TABOR v. THE STATE (Two Cases)

FINAL COPY


                  S22A0857. TABOR v. THE STATE.
                  S22A0986. SPEAR v. THE STATE.


      LAGRUA, Justice.

      Appellants Tyree Tabor and Donny Spear were tried together

and convicted of malice murder and other offenses in connection

with the shooting death of Nicholas Miller.1 Although the two co-


      1  Miller was shot on October 31, 2016, and he died following
complications from his injuries on December 1, 2016. On June 16, 2017, a
Fulton County grand jury indicted Vincent Evans, Jeremecia Holley, Spear,
and Tabor for the following counts: participation in street gang activity (Count
1 — Evans, Spear, and Tabor); malice murder of Miller (Count 2 — Evans,
Spear, and Tabor); felony murder of Miller, predicated on criminal attempt to
commit armed robbery (Count 3 — Evans, Spear, and Tabor); felony murder of
Miller, predicated on criminal attempt to purchase marijuana (Count 4 —
Evans, Spear, and Tabor); felony murder of Miller, predicated on aggravated
assault (Count 5 — Evans, Spear, and Tabor); felony murder of Miller,
predicated on possession of a firearm by a first-offender probationer (Count 6
— Spear); criminal attempt to commit armed robbery (Count 7 — Evans,
Spear, and Tabor); criminal attempt to purchase marijuana (Count 8 — Evans,
Spear, and Tabor); aggravated assault of Miller (Count 9 — Evans, Spear, and
Tabor); aggravated battery of Mar’Keil Leonard (Count 10 — Evans, Spear,
and Tabor); possession of a firearm during the commission of a felony (Count
11 — Evans, Spear, and Tabor); possession of a firearm by a first-offender
probationer (Count 12 — Spear); possession of cocaine with the intent to
distribute (Count 13 — Spear); possession of marijuana with the intent to
distribute (Count 14 — Spear); possession of hydrocodone (Count 15 — Spear);
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




possession of a firearm during the commission of a felony (Count 16 — Spear);
possession of a firearm by a first-offender probationer (Count 17 — Spear);
possession of cocaine with the intent to distribute (Count 18 — Holley);
possession of a firearm during the commission of a felony (Count 19 — Holley);
and possession of marijuana-less than one ounce (Count 20 — Holley).
       Spear and Tabor were tried jointly from January 27 to February 4, 2020.
On February 3, the trial court granted a directed verdict of acquittal on Count
1, and Spear pled guilty to Counts 13 through 17. On February 4, a jury found
Spear and Tabor guilty of the remaining counts. As to Spear, the trial court
vacated the four counts of felony murder, merged the aggravated assault count
into the malice murder count, and sentenced him to serve life in prison with
the possibility of parole, plus 60 years to serve consecutively. As to Tabor, the
trial court vacated the three counts of felony murder, merged the aggravated
assault count with the malice murder count, and sentenced him to serve life in
prison with the possibility of parole, plus 55 years to serve consecutively.
       Spear and Tabor filed timely motions for new trial, which they amended
through new counsel. After holding evidentiary hearings on the motions for
new trial, the trial court denied the motions in November and December 2021.
Spear and Tabor filed timely notices of appeal, and their cases were docketed
to this Court’s August 2022 term and submitted for decisions on the briefs.

                                       2
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 & 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


     2 Leonard later identified Tabor as “Tyriq.”



                                      3
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




       3 The text message stated, “Aye im finna go serve [T]yriq dem on da hill

apartment behind chapel…just to keep u updated.” Leonard testified that
“serve” meant to sell drugs.
      4 Leonard testified that he had known Tabor for approximately five years

and knew of Spear because Leonard had previously purchased marijuana from
Spear.

                                       4
the front of Leonard’s car, and Tabor sat on the back of Leonard’s

car. Leonard stood next to his open driver-side door with his hands

on top of the door; the car’s engine continued running.

      Leonard and Spear smoked a “blunt” and chatted about the

marijuana. Spear asked Leonard about the marijuana’s price, which

confused Leonard because the price was previously agreed-upon.

Leonard then presented a different type of marijuana to Spear, and

they smoked another “blunt.” Spear kept “moving” during the

conversation, and Leonard asked Tabor, “What’s up with your boy?”

Leonard later told Detective Jamael Logan of the Atlanta Police

Department that Tabor and Spear had handguns in their

waistbands and that 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



      5 Detective Logan interviewed Leonard at the hospital, and the interview

was audio-recorded and portions of the interview were played at trial.

                                      5
because Spear “kept asking questions,” so he thought Spear did not

want to purchase the marijuana. Leonard later told an investigator

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 Vincent 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


                                  6
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 Jeremecia 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


                                 7
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


                                 8
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

& 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

     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, 

 (2) (

) (2022) (citing Strickland v. Washington,

 (III) (

, 80 LE2d 674) (1984)). To


                                 9
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 

 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, 

 (2) (

) (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, 

 (3) (

) (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



                                  10
result of the trial would have been different. See Bates, 

 (2). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 

 (citation and punctuation

omitted). “And, this burden is a heavy one.” 

 (2) (citation

and punctuation omitted). “If an appellant fails to meet his or her

burden of proving either prong of the Strickland test, the reviewing

court does not have to examine the other prong.” 

 (2)

(citation and punctuation omitted). “This Court accepts a trial

court’s factual findings and credibility determinations on an

ineffectiveness claim unless they are clearly erroneous, but we apply

legal principles to the facts de novo.” Powell v. State, 

 (2) (

) (2020).

     Tabor contends that his trial counsel provided constitutionally

ineffective assistance by failing to (i) adequately consult with Tabor,

(ii) subpoena witnesses, (iii) interview law enforcement witnesses,

and (iv) interview the medical examiner or any member of his staff.

     Tabor’s trial counsel did not testify at the motion-for-new-trial

hearing. But, Tabor testified that during trial counsel’s nearly five-


                                  11
month representation of him, trial counsel met with Tabor four to

five times. Tabor admitted that during these meetings, his trial

counsel read the indictment, explained the charges and the potential

maximum sentence, gave him discovery, including the medical

examiner’s report and the forensic report, asked him “how [he]

wanted to go about” defending his case, and explained “what [the

State] offered, . . . what he was going to do [to defend Tabor’s case],

[and] how he was going at the prosecution.” But, Tabor testified that

his trial counsel failed to subpoena or interview any witnesses,

including Ciera Dobbs and Rosalyn Well, and that these women had

possession of his preliminary hearing transcript, which would have

been helpful in impeaching one of the detectives.

     Regarding the alleged failure to adequately consult with Tabor,

“[a]s we have explained, there exists no magic amount of time which

counsel must spend in actual conference with his client,” and Tabor

“does not specifically describe how additional communications with

his lawyer would have enhanced his defense.” Styles v. State, 

 (5) (a) (

) (2020) (citation and punctuation


                                  12
omitted). Further, Tabor has failed to make a proffer showing what

evidence or strategy would have been uncovered through additional

consultation. See 

 We also conclude that Tabor’s trial counsel did

not perform his duties in an objectively unreasonable way because

he met with Tabor four to five times, explained the indictment and

the potential maximum sentence, provided and discussed discovery,

and explained how he planned to defend Tabor. Accordingly, we

conclude Tabor has failed to carry his burden of showing that his

trial counsel was deficient in this respect, and this claim fails.

     Regarding the failure to interview and subpoena witnesses,

Tabor failed to identify or proffer which witnesses from law

enforcement or the medical examiner’s office should have been

interviewed, and how any interviews would have enhanced his

defense. Although Tabor specifically identified Dobbs and Well as

potential witnesses, it appears from Tabor’s testimony that the only

relevant information they possessed was a copy of Tabor’s




                                  13
preliminary hearing transcript.6 According to Tabor, possession of

this transcript would have helped his trial counsel impeach

Detective Logan because there were alleged “inconsistencies” in his

testimony at the preliminary hearing and at trial. But, Tabor failed

to identify any prior inconsistent statements made by the detective

and does not contend that his trial counsel was deficient in failing

to impeach the detective. Thus, Tabor has failed to demonstrate that

his counsel performed deficiently in failing to interview and

subpoena witnesses, and these ineffectiveness claims fail.7 See

Lanier v. State, 

 (3) (b) (

) (2020) (The

appellant failed to show that his trial counsel was deficient where



      6 We note that this transcript was filed with the trial court approximately

two years prior to trial, and therefore it was not necessary for Tabor’s trial
counsel to contact Dobbs and Well to obtain a copy of the transcript.
       7 Tabor also enumerates as error that his trial counsel provided

constitutionally ineffective assistance by failing to (i) impeach Leonard with
unrelated pending charges, (ii) cross-examine Leonard with the fact that he
was not prosecuted for crimes related to Miller’s death, (iii) move for a mistrial
when the trial judge failed to sua sponte recuse, (iv) move for recusal of the
trial judge, and (v) join the State’s motion for mistrial and motion for recusal.
However, Tabor’s enumerations are “not supported by argument or citation of
authority” and so are abandoned. See Supreme Court Rule 22. See also Payne
v. State, 

 (3) n.7 (

) (2022) (“It is not the function
of this Court to cull the record for a party . . . to form arguments on the
appellant’s behalf.” (citation and punctuation omitted)).

                                       14
he “failed to point to evidence tending to show what further

investigation would have revealed or to offer any additional

witnesses to demonstrate that their testimony would have been

relevant and favorable.” (citation and punctuation omitted)).

                           Case No. S22A0986

      2.   Spear    contends      that    his   trial   counsel     provided

constitutionally ineffective assistance by failing to file a timely

motion to bifurcate certain counts.8 We disagree.

      (a) On the first day of trial, Spear’s trial counsel orally moved

to bifurcate the felony murder count predicated on possession of a

firearm by a first-offender probationer (Count 6), the predicate

possession of a firearm by a first-offender probationer count (Count

12), and a separate possession of a firearm by a first-offender

probationer count (Count 17) on the ground that the evidence

supporting these counts “place[d] his character in evidence.”9 The




      8 We note that the law governing Spear’s ineffectiveness claims in
Divisions 2, 3, and 4 is set out in Division 1.
      9 Counts 6 and 12 arose from Miller’s death, and Count 17 arose from the

handgun in Spear’s possession during his arrest.

                                     15
trial court orally denied the motion on the merits and later issued a

written order denying the motion because it was both untimely and

meritless.

     It has long been established that a trial court “[does] not err in

refusing to bifurcate the charge of possession of a firearm by a

first[-]offender probationer” where, as here, “[t]he possession charge

was an underlying felony to a murder count of the indictment.”

George v. State, 

 (3) (

) (2003). See also

Cooks v. State, 

 (3) (

) (2016)

(“[W]here . . . the count charging possession of a firearm by a

convicted felon might serve as the underlying felony supporting a

felony murder conviction, a motion to bifurcate should be denied.”

(citation and punctuation omitted)). Because the trial court was not

required to bifurcate Count 12, Spear has failed to show that his

trial counsel was deficient for failing to timely file such a motion.

See Talley v. State, 

 (3) (d) (

) (2022)

(no deficient performance in failing to seek bifurcation of a firearm

charge when it was a predicate to a felony murder charge).


                                 16
     And, to the extent Spear contends that the trial court should

have also bifurcated the felony murder count from the rest of his

trial, this claim also fails. See Brown v. State, 

(3) (

) (2014) (“Because in this case one of the counts of

felony murder was based on the felon-in-possession firearm charge

(and the indictment also charged malice murder), the trial court did

not err when it denied [the appellant’s] motion to bifurcate” the

felon-in-possession firearm charge and the related felony murder

count from his trial.). Regarding Count 17, evidence of Spear’s status

as a first-offender probationer, as well as the charges for which he

was on probation, was properly admitted through the State’s

presentation of evidence on Counts 6 and 12. Accordingly, Spear has

failed to show that his trial counsel performed deficiently, and this

claim fails. See Koonce v. State, 

 (2) (d) (

) (2019) (concluding that trial counsel was not deficient in failing

to object to cumulative evidence).10


     10 Cf. Cooks, 

 (3) (“[I]n cases where a felon-in-possession

firearm charge is unrelated to another count for which the defendant is to be



                                     17
      (b) On the second day of trial, Spear’s trial counsel orally moved

to bifurcate Counts 13 through 17, the drug-and-gun charges that

arose from Spear’s arrest, on the basis that the evidence supporting

these charges was irrelevant and unduly prejudicial. The trial court

took the motion under advisement and later issued a written order

denying the motion because it was both untimely and meritless. To

the extent that Spear contends that his trial counsel provided

constitutionally ineffective assistance by failing to timely file this

motion, we conclude that any such ineffectiveness claim has been

waived.

      “Claims of trial counsel ineffectiveness must be raised at the

earliest practicable opportunity.” Bedford v. State, 

(5) (c) (

) (2021) (citation and punctuation omitted).

“That moment is before appeal if the opportunity to do so is

available. The pre-appeal opportunity is available when the

convicted defendant is no longer represented by the attorney who


tried, the proceedings should be bifurcated so that the jury will hear and decide
the more serious charges before learning about the firearm charge and the
defendant’s prior conviction.” (citation and punctuation omitted)).

                                       18
represented him at trial.” Elkins v. State, 

 (4) (a)

(

) (2019) (citation and punctuation omitted).

      Here, the amended motion for new trial filed by motion-for-

new-trial counsel failed to include an ineffectiveness claim

concerning the motion orally moved for on the second day of trial

seeking to bifurcate Counts 13 through 17 on the ground that the

evidence related to the drug-and-gun charges was irrelevant and

prejudicial,11 and the order denying the motion for new trial

referenced only trial counsel’s failure to timely file the motion orally

moved for on the first day of trial seeking to bifurcate Counts 6, 12,

and 17 on the ground that the evidence “place[d] his character in

evidence.”12 Because Spear “failed to raise this claim at the earliest

practicable moment, he did not preserve it for appellate review,” and

this claim has been waived. Elkins, 

 (4) (a).




      11 The amended motion for new trial referenced only the motion filed on

the first day of trial seeking to bifurcate Counts 6, 12, and 17.
       12 The trial court’s order actually referenced “counts 16, 12 and 17,” but

we conclude that the trial court’s inclusion of Count 16, as opposed to Count 6,
was likely a scrivener’s error.


                                       19
     3. Spear contends his trial counsel provided constitutionally

ineffective assistance by withdrawing certain previously-filed

motions. We disagree.

     In February 2018, Spear’s pre-trial counsel filed several

motions, including a motion for immunity based on self-defense, a

motion to suppress physical evidence, a motion to suppress

identification, and a motion to suppress statements. In November

2018, the trial court held a hearing on the motions, and trial counsel

withdrew the motion for immunity, the motion to suppress physical

evidence, the motion to suppress identification, and the motion to

suppress statements.

     (a) The withdrawn motion for immunity. At the motion-for-

new-trial hearing, trial counsel was not questioned about why he

withdrew the motion for immunity. “[I]n the absence of evidence to

the contrary, counsel’s decisions are presumed to be strategic and

thus insufficient to support an ineffective assistance of counsel

claim.” Holland, 

 (3) (citation and punctuation

omitted). “It may be reasonable for trial counsel to forgo a pre-trial


                                 20
immunity motion so as to avoid subjecting his client to pre-trial

cross-examination, or for counsel to elect to demonstrate self-

defense to the jury, rather than to the judge.” Broxton v. State, 

 (5) (a) (

) (2019). Here, Spear told both

Detective Logan and Holley that while he was at the apartment

complex with Tabor, he was not involved in the shooting, and Spear

did not contend at trial, at the motion-for-new-trial hearing, or in

his brief to this Court that he acted in self-defense. Because Spear

has not established that no competent attorney would have

withdrawn the motion for immunity under the circumstances of this

case, he has not shown that his counsel’s performance was

professionally deficient. Accordingly, this claim fails. See 

     (b) The withdrawn motions to suppress physical evidence,

identification, and statements. “Where, as here, an appellant claims

that trial counsel was deficient for failing to file a motion to

suppress, the [appellant] must make a strong showing that the

damaging evidence would have been suppressed had counsel made

the motion.” Evans v. State, 

 (3) (

)


                                  21
(2020) (citation and punctuation omitted). Spear makes no such

showing. Rather, he contends only that trial counsel’s withdrawal of

the motions deprived him of the ability to challenge evidence prior

to trial and that trial counsel failed to provide a reasonable

explanation about why he withdrew these motions. Spear makes no

argument that any physical evidence, identification, or statement

would have been suppressed had trial counsel gone forward with

these motions. Accordingly, because Spear failed to show that the

evidence, identification, or statements would have been suppressed

had trial counsel not withdrawn the motions to suppress, he has not

established that his trial counsel was deficient, and this claim fails.

See Roseboro v. State, 

 (2) (a) (

) (2020)

(“[B]ecause [the appellant] has not made a showing that had a

motion been filed, the evidence would have been suppressed, we

agree with the trial court’s conclusion that trial counsel was not

deficient.”).

     4.   Spear   contends    that     his   trial   counsel   provided

constitutionally ineffective assistance by failing to successfully


                                  22
argue the motion to sever his trial from that of his co-defendants.

We agree with the State, however, that this claim has been waived.13

      Spear’s amended motion for new trial did not raise any

ineffectiveness claim concerning the motion to sever. And although

there was some questioning about the motion to sever at the motion-

for-new-trial hearing, the trial court’s order did not address any

ineffectiveness claim on that issue. The lack of ruling from the trial

court indicates that the court did not view this claim as having been

raised implicitly, which could have preserved the claim for appellate

review. See Rickman v. State, 

 (3) (

) (2018)

(“[A]lthough a trial court may . . . allow a motion for new trial to be

amended implicitly by treating a claim as if it had been raised in the

motion, the trial court’s failure to address any ineffectiveness claim

in its ruling on the motion for new trial indicates an absence of any

such amendment.”). Accordingly, because Spear “failed to raise this

claim at the earliest practicable moment, he did not preserve it for



      13 We note that the law governing waiver of an ineffectiveness claim is

set out in Division 2 (b).

                                     23
appellate review.” Elkins, 

 (4) (a).

      5. Spear contends that the trial court abused its discretion by

denying his motion to sever his trial from that of Tabor because the

trial court “fail[ed] to make any findings to support its order.” We

disagree.

      At the motion-to-sever hearing, Spear’s trial counsel sought

severance from all three of Spear’s co-defendants. However, trial

counsel focused primarily on Evans, arguing that Evans’s presence

at a joint trial would be prejudicial to Spear on Bruton grounds.14

Although trial counsel made no specific argument concerning Tabor,

he did mention that Tabor was in “bench warrant status.” The trial

court inquired about the statements Evans made to law enforcement

and whether Tabor or Holley made any statements.15 The trial court

later issued a written order summarily denying the motion based

upon “the argument of both parties” and the “applicable law.” As




      14 Bruton v. United States, 

 (

, 20 LE2d 476)

(1968).
      15 During this inquiry, the State opposed severance, but acknowledged

that Evans made some statements that would not be admissible at a joint trial.

                                     24
noted above, Spear was tried with Tabor only.

     “A trial court has the discretion to grant or deny a severance in

a joint trial.” Ruff v. State, 

 (1) (

)

(2022) (citation and punctuation omitted). “In ruling on a motion to

sever, a trial court should consider: (1) the likelihood of confusion of

the evidence and law; (2) the possibility that evidence against one

defendant may be considered against the other defendant; and (3)

the presence or absence of antagonistic defenses.” 

 (1)

(citation and punctuation omitted).

     On appeal, he contends only that the trial court erred by failing

to (1) make any factual findings in its order, and (2) reference any

law in support of its decision. However, a trial court is not required

to make explicit findings with respect to the severance factors when

“[i]t is obvious from the transcript that the trial court properly

considered these factors when denying [the defendant’s] motion to

sever.” Flournoy v. State, 

 (5) n.5 (

)

(2014). When, as here, a trial court makes no explicit findings in

ruling on a motion that does not require such findings to be made,


                                  25
we presume that the trial court implicitly made all the findings in

support of its ruling that the record would allow. See Anthony v.

State, 

 (3) (

) (2021). Because the trial

court was not required to make explicit findings with respect to the

severance factors, and it is obvious from the transcript that the trial

court properly considered the appropriate factors when it denied

Spear’s motion to sever, this claim fails.16

      Judgments affirmed. All the Justices concur.




      16 Spear also contends that, under State v. Lane, 

 (

) (2020), the combined prejudicial effect of his trial counsel’s deficiencies
and the trial court’s error affected the outcome of the trial. However, “to
establish cumulative error, [Spear] must show that at least two errors were
committed in the course of the trial.” Holland, 

 (4) (citation and
punctuation omitted). Since we have not concluded that Spear’s trial counsel
performed deficiently, cumulative error analysis under Lane is not applicable.

                                      26
                   Decided December 20, 2022.

     Murder. Fulton Superior Court. Before Judge Ingram.

     Ricky L. Richardson, for appellant (case no. S22A0857).

     Thomas R. Morgan, Jr., for appellant (case no. S22A0986).

     Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong,   Aslean   Z.   Eaglin,   Assistant   District   Attorneys;

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Parisa F. Sarfarazi, Assistant Attorney General, for

appellee.




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