¶1In the Supreme Court of Georgia
¶2 Decided: June 21, 2021
¶3 S21A0297. TAYLOR v. THE STATE.
¶4 LAGRUA, Justice.
¶5 Appellant Micayla Christina Taylor, also known as “Cay Cay,”
¶6was convicted of felony murder and other crimes in connection with
¶7the shooting death of Divante Rodriekus Simmons and the
¶8aggravated assault of William Lawton. On appeal, Appellant raises
¶9seven enumerations of error: (1) the evidence was legally insufficient
¶10to support her conviction; (2) the trial court erred in denying her
¶11motion to suppress; (3) the trial court erred in denying her plea in
¶12bar; (4) the trial court erred in giving the State’s requested charge
¶13on conspiracy over Appellant’s objection; (5) trial counsel provided
¶14ineffective assistance by failing to object to prospective Juror No. 44
¶15being struck from the jury panel; (6) trial counsel provided
¶16ineffective assistance by failing to object to alleged hearsay statements given by Jeston Yates; and (7) trial counsel provided
¶17ineffective assistance by allowing admission of testimony regarding
¶18Appellant’s request to take a polygraph test. 1 For the reasons that
¶19follow, we affirm Appellant’s convictions.
¶20 1. Viewed in the light most favorable to the verdicts, the
¶21evidence presented at trial showed the following. Appellant was
¶22arrested on February 5, 2016, after being implicated in the February
¶231, 2016 shootings of Lawton and Simmons. The shootings occurred
¶24in Newton County in an area known as “Gum Tree.” According to
¶25Jeston Yates, who lived in the Gum Tree area at the Salem Terrace
¶26 1 The crimes occurred on February 1, 2016. In April 2016, a Newton County grand jury indicted Appellant for malice murder, felony murder, two counts of aggravated assault (as to Simmons and Lawton), and possession of a firearm during the commission of a felony. In November 2018, a jury found her guilty of felony murder and the two counts of aggravated assault. The jury acquitted Appellant of malice murder and the firearm possession count. The trial court sentenced Appellant to serve life in prison for the felony murder count and 20 consecutive years for the aggravated assault count as to Lawton. The remaining count of aggravated assault as to Simmons merged with the felony murder count for sentencing purposes. Appellant filed a motion for new trial on December 18, 2018, which she amended through new counsel on July 5, 2019. On July 16, 2019, the trial court held a hearing on the motion for new trial. On October 2, 2019, the trial court denied Appellant’s motion for new trial. Appellant filed a timely notice of appeal on October 31, 2019, and the case was docketed to this Court’s term beginning in December 2020 and submitted for a decision on the briefs. 2 Apartments, he encountered Appellant at the apartment complex
¶27around 10:15 a.m. on the morning of February 1. Appellant asked
¶28Yates where she could sell some marijuana, and he noticed
¶29Appellant had “about five blunts with her,” as well as “a 9” handgun.
¶30After smoking marijuana with Appellant, Yates told Appellant to go
¶31down to Gum Tree Court or Plum Orchard Road, two nearby streets,
¶32to sell the marijuana. Yates testified that around 11:00 a.m.,
¶33Appellant left the apartment complex driving a silver Malibu or
¶34Impala. About five to ten minutes later, Appellant returned, telling
¶35Yates that she went to Gum Tree Court to make a sale but two men
¶36ran off with the marijuana after asking if they could smell it. Yates
¶37testified that he left the apartment complex after this conversation
¶38because he did not want to get involved.
¶39 Reginald West and his son, Demarkcus Jones, who was also
¶40known as “Head Head,” testified that the same morning, between
¶4110:30 a.m. and 11:00 a.m., they were walking to West’s duplex in the
¶42Gum Tree area from another part of the neighborhood. As West
¶43and Jones approached West’s duplex, West noticed a silver Impala
¶44 3 parked in front of the neighbor’s unit. When the two men neared
¶45the driveway, the Impala started to leave but stopped beside West.
¶46A man in the driver’s seat said to West, “[S]omebody going to pay.”
¶47West observed that a woman was seated in the front passenger seat
¶48of the vehicle.
¶49 Yates testified that about an hour or so later, he was walking
¶50through the Gum Tree area when Appellant’s silver car pulled up
¶51next to him. A man was driving the car, and Appellant was seated
¶52in the passenger seat. They told Yates to get in the car, and when
¶53Yates hesitated, the man drew a gun – the same gun Yates saw
¶54Appellant with earlier that morning. Appellant started giving Yates
¶55a description of the man who stole her marijuana, saying he was
¶56“cross-eyed.” Yates testified that he immediately knew Appellant
¶57was describing Jones because Jones has a damaged eye and is the
¶58only person in the area with an eye like that.2 Appellant then asked
¶59Yates where “Head Head” lived, and Yates said he did not know.
¶60 2 Jones is blind in his left eye and has visible damage to that eye caused by a childhood accident. 4 According to Yates, the three started driving around the Gum Tree
¶61area near West’s duplex. Yates heard Appellant call the driver
¶62“Plug,” which Yates knew to mean her drug dealer or supplier. The
¶63man driving the car told Yates that he and Appellant were “going to
¶64handle some business” and “make an example out of them boys down
¶65there that night,” and “they were going to go riding tonight until
¶66they find who did it.” At around 1:00 p.m., they dropped off Yates
¶67on Plum Orchard Road.
¶68 According to West, later that afternoon between 2:30 p.m. and
¶694:30 p.m., he was standing outside his duplex with his other son,
¶70Reggie, and he saw a silver Impala driving up and down the street
¶71multiple times. At some point during this timeframe, the car pulled
¶72into West’s driveway. The same man and woman from the earlier
¶73encounter were inside the vehicle, and the man said to West and
¶74Reggie, “I know y’all ain’t got nothing to do with this, but when I
¶75come back, they going to have to pay, give me my money.”
¶76 Tobias Dickerson, a resident of the Salem Terrace Apartments,
¶77also testified at trial. According to Dickerson, at approximately 5:30
¶78 5 p.m. on the same day, he was walking up a path from Plum Orchard
¶79Road to the Salem Terrace Apartments with his young daughter. As
¶80they entered the apartment complex parking lot, Dickerson saw a
¶81gray or silver Impala parked nearby – a car he had seen at the
¶82complex most of the day. A man was standing outside the driver’s
¶83side of the car, and a woman was standing on the passenger side.
¶84As Dickerson and his daughter approached, the woman pointed a
¶85handgun – a “.40-caliber” or a “baby 9” – at them, asking “[W]here
¶86he go, where he go?” Dickerson responded that he did not know what
¶87she was talking about, and the woman ran to the other side of the
¶88apartment complex. Dickerson rushed his daughter into his
¶89apartment and came back outside to confront the woman “because
¶90she drawed down on [him] and [his] daughter.” When he came back
¶91outside, the car sped out of the complex. Dickerson then walked to
¶92his mother’s house on Plum Orchard Road, and while he was
¶93standing in the yard, he saw the silver Impala driving up and down
¶94the street eight or nine times.
¶95 Yates testified that about two hours later, between 7:00 p.m.
¶96 6 and 7:30 p.m., he was outside a house on Plum Orchard Road and
¶97saw a silver car driving slowly up and down the road. Yates noticed
¶98that the car looked like the one he had ridden in earlier in the day
¶99with Appellant, and he observed that the same man was driving the
¶100car, holding a gun.
¶101 West and Jones testified that about 8:30 p.m. that evening,
¶102they were with their friends Lawton and Simmons at Lawton’s home
¶103on Gum Tree Court. According to West and Lawton, at around 10:00
¶104p.m., a silver or gray Impala turned down Gum Tree Court, drove
¶105past Lawton’s house, turned around in the cul-de-sac at the end of
¶106the street, and drove back up the street. The men testified that as
¶107the Impala neared Lawton’s house again, multiple gunshots were
¶108fired from the vehicle. Lawton said that Simmons pulled him to the
¶109ground behind a car parked in front of the house. West stated he
¶110also got down and slammed Jones to the ground. Jones testified that
¶111he could see “fire” coming up off the ground where the bullets were
¶112hitting the parking area. One of the bullets struck Lawton in his
¶113left bicep. Lawton testified that after the shooting stopped, he got
¶114 7 up to go inside his house but noticed that Simmons was still on the
¶115ground. The men then realized Simmons had been shot.
¶116 Officers responded to the shootings at approximately 10:30
¶117p.m. They observed Simmons lying on the ground, apparently
¶118deceased. They spoke briefly with Lawton and assisted in applying
¶119a tourniquet to his arm. The officers recovered multiple shell
¶120casings from a .40-caliber weapon located in the immediate vicinity
¶121and along the road.3 When the ambulance arrived, emergency
¶122personnel confirmed Simmons was deceased. The ambulance
¶123transported Lawton to the hospital where he was treated and
¶124released.
¶125 A few days after the shootings, Dickerson, West, and Yates
¶126were interviewed by officers. During these interviews, officers
¶127presented the men with photographic lineups and asked if they
¶128recognized anyone matching the appearance of the woman they
¶129encountered on February 1. Dickerson selected a photograph of
¶130Appellant and also identified her at trial. West circled a photograph
¶131 3 Officers never recovered the handgun used in the shootings. 8 of Appellant, but indicated that he was not sure she was the woman
¶132he encountered on February 1. However, West positively identified
¶133Appellant at trial. Yates could not identify anyone in the
¶134photographs presented to him, but at trial, he identified Appellant
¶135as the woman who asked him where she could sell marijuana, had a
¶136gun in her possession, and was riding in the silver car.
¶137 Appellant was arrested on February 5 and interviewed by
¶138Investigator Jocelyn Detweiler and Corporal Charles Cook. The
¶139interview lasted approximately four hours. At the beginning of the
¶140interview, Appellant agreed to waive her Miranda 4 rights and give
¶141a statement to the officers.
¶142 During the first few minutes of the interview, Appellant told
¶143the officers that on the day of the shootings, she “did try to go
¶144purchase some weed” in the Gum Tree neighborhood and “somebody
¶145did steal from” her. She also told the officers that she was “driving
¶146around the neighborhood in the day time” in a silver Impala looking
¶147 4 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
¶148 9 for “Head Head.” The officers then asked her to describe Head Head,
¶149and Appellant responded, “He got messed up eyes.” When the
¶150officers asked for more details about the events surrounding the
¶151robbery, Appellant stated:
¶152 I went to go purchase some weed, I’m gonna be honest, earlier that day. And, he ended up taking it from me. Like, he stole from me. So I just let it go, like, I just roll – at first, I did ride around the neighborhood. I’m not gonna lie. I rolled around the neighborhood. I’m, like, have you all seen – you all seen a dude?
¶153 One of the officers then inquired as to what Appellant was
¶154planning to do once she found Head Head, and Appellant responded
¶155that she was “gonna try to get [the marijuana] back,” “was going to
¶156chase after him,” and “[b]eat him up or something.” Appellant also
¶157told the officers that “J” was in the car with her the whole time,
¶158indicating “J” was her “plug” or supplier. Appellant then stated that
¶159around 2:00 or 3:00 p.m., she and “J” drove over to the Salem Terrace
¶160Apartments to find Yates to get the name of the man who had stolen
¶161the marijuana from her. Appellant said she described the man to
¶162Yates and said he had “cock eyes,” and Yates told her the man’s
¶163 10 name was “Head Head.” Appellant said she, “J,” and Yates then
¶164rode around Gum Tree to see if Yates could show them where Head
¶165Head lived, but Yates “act like he ain’t know where he live. He was
¶166just pointing.” She said they dropped off Yates after that. Appellant
¶167told the officers that she returned to the Gum Tree area throughout
¶168the day looking for Head Head because she wanted to “get [her] sack
¶169back,” and if she saw Head Head “with [her] stuff,” she was “going
¶170to beat him up.”
¶171 2. Appellant contends that the evidence presented at trial was
¶172insufficient to support her convictions because the State “simply
¶173cobbled together circumstantial evidence and the testimony of
¶174insufficient and unreliable witnesses” to show that “Appellant was
¶175somehow involved in the shooting in the Gum Tree neighborhood
¶176that evening.” See OCGA § 24-14-6 (“To warrant a conviction on
¶177circumstantial evidence, the proved facts shall not only be consistent
¶178with the hypothesis of guilt, but shall exclude every other reasonable
¶179hypothesis save that of the guilt of the accused.”). Appellant claims
¶180that while the evidence may have established that on February 1,
¶181 11 she was robbed of marijuana and was riding around in a silver or
¶182gray Impala in the Gum Tree area, no evidence was presented by
¶183the State to place her at the actual scene of the homicide or in
¶184possession of the murder weapon or to show that the silver or gray
¶185Impala in which she was riding was the same one at the scene of the
¶186shootings that night.
¶187 However, the evidence presented at trial established that the
¶188vehicle in which Appellant was riding on February 1 was the same
¶189make, model, and color as the one driven by the assailant during the
¶190shootings. Furthermore, several witnesses saw Appellant with a
¶191handgun before the shootings, and Yates saw the same handgun in
¶192possession of the man driving Appellant’s car. Testimony at trial
¶193also showed that for most of the day on February 1, Appellant was
¶194looking for “Head Head” – the man who allegedly stole marijuana
¶195from her – and Appellant’s own statements to officers demonstrated
¶196that when she found Head Head, she intended to retaliate for the
¶197theft.
¶198 It is the jury’s role to resolve conflicts in the evidence and
¶199 12 determine the credibility of witnesses. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
¶200Smith v. State, 280 Ga. 161, 162 (1) (625 SE2d 766) (2006) (citations
¶201and punctuation omitted).
¶202 Here, the State presented evidence that Appellant had a
¶203motive for the shootings, that Jones was with the victims at the time
¶204of the shootings, that a car matching the description of Appellant’s
¶205was involved in the shootings, and that Appellant had a handgun
¶206with her and in her vicinity during the day of the shootings, which
¶207authorized the jury to find that she was at least a party to the
¶208crimes. See id. See also OCGA § 16-2-20 (defining parties to a
¶209crime). Accordingly, the evidence was sufficient to exclude every
¶210other reasonable hypothesis save that of guilt and to enable a
¶211rational trier of fact to find Appellant guilty beyond a reasonable
¶212doubt of the crimes of which she was convicted. See Smith, 280 Ga.
¶213 13 at 162.
¶214 Appellant also contends that no rational trier of fact could have
¶215found her guilty beyond a reasonable doubt of the commission of the
¶216alleged crimes under the constitutional standard set forth in
¶217Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
¶218(1979). Properly viewing the evidence in the light most favorable to
¶219the verdicts, we conclude that the evidence was sufficient for a jury
¶220to find Appellant guilty beyond a reasonable doubt of the crimes of
¶221which she was convicted under the Jackson standard. See id. See
¶222also Boyd v. State, 306 Ga. 204, 207 (1) (830 SE2d 160) (2019).
¶223 3. Appellant next contends that the trial court erred in denying
¶224her motion to suppress a portion of the statements she made during
¶225her February 5 custodial interview with Investigator Detweiler and
¶226Corporal Cook. An audio recording of the interview was introduced
¶227at a pretrial Jackson-Denno 5 hearing and played for the court. 6
¶228 5 See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
¶229 A written transcript of the interview was also introduced at the hearing 6
¶230and admitted during trial.
¶231 14 As noted above, early in the interview, after knowingly and
¶232voluntarily waiving her rights under Miranda, Appellant told the
¶233officers that she was in the Gum Tree area to sell marijuana on
¶234February 1; that a man named Head Head stole her marijuana; and
¶235that she was driving around Gum Tree in a silver Impala looking for
¶236Head Head to beat him up and get the marijuana back. After
¶237making these admissions, about two hours into the interview,
¶238Appellant asked the officers:
¶239 APPELLANT: I have a right to a – do I have a right to a lawyer or not? Do I need a – I need an attorney? DETWEILER: Do you need an attorney? APPELLANT: I mean, no, because I’m telling you all what happened. . . . COOK: So you still want to keep talking to us? APPELLANT: Huh? COOK: You confusing me. You still want to keep talking with us? APPELLANT: I mean, is it a waste of time? DETWEILER: At – no. COOK: Cay Cay, only you know that. DETWEILER: Yeah. COOK: And I just need to hear it from you, that you want to just keep talking with us and keep moving forward. Because, listen, I wasn’t – you know where I was? I was at home in bed. Cause I was sick that day. I ain’t going to tell you no story about it. I can tell you exactly what I was doing.
¶240 15 APPELLANT: Okay. COOK: I was at home in the bed, sweetheart. APPELLANT: All right. Well, I’m just going to be 100 then. COOK: Please. APPELLANT: All right. So from the – DETWEILER: Just – APPELLANT: Just hold on. Just let me talk.
¶241(Emphasis added.)
¶242 The interview resumed, and Appellant told the officers again
¶243that on the day of the shootings, she was driving around Gum Tree
¶244looking for Head Head because she was going to “chase after him”
¶245until she got her marijuana back. Then, about 30 minutes after the
¶246exchange quoted above, the following exchange occurred:
¶247 COOK: Describe [your plug] good to us. APPELLANT: Naw. I need my attorney. DETWEILER: Okay. You wish to not speak with us at this time? APPELLANT: I mean, you all going to try and put a murder on me, and I didn’t commit. DETWEILER: Do you wish to not speak with us at this time? APPELLANT: I mean, I’ll – I keep talking. Man, I didn’t – DETWEILER: Are you sure? COOK: Go over it again to make sure. DETWEILER: All right now. APPELLANT: What?
¶248 16 DETWEILER: It’s all right. APPELLANT: So what? DETWEILER: So I’ll let them go into the thing (inaudible). APPELLANT: So what? COOK: What we got to do now, Cay Cay, is you – you requested an attorney but then you said you wanted to keep talking. We got to review these again. APPELLANT: For real? DETWEILER: Yeah. You ready?
¶249(Emphasis added.)
¶250 At this point, the investigators reviewed Appellant’s Miranda
¶251rights, and Appellant signed the corresponding waiver form and
¶252agreed to continue speaking with the investigators. During the
¶253remainder of the interview, Appellant reiterated that on the day of
¶254the shootings, she was looking for Head Head in the Gum Tree area
¶255to get her marijuana back, but she did not have a weapon and was
¶256not involved in or present when the shootings occurred. She told the
¶257officers that she “let it go,” and she “didn’t go shoot nobody.”
¶258 Appellant contends that the two statements emphasized above
¶259unequivocally invoked her right to counsel, and thus, the
¶260interrogation should have stopped until an attorney was made
¶261 17 available to her or until she reinitiated the conversation with the
¶262officers. See State v. Estrada, 300 Ga. 199, 201 (794 SE2d 103)
¶263(2016) (“When a defendant invokes his right to counsel, all
¶264interrogation is to cease until such time as an attorney is made
¶265available or until such time as the defendant reinitiates
¶266conversation with law enforcement and waives his right to having
¶267counsel present.”). Appellant argues that because the interrogation
¶268did not cease after she invoked her right to counsel, her subsequent
¶269statements should have been suppressed at trial, and the trial court
¶270erred in denying her motion to suppress.
¶271 “In reviewing a trial court’s ruling on a motion to suppress, this
¶272Court must affirm the trial court’s findings on disputed facts unless
¶273clearly erroneous.” Mack v. State, 296 Ga. 239, 241 (765 SE2d 896)
¶274(2014). Here, however, there are no disputed facts, given that
¶275Appellant’s custodial interview was captured in an audio recording
¶276that is part of the appellate record. See id. “Accordingly, our review
¶277of the trial court’s application of the law to the undisputed facts is
¶278de novo.” Id. at 242.
¶279 18 A suspect who asks for a lawyer at any time during a custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation. If the police persist in questioning a suspect who has requested that counsel be present, any resulting statements made by the suspect are inadmissible in the State’s case-in-chief. In order for a suspect to properly invoke his right to counsel during a custodial interrogation, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.
¶280Dubose v. State, 294 Ga. 579, 582 (2) (755 SE2d 174) (2014). See also
¶281Willis v. State, 287 Ga. 703, 704 (1) (699 SE2d 1) (2010). However,
¶282 [a]n invocation must be clear and unambiguous; the mere mention of the word “attorney” or “lawyer” without more, does not automatically invoke the right to counsel. If the defendant makes reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, cessation of the questioning is not required.
¶283Dubose, 294 Ga. at 582 (citations and punctuation omitted)
¶284(emphasis in original).
¶285 In this case, Appellant’s first reference to a lawyer – “I have a
¶286right to a – do I have a right to a lawyer or not? Do I need a – I need
¶287 19 an attorney?” – was not an “unequivocal and unambiguous request[]
¶288to have counsel present during interrogation.” Lee v. State, 306 Ga.
¶289663, 668 (3) (832 SE2d 851) (2019). See also United States v.
¶290Wysinger, 683 F3d 784, 795 (II) (A) (7th Cir. 2012) (holding that
¶291defendant’s initial question – “Do I need a lawyer before we start
¶292talking?” – “was not an unequivocal request for a lawyer and [law
¶293enforcement] was not required to cease the interrogation at that
¶294point.”); Mueller v. Angelo, 181 F3d 557, 573-574 (III) (4th Cir. 1999)
¶295(concluding that the defendant’s question, “Do you think I need an
¶296attorney here?,” which was posed to the police officer during
¶297interrogation, was an ambiguous “query whether his interrogator
¶298thought that counsel might be helpful” and not “a clear assertion of
¶299his right to counsel”). “When a defendant makes an equivocal
¶300reference to counsel, as [Appellant] did here, interviewing officers
¶301are not always required to clarify the request, but they can.” Lee,
¶302306 Ga. at 668. After Appellant made the equivocal and ambiguous
¶303statement inquiring whether she needed an attorney, the officers
¶304“reasonably sought clarification” of Appellant’s statement, asking
¶305 20 several times if Appellant wanted to keep talking to them. See id.
¶306Appellant clearly indicated that she did want to keep talking to the
¶307officers. Accordingly, at this point, Appellant did not
¶308unambiguously invoke her right to counsel.
¶309 Turning now to Appellant’s second reference to counsel during
¶310the interview, the recording reflects that when officers asked
¶311Appellant for a more detailed description of her plug, “J,” she
¶312responded, “Naw. I need my attorney.” Assuming without deciding
¶313that this statement was an unequivocal invocation of Appellant’s
¶314right to counsel and that the officers’ subsequent questions violated
¶315her Fifth Amendment right to counsel, see Edwards v. Arizona, 451
¶316U.S. 477 (101 SCt 1880, 68 LE2d 378) (1981), the trial court’s error
¶317in admitting the statement was harmless beyond a reasonable doubt
¶318because in the remainder of the interview, the information elicited
¶319from Appellant was cumulative of other statements she made earlier
¶320in the interview when she had been advised of her Miranda rights
¶321and had not yet made any reference to counsel. See Frazier v. State,
¶322278 Ga. 297, 298 (4) (602 SE2d 588) (2004) (“Because [the
¶323 21 defendant’s] custodial statement merely repeated what he had
¶324earlier told his aunt and admitted in his non-custodial statement to
¶325the first officer on the scene, admission of the custodial statement
¶326was harmless beyond a reasonable doubt even assuming, arguendo,
¶327that officers during that interrogation failed to scrupulously honor
¶328[the defendant’s] right to remain silent.”). See also Ensslin v. State,
¶329308 Ga. 462, 472 (2) (d) (841 SE2d 676) (2020) (in conducting
¶330harmless error analysis after concluding that the appellant invoked
¶331his right to remain silent, this Court held “it is clear that the
¶332challenged statements were cumulative of [a]ppellant’s testimony
¶333admitting that he killed [the victim] but claiming self-defense,
¶334rendering their admission harmless beyond a reasonable doubt.”).
¶335Additionally, throughout the entire interview, Appellant
¶336consistently denied any involvement in the shootings or knowledge
¶337of who the perpetrator was. For these reasons, even assuming the
¶338trial court erred in admitting the challenged statements at trial, this
¶339error was harmless beyond a reasonable doubt. See Ensslin, 308 Ga.
¶340at 474.
¶341 22 4. Appellant’s next contention alleges error by the trial court
¶342in denying her plea in bar. On August 18, 2018, Appellant filed a
¶343plea in bar, asserting that her constitutional right to a speedy trial
¶344had been violated because, following her indictment, the trial of her
¶345case was continued from multiple trial calendars, primarily at the
¶346State’s request. The trial court denied Appellant’s plea in bar,
¶347determining that the delay in trial was not excessive; that both
¶348parties contributed to the delay and each party had specific reasons
¶349for the requested continuances; that the Appellant’s right to a
¶350speedy trial was not asserted until the plea in bar was filed; and that
¶351no prejudice to Appellant had been shown. On appeal, Appellant
¶352contends that the trial court’s ruling was erroneous because at the
¶353time she filed her plea in bar, the delay in her trial had been over 30
¶354months, which “clearly harmed her.” We see no clear error in the
¶355trial court’s factual findings or any abuse of discretion in the trial
¶356court’s weighing of the factors and decision to reject Appellant’s
¶357speedy trial claim. See Cash v. State, 307 Ga. 510, 513 (2) (837 SE2d
¶358280) (2019).
¶359 23 (a) Threshold inquiry
¶360 Courts examining an alleged denial of the constitutional right to a speedy trial first must consider whether the interval between the defendant’s arrest, indictment, or other formal accusation and the trial is sufficiently long so as to be characterized as presumptively prejudicial. If the delay is long enough to invoke the presumption of prejudice, the trial court must balance four factors: (1) whether the delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for the delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether [s]he suffered prejudice as the delay’s result.
¶361Id. (citing Barker v. Wingo, 407 U.S. 514, 530-533 (92 SCt 2182, 33
¶362LE2d 101) (1972); Doggett v. United States, 505 U.S. 647, 651 (112
¶363SCt 2686, 120 LE2d 520 (1992)). “The trial court’s weighing of each
¶364factor and its balancing of all four factors—its ultimate judgment—
¶365are reviewed on appeal only for abuse of discretion.” State v. Porter,
¶366288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).
¶367 The trial court determined that the pretrial delay in
¶368Appellant’s case was 30 months – Appellant was arrested in
¶369February 2016, filed her plea in bar in August 2018, and was tried
¶370in November 2018. Appellant does not contest that the trial court
¶371 24 accurately calculated this delay. The trial court properly held that
¶372the pretrial delay was presumptively prejudicial, and the court
¶373proceeded to consider and weigh the Barker factors. See Barker, 407
¶374U.S. at 530-533. On appeal, Appellant argues that she was deprived
¶375of her right to a speedy trial due to the continuances that delayed
¶376her trial, which were predominantly the fault of the government.
¶377 The following continuances are reflected in the record: (1) at
¶378Appellant’s request, the trial court granted a continuance of the
¶379June 2016 pretrial motions and status hearing; (2) at the joint
¶380request of both parties, the trial court granted a continuance of the
¶381pretrial motions hearings scheduled for August 2016 and September
¶3822016; (3) the trial court rescheduled the pretrial motions hearing on
¶383March 2017 due to its own conflict; (4) the case appeared on the trial
¶384court’s October 2017 trial calendar, but was continued at the State’s
¶385request because Yates, one of the State’s witnesses, had absconded;
¶386(5) Appellant’s attorney filed a motion to withdraw in January 2018,
¶387which was granted by the trial court on January 30, 20187; (6)
¶388 7 Appellant’s private attorney withdrew because Appellant was no longer 25 Appellant’s new counsel requested a continuance from the February
¶3892018 and April 2018 trial calendars to allow counsel to review the
¶390file and prepare for trial, and the trial court granted the requests;
¶391(7) the case appeared on the trial court’s September 2018 trial
¶392calendar, but was continued to November 2018 at the State’s request
¶393for the State to locate Yates; and (8) the trial court ordered that the
¶394trial would proceed in November 2018 with or without the State’s
¶395witnesses. The trial went forward in November 2018.
¶396 (b) The Barker Factors
¶397 (i) Length of the Delay
¶398 As noted above, Appellant does not contest that the length of
¶399the delay was properly calculated by the trial court as 30 months.
¶400In considering this time period, the trial court held that the delay
¶401was not uncommonly long given the nature of the charges and the
¶402time period required for investigation. However, the trial court held
¶403that the length of delay should be weighed against the State, as the
¶404able to pay for her representation, and new counsel was then appointed by the trial court. 26 delay amounted to a “little less than three years” from the time of
¶405Appellant’s arrest to her trial. On appeal, neither party contests the
¶406trial court’s conclusion, and we conclude that the trial court properly
¶407weighed the length of the delay against the State. See Porter, 288
¶409 (ii) Reasons for the Delay
¶410 The trial court considered the reasons for the delay in
¶411Appellant’s trial and noted that they included requests for
¶412continuances by both parties. The trial court thus attributed the
¶413delays to the State and Appellant, and we conclude that the trial
¶414court did not abuse its discretion in weighing this factor neutrally.
¶415See Robinson v. State, 287 Ga. 265, 268 (1) (b) (695 SE2d 201) (2010)
¶416(concluding that, “in balancing all of the reasons for the delay that
¶417[we]re attributable to the State against those that [we]re
¶418attributable to the defendant[], this Barker factor ultimately
¶419remains neutral.”).
¶420 (iii) Assertion of the Right to a Speedy Trial
¶421 The trial court weighed the third factor against Appellant
¶422 27 because she waited 30 months to file a plea in bar asserting her right
¶423to a speedy trial. We see no abuse of discretion in the trial court’s
¶424conclusion that this factor should be weighed against Appellant. See
¶425Cash, 307 Ga. at 518 (“We do not see an abuse of discretion in the
¶426trial court’s conclusion that [the defendant’s] failure to assert the
¶427right sooner weighed against him.”).
¶428 (iv) Prejudice
¶429 The trial court found that Appellant failed to satisfy her burden
¶430of showing she was prejudiced by the pretrial delay and failed to
¶431demonstrate actual prejudice, and thus, this factor did not weigh in
¶432Appellant’s favor. See id. at 518-519. On appeal, while Appellant
¶433generally asserts that her defense was prejudiced, she does not
¶434explain how or provide any concrete basis for this assertion, such as
¶435an inability to prepare her defense, the loss of any witnesses, and/or
¶436any impairment to her defense. See Porter, 288 Ga. at 529 (“The
¶437types of prejudice associated with an unreasonable delay before trial
¶438include oppressive pretrial incarceration, anxiety and concern of the
¶439accused, and the possibility that the accused’s defense will be
¶440 28 impaired by dimming memories and loss of exculpatory evidence.”).
¶441The trial court did not clearly err in finding that Appellant did not
¶442demonstrate actual prejudice from the delay of her case or abuse its
¶443discretion by failing to weigh the prejudice prong in Appellant’s
¶444favor. See Cash, 307 Ga. at 520.
¶445 Accordingly, the trial court did not abuse its discretion in
¶446concluding that Appellant’s right to a speedy trial was not violated
¶447and denying her plea in bar.
¶448 5. Appellant contends that the trial court erred in instructing
¶449the jury on conspiracy. During the charge conference, the State
¶450requested that the trial court charge the jury on conspiracy, and the
¶451trial court advised that it would give the Suggested Pattern Jury
¶452Instructions on conspiracy and party to a crime. Appellant objected
¶453to the conspiracy instruction – both at the conclusion of the charge
¶454conference and again after the trial court finished reading the
¶455instructions to the jury. On appeal, Appellant contends that because
¶456conspiracy was not the theory under which she was charged and
¶457because the evidence did not support a conspiracy charge in this
¶458 29 case, it was error for the trial court to charge the jury on conspiracy
¶459over Appellant’s objection. We disagree.
¶460 It is not error to charge on the subject of conspiracy when the evidence tends to show a conspiracy, even if a conspiracy is not alleged in the indictment. The State may prove a conspiracy by showing that two or more persons tacitly came to a mutual understanding to pursue a criminal objective. And the conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances.
¶461Smith v. State, 306 Ga. 753, 758 (2) (833 SE2d 117) (2019). “And,
¶462only slight evidence is necessary to warrant a charge on the subject
¶464 Here, more than slight evidence supported giving a conspiracy
¶465instruction to the jury. This evidence included testimony from
¶466several witnesses who observed Appellant and a man, whom
¶467Appellant referred to as her “plug” or drug supplier, in the Gum Tree
¶468area at various points during the day on February 1, 2016, riding in
¶469a silver or gray Impala and searching for the man who allegedly
¶470stole Appellant’s marijuana. Appellant and her associate were also
¶471seen with a handgun, with which they threatened both Yates and
¶472 30 Dickerson. The gunshots that caused Simmons’s death and
¶473Lawton’s injuries were fired from a silver or gray Impala matching
¶474the description of the car in which Appellant and her associate were
¶475traveling. Appellant admitted to police officers that she and her
¶476“plug” were looking for the man who stole her marijuana and
¶477intended to harm the suspected offender – “Head Head” – when they
¶478found him, and Jones was with Simmons and Lawton at the time of
¶479the shootings. This evidence constituted the “slight evidence”
¶480needed for the trial court to charge the jury on conspiracy, and the
¶481trial court did not abuse its discretion in doing so. See id.
¶482 6. In Appellant’s next three enumerations of error, she
¶483contends that her trial counsel provided ineffective assistance in
¶484regard to the following: (a) failing to object to a prospective juror
¶485being struck prior to voir dire; (b) failing to object to alleged hearsay
¶486statements given by Yates; and (c) allowing the admission of
¶487testimony regarding Appellant’s request to take a polygraph test.
¶488We will address each contention in turn, applying the constitutional
¶489standard set forth in Strickland v. Washington, 466 U.S. 668 (104
¶490 31 SCt 2052, 80 LE2d 674) (1984).
¶491 In order to prevail on a claim of ineffective assistance of
¶492counsel, Appellant must show “both that counsel’s performance was
¶493deficient, and that the deficient performance was prejudicial to h[er]
¶494defense.” Lockhart v. State, 298 Ga. 384, 385 (2) (782 SE2d 245)
¶495(2016). See also Strickland, 466 U.S. at 687 (III). To show deficient
¶496performance, Appellant must “overcome the strong presumption
¶497that counsel’s performance fell within a wide range of reasonable
¶498professional conduct, and that counsel’s decisions were made in the
¶499exercise of reasonable professional judgment.” Lockhart, 298 Ga. at
¶500385.
¶501 The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case, and 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.
¶502Id. See also Robinson v. State, 278 Ga. 31, 36 (2) (d) (597 SE2d 386)
¶503(2004) (“As a general rule, matters of reasonable trial tactics and
¶504strategy, whether wise or unwise, do not amount to ineffective
¶505 32 assistance of counsel,” and “[a] reviewing court evaluates trial
¶506counsel’s performance from counsel’s perspective at the time of
¶507trial.”). To show prejudice under the Strickland test, Appellant
¶508must show that “there is a reasonable probability that, absent any
¶509unprofessional errors on counsel’s part, the result of h[er] trial
¶510would have been different.” Lockhart, 298 Ga. at 385 (citation and
¶511punctuation omitted).
¶512 “An appellant must prove both prongs of the Strickland test,
¶513and if [s]he fails to prove one prong, it is not incumbent upon this
¶514Court to examine the other prong.” Winters v. State, 305 Ga. 226,
¶515230 (4) (824 SE2d 306) (2019) (citation and punctuation omitted).
¶516“In reviewing either component of the inquiry, all factual findings
¶517by the trial court will be affirmed unless clearly erroneous.” Id. See
¶518also Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003) (“We
¶519accept the trial court’s factual findings and credibility
¶520determinations unless clearly erroneous, but we independently
¶521apply the legal principles to the facts.”).
¶522 (a) Appellant first contends that her trial counsel failed to
¶523 33 provide effective assistance in regard to the striking of a potential
¶524juror prior to voir dire. As shown by the record, prior to jury
¶525selection, the trial court excused prospective Juror No. 44 because
¶526there was a warrant outstanding for her arrest, and she was taken
¶527into custody. The trial court advised the parties on the record of this
¶528juror’s excusal and asked if there was any objection. The prosecutor
¶529responded, “None,” and defense counsel responded, “I guess not. I
¶530would have taken her.” The trial court inquired further, “But no
¶531objection as far as the record?” Defense counsel responded, “There
¶532is not, Judge.”
¶533 On appeal, Appellant contends that Juror No. 44 was
¶534improperly excused by the trial court, and Appellant’s trial counsel
¶535was ineffective for failing to inquire into or object to this juror’s
¶536removal. During the hearing on Appellant’s motion for new trial,
¶537trial counsel was asked about her decision not to object to the
¶538removal of this juror, as well as her comment that she would have
¶539taken the juror. She testified that her comment, “I would have taken
¶540her,” was “probably meant somewhat facetiously” because she did
¶541 34 not have “any information on that juror,” and her understanding
¶542was that the juror was taken into custody and was unavailable for
¶543jury selection. In denying Appellant’s motion for new trial, the trial
¶544court determined that trial counsel’s decision not to make a
¶545meritless objection to the removal of Juror No. 44 was strategic and
¶546not constitutionally deficient.
¶547 There is a strong presumption that trial counsel’s conduct fell
¶548within the wide range of what is reasonable, and Appellant bears
¶549the burden to show that her counsel’s actions were “patently
¶550unreasonable.” Lockhart, 298 Ga. at 386. The evidence brought
¶551forth during the motion for new trial hearing shows that Appellant’s
¶552trial counsel pursued a reasonable strategy in deciding not to object
¶553to the dismissal of Juror No. 44 because the juror was in custody and
¶554unavailable for jury service. See id. (“Decisions regarding which
¶555jurors to strike and which to accept are questions of trial strategy.”).
¶556We conclude that Appellant failed to show deficient performance
¶557under Strickland, and thus, this ineffective assistance of counsel
¶558claim fails.
¶559 35 (b) Appellant next contends that her trial counsel was
¶560ineffective in failing to object to alleged hearsay statements from
¶561Yates, one of the State’s key witnesses at trial. During the State’s
¶562direct examination of Yates, he testified about statements made to
¶563him by Shanteria Hicks, a friend of Appellant’s, who was supposedly
¶564with Appellant on the morning of the shootings. Yates repeated
¶565statements Hicks supposedly made regarding the events
¶566surrounding the theft of Appellant’s marijuana, such as where the
¶567theft happened and who committed it. Appellant contends that: (1)
¶568this testimony was inadmissible hearsay because Hicks did not
¶569testify at trial; (2) no exception to the hearsay rule applied to permit
¶570these statements to be introduced through Yates; and (3) trial
¶571counsel therefore should have objected to the admission of this
¶572testimony.
¶573 At the hearing on Appellant’s motion for new trial, when trial
¶574counsel was questioned about her failure to object to Yates’s hearsay
¶575testimony, trial counsel explained that she did not expect Yates to
¶576testify about Hicks’s statements, and the testimony caught her “off-
¶577 36 guard.” Trial counsel also indicated that she knew she could
¶578impeach Yates with information showing that Hicks was
¶579incarcerated on the day of the shootings and could not have been
¶580present to make these statements to Yates. In the trial court’s order
¶581denying Appellant’s motion for new trial, the trial court found that
¶582Appellant failed to demonstrate that her trial counsel’s performance
¶583fell below the broad range of professional conduct because her
¶584decision not to object was not a “professionally unreasonable choice,
¶585particularly in considering that she was aware that she could
¶586potentially impeach the witness concerning the remarks made.”
¶587The trial court also found that Appellant failed to establish any
¶588prejudice.
¶589 At trial, trial counsel thoroughly cross-examined Yates and
¶590impeached him with information showing Hicks was incarcerated on
¶591the day of the shootings. Officers also testified to Hicks’s
¶592incarceration on that day. Trial counsel used this evidence in her
¶593closing argument to argue to the jury that Yates should not be
¶594believed. In addition, the State elicited testimony from Yates about
¶595 37 the statements Appellant made to him following the robbery and
¶596about Yates’s own interactions with Appellant that day. Appellant
¶597also admitted in her custodial interview that she had been robbed of
¶598marijuana, and she described the man who robbed her and where it
¶599occurred.
¶600 Thus, even if we assume without deciding that Yates’s
¶601testimony at issue was inadmissible hearsay, the admission of these
¶602statements was not prejudicial because the testimony was
¶603cumulative of other evidence that was properly admitted at trial and
¶604was used to impeach Yates. See Carter v. State, 310 Ga. 559, ____
¶605(2) (b) (852 SE2d 542) (2020). “In short, this testimony was not
¶606detrimental to Appellant.” Id.
¶607 (c) Finally, Appellant contends that her trial counsel provided
¶608ineffective assistance by failing to object to testimony about
¶609Appellant’s initial refusal and later offer to take a polygraph test.
¶610Appellant’s claim fails.
¶611 As previously noted, the recording of Appellant’s February 5,
¶6122016 custodial interview was introduced at trial. During this
¶613 38 interview, officers questioned Appellant about whether she wanted
¶614to take a polygraph test. Appellant initially declined to take a
¶615polygraph test, but later in the interview, she told the officers they
¶616could “polygraph” her. At trial, one of the officers testified about this
¶617exchange and indicated they decided not to give Appellant a
¶618polygraph test. During closing arguments, Appellant’s trial counsel
¶619pointed to the officers’ failure to obtain a polygraph test from
¶620Appellant to support the argument that they failed to conduct a
¶621thorough investigation in this case.
¶622 On appeal, Appellant contends that her trial counsel should
¶623have objected to the admission of testimony regarding the polygraph
¶624test and requested that the related portions of Appellant’s custodial
¶625interview be redacted. Appellant argues that because the results of
¶626a polygraph test are not admissible at trial unless stipulated to by
¶627Appellant, her trial counsel’s decision to allow these references to a
¶628potential polygraph test to be admitted was deficient performance.
¶629See State v. Chambers, 240 Ga. 76, 76-77 (239 SE2d 324) (1977). We
¶630disagree.
¶631 39 At the motion for new trial hearing, trial counsel testified that
¶632her decision not to object to the polygraph test references was
¶633strategic. Trial counsel explained that it allowed her to argue to the
¶634jury that Appellant explicitly asked law enforcement officers to give
¶635her a polygraph test, and they elected not to do so. In denying
¶636Appellant’s motion for new trial, the trial court found that trial
¶637counsel made a reasonable and strategic decision to allow this
¶638evidence to be admitted to further the defense’s theory of inadequate
¶639investigation by law enforcement officers. The trial court also found
¶640that Appellant failed to present any evidence to show prejudice or
¶641that the outcome of the trial would have been different had this
¶642testimony been omitted.
¶643 The trial court’s rulings were supported by the record and trial
¶644counsel’s rationale for allowing the evidence to be admitted. Trial
¶645counsel testified that she made this decision as part of her trial
¶646strategy, and “in order to show deficient performance of trial counsel
¶647in regard to trial strategy, an appellant must demonstrate that
¶648counsel’s decision was so patently unreasonable that no competent
¶649 40 attorney would have made it under the circumstances at the time.”
¶650Clark v. State, 300 Ga. 899, 903 (1) (b) (799 SE2d 202) (2017). We
¶651conclude that Appellant failed to meet the burden of showing that
¶652her trial counsel was constitutionally deficient because the record
¶653shows that her trial counsel’s decision not to move to exclude the
¶654statements about the polygraph test was a reasonable strategy. See
¶655Strickland, 466 U.S. at 694. See also Clark, 300 Ga. at 903 (“The
¶656fact that [Appellant] and [her] present counsel may now find fault
¶657with the strategy and tactics employed at trial does not support a
¶658finding that trial counsel failed to provide effective assistance to
¶659[Appellant].”). Therefore, this enumeration of error fails.
¶660 Judgment affirmed. All the Justices concur.
¶661 41