¶1In the Supreme Court of Georgia
¶2 Decided: October 5, 2021
¶3 S21A1029. LANE v. THE STATE.
¶4 COLVIN, Justice.
¶5 Following a jury trial, Tyra Dale Lane was convicted of felony
¶6murder and related offenses in connection with crimes he committed
¶7against Danielle Simpson and Austin Young. 1 Lane appeals,
¶8 1 On December 3, 2002, a Fulton County grand jury indicted Lane for the malice murder (Count 1) and felony murder of Simpson (predicated on aggravated assault – Count 2 – and armed robbery – Count 3), aggravated assault of Young (Count 4), false imprisonment of Young (Count 5), aggravated assault of Simpson (Count 6), armed robbery of Simpson (Count 7), and for possessing a firearm during the commission of a felony (Count 8). At a jury trial held from February 23 through 27, 2004, Lane was acquitted of malice murder but found guilty of all other counts. Lane was sentenced to life in prison with the possibility of parole for felony murder predicated on aggravated assault, 20 years consecutive for the aggravated assault of Young, 5 years consecutive for the false imprisonment of Young, ten years consecutive for the armed robbery of Simpson, and five years consecutive for the weapon charge. All remaining counts were either merged or vacated by operation of law for sentencing purposes. Lane timely filed a motion for new trial on March 5, 2004, which he later amended through new counsel on September 10, 2018, and April 24, 2019. After a hearing, the trial court denied the motion as amended on March 13, 2020. Lane timely filed a notice of appeal. The appeal was docketed to the alleging that the trial court erred by allowing Champion to testify
¶9regarding a polygraph test, that he was denied constitutionally
¶10effective assistance of counsel, and that the cumulative effect of
¶11these errors prejudiced him. For the reasons set forth below, we
¶12affirm.
¶13 The evidence presented at trial showed that, on November 6,
¶142002, assistant manager Simpson and restaurant employee Young
¶15were working the third shift 2 at a Krystal restaurant in College
¶16Park. The State presented testimony that, prior to this incident,
¶17Lane seemed to be struggling financially and had asked friends for
¶18money.
¶19 Around 5:00 a.m., two 911 dispatchers pulled into the
¶20restaurant’s drive-thru to pick up food before heading to work. The
¶21dispatchers saw two employees working behind the counter. A third
¶22person, whom they later identified as Lane, was standing at the
¶23counter wearing a plaid jacket. The dispatchers got their food and
¶24August 2021 term of this Court and submitted for a decision on the briefs. 2 The record shows that the third shift started at 10:00 p.m. and ended
¶25at 6:00 a.m. 2 drove to work. After serving the customers, Simpson went into the
¶26restaurant’s office. Young was preparing food when the person
¶27wearing a plaid jacket brandished a single-shot shotgun and forced
¶28Young into the freezer, where Young remained until he heard
¶29gunshots coming from the direction of the office. He then escaped
¶30from the freezer and ran to a nearby gas station to call for help.
¶31 The shooter fled the restaurant, and, shortly thereafter,
¶32restaurant employee William Owens arrived for his shift. Owens
¶33noticed that the door to the restaurant was unlocked, which was
¶34against standard procedure. He found Simpson in the office with a
¶35fatal gunshot wound and immediately called 911. Officers arrived
¶36at the scene and, during their investigation, learned that
¶37approximately $871 was missing from the safe and $75 in bills and
¶38rolled coins had been taken from the cash registers. Young gave
¶39officers a detailed description of his assailant and later identified
¶40Lane in a photo line-up as the perpetrator. Dr. Karen Sullivan
¶41conducted Simpson’s autopsy and concluded that a shotgun wound
¶42to the head caused Simpson’s death.
¶43 3 Kristie Miller, Lane’s girlfriend, testified that, around 9:00
¶44a.m. on November 6, Lane called her and told her “he had did
¶45something bad.” Lane’s friend, Bernard Champion, testified that
¶46Lane stopped by for a visit on the morning of November 6. Lane was
¶47wearing a plaid jacket and told Champion to turn on the news.
¶48When the story about the robbery and shooting at the Krystal
¶49appeared, Champion testified that Lane started “fidgeting” and said
¶50he “had did one.” Then Champion and Lane took a taxi to a liquor
¶51store and went to see Miller. Lane paid for everything using cash,
¶52and talked to the taxi driver about various destinations, including
¶53South Carolina. Miller testified that Lane showed up at her home
¶54in Griffin, Georgia, later that day and admitted to her that he had
¶55killed a woman at the Krystal. Lane then gave Miller $50 in cash.
¶56Champion testified that he was present for the conversation
¶57between Lane and Miller and stated that Lane gave him
¶58approximately 50 dollars’ worth of coins in rolled sleeves that
¶59morning.
¶60 Herman Anderson, the taxi driver, confirmed at trial that he
¶61 4 had driven Lane and Champion around Griffin on the morning of
¶62November 6. He also testified that Lane requested to be driven to a
¶63bus station in North Carolina. When they reached the destination,
¶64Lane paid Anderson in cash and rolled coins.
¶65 Lane was eventually arrested at Miller’s apartment. In his
¶66interview with police, Lane admitted that he was at the Krystal on
¶67November 6. He told officers that he was an employee at that
¶68location for approximately one year, that he usually worked the
¶69third shift, and that he remained friends with Simpson even after
¶70he lost his job. Lane said he went to the Krystal that morning with
¶71Champion to ask Simpson about getting his job back. But, Lane
¶72claimed, when they got to the restaurant, Champion grabbed a
¶73shotgun from the back of the car and went inside. Lane denied
¶74entering the restaurant and denied participating in the robbery and
¶75shooting, instead placing the blame entirely on Champion.
¶76 1. During Champion’s direct examination, the prosecutor
¶77asked Champion if there was ever a time during his post-incident
¶78interview with officers when he “made offers to the police to show
¶79 5 that [he was] telling the truth?” Champion replied, “Yes, ma’am.”
¶80The defense objected and asked to approach the bench. The bench
¶81conference that followed was not transcribed. The prosecutor then
¶82resumed her questioning as follows:
¶83 Prosecutor: Again, Bernard, let me ask you that question again. What did you offer to do? Champion: Told them, if they chose to, they could place me on a lie detector test. Prosecutor: Did they take you up on that offer? Champion: No.
¶84 Lane contends that the trial court erred by allowing Champion
¶85to testify that he told police officers that he was willing to take a
¶86polygraph test. However, Lane failed to place the specific grounds
¶87for his objection on the record at trial, and there is no ruling by the
¶88trial court on Lane’s objection. Because this case was tried in 2004
¶89under Georgia’s old evidence code, plain error review of evidentiary
¶90matters is not available. See Pyatt v. State, 298 Ga. 742, 746, n.7
¶91(784 SE2d 759) (2016) (explaining that “the new Evidence Code[’s
¶92plain error review] explicitly applies only to ‘any motion made or
¶93hearing or trial commenced on or after [January 1, 2013].’ Ga. L.
¶94 6 2011, p. 99, § 101”). Therefore, “[t]he new Evidence Code does not
¶95apply in this case, and in the absence of a timely objection, there is
¶96no appellate review of evidentiary rulings under the old Evidence
¶97Code in a case like this one.” Id. at 746, n.7 (citing Durham v. State,
¶98292 Ga. 239, 240 (2) (734 SE2d 377) (2012)). See also Mosley v. State,
¶99298 Ga. 849 n.3 (2) (c) (785 SE2d 297) (2016) (noting that, under
¶100Georgia’s old Evidence Code, “[a]n off-the-record objection does not
¶101preserve an issue for appellate review”). Consequently, this claim is
¶102not preserved.
¶103 2. Lane also alleges that he received ineffective assistance
¶104of trial counsel based upon counsel’s failure to: (a) introduce
¶105evidence of Champion’s criminal record at trial, and (b) object to the
¶106State’s closing argument. In order to establish constitutionally
¶107ineffective assistance, a defendant must show that his counsel’s
¶108performance was professionally deficient and that, but for such
¶109deficient performance, there is a reasonable probability that the
¶110result of the trial would have been different. See Strickland v.
¶111Washington, 466 U. S. 668 (III) (104 SCt 2052, 80 LE2d 674) (1984).
¶112 7 If the defendant fails to satisfy either prong of the Strickland test,
¶113this Court is not required to examine the other. See Green v. State,
¶114291 Ga. 579 (2) (731 SE2d 359) (2012). With these principles in
¶115mind, we review Lane’s claims of ineffective assistance.
¶116 (a) Champion’s criminal record
¶117 Lane alleges that trial counsel was ineffective for failing to
¶118introduce copies of Champion’s prior felony convictions that were
¶119entered between 1990 and 2004 for impeachment purposes. Lane
¶120raised this claim in his September 2018 amended motion for new
¶121trial, but the trial court did not issue a ruling on this claim.
¶122“Although the trial court failed to make any specific factual findings
¶123regarding [Lane’s] claim[] of ineffectiveness, remand is not
¶124mandated if we can determine from the record that the defendant
¶125cannot establish ineffective assistance of counsel under the two-
¶126prong test set forth in Strickland.” (Citation and punctuation
¶127omitted.) Burrell v. State, 301 Ga. 21, 24 (2) (799 SE2d 181) (2017).
¶128 Turning to Lane’s claim, at the hearing on Lane’s amended
¶129motion for new trial, Lane introduced certified copies of Champion’s
¶130 8 prior convictions and sentences for theft by receiving stolen property
¶131(in October 1990; 3 years’ probation); theft by taking and theft by
¶132receiving stolen property (in July 1991; 2 years to serve concurrent
¶133to revocation of 1990 probation sentence); three counts of entering
¶134an auto and one count of theft by taking (in July 1991; 6 years’
¶135probation); criminal attempt to commit theft by taking and giving a
¶136false name to a law enforcement officer (in April 1992; 2 years in
¶137prison reduced to time served); theft by receiving stolen property (in
¶138September 1992; 8 years to serve 3); entering an auto (in August
¶1391996; 5 years to serve 3); theft by taking (in February 2004; 10 years
¶140to serve); and possession of cocaine (in February 2004; 10 years to
¶141serve concurrent to the theft by taking). 3 Trial counsel testified that
¶142his failure to impeach Champion with these convictions was an
¶143oversight and was not done with a strategic purpose; Lane relies on
¶144this testimony in support of his argument that counsel acted
¶145 3 Lane attempted to introduce what he alleged to be two additional certified convictions, but the trial court did not admit them because one exhibit was a duplicate and the other exhibit showed that the State had nolle prossed the case.
¶146 9 deficiently. However,
¶147 we are not limited in our assessment of the objective reasonableness of lawyer performance to the subjective reasons offered by trial counsel for his conduct. If a reasonable lawyer might have done what the actual lawyer did – whether for the same reasons given by the actual lawyer or different reasons entirely – the actual lawyer cannot be said to have performed in an objectively unreasonable way.
¶148Shaw v. State, 292 Ga. 871, 875 n.7 (742 SE2d 707) (2013).
¶149 Here, the record shows that trial counsel thoroughly attacked
¶150Champion’s credibility through other means. During Champion’s
¶151cross-examination, counsel elicited testimony that Champion was
¶152incarcerated and serving a 10-year felony sentence, that he was a
¶153prior convicted felon as well, and that he worked as a confidential
¶154informant “making cases” for the Griffin-Spalding Narcotics Task
¶155Force. Later, during Lane’s direct examination, trial counsel elicited
¶156testimony from Lane that Champion “lied on [him],” that Champion
¶157was the actual shooter, and that Lane went along with Champion’s
¶158plan on the night of the crimes because Lane was scared of
¶159Champion. Finally, during closing arguments, defense counsel
¶160 10 emphasized all of this evidence, as well as Champion’s jail attire, in
¶161order to call Champion’s credibility into question.
¶162 Based on the foregoing, we cannot say that no competent
¶163attorney would have chosen to forgo impeaching Champion with
¶164additional, decade-old convictions in favor of attacking his
¶165credibility in the manner pursued by counsel in this case.
¶166Accordingly, Lane cannot show that counsel acted deficiently by
¶167failing to impeach Champion with his additional felony convictions.
¶168See Romer v. State, 293 Ga. 339, 344-345 (3) (a) (745 SE2d 637)
¶169(2013) (emphasizing that the extent of cross-examination is a matter
¶170of trial strategy, and holding that, “[i]n light of the cross-
¶171examination [trial counsel] conducted, Appellant has not shown that
¶172it was patently unreasonable [for trial counsel] to decide not to try
¶173to generally impeach [a witness’s] credibility with her prior
¶174convictions”).
¶175 (b) The State’s closing argument
¶176 During closing arguments, defense counsel argued that the
¶177evidence showed that Champion, and not Lane, was the actual
¶178 11 shooter. In support of this argument, counsel emphasized that
¶179Champion was not a credible witness; that he was “smarter” and
¶180“more calculating” than Lane; that he had the motive and the means
¶181to commit the crimes, including access to a shotgun; and that
¶182Champion avoided being charged with murder in this case by
¶183“setting up his buddy [Lane], call[ing] the cops, sa[ying], I know who
¶184did that crime. It’s Tyra Lane.” In response, the prosecutor argued
¶185that Champion was a credible witness, stating, in relevant part:
¶186 Bernard offered to take a lie detector test, ladies and gentlemen, to the police. He told them, if you don’t believe me, if you think I did it, I will take a lie detector test. They didn’t feel it necessary to take him up on his offer. If he was considered a suspect, he wasn’t considered a suspect as far as being the shooter. At most he was being considered a suspect as being an accomplice after the fact, but he was never being considered as the shooter. If they thought he was lying, ladies and gentlemen, wouldn’t they have hooked him up to see how he did? He offered.
¶187Trial counsel did not object to this statement. Lane argues that trial
¶188counsel was ineffective for failing to object because, Lane claims, the
¶189statement amounted to an improper argument that bolstered
¶190Champion’s credibility. Even assuming that trial counsel performed
¶191 12 deficiently by not objecting to this argument, however, Lane “has
¶192failed to show a reasonable likelihood that, absent the failure of his
¶193lawyer to object to the prosecuting attorney’s statements, the
¶194outcome of the trial would have been different.” (Citation and
¶195punctuation omitted.) Davis v. State, 306 Ga. 140, 149 (3) (i) (829
¶196SE2d 321) (2019). Not only did the State present substantial
¶197evidence of Lane’s guilt, but the trial court also instructed the jury
¶198that closing arguments were not evidence. See id. Accordingly, this
¶199claim fails.
¶200 3. Finally, Lane argues that he is entitled to a new trial on
¶201the basis of cumulative prejudice pursuant to State v. Lane, 308 Ga.
¶20210, 14 (1) (838 SE2d 808) (2020). However, because there are no
¶203trial court errors properly before us for appellate review, Lane does
¶204not apply. See Woods v. State, Case No. S21A0862, 2021 WL
¶2053727808 at n.7 (Ga. Aug. 24, 2021). This Court does assess prejudice
¶206based on the cumulative effect of all of trial counsel’s deficiencies.
¶207See Debelbot v. State, 305 Ga. 534, 544 (2) (826 SE2d 129) (2019).
¶208Still, in order to conduct such an analysis, we “evaluate only the
¶209 13 effects of matters determined to be error, not the cumulative effect
¶210of non-errors.” (Citation omitted.) Sullivan v. State, 301 Ga. 37, 42
¶211(2) (d) (799 SE2d 163) (2017). Because we have only assumed
¶212deficiency on one claim of ineffective assistance, Lane is not entitled
¶213to relief on this basis.
¶214 Judgment affirmed. All the Justices concur.
¶215 14