In the Supreme Court of Georgia

Decided: August 21, 2023

S23A0518. YOUNG v. THE STATE.

 MCMILLIAN, Justice.

In May 2021, a jury found Tomarkus Mikhail Young guilty of 

felony murder and other charges in connection with the shooting 

death of Richard Anderson.1 On appeal, Young asserts that the 

evidence was constitutionally insufficient to support his convictions;

that the trial court erred in denying his motion to strike a potential 

 1 Anderson was killed on or about February 25, 2018. On February 4, 

2019, a Wilkes County grand jury indicted Young for felony murder predicated 

on aggravated assault (Count 1), aggravated assault (Count 2), voluntary 

manslaughter (Count 3), and possession of a firearm during the commission of 

a felony (Count 4). At a trial held from May 3 to 7, 2021, a jury found Young 

guilty on Counts 1, 2, and 4 but not guilty on Count 3. On May 13, 2021, the 

trial court sentenced Young to serve life in prison with the possibility of parole 

on Count 1 and five years in prison on Count 4 to be served consecutively; 

Count 2 was merged with Count 1 for sentencing purposes. Young timely filed 

a motion for new trial, which was later amended through new counsel on 

October 19, 2022, and December 20, 2022. Following a hearing, the trial court 

denied the amended motion on December 29, 2022. Young timely appealed, 

and his case was docketed to the April 2023 term of this Court and submitted 

for a decision on the briefs. 
2

juror; that he received ineffective assistance of counsel; and that 

cumulative errors require the grant of a new trial. For the reasons 

that follow, we conclude these assertions lack merit and affirm.

Viewed in the light most favorable to the jury’s verdict, the 

evidence at trial showed that on February 23, 2018, Anderson 

purchased a .40-caliber handgun, which he showed to several people 

gathered at a barbershop. When Young saw the handgun, he offered 

to purchase it. Anderson told him it was not for sale but that he had 

another gun he could sell. Two days later, a group of people were 

gathered outside at a local “bootlegger’s” house in Wilkes County. 

Young shot dice and drank alcohol with his friends near the gated 

entrance to the house. At one point, Anderson pulled up in his car 

and approached the group, looking to purchase marijuana. Anderson 

also told the group that he had a handgun to sell. He showed them 

the handgun after demonstrating that it was not loaded. Anderson 

and Young then got into Anderson’s car together, but after Young 

exited the vehicle followed by Anderson, Young, who was wearing a 

hoodie with a front pocket, pulled out a handgun from either his 
3

pocket or waistband area and shot and killed Anderson.

After Anderson’s death, Young’s friend, Kijuan Vance, agreed 

to speak with GBI Special Agent Austin Bradshaw and stated that

on the night of the shooting he was among the group of people 

gathered outside the bootlegger’s house, where he saw Young sitting

with Anderson in Anderson’s car. Young then got out of the car and 

announced that he was taking Anderson’s gun. Anderson followed 

after Young, and it appeared to Vance that Anderson, who was 

unarmed, was trying to get his gun back from Young. Young pulled

something out of his pocket and pointed it at Anderson. Vance said 

he looked away because he “knew what was about to happen,” heard 

a gunshot, and turned back to see Anderson on the ground. Everyone 

gathered there, including Vance, immediately ran or drove away 

after hearing the gunshot. When Vance mentioned to the agent that 

he and Young had spoken shortly before the shooting that evening, 

Agent Bradshaw asked Vance to take a photograph of his phone’s 

call log. Vance agreed, and Agent Bradshaw was able to determine 

that Vance’s phone had been in contact with someone saved as 
4

“Thrax” several times during the evening of the shooting.2

Raiquan Davis, another of Young’s friends who was present on 

the night of the shooting, testified that he saw Young shoot 

Anderson in the chest while Anderson was unarmed. It looked to 

him that Anderson was trying to get his gun back from Young, who 

was also holding his own gun. Davis admitted that he initially lied 

to GBI agents several times to protect Young but decided to testify 

because it was “the right f**king thing to do.” Terrance Zellars, who 

was dating Young’s sister at the time, testified that the morning 

after the shooting, Young told him that he “went to the spot last 

night and sh** went south” and “I’m not playing with anybody 

anymore, if they roll they’re fixing to get it.” Zellars saw that Young 

had a handgun with him at that time. 

Officers who responded to the scene found Anderson lying on 

the street, deceased from an apparent gunshot wound. GBI Special 

 2 At trial, Vance claimed that he had no memory of the shooting or of 

speaking with law enforcement officers about what he had witnessed. 

However, a recording of his interview with Agent Bradshaw was played for the 

jury. 
5

Agent Carl Murray was called to assist with processing the crime 

scene and recovered a gold cell phone about 30 feet from Anderson’s 

body. He also recovered an empty gun holster, an empty Kahr 

Firearms box, .40-caliber ammunition, and a black cell phone from 

inside Anderson’s car. Although the gold cell phone was locked, 

officers were able to identify its number and link that phone number 

to Young. After Anderson’s girlfriend shared Anderson’s password, 

officers were able to unlock the black cell phone found in his car and 

identified Young’s cell phone number in his contacts under the name 

“Trax.” 

Officers arrived at Young’s residence the following morning.

Young agreed to speak with officers after being advised of his rights 

under Miranda,3 and a recording of this interview was played for the 

jury. Young admitted seeing Anderson at a barbershop a few days 

before, but denied talking about a gun and denied being at the 

bootlegger’s house on the night of the shooting. 

 3 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966).
6

During a search of Young’s house, officers recovered a 9mm 

Glock pistol in a chair on the front porch, as well as a .380 Lorcin 

pistol and a box of .380-caliber full-metal jacket ammunition from 

the bedroom belonging to Young’s mother. During a second search 

of Young’s home, officers recovered a sweat shirt with a hoodie and 

a front pocket and sweat pants in Young’s room that was similar to 

what a witness had described Young wearing on the night of the 

shooting. 

The owner of a pawn shop in nearby Thomson, Georgia

testified that he sold Anderson a Kahr CT .40-caliber handgun on 

February 23, 2018, and a Hi Point .45-caliber handgun on March 22, 

2017. Neither gun was ever recovered. After testing, a GBI firearms 

examiner was only able to determine that the bullet recovered from 

Anderson’s autopsy was a .380-caliber full-metal jacket bullet and 

that it was not consistent with having been fired from either gun 

recovered from Young’s home. The medical examiner who performed 

the autopsy testified that Anderson died from a single gunshot 

wound to the right side of his chest. There was no evidence of 
7

stippling, indicating that Anderson had been shot from a distance of 

greater than three feet. 

1. Young contends that the evidence was insufficient as a 

matter of constitutional due process to support his convictions 

because the State’s evidence was speculative and many of the 

witnesses admitted to lying to investigators. 

When this Court evaluates the sufficiency of the evidence, “the 

relevant question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable 

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 

61 LE2d 560) (1979) (emphasis omitted). So viewed, we conclude 

that the evidence was constitutionally sufficient to support Young’s

convictions for felony murder and possession of a firearm during the 

commission of a felony.

Multiple witnesses testified that Young was at the scene on the 

night of the shooting. Several witnesses testified that Young had 

previously approached Anderson about purchasing his handgun and 
8

that Anderson declined. One eyewitness told officers that Young 

pointed a weapon at Anderson, who appeared unarmed, 

immediately before he heard a gunshot and ran. A second 

eyewitness testified that he saw Young shoot Anderson. Young 

abandoned his cell phone at the scene, made incriminating 

statements the following morning, and lied to officers about being at 

the scene of the shooting. 

Even though Young points to inconsistencies in the witnesses’ 

testimony to argue that the evidence was insufficient, it is well 

established that any conflicts in the evidence were for the jury to 

resolve. See McIntyre v. State, 312 Ga. 531, 531 (1) (863 SE2d 166) 

(2021) (“This Court does not reweigh evidence or resolve conflicts in 

testimony; instead evidence is reviewed in a light most favorable to 

the verdict, with deference to the jury’s assessment of the weight 

and credibility of the evidence.” (citation and punctuation omitted)). 

Accordingly, this enumeration of error fails.4 

 4 To the extent that Young argues that the trial court should have 

granted a new trial on the general grounds, see OCGA §§ 5-5-20 and 5-5-21, 
9

2. Young also argues that the trial court should have excluded 

Juror No. 22, a potential juror who was employed at the Wilkes 

County jail, for cause. “Striking a juror for cause is a matter 

committed to the sound discretion of the trial court, and no error will 

be found absent a showing that the discretion was manifestly 

abused.” Stephens v. State, 309 Ga. 447, 451 (2) (847 SE2d 139) 

(2020) (citation and punctuation omitted). 

The record shows that during the first morning of voir dire, the 

entirety of which was not transcribed, the trial court questioned

Juror No. 22, who responded that she worked in the Wilkes County 

jail, where Young had been housed waiting for trial, but that she 

was not a POST-certified officer with arrest powers. Young’s counsel

argued that “she’s aware of my client’s custody position” and some 

other charges in relation to a fight in the jail, which counsel thought 

“would be very prejudicial,” meaning that she should be struck for 

 

this argument “is not properly addressed to this Court as such a decision is one 

that is solely within the discretion of the trial court.” Lewis v. State, 314 Ga. 

654, 660 (2) n.5 (878 SE2d 467) (2022) (citation and punctuation omitted). And, 

as it is clear from the record that the trial court applied the correct standard, 

it did not abuse its discretion. 
10

cause. The trial court explained that it would keep Juror No. 22 “in 

the panel for right now,” but noted that if defense counsel found 

authority for his argument that she should be struck for cause, the 

court would address the argument again. 

Although not transcribed, it appears that during the parties’ 

subsequent jury selection at the end of the day, Young struck Juror 

No. 22 with one of his nine peremptory strikes. Then, after the jury 

had been chosen, but prior to the jury being impaneled, Young 

moved for a mistrial based on his having to use a peremptory strike 

on Juror No. 22. The trial court granted Young until the following 

morning to identify any relevant authority to support the motion for 

mistrial. The next morning, Young renewed his motion for mistrial 

and offered a 2003 Court of Appeals case holding that it was error 

to allow a jailer to serve as a juror.5 After the State argued in 

response that this Court’s holding in Willis v. State, 304 Ga. 686 (820 

 5 See Kier v. State, 263 Ga. App. 347, 348-49 (1) (587 SE2d 841) (2003) 

(recognizing that corrections officers are not subject to automatic removal for 

cause but reversing conviction for including in the panel of potential jurors a 

jailer who was employed at the jail where the defendant was incarcerated), 

overruled in part by Willis v. State, 304 Ga. 686 (820 SE2d 640) (2018).
11

SE2d 640) (2018), changed the way for-cause challenges are 

analyzed and that Young cured any problem by using a peremptory 

strike to strike Juror No. 22, the trial court denied Young’s motion. 

The State now argues that, because Young did not obtain a 

ruling on his motion to strike Juror No. 22 before the jury was 

empaneled, this enumeration was not preserved for appellate 

review. See Kennebrew v. State, 304 Ga. 406, 408 n.2 (819 SE2d 37) 

(2018) (“[L]egal issues must be raised and ruled on below in order to 

be properly considered on appeal.”). However, pretermitting 

whether this issue was preserved for ordinary appellate review and 

pretermitting whether the trial court erred in denying a challenge 

for cause, Young cannot show harm under our holding in Willis. In 

that case, we relied on the United States Supreme Court’s holding 

that “peremptory challenges to prospective jurors are not of 

constitutional dimension” and are instead “one means to achieve the 

constitutionally required end of an impartial jury” to conclude that 

the erroneous denial of a motion to excuse a prospective juror is 

harmless where the juror is subsequently removed by the use of a 
12

peremptory strike. Willis, 304 Ga. at 704 (11) (a) (citation and 

punctuation omitted). Thus, to prevail on a claim that a challenged 

juror should have been removed for cause, an appellant must show 

harm, which, in this context, requires an appellant to demonstrate 

that a challenged juror who served on the jury was unqualified. See 

Jackson v. State, 314 Ga. 751, 758 (2) (879 SE2d 410) (2022).

Here, it is undisputed that Juror No. 22 did not sit on the jury, 

and Young has made no argument that any of the jurors who 

ultimately served on the jury were ever challenged or were

otherwise unqualified. Because Young obtained the relief that he 

requested with respect to Juror No. 22 not being seated on the jury

he cannot demonstrate the requisite harm, and his claim fails. See 

Stephens, 309 Ga. at 451 (2) (An “erroneous [ruling on] a challenge 

for cause affords no ground of complaint if a competent and unbiased 

jury is finally selected.” (citation and punctuation omitted)).

3. Young next argues that he received constitutionally 

ineffective assistance of counsel in several respects. We are not 

persuaded. 
13

To succeed on a claim of ineffective assistance of counsel, 

Young must show both that his counsel’s performance was deficient 

and that such deficiency prejudiced his defense. See Strickland v. 

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). To satisfy the deficiency prong, Young must demonstrate 

that his counsel “performed at trial in an objectively unreasonable 

way considering all the circumstances and in the light of prevailing 

professional norms.” Bacon v. State, 316 Ga. 234, 239 (3) (887 SE2d 

263) (2023) (citation and punctuation omitted). In doing so, Young 

must overcome “[a] strong presumption . . . that trial counsel’s 

performance was reasonable and that counsel’s decisions and 

choices at trial fell within the broad range of professional conduct as 

assessed from counsel’s perspective at the time of trial and under 

the specific circumstances of the case.” Id. (citation and punctuation 

omitted). To establish prejudice, Young “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.” Bates v. State, 313 Ga. 

57, 62 (2) (867 SE2d 140) (2022). In reviewing a trial court’s ruling 
14

on an ineffective assistance of counsel claim, “we accept the trial 

court’s factual findings and credibility determinations unless clearly 

erroneous, but we independently apply the legal principles to the 

facts.” Fuller v. State, 316 Ga. 127, 130 (2) (886 SE2d 798) (2023) 

(citation and punctuation omitted). If Young fails to satisfy either 

prong of the Strickland test, “this Court is not required to examine 

the other.” Bacon, 316 Ga. at 240 (3). 

(a) Young first asserts that trial counsel failed to properly

prepare for or support his motion to strike Juror No. 22 for cause, 

which he claims would have been granted, thereby avoiding the use

of a peremptory strike. However, as stated in Division 2, Young has 

not shown that any juror sworn to hear his case was not a legal and 

impartial juror. Therefore, pretermitting any deficiency in counsel’s 

performance, Young cannot show that any prejudice resulted from 

his counsel’s unsuccessful motion to strike. See Williams v. State, 

305 Ga. 776, 780 (2) (b) (827 SE2d 849) (2019) (because nothing in 

the record shows that any juror who ultimately served was not a 

legal and impartial juror, appellant cannot show that any prejudice 
15

resulted from counsel’s failure to object to the State’s motion to 

strike a prospective juror for cause). 

(b) Young next argues that his trial counsel “seemed wholly 

unprepared for and unfamiliar with the Georgia Rules of Evidence 

and the Evidence Code in general” and that counsel also displayed 

“an argumentative and combative attitude toward witnesses and the 

Court which wholly prejudiced Young’s case.”

At the motion for new trial hearing, Young’s trial counsel 

testified that he has been licensed to practice law in Georgia since 

1974 and estimated that he has tried approximately 800 jury trials, 

most of them felony cases. In this case, in addition to reviewing the 

police reports, counsel spoke with Young, Young’s brother, the 

owner of the house near the crime scene, and other witnesses who 

claimed to be present at the time of the shooting. Although he met 

with Young 15 to 20 times prior to trial, the conversations were “not 

productive,” as Young never told him what happened on the night of 

the shooting. Counsel explained that, although his tactics and 

demeanor may seem “offensive” to some, it is “how I get not guilty 
16

verdicts.”

Young also testified at the motion for new trial hearing and 

admitted that counsel visited him “about ten times” and that counsel 

went over the witness statements and discovery with him. In 

denying the motion for new trial, the trial court found Young’s 

testimony to be not credible and counsel’s testimony to be credible.

The trial court also found that trial counsel appeared to be well 

versed in the rules of evidence – as demonstrated by numerous 

successful objections – and the rules of professional conduct and that 

Young had failed to point to “any instances that could not reasonably 

be interpreted as either trial tactics or strategy.”

Although Young argues on appeal that “[c]ountless times, 

[counsel] contradicted himself, spoke over witnesses, and drew the 

ire of both the Office of the District Attorney and of the Court,” he 

provides no citations to the record and offers very little context to 

support these arguments. The only example Young offers with any 

detail is his counsel’s cross-examination of Davis. Young argues 

that, had counsel been prepared, he would have provided a certified 
17

copy of Davis’s prior conviction. However, Young has presented no 

evidence that Davis had a prior conviction, and this Court cannot 

conclude that Young’s trial counsel was deficient in failing to present 

evidence that has not been shown to even exist. See Thorpe v. State, 

304 Ga. 266, 268 (2) (818 SE2d 547) (2018) (“[Appellant] did not . . .

introduce any of [witness’s] alleged prior convictions into evidence 

at the motion for new trial hearing, and it was his burden to show 

deficient performance and prejudice through competent evidence, 

for a silent or ambiguous record is not sufficient to overcome the 

strong presumption of reasonable performance.” (citation and 

punctuation omitted)). Thus, Young has failed to meet his burden of 

showing that his trial counsel performed deficiently in this regard, 

and his claim of ineffective assistance on this ground fails.

(c) Young next asserts that trial counsel failed to timely request 

that his motion to suppress cell phone evidence be placed on the trial 

court’s calendar for a hearing. Young, however, provides no citation 

to the record in support of this claim, and it does not appear that a 

particularized motion to suppress cell phone evidence was ever filed 
18

in this case. Because counsel cannot be deficient for failing to 

request a timely hearing on a non-existent motion, Young has “failed 

to show that counsel’s performance was deficient in this respect, 

[and] has not carried his burden of demonstrating that his trial 

counsel was constitutionally ineffective.” Williams v. State, 315 Ga. 

797, 806 (2) (884 SE2d 877) (2023). Cf. Allen v. State, 348 Ga. App. 

595, 602-603 (1) (c) (824 SE2d 50) (“[A]bsent an unequivocal request 

to represent himself, the trial court did not err in failing to conduct 

a Faretta hearing, and thus trial counsel was not deficient for failing

to request such.”). 

We note further that on appeal, Young makes no specific 

argument to support why any cell phone evidence in this case was 

subject to suppression, so he fails to show that any such motion 

would have been successful even if filed. See Roseboro v. State, 308 

Ga. 428, 435 (2) (a) (841 SE2d 706) (2020) (“[B]ecause [the appellant] 

has not made a showing that had a motion been filed, the evidence 

would have been suppressed, . . . trial counsel was not deficient.”).

Indeed, the record shows that Young’s cell phone, which was 
19

abandoned at the scene, was never searched by the police, and 

Young lacked standing to suppress evidence from Anderson’s cell 

phone. See, e.g., Stinski v. State, 281 Ga. 783, 783-784 (1) (642 SE2d 

1) (2007).

(d) Young also argues that his counsel was unable to hear and 

understand the trial proceedings and would “just lean on Young to 

interpret for him what was going on” because he was “confused” and 

“couldn’t keep the details straight.” Again, Young provides no 

citations to the record to support this assertion. The only example 

he offered at the motion for new trial hearing was: “Like when the 

DA was talking to the witnesses and stuff like that he would ask me, 

like, what they say, what she say, I mean, and stuff like that.” In 

ruling on this claim, the trial court noted that Young’s testimony at 

the motion for new trial hearing on this point was not credible; that 

Young admitted his counsel was “mentally clear” about the case and 

“knew everything”; and that trial counsel credibly denied suffering 

from any hearing loss or lack of clarity during the trial. 

Young has failed to show that the trial court’s factual and 
20

credibility findings in this regard were clearly erroneous. See Davis 

v. State, 306 Ga. 430, 432 (831 SE2d 804) (2019) (“The trial court 

was authorized to credit the testimony of the defendant’s counsel, 

and its factual findings and credibility determinations will be 

accepted unless clearly erroneous.” (citation and punctuation 

omitted)). Young has therefore “failed to defeat the strong 

presumption of counsel’s reasonable professional assistance,” Jones 

v. State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015), and thus has

not met his burden of showing that his trial counsel was 

constitutionally deficient in this regard, so this ineffectiveness claim 

fails as well. 

4. Young asserts that cumulative effect of the errors and 

deficiencies in his case denied him a fundamentally fair trial. We 

reject this assertion. 

“When considering the cumulative effect of presumed errors by 

trial counsel and the trial court, this Court considers collectively the 

prejudicial effect, if any, of trial court errors, along with the 

prejudice caused by any deficient performance of counsel.” Huff v. 
21

State, 315 Ga. 558, 568 (6) (883 SE2d 773) (2023) (citation and 

punctuation omitted). Even assuming that any error in seating 

Juror No. 22 is the kind of error that we can aggregate with 

evidentiary errors (which we have not identified here) or trialcounsel deficiencies (one of which we have presumed), Young has not 

provided any argument or otherwise “demonstrated a reasonable 

probability that, but for these [alleged] failures, the outcome of the 

proceeding would have been different.” Payne v. State, 314 Ga. 322, 

334 (4) (877 SE2d 202) (2022) (cumulative effect of a presumed clear 

error by the trial court not giving an accomplice corroboration 

charge, a presumed deficiency by trial counsel for not requesting 

that charge, and a presumed deficiency by trial counsel for not 

objecting to hearsay was insufficient to establish cumulative error); 

see also State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] 

defendant who wishes to take advantage of the [cumulative error 

rule] should explain to the reviewing court just how he was 

prejudiced by the cumulative effect of multiple errors.”).

Judgment affirmed. All the Justices concur.