Tabor v. State

1

TABOR v. THE STATE

SPEAR v. THE STATE

Nos. S22A0857, S22A0986

Supreme Court of Georgia

December 20, 2022

LAGRUA, Justice.

Appellants Tyree Tabor and Donny Spear were tried together and convicted of malice murder and other offenses in connection with the shooting death of Nicholas Miller.^[1] Although the two co- defendants raise different contentions on appeal, their appeals have been consolidated for purposes of issuing an opinion. Tabor contends that his trial counsel provided constitutionally ineffective assistance. Spear contends that his trial counsel provided constitutionally ineffective assistance and that the trial court abused its discretion by denying his motion for severance. For the reasons explained below, we affirm the convictions in both cases.

The evidence presented at trial shows that on the evening of October 31, 2016, officers responded to a shooting at an apartment complex located at 1425 Joseph E. Boone Boulevard. Upon their arrival, officers discovered Miller unresponsive lying face down on the sidewalk suffering from multiple gunshot wounds. He was transported to the hospital, but he never regained consciousness and died a month later on December 1. The medical examiner determined that Miller's cause of death was complications from a gunshot wound to the torso. From the parking lot of the apartment complex, the police recovered a Smith and Wesson 9mm handgun, one 9mm shell casing, eight 7.62mm shell casings, six 5.7mm shell casings, and six .223-caliber shell casings.

Around the same time, Mar'Keil Leonard called Fulton County 911 and told the operator that he had been shot. During his call to 911, someone in the background asked, "Who shot you?" and Leonard responded "Tyriq."^[2] When the police arrived at Leonard's location, they impounded his car-which had multiple bullet holes- and recovered his .223-caliber gun, along with 29 .223-caliber cartridges; Leonard was transported to the hospital.

At trial, Leonard testified that on the evening of October 31, he spoke to Tabor regarding a potential marijuana sale. Tabor was going to connect a marijuana buyer to Leonard, Leonard would sell the buyer a pound of marijuana for an agreed-upon price, and Tabor would receive a portion of Leonard's profit, "like a referral fee." Leonard and Tabor agreed to meet at the apartment complex on Joseph E. Boone Boulevard, and Leonard sent a text message to his cousin to let him know where he was going.^[3] During Leonard's drive to the apartment complex, he saw Miller, who decided to accompany him.

When Leonard and Miller arrived at the apartment complex, they got out of Leonard's car, Tabor and Spear got out of Tabor's car, and the four men greeted each other.^[4] Miller smoked a cigarette near the front of Leonard's car, and Tabor sat on the back of Leonard's car. Leonard stood next to his open driver-side door with his hands on top of the door; the car's engine continued running.

Leonard and Spear smoked a "blunt" and chatted about the marijuana. Spear asked Leonard about the marijuana's price, which confused Leonard because the price was previously agreed-upon. Leonard then presented a different type of marijuana to Spear, and they smoked another "blunt." Spear kept "moving" during the conversation, and Leonard asked Tabor, "What's up with your boy?" Leonard later told Detective Jamael Logan of the Atlanta Police Department that Tabor and Spear had handguns in their waistbands and Spear "kept fudging and playing with [his] handgun[.]"^[5]

Leonard testified that he then sat in his driver's seat, opened the passenger door from the inside, and told Miller, "Hey, come on, let's go, because they playing." Leonard testified that he did this because Spear "kept asking questions," so he thought Spear did not want to purchase the marijuana. Leonard later told an investigator that Leonard told him that Spear "appeared [to be] looking around as if he knew something was about to take place, that he was stalling."

Leonard testified that after he asked Miller to get into his car, Miller began walking toward the car, but then "turned around and just took off [running]." Then, an unknown man, whom Leonard later identified as Evans, walked out from behind Leonard's car, stood next to Spear, pointed what "looked like a shotgun" at Leonard, and stated, "If you move, I'm going to shoot you." Leonard "slapped [his] car in drive [and] took off," and he saw that shots were being fired at him when he looked in his rearview mirror. Leonard testified that he drove a short distance to his grandmother's house, realized that he had been shot multiple times, and called 911. Although Leonard initially told Detective Logan that Evans, Tabor, and Spear all shot at him while he was driving away, at trial, Leonard denied that Tabor shot at him.

When Leonard spoke with Detective Logan at the hospital, he identified Tabor and Spear by their nicknames only, and he could not identify Evans by any name. However, he provided a physical description of all three men. Leonard later provided Detective Logan with social-media photographs of the three men he believed were involved with the shooting. Law enforcement officers eventually determined that the three men were Tabor, Spear, and Evans and developed photographic lineups of the men containing photographs different from the ones Leonard provided. From these photographic lineups, Leonard identified Tabor, Spear, and Evans as the men who shot at him, and police issued arrest warrants for them.

On December 14, law enforcement officers were surveilling Spear and watched him and co-defendant Jermecia Holley leave their apartment; Spear was carrying a black backpack. After they drove away, the police conducted a traffic stop, and Spear was arrested on an outstanding arrest warrant. The police recovered Spear's backpack, which contained a stolen handgun, marijuana, hydrocodone, and cocaine.

Detective Logan interviewed Spear, who identified Leonard as the man he met the night of Miller's shooting; Spear also identified himself in one of the photographs that Leonard had previously provided to Detective Logan. While Spear was in jail, he called Holley and admitted he had been with Tabor at the apartment complex, but stated he was not involved in the shooting. Spear also admitted to possession of the backpack and its contents, and he told Holley that there were other guns, including "a glock and a gold gun," and drugs at the apartment that needed to be moved. Based on this information, law enforcement obtained a search warrant and recovered drugs and three handguns from the apartment, but the two guns referenced in Spear's phone call to Holley were not recovered.

One month later, on January 16, 2017, around 2:30 a.m., the police were dispatched to a Bank of America in Sandy Springs in reference to ATM tampering. Upon their arrival, the police pursued several suspects into an adjacent construction site and arrested three people, one of whom was Tabor.

Several hours later, around 6:30 a.m., the superintendent of the construction site found a Ruger 9mm handgun near a pile of construction debris and turned the weapon over to police. Ballistics testing revealed that the 9mm shell casing found at the apartment complex on October 31, 2016, was fired from the Ruger 9mm handgun recovered from the construction site-and not the Smith and Wesson 9mm handgun found at the scene. Further ballistics testing revealed that the eight 7.62mm shell casings were fired from one gun, the six 5.7mm shell casings were fired from another gun, the six .223-caliber shell casings were fired from yet another gun, and that none of the shell casings were fired from Leonard's gun.

Case No. S22A0857. Tabor v. The State:

1. Tabor contends that his trial counsel provided constitutionally ineffective assistance in multiple ways. To prevail on these claims, Tabor must demonstrate both that his trial counsel's performance was professionally deficient and that he was prejudiced by this deficient performance. See Bates v. State, 313 Ga. 57, 62 (2) (867 S.E.2d 140) (2022) (citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984)). To establish deficient performance, Tabor must show that trial counsel performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. Establishing deficient performance

is no easy showing, as the law recognizes a strong presumption that counsel performed reasonably, and [Tabor] bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.

Vann v. State, 311 Ga. 301, 303 (2) (857 S.E.2d 677) (2021) (citations and punctuation omitted). And, "in the absence of evidence to the contrary, counsel's decisions are presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim." Holland v. State, 314 Ga. 181, 190 (3) (875 S.E.2d 800) (2022) (citation and punctuation omitted).

To establish prejudice, Tabor must prove that there is a reasonable probability that, but for his trial counsel's deficiency, the result of the trial would have been different. See Bates, 313 Ga. at 62 (2). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citation and punctuation omitted). "And, this burden is a heavy one." Id. at 62-63 (2) (citation and punctuation...