TABOR v. THE STATE (Two Cases) ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: December 20, 2022
S22A0857. TABOR v. THE STATE.
S22A0986. SPEAR v. THE STATE.
LAGRUA, Justice.
Appellants Tyree Tabor and Donny Spear were tried together
and convicted of malice murder and other offenses in connection
with the shooting death of Nicholas Miller. 1 Although the two co-
1 Miller was shot on October 31, 2016, and he died following
complications from his injuries on December 1, 2016. On June 16, 2017, a
Fulton County grand jury indicted Vincent Evans, Jeremecia Holley, Spear,
and Tabor for the following counts: participation of street gang activity (Count
1—Evans, Spear, and Tabor); malice murder of Miller (Count 2—Evans, Spear,
and Tabor); felony murder of Miller, predicated on criminal attempt to commit
armed robbery (Count 3—Evans, Spear, and Tabor); felony murder of Miller,
predicated on criminal attempt to purchase marijuana (Count 4—Evans,
Spear, and Tabor); felony murder of Miller, predicated on aggravated assault
(Count 5—Evans, Spear, and Tabor); felony murder of Miller, 2016, predicated
on possession of a firearm by a first-offender probationer (Count 6—Spear);
criminal attempt to commit armed robbery (Count 7—Evans, Spear, and
Tabor); criminal attempt to purchase marijuana (Count 8—Evans, Spear, and
Tabor); aggravated assault of Miller (Count 9—Evans, Spear, and Tabor);
aggravated battery of Mar’Keil Leonard (Count 10—Evans, Spear, and Tabor);
possession of a firearm during the commission of a felony (Count 11—Evans,
Spear, and Tabor); possession of a firearm by a first-offender probationer
defendants raise different contentions on appeal, their appeals have
been consolidated for purposes of issuing an opinion. Tabor contends
that his trial counsel provided constitutionally ineffective
assistance. Spear contends that his trial counsel provided
constitutionally ineffective assistance and that the trial court
abused its discretion by denying his motion for severance. For the
reasons explained below, we affirm the convictions in both cases.
(Count 12—Spear); possession of cocaine with the intent to distribute (Count
13—Spear); possession of marijuana with the intent to distribute (Count 14—
Spear); possession of hydrocodone (Count 15—Spear); possession of a firearm
during the commission of a felony (Count 16—Spear); possession of a firearm
by a first-offender probationer (Count 17—Spear); possession of cocaine with
the intent to distribute (Count 18—Holley); possession of a firearm during the
commission of a felony (Count 19—Holley); and possession of marijuana—less
than one ounce (Count 20—Holley).
Spear and Tabor were jointly tried from January 27 to February 4, 2020.
On February 3, the trial court granted a directed verdict of acquittal on Count
1, and Spear pled guilty to Counts 13 through 17. On February 4, a jury found
Spear and Tabor guilty of the remaining counts. As to Spear, the trial court
vacated the four counts of felony murder, merged the aggravated assault count
into the malice murder count, and sentenced him to serve life in prison with
the possibility of parole, plus sixty years to serve consecutively. As to Tabor,
the trial court vacated the three counts of felony murder, merged the
aggravated assault count with the malice murder count, and sentenced him to
serve life in prison with the possibility of parole, plus fifty-five years to serve
consecutively.
Spear and Tabor filed timely motions for new trial, which they amended
through new counsel. After holding evidentiary hearings on the motions for
new trial, the trial court denied the motions in November and December 2021.
Spear and Tabor filed timely notices of appeal, and their cases were docketed
to this Court’s August 2022 term and submitted for a decision on the briefs.
2
The evidence presented at trial shows that on the evening of
October 31, 2016, officers responded to a shooting at an apartment
complex located at 1425 Joseph E. Boone Boulevard. Upon their
arrival, officers discovered Miller unresponsive, lying face down on
the sidewalk suffering from multiple gunshot wounds. He was
transported to the hospital, but he never regained consciousness and
died a month later on December 1. The medical examiner
determined that Miller’s cause of death was complications from a
gunshot wound to the torso. From the parking lot of the apartment
complex, the police recovered a Smith and Wesson 9mm handgun,
one 9mm shell casing, eight 7.62mm shell casings, six 5.7mm shell
casings, and six .223-caliber shell casings.
Around the same time, Mar’Keil Leonard called Fulton County
911 and told the operator that he had been shot. During his call to
911, someone in the background asked, “Who shot you?” and
Leonard responded, “Tyriq.” 2 When the police arrived at Leonard’s
location, they impounded his car—which had multiple bullet holes—
2 Leonard later identified Tabor as “Tyriq.”
3
and recovered his .223-caliber gun, along with 29 .223-caliber
cartridges; Leonard was transported to the hospital.
At trial, Leonard testified that on the evening of October 31, he
spoke to Tabor regarding a potential marijuana sale. Tabor was
going to connect a marijuana buyer to Leonard, Leonard would sell
the buyer a pound of marijuana for an agreed-upon price, and Tabor
would receive a portion of Leonard’s profit, “like a referral fee.”
Leonard and Tabor agreed to meet at the apartment complex on
Joseph E. Boone Boulevard, and Leonard sent a text message to his
cousin to let him know where he was going. 3 During Leonard’s drive
to the apartment complex, he saw Miller, who decided to accompany
him.
When Leonard and Miller arrived at the apartment complex,
they got out of Leonard’s car, Tabor and Spear got out of Tabor’s car,
and the four men greeted each other. 4 Miller smoked a cigarette near
3The text message stated, “Aye im finna go serve [T]yriq dem on da hill
apartment behind chapel…just to keep u updated.” Leonard testified that
“serve” meant to sell drugs.
4 Leonard testified that he had known Tabor for approximately five years
4
the front of Leonard’s car, and Tabor sat on the back of Leonard’s
car. Leonard stood next to his open driver-side door with his hands
on top of the door; the car’s engine continued running.
Leonard and Spear smoked a “blunt” and chatted about the
marijuana. Spear asked Leonard about the marijuana’s price, which
confused Leonard because the price was previously agreed-upon.
Leonard then presented a different type of marijuana to Spear, and
they smoked another “blunt.” Spear kept “moving” during the
conversation, and Leonard asked Tabor, “What’s up with your boy?”
Leonard later told Detective Jamael Logan of the Atlanta Police
Department that Tabor and Spear had handguns in their
waistbands and Spear “kept fudging and playing with [his]
handgun[.]” 5
Leonard testified that he then sat in his driver’s seat, opened
the passenger door from the inside, and told Miller, “Hey, come on,
and knew of Spear because Leonard had previously purchased marijuana from
Spear.
5 Detective Logan interviewed Leonard at the hospital, and the interview
was audio-recorded and portions of the interview were played at trial.
5
let’s go, because they playing.” Leonard testified that he did this
because Spear “kept asking questions,” so he thought Spear did not
want to purchase the marijuana. Leonard later told an investigator
that Leonard told him that Spear “appeared [to be] looking around
as if he knew something was about to take place, that he was
stalling.”
Leonard testified that after he asked Miller to get into his car,
Miller began walking toward the car, but then “turned around and
just took off [running].” Then, an unknown man, whom Leonard
later identified as Evans, walked out from behind Leonard’s car,
stood next to Spear, pointed what “looked like a shotgun” at
Leonard, and stated, “If you move, I’m going to shoot you.” Leonard
“slapped [his] car in drive [and] took off,” and he saw that shots were
being fired at him when he looked in his rearview mirror. Leonard
testified that he drove a short distance to his grandmother’s house,
realized that he had been shot multiple times, and called 911.
Although Leonard initially told Detective Logan that Evans, Tabor,
and Spear all shot at him while he was driving away, at trial,
6
Leonard denied that Tabor shot at him.
When Leonard spoke with Detective Logan at the hospital, he
identified Tabor and Spear by their nicknames only, and he could
not identify Evans by any name. However, he provided a physical
description of all three men. Leonard later provided Detective Logan
with social-media photographs of the three men he believed were
involved with the shooting. Law enforcement officers eventually
determined that the three men were Tabor, Spear, and Evans and
developed photographic lineups of the men containing photographs
different from the ones Leonard provided. From these photographic
lineups, Leonard identified Tabor, Spear, and Evans as the men who
shot at him, and police issued arrest warrants for them.
On December 14, law enforcement officers were surveilling
Spear and watched him and co-defendant Jermecia Holley leave
their apartment; Spear was carrying a black backpack. After they
drove away, the police conducted a traffic stop, and Spear was
arrested on an outstanding arrest warrant. The police recovered
Spear’s backpack, which contained a stolen handgun, marijuana,
7
hydrocodone, and cocaine.
Detective Logan interviewed Spear, who identified Leonard as
the man he met the night of Miller’s shooting; Spear also identified
himself in one of the photographs that Leonard had previously
provided to Detective Logan. While Spear was in jail, he called
Holley and admitted he had been with Tabor at the apartment
complex, but stated he was not involved in the shooting. Spear also
admitted to possession of the backpack and its contents, and he told
Holley that there were other guns, including “a glock and a gold
gun,” and drugs at the apartment that needed to be moved. Based
on this information, law enforcement obtained a search warrant and
recovered drugs and three handguns from the apartment, but the
two guns referenced in Spear’s phone call to Holley were not
recovered.
One month later, on January 16, 2017, around 2:30 a.m., the
police were dispatched to a Bank of America in Sandy Springs in
reference to ATM tampering. Upon their arrival, the police pursued
several suspects into an adjacent construction site and arrested
8
three people, one of whom was Tabor.
Several hours later, around 6:30 a.m., the superintendent of
the construction site found a Ruger 9mm handgun near a pile of
construction debris and turned the weapon over to police. Ballistics
testing revealed that the 9mm shell casing found at the apartment
complex on October 31, 2016, was fired from the Ruger 9mm
handgun recovered from the construction site—and not the Smith
and Wesson 9mm handgun found at the scene. Further ballistics
testing revealed that the eight 7.62mm shell casings were fired from
one gun, the six 5.7mm shell casings were fired from another gun,
the six .223-caliber shell casings were fired from yet another gun,
and that none of the shell casings were fired from Leonard’s gun.
Case No. S22A0857. Tabor v. The State:
1. Tabor contends that his trial counsel provided
constitutionally ineffective assistance in multiple ways. To prevail
on these claims, Tabor must demonstrate both that his trial
counsel’s performance was professionally deficient and that he was
prejudiced by this deficient performance. See Bates v. State, 313 Ga.
9
57, 62 (2) (867 SE2d 140) (2022) (citing Strickland v. Washington,
466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984)). To
establish deficient performance, Tabor must show that trial counsel
performed his duties in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms. See id. Establishing deficient performance
is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably, and
[Tabor] bears the burden of overcoming this presumption.
To carry this burden, he must show that no reasonable
lawyer would have done what his lawyer did, or would
have failed to do what his lawyer did not. In particular,
decisions 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.
Vann v. State, 311 Ga. 301, 303 (2) (857 SE2d 677) (2021) (citations
and punctuation omitted). And, “in the absence of evidence to the
contrary, counsel’s decisions are presumed to be strategic and thus
insufficient to support an ineffective assistance of counsel claim.”
Holland v. State, 314 Ga. 181, 190 (3) (875 SE2d 800) (2022) (citation
and punctuation omitted).
10
To establish prejudice, Tabor 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. See Bates, 313 Ga. at
62 (2). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. (citation and punctuation
omitted). “And, this burden is a heavy one.” Id. at 62-63 (2) (citation
and punctuation omitted). “If an appellant fails to meet his or her
burden of proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong.” Id. at 63 (2)
(citation and punctuation omitted). “This Court accepts a trial
court’s factual findings and credibility determinations on an
ineffectiveness claim unless they are clearly erroneous, but we apply
legal principles to the facts de novo.” Powell v. State, 309 Ga. 523,
526-27 (2) (847 SE2d 338) (2020).
Tabor contends that his trial counsel provided constitutionally
ineffective assistance by failing to (i) adequately consult with Tabor,
(ii) subpoena witnesses, (iii) interview law enforcement witnesses,
and (iv) interview the medical examiner or any member of his staff.
11
Tabor’s trial counsel did not testify at the motion-for-new trial
hearing. But, Tabor testified that during trial counsel’s nearly five-
month representation of him, trial counsel met with Tabor four to
five times. Tabor admitted that during these meetings, his trial
counsel read the indictment, explained the charges and the potential
maximum sentence, gave him discovery, including the medical
examiner’s report and the forensic report, asked him “how [he]
wanted to go about” defending his case, and explained “what [the
State] offered, . . . what he was going to do [to defend Tabor’s case],
[and] how he was going at the prosecution.” But, Tabor testified that
his trial counsel failed to subpoena or interview any witnesses,
including Ciera Dobbs and Rosalyn Well, and that these women had
possession of his preliminary hearing transcript, which would have
been helpful in impeaching one of the detectives.
Regarding the alleged failure to adequately consult with Tabor,
“[a]s we have explained, there exists no magic amount of time which
counsel must spend in actual conference with his client,” and Tabor
“does not specifically describe how additional communications with
12
his lawyer would have enhanced his defense.” Styles v. State, 309
Ga. 463, 472 (5) (a) (847 SE2d 325) (2020) (citation and punctuation
omitted). Further, Appellant has failed to make a proffer showing
what evidence or strategy would have been uncovered through
additional consultation. See id. We also conclude that Spear’s trial
counsel did not perform his duties in an objectively unreasonable
way because he met with Spear four to five times, explained the
indictment and the potential maximum sentence, provided and
discussed discovery, and explained how he planned to defend Spear.
Accordingly, we conclude Appellant has failed to carry his burden of
showing that his trial counsel was deficient in this respect, and this
claim fails.
Regarding the failure to interview and subpoena witnesses,
Tabor failed to identify or proffer which witnesses from law
enforcement or the medical examiner’s office should have been
interviewed, and how any interviews would have enhanced his
defense. Although Tabor specifically identified Dobbs and Well as
potential witnesses, it appears from Tabor’s testimony that the only
13
relevant information they possessed was a copy of Tabor’s
preliminary hearing transcript. 6 According to Tabor, possession of
this transcript would have helped his trial counsel impeach
Detective Logan because there were alleged “inconsistencies” in his
testimony at the preliminary hearing and at trial. But, Tabor failed
to identify any prior inconsistent statements made by the detective
and does not contend that his trial counsel was deficient in failing
to impeach the detective. Thus, Tabor has failed to demonstrate that
his counsel performed deficiently in failing to interview and
subpoena witnesses, and these ineffectiveness claims fail.7 See
Lanier v. State, 310 Ga. 520, 526 (3) (b) (852 SE2d 509) (2020) (The
6 We note that this transcript was filed with the trial court approximately
two years prior to trial, and therefore it was not necessary for Tabor’s trial
counsel to contact Dobbs and Well to obtain a copy of the transcript.
7 Tabor also enumerates as error that his trial counsel provided
constitutionally ineffective assistance by failing to (i) impeach Leonard with
unrelated pending charges, (ii) cross-examine Leonard with the fact that he
was not prosecuted for crimes related to Miller’s death, (iii) move for a mistrial
when the trial judge failed to sua sponte recuse, (iv) move for recusal of the
trial judge, and (v) join the State’s motion for mistrial and motion for recusal.
However, Tabor’s enumerations are “not supported by argument or citation of
authority” and so are abandoned. See Supreme Court Rule 22. See also Payne
v. State, 314 Ga. 322, 329 n.7 (877 SE2d 202) (2022) (“It is not the function of
this Court to cull the record for a party . . . to form arguments on the appellant’s
behalf.” (citation and punctuation omitted)).
14
appellant failed to show that his trial counsel was deficient where
he “failed to point to evidence tending to show what further
investigation would have revealed or to offer any additional
witnesses to demonstrate that their testimony would have been
relevant and favorable.” (citation and punctuation omitted)).
Case No. S22A0986. Spear v. The State:
2. Spear contends that his trial counsel provided
constitutionally ineffective assistance by failing to file a timely
motion to bifurcate certain counts.8 We disagree.
(a) On the first day of trial, Spear’s trial counsel orally moved
to bifurcate the felony murder count predicated on possession of a
firearm by a first-offender probationer (Count 6), the predicate
possession of a firearm by a first-offender probationer count (Count
12), and a separate possession of a firearm by a first-offender
probationer count (Count 17) on the ground that the evidence
8 We note that the law governing Spear’s ineffectiveness claims in
Divisions 2, 3, and 4 is set out in Division 1.
15
supporting these counts “place[d] his character in evidence.”9 The
trial court orally denied the motion on the merits and later issued a
written order denying the motion because it was both untimely and
meritless.
It has long been established that a trial court “[does] not err in
refusing to bifurcate the charge of possession of a firearm by a
first[-]offender probationer” where, as here, “[t]he possession charge
was an underlying felony to a murder count of the indictment.”
George v. State, 276 Ga. 564, 565 (3) (580 SE2d 238) (2003). See also
Cooks v. State, 299 Ga. 787, 789-790 (3) (792 SE2d 389) (2016)
(“[Where] . . . the count charging possession of a firearm by a
convicted felon might serve as the underlying felony supporting a
felony murder conviction, a motion to bifurcate should be denied.”
(citation and punctuation omitted)). Because the trial court was not
required to bifurcate Count 12, Spear has failed to show that his
trial counsel was deficient for failing to timely file such a motion.
9Counts 6 and 12 arose from Miller’s death, and Count 17 arose from the
handgun in Spear’s possession during his arrest.
16
See Talley v. State, 314 Ga. 153, 165 (3) (d) (875 SE2d 789) (2022)
(no deficient performance in failing to seek bifurcation of a firearm
charge when it was a predicate to a felony murder charge).
And, to the extent Spear contends that the trial court should
have also bifurcated the felony murder count from the rest of his
trial, this claim also fails. See Brown v. State, 295 Ga. 804, 807-808
(3) (764 SE2d 376) (2014) (“Because in this case one of the counts of
felony murder was based on the felon-in-possession firearm charge
(and the indictment also charged malice murder), the trial court did
not err when it denied [the appellant’s] motion to bifurcate” the
felon-in-possession firearm charge and the related felony murder
count from his trial.).Regarding Count 17, evidence of Spear’s status
as a first-offender probationer, as well as the charges for which he
was on probation, was properly admitted through the State’s
presentation of evidence on Counts 6 and 12. Accordingly, Spear has
failed to show that his trial counsel performed deficiently, and this
claim fails. See Koonce v. State, 305 Ga. 671, 676 (2) (d) (827 SE2d
633) (2019) (concluding that trial counsel was not deficient in failing
17
to object to cumulative evidence).10
(b) On the second day of trial, Spear’s trial counsel orally moved
to bifurcate Counts 13 through 17, the drug-and-gun charges that
arose from Spear’s arrest, on the basis that the evidence supporting
these charges was irrelevant and unduly prejudicial. The trial court
took the motion under advisement and later issued a written order
denying the motion because it was both untimely and meritless. To
the extent that Spear contends that his trial counsel provided
constitutionally ineffective assistance by failing to timely file this
motion, we conclude that any such ineffectiveness claim has been
waived.
“Claims of trial counsel ineffectiveness must be raised at the
earliest practicable opportunity.” Bedford v. State, 311 Ga. 329, 338
(5) (c) (857 SE2d 708) (2021) (citation and punctuation omitted).
10Cf. Cooks v. State, 299 Ga. 787, 789 (3) (792 SE2d 389) (2016) (“[I]n
cases where a felon-in-possession firearm charge is unrelated to another count
for which the defendant is to be tried, the proceedings should be bifurcated so
that the jury will hear and decide the more serious charges before learning
about the firearm charge and the defendant’s prior conviction.” (citation and
punctuation omitted)).
18
“That moment is before appeal if the opportunity to do so is
available. The pre-appeal opportunity is available when the
convicted defendant is no longer represented by the attorney who
represented him at trial.” Elkins v. State, 306 Ga. 351, 361 (4) (a)
(830 SE2d 217) (2019) (citation and punctuation omitted).
Here, the amended motion for new trial filed by motion-for-
new-trial counsel failed to include an ineffectiveness claim
concerning the motion orally moved for on the second day of trial
seeking to bifurcate Counts 13 through 17 on the ground that the
evidence related to the drug-and-gun charges was irrelevant and
prejudicial, 11 and the order denying the motion for new trial
referenced only trial counsel’s failure to timely file the motion orally
moved for on the first day of trial seeking to bifurcate counts 6, 12,
and 17 on the ground that the evidence “place[d] his character in
evidence.”12 Because Spear “failed to raise this claim at the earliest
11 The amended motion for new trial referenced only the motion filed on
the first day of trial seeking to bifurcate Counts 6, 12, and 17.
12 The trial court’s order actually referenced, “counts 16, 12 and 17,” but
we conclude that the trial court’s inclusion of Count 16, as opposed to Count 6,
19
practicable moment, he did not preserve it for appellate review,” and
this claim has been waived. Elkins, 306 Ga. at 361 (4) (a) (citation
and punctuation omitted).
3. Spear contends his trial counsel provided constitutionally
ineffective assistance by withdrawing certain previously-filed
motions. We disagree.
In February 2018, Spear’s pre-trial counsel filed several
motions, including a motion for immunity based on self-defense, a
motion to suppress physical evidence, a motion to suppress
identification, and a motion to suppress statements. In November
2018, the trial court held a hearing on the motions, and trial counsel
withdrew the motion for immunity, the motion to suppress physical
evidence, the motion to suppress identification, and the motion to
suppress statements.
(a) The withdrawn motion for immunity. At the motion-for-
new-trial hearing, trial counsel was not questioned about why he
was likely a scrivener’s error.
20
withdrew the motion for immunity. “[I]n the absence of evidence to
the contrary, counsel’s decisions are presumed to be strategic and
thus insufficient to support an ineffective assistance of counsel
claim.” Holland, 314 Ga. at 190 (3) (citation and punctuation
omitted). “It may be reasonable for trial counsel to forgo a pre-trial
immunity motion so as to avoid subjecting his client to pre-trial
cross-examination, or for counsel to elect to demonstrate self-
defense to the jury, rather than to the judge.” Broxton v. State, 306
Ga. 127, 138 (5) (a) (829 SE2d 333) (2019). Here, Spear told both
Detective Logan and Holley that while he was at the apartment
complex with Tabor, he was not involved in the shooting, and Spear
did not contend at trial, at the motion-for-new trial hearing, or in his
brief to this Court that he acted in self-defense. Because Spear has
not established that no competent attorney would have withdrawn
the motion for immunity under the circumstances of this case, he
has not shown that his counsel’s performance was professionally
deficient. Accordingly, this claim fails. See id.(b) The withdrawn motions to suppress physical evidence,
21
identification, and statements. “Where, as here, an appellant claims
that trial counsel was deficient for failing to file a motion to
suppress, the [appellant] must make a strong showing that the
damaging evidence would have been suppressed had counsel made
the motion.” Evans v. State, 308 Ga. 582, 586 (3) (842 SE2d 837)
(2020) (citation and punctuation omitted). Spear makes no such
showing. Rather, he contends only that trial counsel’s withdrawal of
the motions deprived him of the ability to challenge evidence prior
to trial and that trial counsel failed to provide a reasonable
explanation about why he withdrew these motions. Appellant makes
no argument that any physical evidence, identification, or statement
would have been suppressed had trial counsel gone forward with
these motions. Accordingly, because Spear failed to show that the
evidence, identification, or statements would have been suppressed
had trial counsel not withdrawn the motions to suppress, he has not
established that his trial counsel was deficient, and this claim fails.
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
22
motion been filed, the evidence would have been suppressed, we
agree with the trial court’s conclusion that trial counsel was not
deficient.”).
4. Spear contends that his trial counsel provided
constitutionally ineffective assistance by failing to successfully
argue the motion to sever his trial from that of his co-defendants.
We agree with the State, however, that this claim has been waived.13
Spear’s amended motion for new trial did not raise any
ineffectiveness claim concerning the motion to sever. And although
there was some questioning about the motion to sever at the motion-
for-new-trial hearing, the trial court’s order did not address any
ineffectiveness claim on that issue. The lack of ruling from the trial
court indicates that the court did not view this claim as having been
raised implicitly, which could have preserved the claim for appellate
review. See Rickman v. State, 304 Ga. 61, 66 (3) (816 SE2d 4) (2018)
(“[A]lthough a trial court may . . . allow a motion for new trial to be
13 We note that the law governing waiver of an ineffectiveness claim is
set out in Division 2 (b).
23
amended implicitly by treating a claim as if it had been raised in the
motion, the trial court’s failure to address any ineffectiveness claim
in its ruling on the motion for new trial indicates an absence of any
such amendment.”). Accordingly, because Spear “failed to raise this
claim at the earliest practicable moment, he did not preserve it for
appellate review.” Elkins, 306 Ga. at 361 (4) (a) (citation and
punctuation omitted).
5. Spear contends that the trial court abused its discretion by
denying his motion to sever his trial from that of Tabor because the
trial court “fail[ed] to make any findings in support [of] its order.”
We disagree.
At the motion-to-sever hearing, Spear’s trial counsel sought
severance from all three of Spear’s co-defendants. However, trial
counsel focused primarily on Evans, arguing that Evans’s presence
at a joint trial would be prejudicial to Spear on Bruton grounds. 14
Although trial counsel made no specific argument concerning Tabor,
14 Bruton v. United States, 391 U.S. 123 (88 SCt 1620, 20 LE2d 476)
(1968).
24
he did mention that Tabor was in “bench warrant status.” The trial
court inquired about the statements Evans made to law enforcement
and whether Tabor or Holley made any statements.15 The trial court
later issued a written order summarily denying the motion based
upon “the argument of both parties” and the “applicable law.” As
noted above, Spear was tried with Tabor only.
“A trial court has the discretion to grant or deny a severance in
a joint trial.” Ruff v. State, 314 Ga. 386, 386 (1) (877 SE2d 239)
(2022) (citation and punctuation omitted). “In ruling on a motion to
sever, a trial court should consider: (1) the likelihood of confusion of
the evidence and law; (2) the possibility that evidence against one
defendant may be considered against the other defendant; and (3)
the presence or absence of antagonistic defenses.” Id. at 386-387 (1)
(citation and punctuation omitted).
On appeal, he contends only that the trial court erred by failing
to 1) make any factual findings in its order, and 2) reference any law
15During this inquiry, the State opposed severance, but acknowledged
that Evans made some statements that would not be admissible at a joint trial.
25
in support of its decision. However, a trial court is not required to
make explicit findings with respect to the severance factors when
“[i]t is obvious from the transcript that the trial court properly
considered these factors when denying [the defendant’s] motion to
sever.” Flournoy v. State, 294 Ga. 741, 748 n.5 (5) (755 SE2d 777)
(2014). When, as here, a trial court makes no explicit findings in
ruling on a motion that does not require such findings to be made,
we presume that the trial court implicitly made all the findings in
support of its ruling that the record would allow. See Anthony v.
State, 311 Ga. 293, 297 (3) (857 SE2d 682) (2021). Because the trial
court was not required to make explicit findings with respect to the
severance factors, and it is obvious from the transcript that the trial
court properly considered the appropriate factors when it denied
Spear’s motion to sever, this claim fails. 16
16Spear also contends that, under State v. Lane, 308 Ga. 10 (838 SE2d
808) (2020), the combined prejudicial effect of his trial counsel’s deficiencies
and the trial court’s error affected the outcome of the trial. However, “to
establish cumulative error, [Spear] must show that at least two errors were
committed in the course of the trial.” Holland, 314 Ga. at 193 (4) (citation and
punctuation omitted). Since we have not concluded that Spear’s trial counsel
performed deficiently, cumulative error analysis under Lane is not applicable.
26
Judgment affirmed. All the Justices concur.
27