejudice.”
Weaver, 137 SCt at 1907 (I) (citing Reid, among other cases). The
Court noted that it granted certiorari in Weaver “to resolve that
disagreement” but would do so “specifically and only in the context
of trial counsel’s failure to object to the closure of the courtroom
during jury selection,” which is the stage of the proceedings at which
the closure occurred in that case. Id.
The Court recognized that under Strickland, a defendant
generally must show that his counsel’s deficient performance
prejudiced him in that there is “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different,” but noted Strickland’s caution that the
prejudice inquiry should not be applied in a “’mechanical’” fashion
and that claims of ineffective assistance must ultimately
concentrate on “‘the fundamental fairness of the proceeding.’” Id. at
1911 (III) (quoting Strickland, 466 U. S. at 694-696 (IV)).
The Court said that Weaver therefore argued that, “even if
17
there is no showing of a reasonable probability of a different
outcome, relief still must be granted if the convicted person shows
that attorney errors rendered the trial fundamentally unfair.” Id.Without deciding whether Weaver’s proposed alternative way of
showing prejudice was an appropriate test, the Court “assume[d]”
for “analytical purposes of this case” that Weaver’s interpretation of
Strickland was correct, emphasizing that “[i]n light of the Court’s
ultimate holding, . . . the Court need not decide that question here.”
Id. Thus, the rest of the discussion in Weaver regarding a
“fundamental unfairness” test was plainly dicta — application of a
legal standard that the Court merely assumed and explicitly did not
adopt, as two Justices who joined the Court’s opinion expressly
noted. See id. at 1914 (Thomas, J., concurring, joined by Gorsuch, J.)
(“Strickland did not hold, as the Court assumes, that a defendant
may establish prejudice by showing that his counsel’s errors
rendered the trial fundamentally unfair. Because the Court
concludes that the closure during petitioner’s jury selection did not
lead to fundamental unfairness in any event, no part of the
18
discussion about fundamental unfairness is necessary to its result.”
(citations and punctuation omitted)); see also Ordonez Azmen v.
Barr, 965 F3d 128, 133 (2d Cir. 2020) (explaining that “assumptions
[regarding legal issues] are mere dicta”); 3 Wayne LaFave, CRIMINAL
PROCEDURE § 11.10 (d) (4th ed. 2021) (noting that Weaver’s
statements about “fundamental unfairness” were dicta). And “dicta
is not binding on anyone for any purpose.” Edwards v. Prime, Inc.,
602 F3d 1276, 1298 (V) (C) (11th Cir. 2010).
This dicta began with the Court noting that
not every public-trial violation will in fact lead to a
fundamentally unfair trial. Nor can it be said that the
failure to object to a public-trial violation always deprives
the defendant of a reasonable probability of a different
outcome. Thus, when a defendant raises a public-trial
violation via an ineffective-assistance-of-counsel claim,
Strickland prejudice is not shown automatically. Instead,
the burden is on the defendant to show either a
reasonable probability of a different outcome in his or her
case or, as the Court has assumed for these purposes, to
show that the particular public-trial violation was so
serious as to render his or her trial fundamentally unfair.
(Citations omitted.) Weaver, 137 SCt at 1911 (III).
Applying that assumed standard, the Court first held that
19
Weaver had not shown “prejudice in the ordinary sense, i.e., a
reasonable probability that the jury would not have convicted him if
his attorney had objected to the closure.” Id. at 1912 (IV). The Court
noted that it was “possible that potential jurors might have behaved
differently if [Weaver’s] family had been present” and that “the
presence of the public might have had some bearing on juror
reaction.” Id. However, the Court noted that Weaver “offered no
evidence or legal argument establishing prejudice in the sense of a
reasonable probability of a different outcome but for counsel’s failure
to object.” (Citations and punctuation omitted.) Id. at 1912-1913
(IV).
The Court then suggested that
[i]n other circumstances a different result might obtain.
If, for instance, defense counsel errs in failing to object
when the government’s main witness testifies in secret,
then the defendant might be able to show prejudice with
little more detail. Even in those circumstances, however,
the burden would remain on the defendant to make the
prejudice showing, because a public-trial violation does
not always lead to a fundamentally unfair trial.
(Citations omitted.) Id. at 1913 (IV). The Court ultimately
20
determined — “[i]n light of [its] assumption that prejudice can be
shown by a demonstration of fundamental unfairness” — that
Weaver had failed to show that his counsel’s deficient performance
had rendered the trial fundamentally unfair. Id.
As this recounting of Weaver shows, despite the Supreme
Court’s theorizing about how a defendant might establish a claim of
ineffective assistance of counsel in the context of a courtroom
closure, neither the test assumed in Weaver, nor anything else
stated in Weaver about it, is binding upon this Court. In addition,
nothing in Weaver displaced our holding in Reid that a showing of
actual prejudice is required in order to establish a claim of
ineffective assistance arising from trial counsel’s failure to object to
a courtroom closure.
4. We Adhere to Reid
Alexander urges this Court to adopt the test assumed in
Weaver and, in a supplemental brief filed after oral argument, asks
us to overrule Reid. He contends that he could establish his claim of
ineffective assistance of counsel based on a showing of fundamental
21
unfairness without demonstrating a reasonable probability of a
different outcome. However, as noted above, Weaver did not actually
establish any new test for evaluating claims of ineffective assistance
of counsel, and there are sound reasons to continue applying Reid’s
holding to such claims. Thus, as we discuss below, we adhere to Reid
and reject any application of the test assumed in Weaver to this case.
We have cited Weaver in only one case addressing a defendant’s
claim of ineffective assistance arising from a courtroom closure. See
Walker v. State, 308 Ga. 33, 41 (3) (c) (838 SE2d 792) (2020). In
Walker, the trial court ordered that spectators not be permitted to
move in and out of the courtroom during closing arguments and the
final jury charge. See id. Trial counsel failed to object, and the
defendant argued that the failure constituted ineffective assistance
under Strickland. See id. We concluded that the claim failed under
both Reid and Weaver’s assumed test because the defendant had
“not shown that the trial court’s order rendered his trial
fundamentally unfair or that it somehow altered the outcome of
trial.” Id. at 41 (3) (c). Although our holding might suggest that a
22
defendant could establish a claim of ineffective assistance through a
showing of fundamental unfairness, we never analyzed or adopted
that test; instead, like the Supreme Court in Weaver, we simply
determined that the defendant failed to satisfy that test, if it even
applied at all. See id.
We see no reason for the dicta in Weaver to disturb this Court’s
square holding in Reid regarding claims of ineffective assistance
arising from the failure to object to a courtroom closure. We are
mindful that “dicta from the Supreme Court is not something to be
lightly cast aside.” (Citation and punctuation omitted.) Schwab v.
Crosby, 451 F3d 1308, 1326 (II) (B) (11th Cir. 2006). Such dicta may
be of “considerable persuasive value, especially [when] it interprets
the Court’s own precedent.” United States v. City of Hialeah, 140
F3d 968, 974 (III) (A) (11th Cir. 1998). However, the Court’s dicta is
less persuasive to us where, as it did in Weaver, the Court merely
considered an assumption proposed by a litigant for the sake of
argument. Establishing a new legal test based on dicta regarding
legal assumptions made by the Supreme Court comes with risks,
23
and we should not presume that, if the Supreme Court actually
decided the issue it assumed in Weaver, its holding would match its
assumption. See, e.g., Campbell-Ewald Co. v. Gomez, 577 U. S. 153,
161-62 (136 SCt 663, 193 LE2d 571) (2016) (explaining that the
Court had previously “simply assumed, without deciding” a legal
issue and deciding the issue contrary to the previous assumption).
Moreover, Reid is a sound precedent which faithfully applies
the two-pronged Strickland test. See Weaver, 137 SCt at 1914 (Alito,
J., concurring in judgment) (rejecting the Weaver majority’s analysis
and noting that cases involving courtroom closures “[call] for a
straightforward application of the familiar standard for evaluating
ineffective assistance of counsel claims” under Strickland). In our
view, the Strickland test properly places a heavy burden on the
defendant to prove that his counsel’s deficient performance
negatively impacted the outcome of the trial. See State v. Mobley,
296 Ga. 876, 877 (770 SE2d 1) (2015). In doing so, Strickland
requires the defendant to show how the closure of the courtroom
affected the outcome of his trial. See Morris v. State, 308 Ga. 520,
24
531 (6) (842 SE2d 45) (2020); see also Weaver, 137 SCt at 1915 (Alito,
J., concurring in the judgment) (“[A]n attorney’s error ‘does not
warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.’” (quoting Strickland, 466 U. S.
at 691)). Because we believe Reid faithfully applies Strickland, we
see no reason to depart from it or add to it here.
Finally, Reid rightly recognized that allowing a defendant to
establish a claim of ineffective assistance without demonstrating
that the failure to object affected the outcome of the trial “would
encourage defense counsel to manipulate the justice system by
intentionally failing to object in order to ensure an automatic
reversal on appeal.” 286 Ga. at 488 (c); see also Weaver, 137 SCt at
1912 (III) (noting that “an ineffective-assistance claim can function
as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, thus undermining the finality of jury verdicts”
(citation and punctuation omitted)); Freeman, 328 Ga. App. at 760-
761 (4) (noting that a defendant should “not be allowed to induce an
asserted error, sit silently hoping for acquittal, and obtain a new
25
trial when that tactic fails” (citations and punctuation omitted)).
Reid, like Strickland, incentivizes defense counsel to perform
professionally and competently in the first instance and eliminates
any impetus for defense counsel to strategically withhold an
objection to a courtroom closure that violates the defendant’s right
to a public trial.
In light of the foregoing, we view Reid as a sound precedent,
and we see no reason to adopt a separate “fundamental unfairness”
test as a new avenue for establishing a claim of ineffective assistance
of counsel in the context of a courtroom closure. Weaver does not
command otherwise. We therefore decline Alexander’s invitation to
overrule Reid. 11
5. We Affirm the Judgment of the Court of Appeals
Applying Reid here, Alexander has not carried his burden of
showing a reasonable probability that the outcome of his trial would
11 Because we conclude that Reid was correctly decided, “it is
unnecessary for us to consider whether we should retain that decision under
the doctrine of stare decisis.” Elliott v. State, 305 Ga. 179, 209 n.21 (III) (C) (ii)
(824 SE2d 265) (2019).
26
have been different but for his counsel’s failure to object to the
closure of the courtroom during the witnesses’ trial testimony. In his
testimony at the hearing on his motion for new trial, Alexander
suggested that, had his parents remained in the courtroom, the
victims might have testified differently. But we routinely conclude
that such speculation is insufficient to establish prejudice in a claim
of ineffective assistance of counsel. See Strickland, 466 U. S. at 693(III) (B) (“It is not enough for the defendant to show that [counsel’s]
errors had some conceivable effect on the outcome of the
proceeding.”); Green v. State, 304 Ga. 385, 391 (2) (a) (818 SE2d 535)
(2018) (“Mere speculation on the defendant’s part is insufficient to
establish Strickland prejudice.” (citation and punctuation omitted)).
Thus, because Alexander has not made the requisite showing of
prejudice, we see no error in the Court of Appeals’ determination
that Alexander’s claim of ineffective assistance of counsel must be
rejected under Reid. 12 See Alexander, 356 Ga. App. at 395 (2).
12Because we determine that Alexander has not shown that he was
prejudiced by counsel’s failure to object to the partial courtroom closure in this
27
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed. All the Justices concur, except McMillian
and Colvin, JJ., disqualified.
case, we need not consider whether his counsel performed deficiently. See
Lupoe v. State, 300 Ga. 233, 240 (2) (794 SE2d 67) (2016) (“[I]n examining an
ineffectiveness claim, a court need not ‘address both components of the inquiry
if the defendant makes an insufficient showing on one.’” (quoting Strickland,
466 U. S. at 697)).
28