CourtListener 10680296

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In the Supreme Court of Georgia

Decided: July 2, 2024

S24A0532. TAVAREZ v. THE STATE.

PETERSON, Presiding Justice.

Edward Tavarez appeals his convictions for malice murder and

other offenses arising from the shooting of Travis Ridley during a

putative drug deal. 1 Tavarez argues that his trial counsel rendered

1 Ridley was shot on June 1, 2017. On November 27, 2018, a DeKalb

County grand jury returned an indictment against Tavarez, Abel Asmelash,
and Jeanmarie Gonzalez. The indictment charged Tavarez with malice
murder, three counts of felony murder, criminal solicitation, two counts of
armed robbery (naming Ridley as the victim in one count and Erica Shavers as
the victim in the other), aggravated assault, and possession of a firearm during
the commission of a felony. It charged Asmelash with those crimes and others,
and it charged Gonzalez with making a false statement. Gonzalez’s case was
severed prior to a trial of Asmelash and Tavarez that took place in January
2019. Asmelash’s case was severed from Tavarez’s during the January 2019
trial; according to a brief to this Court filed by the State, Asmelash was later
convicted of malice murder and sentenced to life without the possibility of
parole. Tavarez was found guilty of all charges against him. On March 5, 2019,
the trial court sentenced Tavarez to life without the possibility of parole for
malice murder, a consecutive three-year sentence for solicitation, two
consecutive life sentences for armed robbery, and a consecutive five-year
sentence for possession of a firearm during the commission of a felony; the
aggravated assault count merged with the malice murder count, and the felony
ineffective assistance by failing to object to hearsay testimony by a

detective that “bolster[ed]” the account of a key witness. He also

argues that the trial court erred by conducting the trial while

Tavarez’s legs were shackled, forcing him to choose between not

participating in bench conferences or the jury seeing him in these

restraints. We conclude that Tavarez has not shown that any

deficient performance of counsel in failing to object to the detective’s

testimony prejudiced Tavarez’s defense. Tavarez failed to preserve

his claim about the shackling itself, and he has not shown that he

was excluded from any particular bench conference at which he had

a right to be present. We therefore affirm.

The evidence admitted at trial showed the following. 2 On June

murder counts were vacated by operation of law. Prior to his sentencing,
Tavarez filed a premature motion for new trial, which ripened upon entry of
the final disposition order. See Johnson v. State, 316 Ga. 672, 672 n.1 (889
SE2d 914) (2023). The motion was amended by appellate counsel on March 15,
2023. In an order entered on July 20, 2023, following a hearing, the trial court
denied the motion for new trial. A notice of appeal was filed on August 15,
2023. The case was docketed to this Court’s April 2024 term and submitted for
a decision on the briefs.
2 Because this case involves a question of prejudice under Strickland v.

Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), we recount the
trial evidence in some detail, weighing the evidence as we would expect

2
1, 2017, Ridley was fatally shot in the breezeway of an apartment

complex. Ridley’s on-and-off-again girlfriend, Erica Shavers, gave

the following account at trial. On the day of the shooting, Ridley

picked up Shavers at her home, carrying a bag of $26,000 in cash.

Based on what she overheard, Shavers understood that Ridley

planned to purchase some marijuana. Ridley and Shavers drove in

his purple Dodge Challenger to a building in which Ridley was

attempting to open some sort of store. Ridley’s friend, known as “Q,”

appeared at the store, with a money-counting device. A little later,

Abel Asmelash and Rafael Nin-Polanco appeared in a silver

Mercedes.3 Ridley and Shavers followed the silver Mercedes to a gas

station. While Ridley and Shavers were at the gas station, Q brought

Ridley a gun at Ridley’s request. Ridley and Shavers then followed

reasonable jurors to have done, rather than in the light most favorable to the
verdicts. See Harmon v. State, __ Ga. __, __ (1) n.2 (__ SE2d __) (Case No.
S24A0158, decided June 11, 2024).
3 Shavers identified Asmelash in court but never identified Nin-Polanco

by name, instead referring to him by the hat that he wore. During Shavers’
testimony, the prosecutor began referring to the man who was driving with
Asmelash as Nin-Polanco, and Shavers did not correct him. Shavers did make
clear in her testimony that Tavarez was not one of the men she saw at the
store. Shavers initially said that the Mercedes looked white to her, but then
went along with the prosecutor’s description of it and referred to it as silver.
3
the silver Mercedes to the parking deck of a DeKalb County

apartment complex. While Ridley and Shavers waited in the car,

Asmelash left the parking deck via an apartment-complex

breezeway, and Nin-Polanco drove away to let another individual

into the parking deck. After a few minutes, a different Mercedes (a

white one) driven by Tavarez entered the deck and parked.

Asmelash returned from the breezeway, entered the parked, white

Mercedes, and sat with Tavarez for a moment. Ridley, Shavers,

Asmelash, and Tavarez then got out of their cars and all walked into

the breezeway, with Tavarez walking ahead and Shavers carrying

the bag of money. Once in front of a particular apartment that

Tavarez claimed was his, Tavarez pulled out a gun, stated, “you

think it’s a game,” and demanded that Ridley turn over his phone,

watch, and everything in his pocket. Asmelash took the bag of money

out of Shavers’s hand and “vanished.” Ridley threw his watch,

phone, and the cigarette pack that had been in his pocket on the

ground. Tavarez then shot Ridley multiple times, with Ridley

returning fire as he fell to the ground.

4
Aspects of Shavers’s testimony were corroborated by video

surveillance recordings from a parking lot outside the store, two gas

stations, and the apartment complex, which were played for the

jury, although none of these recordings showed Ridley’s encounter

with Tavarez. The surveillance video captured Ridley arriving at the

store on the day of the shooting and showed him carrying a small,

white, drawstring bag and cell phone and wearing a watch, and the

video showed him still carrying the bag and cell phone and wearing

a watch after he reemerged from the store.

A tag for the white Mercedes showed that the car was

registered to Jeanmarie Gonzalez, but Tavarez recently had been

stopped by police driving that car, and his connection to Gonzalez

was evidenced by social media. According to a detective, Shavers

identified Tavarez in a photo lineup.

A Taurus handgun found underneath Ridley’s body contained

14 rounds, out of a maximum capacity of 15. One shell casing and

one bullet fragment collected at the scene of the shooting were fired

from that gun. A pack of cigarettes was found at the scene, but

5
Ridley’s cell phone, watch, and bag of money never were recovered

by police.

The medical examiner identified the cause of death as gunshot

wounds to the torso and extremities. The evidence showed that one

of Ridley’s wounds, a gunshot wound to the foot, was self-inflicted.

Text messages between Tavarez and Gonzalez showed that

Gonzales texted Tavarez the day before the shooting saying she was

concerned about paying rent, and he texted her hours after the

shooting, telling her not to “worry about rent.”

Tavarez did not testify, although he gave a pre-trial statement

that was played for the jury, telling officers that he was supposed to

sell marijuana to Ridley on behalf of “Rafael,” so he could make his

rent, and that he was not trying to rob Ridley. Tavarez stated that

Ridley pulled his gun and shot at Tavarez first, and that Tavarez

shot Ridley in self-defense.4 His lawyer maintained a justification

4 It is not entirely clear which portions of the statement contained in the

6
defense at trial.

1. Tavarez argues that counsel was ineffective for failing to

object to testimony by a detective repeating statements by Shavers,

thereby “bolstering” her testimony. We disagree.

Detective Corey Van Alen testified at trial about various

matters. Although by that point Shavers already had testified at

length, a significant portion of Detective Van Alen’s testimony

involved relaying what Shavers told him about events leading up

the shooting, including that when Tavarez stopped in front of a

particular apartment door, he turned around with a gun. Trial

counsel did not object until the detective was asked what Shavers

said was in the bag that she was carrying as she walked down the

apartment complex breezeway, and the detective answered that

Shavers said it contained $26,000 in cash. Tavarez’s counsel

being severed from Tavarez’s case midtrial. To the extent there is any
ambiguity in the record about what parts of Tavarez’s statement were played
for the jury, that does not help Tavarez, who bears the burden of establishing
that counsel was constitutionally ineffective. See Payne, 314 Ga. at 328-329
(3); see also Rodriguez v. State, 295 Ga. 362, 368 (2) (b) n.11 (761 SE2d 19)
(2014) (any ambiguity in the record does not help the appellant, who bears the
burden of showing error in the record on appeal).
7
objected on hearsay grounds, and Asmelash’s counsel interjected

that the testimony amounted to bolstering, an objection with which

Tavarez’s counsel agreed. The State responded that this was “all

part of the course of the investigation which is necessary to complete

the story for the jury.” The trial court stated that it would overrule

the objection “at this time” but instructed the prosecutor to

“narrowly focus on what you want him to testify to.” As the

prosecutor continued to have the detective narrate what happened

just prior to the shooting (albeit without saying explicitly that

Shavers was the source of his knowledge), Asmelash’s counsel stated

that she had the “same objection,” an unrecorded bench conference

was conducted, and the trial court sustained the objection.

Asmelash’s counsel raised a similar objection a few questions later,

and the objection again was sustained after an off-the-record bench

conference, with Tavarez’s counsel noting on the record that he had

joined in the objection. The trial court sustained an objection to

similar testimony soon after without Asmelash’s counsel even

stating the basis for her objection.

8
To prove his claim of ineffective assistance of counsel, Tavarez

must show that counsel’s performance was deficient and that

counsel’s deficient performance prejudiced Tavarez’s defense. See

Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d

674) (1984). “If [a defendant] fails to establish one of these two

prongs, we need not examine the other.” Payne v. State, 314 Ga. 322,

328 (3) (877 SE2d 202) (2022) (citation and punctuation omitted).

“To show deficient performance, the defendant must demonstrate

that counsel performed counsel’s duties in an objectively

unreasonable way, considering all of the circumstances and in the

light of prevailing professional norms.” Id. at 328-329 (3) (citation

omitted). “To establish prejudice, [a defendant] must show that

there is a reasonable probability that, but for counsel’s

unprofessional error, the result of the proceeding would have been

different.” Id. at 329 (3) (citation and punctuation omitted). “When

evaluating whether an appellant has established prejudice under

Strickland, we review the record de novo and weigh the evidence as

we would expect reasonable jurors to have done rather than in the

9
light most favorable to the verdict.” Harmon v. State, __ Ga. __, __

(3) (__ SE2d __) (Case No. S24A0158, decided June 11, 2024)

(citations and punctuation omitted).

Tavarez argues on appeal that the failure to object sooner to

the detective’s testimony relaying what Shavers told him

constituted ineffective assistance of counsel because the testimony

was hearsay and constituted “improper bolstering” of Shavers’s

testimony. But even assuming that counsel performed deficiently in

failing to object to the detective’s testimony about what Shavers told

him, Tavarez has not shown that he was prejudiced by this failure.

Even without the detective’s testimony about what Shavers told

him, the evidence against Tavarez still was very strong. Shavers

testified that Tavarez pulled out a gun once they reached a

particular apartment and demanded Ridley turn over his valuables,

while an accomplice grabbed the bag of money that Shavers had

been holding. Shavers testified that Ridley did not shoot at Tavarez

first, as Tavarez claimed, but rather returned fire after he had fallen

to the ground. Shavers’s story was consistent with surveillance video

10
recordings showing Ridley with a small drawstring bag, cell phone,

and watch earlier in the day. Moreover, Tavarez admitted in his

statement played for the jury that he shot Ridley. 5 The evidence that

Ridley had a cell phone, watch, and bag prior to the shooting that

disappeared before police responded, as well as the evidence of

Tavarez’s communication to Gonzalez shortly after the shooting

(from which the jury could infer that Tavarez had found a solution

to her financial concerns), supported Shavers’s story that Tavarez

attempted to rob Ridley and undermined Tavarez’s story that he was

merely trying to sell Ridley some marijuana.6

5 Even under Tavarez’s version of events, he could not justify his shooting

of Ridley by claiming self-defense, given that the shooting happened while he
was admittedly attempting to sell Ridley marijuana, which is a felony. See
OCGA § 16-3-21 (b) (2) (a person is not justified in using force against another
in self-defense if the person using force is committing, attempting to commit,
or fleeing after the commission of a felony); OCGA § 16-13-30 (j) (selling
marijuana is a felony). But putting aside whether the jury charge on criminal
solicitation alerted the jury that Tavarez’s putative attempt to sell drugs to
Ridley would amount to a felony, it does not appear that the jury was
instructed that deadly force is not justified when used by someone committing
or attempting to commit a felony. Therefore, we do not rely on this rule in
concluding that counsel’s failure to object to the testimony at issue did not
prejudice Tavarez’s defense.
6 Indeed, Tavarez acknowledged in his statement to police that Ridley’s

bag was taken during the shooting, although he disclaimed responsibility for
the theft.
11
Tavarez argues that in evaluating the harmful effect of a trial

court error in admitting hearsay that is consistent with the

speaker’s trial testimony, but not properly admitted as prior

consistent statements within the meaning of the Evidence Code, we

“cannot look to [the witness’s] improperly bolstered testimony to

show that the bolstering error was harmless.” Cowart v. State, 294

Ga. 333, 341-342 (4) (b) (751 SE2d 399) (2013) (citation and

punctuation omitted). But as we recently explained, that rule does

not apply where, as here, the claim at issue is one of ineffective

assistance of counsel and the applicable standard is whether “the

defendant has established a reasonable probability that the result

of the trial would have been different absent counsel’s deficient

performance.” Harmon v. State, __ Ga. at __ (3) n.7 (citation and

punctuation omitted). Although the testimony in question by

Detective Van Alen may have added some weight to Shavers’s

testimony in suggesting to the jury that Shavers’s testimony was

consistent with her prior statements, he did not bolster her

testimony in the sense that he directly addressed her credibility in

12
violation of OCGA § 24-6-620. See Richardson v. State, __ Ga. __, __

(2) (a) (899 SE2d 685) (2024) (“When a witness’s statement does not

directly address the credibility of another witness . . . , there is no

improper bolstering.” (citation and punctuation omitted)). And even

if Tavarez’s counsel had successfully objected to the detective’s

testimony recounting what Shavers had told him, the jury still

would have heard Shavers’s live testimony, as well as Tavarez’s own

statement admitting to the shooting, and the other evidence of

Tavarez’s guilt. See Harmon, __ Ga. at __ (3) n.7. Given this

evidence, Tavarez has not established a reasonable probability of a

different result absent trial counsel’s assumed deficient

performance in not objecting to the detective’s testimony about what

Shavers told police. See id. at __ (3); Henderson v. State, 304 Ga. 733,

738 (3) (d) (822 SE2d 228) (2018) (concluding that defendant failed

to establish Strickland prejudice from counsel’s failure to object to

hearsay based on both strength of evidence of guilt and because

hearsay was merely cumulative of trial testimony of declarant).

2. Tavarez’s only other enumeration of error is that the trial

13
court erred by conducting the trial while Tavarez’s legs were

shackled. We conclude that Tavarez has not shown reversible error

on this point.

The record shows that Tavarez’s trial was conducted with both

Tavarez and his co-defendant, Asmelash, in leg restraints. The only

discussion of this in the trial transcript occurred in the middle of the

trial, with no obvious prompting, when the trial court stated to the

two defendants outside of the presence of the jury: “[T]he deputy has

put leg restraints on you. This is just for safety measures because

you’re going to remain seated the whole time, so you may want to

slide closer to the table so that those cannot be seen. This is just for

— to accommodate the Court.” At the motion for new trial hearing,

Tavarez’s appellate counsel raised this issue, and the trial court

responded that the use of leg shackles during the trial of criminal

cases was a standard safety protocol in his particular courtroom,

noting the use of table skirts to keep the restraints hidden from

jurors’ view.

Although his briefing on this enumeration of error is limited,

14
Tavarez essentially argues that the trial court erred in restraining

Tavarez’s legs because, although the shackles may have been hidden

when Tavarez was seated at counsel table, he had to choose between

forgoing participation in bench conferences or being seen by the jury

in restraints. There is no record of Tavarez having objected to the

shackling at trial, which leaves nothing for this Court to review as

far as the shackling itself. See Munn v. State, 313 Ga. 716, 723-724

(4) (873 SE2d 166) (2022) (holding that because counsel did not

make a specific objection to shackling of the defendant at trial, “this

issue is not preserved for review, and this enumeration of error

fails”).7 Tavarez’s argument that the trial court erred by conducting

7 Tavarez’s failure to object means that we do not consider whether the

15
bench conferences outside of his presence cannot be disposed of so

simply, however.

Although Tavarez is not clear whether he brings his right-to-

be-present claim under the federal or state constitution, both

guarantee criminal defendants the right to be present at certain

proceedings against them. See United States v. Gagnon, 470 U.S.

522, 526 (105 SCt 1482, 84 LE2d 486) (1985) (“The constitutional

right to presence is rooted to a large extent in the Confrontation

Clause of the Sixth Amendment, but we have recognized that this

right is protected by the Due Process Clause in some situations

where the defendant is not actually confronting witnesses or

evidence against him.” (citation omitted)); Pennie v. State, 271 Ga.

419, 421 (2) (520 SE2d 448) (1999) (citing Ga. Const. of 1983, Art. I,

Sec. I, Para. XII for right to be present claim). But this right does

at trial, and whether less visible alternatives could achieve the required level
of security); compare Potts v. State, 259 Ga. 96, 100 (3) (376 SE2d 851) (1989)
(no error in shackling defendant’s legs where considerable record evidence
supported the trial court’s finding that extra security measures with particular
defendant were justified, and steps were taken to shield shackles from view of
jury).
16
not encompass all aspects of a criminal trial. The United States

Supreme Court has said the federal due process right of presence “is

not guaranteed when presence would be useless, or the benefit but

a shadow[.]” Kentucky v. Stincer, 482 U.S. 730, 745 (107 SCt 2658,

96 LE2d 631) (1987) (citation and punctuation omitted). Rather,

federal due process “requires that a defendant be allowed to be

present to the extent that a fair and just hearing would be thwarted

by his absence,” such that “a defendant is guaranteed the right to be

present at any stage of the criminal proceeding that is critical to its

outcome if his presence would contribute to the fairness of the

procedure.” Id. (citation and punctuation omitted). Similarly, the

Georgia constitutional right to be present attaches where “the

defendant’s presence would contribute to the fairness of the

procedure.” Nesby, 310 Ga. at 758 (2) (citation and punctuation

omitted). In particular, we have said that a defendant’s absence from

bench conferences ordinarily does not violate his right to be present

under the Georgia Constitution; “[b]ench conferences pertaining to

purely legal issues, such as the admissibility of evidence, ordinarily

17
do not implicate the right to be present.” Id. at 759 (2) (citation and

punctuation omitted); see also United States v. Vasquez, 732 F2d

846, 848 (11th Cir. 1984) (“The [federal] right to be present at every

stage of trial does not confer upon the defendant the right to be

present at every conference at which a matter pertinent to the case

is discussed, or even at every conference with the trial judge at

which a matter relative to the case is discussed.”); but see Heywood

v. State, 292 Ga. 771, 774-775 (3) (743 SE2d 12) (2013) (concluding

that, although defendant was entitled to be present at particular

bench conference about whether to replace prospective jurors, he

acquiesced in his counsel’s waiver of his right).8

8 In support of his right-to-be-present claim, Tavarez cites only Georgia

state appellate decisions, although at least one of those cases references both
federal and state case law in its analysis of a right-to-be-present claim. We
have said that this Court’s interpretation of the Georgia right to be present
“has always been in accord” with the United States Supreme Court’s
recognition of the federal right. Smith v. State, 298 Ga. 406, 409 (2) (782 SE2d
269) (2016) (citation and punctuation omitted). “Of course, the United States
Supreme Court’s construction of a federal constitutional provision does not
bind our construction of a similar Georgia constitutional provision, which must
be construed independently in the light of the Georgia provision’s text, context,
and history.” Rockdale County v. U.S. Enterprises, Inc., 312 Ga. 752, 761 (3)
n.10 (865 SE2d 135) (2021). Here, the federal and state rights to be present are
rooted in wholly different provisions. But Tavarez makes no argument that the

18
Here, Tavarez has pointed to no particular bench conference

that he contends he was excluded from in violation of his right to be

present, let alone made a record as to what was discussed at any

bench conference conducted in his absence to show that the

discussion was of the sort that implicated his right to be present.

Mere speculation about what happened at a bench conference

cannot serve as the basis for the grant of a new trial on the ground

that the defendant’s right to be present was violated. See Nesby, 310

Ga. at 759 (2). And Tavarez does not even attempt to speculate as to

what occurred at the bench conferences that he now contends he had

the right to attend. Even assuming that shackling amounted to a

constructive exclusion of Tavarez from bench conferences, Tavarez’s

failure to make a showing that any bench conference from which he

was excluded implicated his right to be present precludes success on

a right-to-be-present claim. See Reed v. State, 314 Ga. 534, 544 (3)

(a) (ii), 545 (3) (b) (878 SE2d 217) (2022) (no reversible error based

Fourteenth Amendment affords him a right to be present that is materially
broader than that afforded him by Article I, Section I, Paragraph XII of the
Georgia Constitution.
19
on right-to-be-present claim as to certain bench conferences where

defendant made no effort on appeal to address conferences

individually to contest the trial court’s finding that the conferences

involved legal, procedural, or logistical matters such that they did

not implicate his right to be present); Prickett v. State, 314 Ga. 435,

442-443 (2) (877 SE2d 573) (2022) (defendant failed to show his

constitutional right to be present was violated where he made no

attempt on appeal to address any particular bench conference at

issue or to contest as to any individual conference the trial court’s

findings that that the bench conferences involved legal, procedural,

or logistical matters).9

Judgment affirmed. All the Justices concur.

9 Because Tavarez has not shown that his right to be present was even

implicated, we need not consider the trial court’s basis for rejecting his claim,
that Tavarez acquiesced in any inability to participate in bench conferences.
We also need not reach Tavarez’s argument on appeal that conducting bench
conferences outside his presence is a “structural error” such that he need not
show prejudice in order to obtain reversal of his conviction, an argument that
presumes that a violation of the right to be present occurred.
20
LAGRUA, Justice, concurring.

I join in full the Majority Opinion but write to caution trial

courts. “It is well established that no person should be tried while

shackled except as a last resort[,]” and, should a trial court utilize

shackles, the trial court must make “case-specific and individualized

findings to support its initial decision. . . .” Hill v. State, 308 Ga. 638,

644-645 (2) (a) (842 SE2d 853) (2020) (citation and punctuation

omitted). However, if the trial court made such findings here, they

are not in the record. And, at the motion for new trial hearing, the

trial court’s explanation for the use of shackles made no reference to

the specific circumstances of Tavarez and Asmelashs’ trial:

And it was the policy of this Court, once the jury has been
selected, to have the individuals have those leg shackles.
And it’s primarily so the Court of Appeals [and] Supreme
Court will know, will make everyone safe. And we’ve had
minimal incidents, at least in my courtroom, whereas
other courtrooms do have other problems, I haven’t had
it. . . . And so it’s for safety, just to make everybody safe. .
. . But I’ll just let the Court of Appeals know it’s really
about safety of the people in the courtroom at that point
in time. And I’m just expressing my opinion. I think it’s
important for me to have people safe when they are doing
their jobs. But everybody[’s] rights will be protected.

21
Case law makes clear that shackling should not be a general “policy”

as described by the trial court here. See Hill, 308 Ga. at 644 (2) (a);

see also Deck v. Missouri, 544 U.S. 622, 626 (II) (125 SCt 2007, 161

LE2d 953) (2005) (“The law has long forbidden routine use of visible

shackles during the guilt phase; it permits a State to shackle a

criminal defendant only in the presence of a special need.”). The fact

that a defendant, presumed to be innocent, is charged with a violent

offense is — in and of itself — insufficient to justify such restraint.

And if a trial court nonetheless decides to shackle a defendant, “the

record must provide a basis for [its security] determinations.” Hill,

308 Ga. at 644 (2) (a).

319 Ga. 480
FINAL COPY

S24A0532. TAVAREZ v. THE STATE.

PETERSON, Presiding Justice.

Edward Tavarez appeals his convictions for malice murder and

other offenses arising from the shooting of Travis Ridley during a

putative drug deal.1 Tavarez argues that his trial counsel rendered

1 Ridley was shot on June 1, 2017. On November 27, 2018, a DeKalb

County grand jury returned an indictment against Tavarez, Abel Asmelash,
and Jeanmarie Gonzalez. The indictment charged Tavarez with malice
murder, three counts of felony murder, criminal solicitation, two counts of
armed robbery (naming Ridley as the victim in one count and Erica Shavers as
the victim in the other), aggravated assault, and possession of a firearm during
the commission of a felony. It charged Asmelash with those crimes and others,
and it charged Gonzalez with making a false statement. Gonzalez’s case was
severed prior to a trial of Asmelash and Tavarez that took place in January
2019. Asmelash’s case was severed from Tavarez’s during the January 2019
trial; according to a brief to this Court filed by the State, Asmelash was later
convicted of malice murder and sentenced to life without the possibility of
parole. Tavarez was found guilty of all charges against him. On March 5, 2019,
the trial court sentenced Tavarez to life without the possibility of parole for
malice murder, a consecutive three-year sentence for solicitation, two
consecutive life sentences for armed robbery, and a consecutive five-year
sentence for possession of a firearm during the commission of a felony; the
aggravated assault count merged with the malice murder count, and the felony
murder counts were vacated by operation of law. Prior to his sentencing,
Tavarez filed a premature motion for new trial, which ripened upon entry of
the final disposition order. See Johnson v. State, 316 Ga. 672, 672 n.1 (889
SE2d 914) (2023). The motion was amended by appellate counsel on March 15,
2023. In an order entered on July 20, 2023, following a hearing, the trial court
ineffective assistance by failing to object to hearsay testimony by a

detective that “bolster[ed]” the account of a key witness. He also

argues that the trial court erred by conducting the trial while

Tavarez’s legs were shackled, forcing him to choose between not

participating in bench conferences or the jury seeing him in these

restraints. We conclude that Tavarez has not shown that any

deficient performance of counsel in failing to object to the detective’s

testimony prejudiced Tavarez’s defense. Tavarez failed to preserve

his claim about the shackling itself, and he has not shown that he

was excluded from any particular bench conference at which he had

a right to be present. We therefore affirm.

The evidence admitted at trial showed the following.2 On June

1, 2017, Ridley was fatally shot in the breezeway of an apartment

complex. Ridley’s on-and-off-again girlfriend, Erica Shavers, gave

denied the motion for new trial. A notice of appeal was filed on August 15,
2023. The case was docketed to this Court’s April 2024 term and submitted for
a decision on the briefs.
2 Because this case involves a question of prejudice under Strickland v.

Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), we recount the
trial evidence in some detail, weighing the evidence as we would expect
reasonable jurors to have done, rather than in the light most favorable to the
verdicts. See Harmon v. State, 319 Ga. 259, 260 (1) n.2 (__ SE2d __) (2024).
the following account at trial. On the day of the shooting, Ridley

picked up Shavers at her home, carrying a bag of $26,000 in cash.

Based on what she overheard, Shavers understood that Ridley

planned to purchase some marijuana. Ridley and Shavers drove in

his purple Dodge Challenger to a building in which Ridley was

attempting to open some sort of store. Ridley’s friend, known as “Q,”

appeared at the store, with a money-counting device. A little later,

Abel Asmelash and Rafael Nin-Polanco appeared in a silver

Mercedes.3 Ridley and Shavers followed the silver Mercedes to a gas

station. While Ridley and Shavers were at the gas station, Q brought

Ridley a gun at Ridley’s request. Ridley and Shavers then followed

the silver Mercedes to the parking deck of a DeKalb County

apartment complex. While Ridley and Shavers waited in the car,

Asmelash left the parking deck via an apartment-complex

3 Shavers identified Asmelash in court but never identified Nin-Polanco

by name, instead referring to him by the hat that he wore. During Shavers’s
testimony, the prosecutor began referring to the man who was driving with
Asmelash as Nin-Polanco, and Shavers did not correct him. Shavers did make
clear in her testimony that Tavarez was not one of the men she saw at the
store. Shavers initially said that the Mercedes looked white to her, but then
went along with the prosecutor’s description of it and referred to it as silver.
breezeway, and Nin-Polanco drove away to let another individual