¶1In the Supreme Court of Georgia
¶2 Decided: February 1, 2022
¶3 S21A0942. TERRELL v. THE STATE.
¶4 MCMILLIAN, Justice.
¶5 In 2005, a jury found Frederick Terrell guilty of felony murder,
¶6aggravated assault, and other crimes related to the shooting death
¶7of Tashiba Matthews. 1 On appeal, Terrell asserts that he is entitled
¶8 1 The crimes occurred on September 5, 2004. In December 2004, a Fulton County grand jury indicted Terrell, along with Kelvin Gilliam, Dwight Parks, and Michael Stinchcomb, for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault with a deadly weapon (Count 3), aggravated assault against Tamara Ross, D. R., G. R., Anthony Taylor, Michael Mitchell, Keretesha Hines, Unita Hines, Lisa Johnson, A. H., Charlene Thompson, Charlie Nixon, and Orlando Wimbley (Counts 4-15), and possession of a firearm during the commission of a felony (Count 17). Terrell was separately indicted on one count of possession of firearm by a convicted felon (Count 18), and Stinchcomb was separately charged with an additional count of aggravated assault against Janet Lymon (Count 16). Prior to trial, Parks pleaded guilty to Count 3. A joint trial of Terrell, Gilliam, and Stinchcomb was held from April 4 to 14, 2005. The trial court entered a directed verdict of acquittal on Counts 12, 13, 14, and 15. The jury found Terrell guilty of Counts 2, 3, 5, 6, 8-11, and 17, but not guilty of Counts 1, 4, 7, and 18. The jury also found Gilliam guilty of Counts 5, 6, and 8- 11 and Stinchcomb guilty of Counts 5, 6, 8-11, and one count of simple battery as a lesser included offense of Count 13; their convictions are not at issue in to a new trial based on the inordinate delay of his appeal, the State’s
¶9improper comment on his right to remain silent, the denial of his
¶10motion to sever, the denial of his motion for mistrial, constitutionally
¶11ineffective assistance of counsel, and the prejudicial effect of the
¶12combined errors of the trial court and counsel. For the reasons that
¶13follow, we affirm, except that we vacate in part to correct a
¶14sentencing error.
¶15 The evidence presented at trial showed that in September
¶162004, Terrell lived in an apartment located on James P. Brawley
¶17Street in Atlanta (“the apartment”), along with Lesia Gilliam, whom
¶18this appeal. On April 29, 2005, the trial court sentenced Terrell to serve life in prison for Count 2 and five years in prison for each of Counts 3, 5, 6, and 8-11 (to run consecutively to Count 2 and concurrently with each other) and five years in prison for Count 17, to run consecutively to Count 2. Terrell timely filed a motion for new trial on May 2, 2005. On March 24, 2017, the trial court entered an order appointing new appellate counsel, noting that the Georgia Public Defender Council “disclaims responsibility for providing [a]ppellate counsel for cases indicted prior to January 1, 2005, and it appear[s] that the Atlanta Judicial Circuit Public Defender’s Office is prohibited from representing [Terrell] . . . due to its representation of one of the co-Defendants.” On November 2, 2018, the State filed a motion for status conference pursuant to Uniform Superior Court Rule 42.1. In April 2019, Terrell filed an amended motion for new trial. Following a hearing in August 2019, the trial court denied the motion on November 11, 2019, and Terrell timely appealed. The case was docketed in this Court to the August 2021 term and submitted for a decision on the briefs. 2 he considered to be his aunt, and co-defendant Michael Stinchcomb.
¶19Lesia is co-defendant Kelvin Gilliam’s mother. On September 5,
¶20Stinchcomb got into a dispute with Janet Lymon over a portion of
¶21drugs they were supposed to be splitting and punched her in the eye
¶22while they were arguing outside the apartment. A. H., a 13-year-old
¶23boy who knew Janet from the neighborhood, saw Stinchcomb strike
¶24her. A. H. lived in a nearby house on James P. Brawley Street (“the
¶25house”), just down the street from the apartment, with his
¶26grandmother, sisters Matthews and Keretesha Hines, their mother
¶27Unita Hines, and Keretesha’s boyfriend Anthony Taylor. When he
¶28arrived home, A. H. told his family what he had seen, and the news
¶29reached Janet’s daughter, Karen Lymon.
¶30 Karen joined her boyfriend, Paul Smith, and multiple friends
¶31at the house, and the group walked down the street to the apartment
¶32to question Stinchcomb about hitting Janet. When they arrived,
¶33Karen saw her mother’s injuries and confronted Stinchcomb outside
¶34the apartment. Stinchcomb retreated inside, and several people
¶35followed, pushing their way past Lesia at the apartment door.
¶36 3 Karen, Smith, and at least one other friend began beating
¶37Stinchcomb.
¶38 Multiple witnesses testified that shortly after the incident
¶39with Stinchcomb, they saw a car stop in front of the house and four
¶40men, including Terrell, get out of the car. Terrell yelled, “I’m fittin
¶41to kill all y’all motherf***ers” and shot multiple times in the
¶42direction of the people sitting on the front porch. 2 Stinchcomb
¶43pointed out two women, who were running away, and said, “There
¶44go two of them right there.” Before leaving, Terrell told Unita, “Tell
¶45that b***h, [Paula Mathis] and [Karen], [I’m] going to kill them
¶46when [I] see them. As a matter of fact, anybody off this porch come
¶47down this street, I’m going to kill them.”
¶48 Matthews, who was inside the house at the time, walked down
¶49the street with her boyfriend, Broderick Stallings, to talk to Terrell
¶50when she learned that Terrell had shot at the house. Neither
¶51 2 Evidence showed that Tamara Ross, her children, D. R. and G. R., Michael Mitchell, Keretesha, Taylor, Unita, and Paula Mathis (also known as “Lisa Johnson,” which was the name used in the indictment) were outside when Terrell fired multiple shots toward the front porch. 4 Matthews nor Stalling were armed, but Matthews was friends with
¶52Terrell and thought that she would be able to reason with him.
¶53However, as Matthews and Stallings approached the apartment,
¶54Terrell fired multiple rounds at them, fatally striking Matthews.
¶55Terrell, Stinchcomb, Gilliam, and Parks then fled the scene in
¶56Gilliam’s car.
¶57 Officer Thomas Burns of the Atlanta Police Department
¶58responded to a call of shots fired from a brown Crown Victoria
¶59occupied by four men in the area of James P. Brawley Street and
¶60Neal Street. As he was approaching the scene, Officer Burns noticed
¶61a vehicle with a tag number matching that provided to the 911
¶62dispatcher and initiated a stop of the vehicle. Responding officers
¶63located four men in the vehicle; the front passenger, later identified
¶64as Terrell, had a rifle on his lap and an extra magazine containing
¶659mm ammunition in his front left pocket.
¶66 When police officers arrived at the house, there were a lot of
¶67people milling around outside. Officers discovered two 9mm shell
¶68casings on the ground and several bullet holes in the house. Officers
¶69 5 located Matthews’s body on the street outside the apartment and
¶70retrieved four 9mm shell casings nearby. Two witnesses at the scene
¶71said that they saw “Boochie” shoot Matthews and later identified
¶72Terrell’s photo in a photographic lineup as Boochie. The medical
¶73examiner testified that Matthews died from a single gunshot wound
¶74to the head. A GBI firearms examiner testified that the firearm
¶75recovered from Terrell had fired the bullet that killed Matthews, as
¶76well as each of the casings recovered from the crime scenes.
¶77 Co-indictee Dwight Parks testified that soon after the
¶78confrontation between Stinchcomb and Janet, Terrell called to tell
¶79him what had happened and said that he was coming to Parks’s
¶80house and that Gilliam would pick them up so they could go check
¶81on Lesia. According to Parks, when Terrell got to his house, Terrell
¶82was upset and said he was going to shoot Stallings, Matthews’s
¶83boyfriend. Parks did not know why Terrell thought Stallings was
¶84involved in the incident. Gilliam arrived in a brown four-door Crown
¶85Victoria, and Parks noticed a rifle leaning against the front
¶86passenger seat where Terrell sat. When the three men arrived at the
¶87 6 apartment, Terrell and Gilliam went inside for a few minutes and
¶88returned with Stinchcomb, whose mouth was “busted up.” Gilliam
¶89drove them down the street to the house, and Stinchcomb began
¶90pointing out people, saying, “There they go. There they go.” Terrell
¶91then started shooting in the direction of the porch. Everyone got
¶92back in the car, and they returned to the apartment. Parks was
¶93walking away from the car when he heard gunfire again and ran
¶94behind a wall. When he realized it was Terrell shooting, he thought,
¶95“[T]hat guy done went crazy.” Lesia started yelling at them “to get
¶96the hell out of here,” and the four men got back into the car and
¶97drove away.
¶98 Terrell testified on his own behalf at trial and admitted that
¶99he went to the house that evening “to get answers” after a group had
¶100broken into and “trashed” his apartment. However, Terrell claimed
¶101that Stallings was standing in the doorway with a gun and that
¶102Stallings first raised the gun and shot toward him. 3 Terrell
¶103 3 Stallings also testified at trial and denied having a weapon on him that day. 7 responded with two or three shots before the four men returned to
¶104the apartment in Gilliam’s car. While Terrell remained outside the
¶105apartment talking to Lesia, he saw Stallings and Matthews walking
¶106towards the apartment. Terrell claimed that Stallings raised a
¶107handgun at him, so he picked up his rifle and fired at Stallings two
¶108or three times in self-defense. Terrell also testified that he had
¶109spoken with Stallings a few days before the shooting and learned
¶110that Stallings had recently been released from prison after serving
¶111ten years for what Terrell believed to be murder. Terrell claimed
¶112that he had brought a gun with him to the house because he “knew
¶113what kind of people [he] was up against.”
¶114 1. Terrell first asserts that he is entitled to a new trial based
¶115on the inordinate delay of his appeal. Specifically, Terrell contends
¶116that, because of the delay in his appeal, a change in the law in 2018
¶117regarding the presumption of harm from a defendant’s use of
¶118peremptory strikes on a juror who should have been excused for
¶119cause made his appeal on this basis less likely to be successful. We
¶120disagree.
¶121 8 We begin our analysis by setting out the four factors relevant
¶122to a due process claim premised on appellate delay: (1) the length of
¶123the delay; (2) the reason for the delay; (3) the defendant’s assertion
¶124of his right; and (4) prejudice to the defendant. See Dawson v. State,
¶125308 Ga. 613, 623 (4) (842 SE2d 875) (2020). In the context of
¶126appellate delay, “prejudice, unlike in the speedy trial context, is not
¶127presumed but must be shown.” Id. (citation and punctuation
¶128omitted). This Court has “repeatedly found that the failure to make
¶129this showing of prejudice in an appellate delay claim [is] fatal to the
¶130claim, even when the other three factors weigh in the appellant’s
¶131favor.” Id. (citation and punctuation omitted). And finally, in this
¶132context, the necessary prejudice “is prejudice to the ability of the
¶133defendant to assert his arguments on appeal and, should it be
¶134established that the appeal was prejudiced, whether the delay
¶135prejudiced the defendant’s defenses in the event of retrial or
¶136resentencing.” Chatman v. Mancill, 280 Ga. 253, 260 (2) (e) (626
¶137SE2d 102) (2006).
¶138 The record shows that Terrell was represented at trial by
¶139 9 Lawrence Lewis; Lewis timely filed a motion for new trial and a
¶140motion to withdraw on May 2, 2005. The trial court entered an order
¶141appointing the Public Defender’s Office as appellate counsel on June
¶1427, 2005, and an order permitting Lewis’s withdrawal from
¶143representation on June 12, 2005. Although Terrell was purportedly
¶144represented by two different attorneys in the following years, his
¶145appeal did not progress. Terrell, however, contacted the clerk’s office
¶146numerous times to ask about his appeal and filed a motion for the
¶147appointment of appellate counsel in February 2017. Terrell’s current
¶148counsel was appointed in March 2017, and counsel later amended
¶149the motion for new trial in April 2019 to raise a claim regarding post-
¶150trial delay.
¶151 To show prejudice by the appellate delay, Terrell points to the
¶152voir dire of Juror No. 3, whom he claims should have been excused
¶153for cause. He asserts that Juror No. 3 stated that she might be
¶154influenced by her cousin’s conviction for armed robbery and her ex-
¶155boyfriend’s shooting that occurred when he was the victim of a
¶156carjacking. With respect to her cousin’s conviction, Juror No. 3
¶157 10 explained, “Well, I felt like he had committed the crime. He was on
¶158drugs and he needed money and he committed the crime. So I felt
¶159like the verdict was just.” When asked whether she would only base
¶160her decision on this case, Juror No. 3 responded, “I would make
¶161every effort to separate. I think it would be kind of hard to stand
¶162here and say that I don’t have a past, and part of me being here
¶163today is part of – I had to get here somehow.” Then, when pressed
¶164again as to whether she would be able to separate her feelings and
¶165emotions and not let them interfere with this trial, she stated, “I
¶166probably could do that.”
¶167 As to her ex-boyfriend’s shooting, Juror No. 3 responded,
¶168“Again, I don’t know if I could forget or just not bring part of who
¶169I’ve been up to now.” She also explained, however, that she “would
¶170do [her] best to be fair.” Terrell also notes that Juror No. 3 stated
¶171that the shooting at issue in this case occurred “in [her] backyard,
¶172pretty much,” although she had never been to that particular area
¶173of southwest Atlanta. When asked again whether she could be fair
¶174and impartial, Juror No. 3 responded, “At this time, again, it’s close
¶175 11 to home. I really couldn’t say, I really couldn’t give you. I don’t know
¶176if I could be a fair juror.” The trial court denied Terrell’s motion to
¶177strike Juror No. 3 for cause, explaining that her responses did not
¶178show a bias but rather an “association” she had. However, Juror No.
¶1793 was later excused by co-defendant Gilliam’s exercise of a
¶180peremptory strike.
¶181 According to Terrell, he was prejudiced by the delay in his
¶182appeal because, in the interim, there was a change in the law that
¶183negatively affected his appeal with respect to Juror No. 3.
¶184Previously, Terrell argues, he would have been entitled to a
¶185presumption of harm once he showed that Juror No. 3 should have
¶186been struck for cause and instead a peremptory strike was used to
¶187remove her from the jury. See Fortson v. State, 277 Ga. 164, 166 (2)
¶188(587 SE2d 39) (2003) (holding, in the context of an ineffective
¶189assistance of counsel claim, that trial counsel’s use of a peremptory
¶190strike on a juror already excused for cause due to neglect was per se
¶191harmful error and thus sufficient to establish actual prejudice).
¶192However, in October 2018, this Court overruled this holding from
¶193 12 Fortson, concluding that “a defendant is not presumptively harmed
¶194by a trial court’s erroneous failure to excuse a prospective juror for
¶195cause simply because the defendant subsequently elected to remove
¶196that juror through the use of a peremptory strike.” Willis v. State,
¶197304 Ga. 686, 707 (11) (a) (820 SE2d 640) (2018). See also id. at 704
¶198(11) (a) (noting the United States Supreme Court “has clearly held
¶199that peremptory challenges to prospective jurors are not of
¶200constitutional dimension but instead are one means to achieve the
¶201constitutionally required end of an impartial jury” and concluding
¶202there is no reason to arrive at a different conclusion under the
¶203Georgia Constitution (citation and punctuation omitted)). Instead,
¶204under such circumstances, “a defendant must show on appeal that
¶205one of the challenged jurors who served on his or her twelve-person
¶206jury was unqualified.” Id. Terrell argues that this change in the law
¶207makes it harder for him to prevail on this claim on appeal.
¶208 Turning to Terrell’s claim that his due process rights were
¶209violated by the inordinate delay in his appeal, the State concedes
¶210that at least two of the four factors weigh in Terrell’s favor – the
¶211 13 length of delay and the assertion of the right. 4 However, the State
¶212argues that Terrell cannot show the required prejudice. In assessing
¶213prejudice in this case, we begin by noting that “[w]hether to strike a
¶214juror for cause lies within the sound discretion of the trial judge, and
¶215the trial court’s exercise of that discretion will not be set aside
¶216absent a manifest abuse of discretion.” Collins v. State, 308 Ga. 608,
¶217612 (3) (842 SE2d 811) (2020) (citation and punctuation omitted).
¶218And,
¶219 [f]or a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Nor is excusal required when a potential juror expresses reservations about his or her ability to put aside personal experiences.
¶220Brockman v. State, 292 Ga. 707, 721 (9) (739 SE2d 332) (2013)
¶221 4 The State asserts that there is insufficient evidence regarding the precise reasons for delay, but agrees it is the duty of all involved in the criminal justice system to ensure that appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay. See Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012). 14 (citation omitted). Moreover, “the law presumes that potential jurors
¶222are impartial, and the burden of proving partiality is on the party
¶223seeking to have the juror disqualified.” Lopez v. State, 310 Ga. 529,
¶224535 (f) (852 SE2d 547) (2020) (citation and punctuation omitted).
¶225 Here, Juror No. 3 stated that, despite her prior experiences,
¶226she would attempt to separate those issues from anything she heard
¶227in this case and would do her best to be fair. Based on the record
¶228before us, we conclude that the trial court did not abuse its discretion
¶229in determining that the juror had not expressed an opinion of guilt
¶230or innocence that was so fixed that she would be unable to decide
¶231the case based on the evidence presented at trial and the charge of
¶232the trial court. See Collins, 308 Ga. at 612-13 (3) (“A conclusion on
¶233an issue of bias is based on findings of demeanor and credibility
¶234which are peculiarly in the trial court’s province, and those findings
¶235are to be given deference.” (citation omitted)). Because Terrell
¶236cannot show that he would have prevailed on the underlying claim
¶237that Juror No. 3 should have been excused for cause, the change in
¶238the law on the presumption of harm in 2018 would have no effect on
¶239 15 his appeal. Accordingly, Terrell is unable to show the requisite
¶240prejudice from the delay in his appeal, and this enumeration of error
¶241fails. See Mattox v. State, 308 Ga. 302, 305 (3) (840 SE2d 373) (2020)
¶242(denying speedy appeal claim from 2005 conviction because
¶243defendant failed to show prejudice); Loadholt v. State, 286 Ga. 402,
¶244406 (4) (687 SE2d 824) (2010) (no prejudice in delay pending appeal
¶245where enumerations raised were without merit).
¶246 2. Terrell next asserts that his constitutional rights were
¶247violated when the State improperly commented on his right to
¶248remain silent. 5 Specifically, relying on this Court’s holding in
¶249Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991), which
¶250announced the rule that the introduction of evidence of a defendant’s
¶251pre-arrest silence or failure to come forward is always more
¶252prejudicial than probative,6 Terrell argues that a question asked by
¶253 5 Although this enumeration of error makes a passing reference to alleged federal and state constitutional violations, Terrell argues only that the State improperly commented on his pre-arrest silence in violation of Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991). 6 Terrell acknowledges that this rule was abrogated by our current
¶254Evidence Code, which took effect on January 1, 2013. See State v. Orr, 305 Ga.
¶255 16 the State at trial improperly implicated his pre-arrest silence and
¶256that a new trial is required. We see no reversible error.
¶257 The record shows that during the State’s direct examination of
¶258a detective, the prosecutor asked, “Now, Frederick Terrell, did he
¶259ever give a statement?” That question came right after the
¶260prosecutor elicited testimony from the detective that Stinchcomb,
¶261Park, and Gilliam had made statements following their arrests.
¶262After the detective responded, “No,” to whether Terrell had ever
¶263given a statement, the prosecutor immediately moved on to
¶264introduce the waiver of counsel forms related to Stinchcomb’s and
¶265Gilliam’s custodial statements. Terrell moved for a mistrial based
¶266on this exchange. The trial court denied Terrell’s motion, and Terrell
¶267expressly declined the trial court’s offer of a curative instruction.
¶268 Appellant points to nothing in the record indicating that the
¶269729 (827 SE2d 892) (2019) (explaining that current Evidence Code precludes such judge-made exclusionary rules of evidence and instead requires trial courts to determine admissibility based on facts of the specific case and rules set forth in the Evidence Code). However, because Terrell’s trial took place in 2005, the rule set out in Mallory applies to this case. See Williams v. State, 305 Ga. 776, 781 (2) (d) n.7 (827 SE2d 849) (2019). 17 State was attempting to use the detective’s response to imply that
¶270Terrell was guilty for failing to make a statement, nor have we found
¶271anything in the record to support that view. Instead, it appears that
¶272the State’s question was part of a series of questions in which the
¶273prosecutor was establishing the narrative of the investigation in
¶274order to introduce statements made by the co-defendants. The State
¶275only asked this single question about Terrell’s not giving a
¶276statement and did not otherwise argue or suggest at trial that
¶277Terrell’s failure to give a statement supported a finding of guilt.
¶278Thus, even assuming that the Mallory rule regarding pre-arrest
¶279silence applies to the detective’s testimony here, we conclude that
¶280this fleeting reference to Terrell’s failure to make a statement likely
¶281did not contribute to the proceeding’s outcome, and therefore any
¶282alleged violation of Mallory was harmless. See Rowland v. State, 306
¶283Ga. 59, 66 (3) (829 SE2d 81) (2019) (alleged violation of Mallory was
¶284harmless given strong evidence of defendant’s guilt and prosecutor’s
¶285minimal use of the challenged evidence).
¶286 3. Terrell also argues that the trial court erred in not granting
¶287 18 a mistrial on two separate grounds. “[W]hether to declare a mistrial
¶288is in the discretion of the trial court and will not be disturbed on
¶289appeal unless it is apparent that a mistrial is essential to the
¶290preservation of the right to a fair trial.” Stephens v. State, 307 Ga.
¶291731, 737 (3) (838 SE2d 275) (2020) (citation and punctuation
¶292omitted).
¶293 (a) Terrell first points to the prosecutor’s alleged comment on
¶294his right to remain silent as a basis for the trial court to declare a
¶295mistrial. However, Terrell waived his right to raise this issue on
¶296appeal when he affirmatively declined the trial court’s offer to give
¶297a curative instruction. See Jones v. State, ___ Ga. ___, ___ (2) (864
¶298SE2d 456) (2021). Thus, this enumeration of error presents nothing
¶299for us to consider.
¶300 (b) Terrell also argues that the trial court should have granted
¶301a mistrial after one of the State’s witnesses testified that Matthews
¶302was pregnant.
¶303 The record shows that, prior to trial, the trial court ruled that
¶304the parties could not reference the fact that Matthews was pregnant
¶305 19 at the time she was killed. However, while Gilliam’s counsel cross-
¶306examined Matthews’s mother the following exchange occurred:
¶307 Q: You said that [Matthews] was initially asleep? A: She was [a]sleep when we first went down the hill. When we came back up the hill, she was in the bathtub. Q: Was she just waking for the day at that point or she had taken a nap that afternoon[?]7 A: She had been up earlier and ate. She had just found out she was pregnant, so she was [a]sleep.
¶308 Gilliam’s counsel immediately informed the court that he
¶309would like to make a motion outside the presence of the jury. The
¶310trial court denied the motion for a mistrial at a sidebar, but
¶311indicated that counsel would be able to renew the motion after the
¶312jury was excused for the day.8 During his own cross-examination,
¶313Terrell’s counsel then asked Matthews’s mother multiple questions
¶314about Matthews’s pregnancy, eliciting testimony that Matthews had
¶315just taken a pregnancy test the night before and was not yet
¶316 7 Gilliam’s counsel explained that, in pressing Matthews’s mother regarding why Matthews had been asleep in the afternoon, he was attempting to show that Matthews was sleeping during the day because she was a drug dealer, and not to show that Matthews was pregnant. 8 It is unclear from the record whether Terrell joined in this motion for
¶317mistrial.
¶318 20 “showing.” 9 After the jury was excused for the day, Gilliam’s counsel
¶319renewed his motion for a mistrial based on the testimony about
¶320Matthews’s pregnancy, arguing that the court had previously
¶321granted a motion to prevent the State from placing that fact into
¶322evidence. Terrell joined the renewed motion, which the trial court
¶323denied.
¶324 Pretermitting whether Terrell timely moved for a mistrial, we
¶325see no abuse of discretion by the trial court in denying the mistrial.
¶326The initial fleeting reference to Matthews’s pregnancy was non-
¶327responsive to the question asked, and there is no indication that the
¶328State attempted to use Matthews’s pregnancy to garner sympathy
¶329for the victim. Under these circumstances, we conclude that the trial
¶330court did not abuse its discretion in determining that a mistrial was
¶331not necessary to preserve Terrell’s right to a fair trial and in refusing
¶332to grant the renewed mistrial motion on this basis. See Simmons v.
¶333State, 308 Ga. 327, 329 (2) (840 SE2d 365) (2020) (“Trial courts are
¶334 9Terrell’s counsel testified at the motion for new trial hearing that he asked these questions to mitigate any harm from Matthews’s mother’s initial response. 21 vested with great discretion to grant or deny mistrials because they
¶335are in the best possible position to determine whether one is
¶336warranted.” (citation and punctuation omitted)); Boddie v. State,
¶337269 Ga. 5, 6 (2) (494 SE2d 651) (1998) (trial court did not abuse
¶338discretion in denying mistrial based on witness’s fleeting reference
¶339to an event that incidentally put the defendant’s character in issue,
¶340which the defendant explored on cross-examination).
¶341 4. Terrell argues that the trial court erred by denying his
¶342motions to sever his trial from that of his co-defendants because
¶343their trial strategies were antagonistic to his self-defense strategy.
¶344We conclude that the trial court did not abuse its discretion in
¶345denying a severance of Terrell’s trial.
¶346 OCGA § 17-8-4 (a) provides that, “[w]hen two or more
¶347defendants are jointly indicted” for a felony where the State does not
¶348seek the death penalty, “such defendants may be tried jointly or
¶349separately at the discretion of the trial court.” The relevant factors
¶350in ruling on a motion to sever are: “(1) the likelihood of confusion of
¶351the evidence and law; (2) the possibility that evidence against one
¶352 22 defendant may be considered against the other defendant; and (3)
¶353the presence or absence of antagonistic defenses.” Smith v. State,
¶354308 Ga. 81, 85 (2) (839 SE2d 630) (2020) (citation and punctuation
¶355omitted). To show error in the denial of a motion to sever, the
¶356defendant bears the burden of establishing that “a joint trial was so
¶357prejudicial as to amount to a denial of his right to due process.”
¶358Marquez v. State, 298 Ga. 448, 450 (2) (782 SE2d 648) (2016). Also,
¶359we have explained that the “mere presence of antagonistic defenses
¶360or possibility that a separate trial would give a defendant a better
¶361chance of acquittal is insufficient to show an abuse of discretion.”
¶362Smith, 308 Ga. at 85 (2) (citation and punctuation omitted).
¶363 Prior to trial, Terrell filed a motion to sever, which he renewed
¶364just before opening statements at trial. The trial court denied both
¶365motions. On appeal, Terrell claims that his co-defendants’ defenses
¶366were antagonistic to his assertion that he shot in self-defense
¶367because his co-defendants’ strategy was to assert that Terrell “went
¶368crazy,” so there was no reason for them to know ahead of time that
¶369the shooting might occur.
¶370 23 However, “antagonistic defenses are insufficient to require
¶371severance in a non-death penalty case absent a showing of
¶372prejudice.” Johnson v. State, 301 Ga. 205, 208 (III) (800 SE2d 296)
¶373(2017). Although the co-defendants claimed that Terrell “went
¶374crazy” and that they had no notice that he would start shooting, the
¶375evidence was strong that Terrell went to the house with the intent
¶376of retaliating against those who had “trashed” the apartment. Parks
¶377testified that Terrell told the co-defendants that he was going to
¶378shoot Stallings before going to the house and that there was a rifle
¶379in the passenger seat of the car where Terrell was sitting on the way
¶380to the house. Upon approaching the house, Stinchcomb pointed out
¶381people while Terrell shot at them. Moreover, the failure to sever did
¶382not impede Terrell from presenting his claim of self-defense.
¶383Because Terrell has not shown that the result of the trial would have
¶384been different if he had been tried separately, the trial court did not
¶385abuse its discretion in denying the motions to sever. See Slaton v.
¶386State, 303 Ga. 651, 654 (3) (a) (814 SE2d 344) (2018) (no abuse of
¶387discretion in denying motion to sever where appellant was able to
¶388 24 present his defense to the jury and there was nothing to suggest the
¶389outcome of his trial would have been different had he been tried
¶390separately); Krause v. State, 286 Ga. 745, 750 (5) (691 SE2d 211)
¶391(2010) (trial court did not abuse discretion in denying motion to
¶392sever where “the joint trial did not present a significant likelihood
¶393of confusion of the evidence and law, or the possibility that evidence
¶394introduced against [one defendant] might be improperly considered
¶395against [the other defendant]”).
¶396 5. Terrell claims that his trial counsel was ineffective for failing
¶397to again renew his motion to sever after his co-defendants’ opening
¶398statements and sometime during the course of trial. We are
¶399unpersuaded.
¶400 To prevail on this claim, Terrell must prove both that his
¶401counsel’s performance was professionally deficient and that he was
¶402prejudiced by that deficient performance. See Strickland v.
¶403Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
¶404(1984). To prove deficient performance, Terrell must show that
¶405counsel “performed at trial in an objectively unreasonable way
¶406 25 considering all the circumstances and in the light of prevailing
¶407professional norms.” Collins v. State, ___ Ga. ___, ___ (8) (864 SE2d
¶40885) (2021) (citation and punctuation omitted). This showing
¶409“requires a defendant to overcome the strong presumption that trial
¶410counsel’s performance was adequate.” Id. (citation and punctuation
¶411omitted). “Reasonable trial strategy and tactics do not amount to
¶412ineffective assistance of counsel.” DeLoach v. State, 308 Ga. 283, 287
¶413(2) (840 SE2d 396) (2020) (citation and punctuation omitted). To
¶414prove the prejudice prong, Terrell “must show that there is a
¶415reasonable probability that, but for counsel’s unprofessional errors,
¶416the result of the proceeding would have been different.” Id. (citation
¶417and punctuation omitted). If Terrell fails to show either prong of the
¶418Strickland test, we need not examine the other prong. See Palmer v.
¶419State, 303 Ga. 810, 816 (IV) (814 SE2d 718) (2018).
¶420 At the motion for new trial hearing, trial counsel testified that
¶421he may have agreed to file the initial motion to sever at Terrell’s
¶422request because he generally likes to have co-defendants to blame at
¶423trial. He explained that after filing an unsuccessful motion to sever,
¶424 26 he would usually renew the motion only if something occurred
¶425during trial that merited a mistrial: “[S]omething really dramatic
¶426has to happen for me to go back and renew [a] severance motion. . .
¶427. It has to be tantamount to a mistrial. I’m not going to keep asking
¶428for severances.” In denying Terrell’s motion for new trial on this
¶429ground, the trial court concluded that counsel was not deficient for
¶430failing to renew the motion to sever mid-trial, “as that was a course
¶431of action a reasonable attorney was entitled to choose.”
¶432 “Generally, the failure to file a motion to sever does not require
¶433a finding of ineffective assistance since the decision whether to seek
¶434severance is a matter of trial tactics or strategy, and a decision
¶435amounting to reasonable trial strategy does not constitute deficient
¶436performance.” DeLoach, 308 Ga at. 289 (2) (a) (citation and
¶437punctuation omitted). Here, Terrell points to nothing that occurred
¶438during the course of trial that would have supported a third motion
¶439to sever on grounds not already denied. Moreover, for the reasons
¶440stated above in Division 4, the trial court did not abuse its discretion
¶441in denying the first two motions to sever and would have acted
¶442 27 entirely within its discretion to deny a third motion to sever during
¶443trial on the same grounds. Cf. Hill v. State, 310 Ga. 180, 190 (6) (850
¶444SE2d 110) (2020) (“Because the trial court would have acted within
¶445its discretion in denying a motion for mistrial, the failure of
¶446[Appellant]’s trial counsel to make a motion that the court was
¶447authorized to deny does not establish ineffective assistance by that
¶448counsel.” (citation and punctuation omitted)). Accordingly, the trial
¶449court did not err in denying this claim of ineffective assistance of
¶450counsel.
¶451 6. In his final enumeration of error, Terrell asserts that the
¶452combined prejudicial effect of the trial court’s errors and counsel’s
¶453error require a new trial under State v. Lane, 308 Ga. 10, 21 (4) (838
¶454SE2d 808) (2020) (to establish cumulative error, a defendant must
¶455show that “at least two errors were committed in the course of the
¶456trial[, and] considered together along with the entire record, the
¶457multiple errors so infected the jury’s deliberation that they denied
¶458[the defendant] a fundamentally fair trial” (citation and punctuation
¶459omitted)). However, we have only assumed that an error occurred in
¶460 28 Division 2 above, so Terrell cannot show any combination of errors.
¶461This enumeration of error necessarily fails. See Heade v. State, 312
¶462Ga. 19, 29 (5) (860 SE2d 509) (2021); Flood v. State, 311 Ga. 800,
¶463808-09 (2) (d) (860 SE2d 731) (2021) (“[W]hen reviewing a claim of
¶464cumulative prejudice, we evaluate only the effects of matters
¶465determined to be error rather than the cumulative effect of non-
¶466errors.” (citation and punctuation omitted)).
¶467 7. Although Terrell does not raise the issue on appeal, we have
¶468identified a merger issue in his sentencing. See Dixon v. State, 302
¶469Ga. 691, 696-97 (4) (808 SE2d 696) (2017) (“We have the discretion
¶470to correct merger errors sue sponte . . . because a merger error
¶471results in an illegal and void judgment of conviction and sentence.”).
¶472With respect to Matthews, Terrell was charged with and found
¶473guilty of aggravated assault with a deadly weapon (Count 3) and
¶474felony murder (Count 2) predicated on that same aggravated
¶475assault, i.e., “shooting her with a firearm.” “[W]here, as here, the
¶476defendant is found guilty of both felony murder and the underlying
¶477felony, that underlying felony merges into the felony murder
¶478 29 conviction.” Jackson v. State, 310 Ga. 224, 229 (2) (c) (850 SE2d 131)
¶479(2020) (citation and punctuation omitted). We therefore vacate
¶480Terrell’s conviction and sentence for Count 3. See id.
¶481 Judgment affirmed in part and vacated in part. All the Justices concur.
¶482 30