                             FOURTH DIVISION
                               DILLARD, C. J.,
                         DOYLE, P. J., and MERCIER, J.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                     October 25, 2018




In the Court of Appeals of Georgia
 A18A0828. CROMER v. THE STATE.                                                DO-028 C

       DOYLE, Presiding Judge.

       Following a jury trial, Tomdrick L. Cromer was convicted of armed robbery,1

aggravated assault,2 criminal trespass,3 and possession of a firearm by a convicted

felon during a felony4 (two counts). He appeals from the denial of his motion for new

trial, contending that (1) he received ineffective assistance of counsel, and (2) the trial




       1
           OCGA § 16-8-41 (a).
       2
           OCGA § 16-5-21 (a) (2).
       3
           OCGA § 16-7-21 (a).
       4
           OCGA § 16-11-133 (b) (1).
judge erred by failing to sua sponte recuse following an ex-parte communication with

the State about his case.5 Finding no reversible error, we affirm.

         Construed in favor of the verdict,6 the evidence shows that in December 2013,

Cromer told his girlfriend, with whom he lived, that he was going out to get cigarettes

and to see his friend, James Roney. With his girlfriend’s permission, Cromer left in

her black Ford F-150, telling her that he would have Roney work on the brakes in the

truck.

         Meanwhile, Curtis Smith was finishing up a night of bowling with his league.

As Smith walked to his car in a covered parking area, he noticed two men walking

through the parking area, momentarily losing sight of them until he saw one reappear,

approaching him with a gun, saying, “Don’t look at me. Turn around.” The gunman

ordered Smith to give him his phone and wallet, Smith complied, and then the

gunman fled. The robbery was witnessed by at least two other league members, but

none of them were able to visually identify the gunman. Two league members chased

the gunman, who continued his flight while exchanging gunfire with one league

         5
         Cromer initially enumerated a third error based on post-trial precedent in Olds
v. State, 299 Ga. 65, 75-76 (786 SE2d 633) (2016), but he withdrew this enumeration
in his reply brief.
         6
             See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

                                             2
member who was armed. The witnesses saw the gunman get picked up by a black

Ford F-150, which had been waiting nearby, idling with its lights off.

      Police responded to the scene, and shortly thereafter, pulled over the black Ford

F-150, which was on a road in the area and occupied by Cromer and Roney. The

officer told them that he had stopped the vehicle because there had been an armed

robbery involving a vehicle fitting the description of their truck. Roney replied that

“he had actually driven to the area to see if he could help, because he had heard

gunshots.” The officer obtained consent to search the truck and discovered suspected

cocaine in the console. The officer arrested Roney, found additional suspected

cocaine in his pocket, and impounded the truck.

      Continuing the investigation the next day, police discovered Smith’s wallet

under a car in a used car lot near the bowling alley. Underneath another car in the

same lot, an officer found a discarded pistol and Smith’s cell phone. The pistol was

in a condition showing that it had been fired until the magazine was empty, with the

slide locked back to the rear, exposing a portion of the barrel normally covered by the

slide. Later analysis matched the pistol to the ballistics evidence from the scene of the

shootout and matched a fingerprint on the pistol with Cromer. Cromer’s fingerprint



                                           3
also was found on an interior portion of the truck door inaccessible with the door

shut.

        Based on the police investigation, Cromer (jointly with Roney) was charged

with multiple offenses arising from the robbery and shootout. Following a jury trial,

Cromer was found guilty of committing armed robbery, aggravated assault, criminal

trespass, and possession of a firearm by a convicted felon during a felony. Cromer

unsuccessfully moved for a new trial, and he now appeals.

        1. Cromer contends that he received ineffective assistance of counsel because

his trial counsel failed to engage and call an expert to refute testimony by the State’s

witness that the fingerprint on the pistol was in a place that was only exposed after

all of the ammunition was fired from the gun. We disagree.

              To establish that his trial counsel was constitutionally ineffective,
        [Cromer] was required to prove both deficient performance by counsel
        and resulting prejudice. To prove deficient performance, [Cromer] had
        to demonstrate that counsel performed his duties in an objectively
        unreasonable way, considering all the circumstances and in the light of
        prevailing professional norms. Because judicial scrutiny of counsel’s
        performance must be highly deferential, the law recognizes a “strong
        presumption” that counsel performed reasonably, and the defendant
        bears the burden of overcoming this presumption. To carry this burden,
        [Cromer] must show that no reasonable lawyer would have done what

                                            4
      his counsel did, or failed to do what his counsel did not do. 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.


             Even if a defendant can prove that his counsel’s performance was
      deficient, he must also prove prejudice by showing a reasonable
      probability that, but for counsel’s unprofessional errors, the result of the
      proceeding would have been different. It is not enough to show that the
      errors had some conceivable effect on the outcome of the proceeding.
      Rather, the defendant must demonstrate a “reasonable probability” of a
      different result, which, the United States Supreme Court has explained,
      is “a probability sufficient to undermine confidence in the outcome.” In
      all, the burden of proving a denial of effective assistance of counsel is
      a heavy one.7


      Turning to the facts in this case, Cromer admitted that the gun involved in the

robbery belonged to him , and the State endeavored to show that the fingerprint found

on the gun was not a leftover print from a time when the gun was in Cromer’s

possession apart from the robbery. The State called a witness who explained that the

fingerprint on the pistol matching Cromer’s could not have been a leftover print


      7
         (Citations and punctuation omitted.) Smith v. State, 298 Ga. 406, 412 (3) (a)
(782 SE2d 269) (2016), quoting Strickland v. Washington, 466 U. S. 668, 687, 694
(III) (B) (104 SCt 2052, 80 LE2d 674) (1984).

                                           5
because it was in a place only exposed when the slide was pulled or locked back, the

pistol’s slide would leave marks on the print during operation, and the heat from

firing the weapon would destroy any leftover prints in that location. On appeal,

Cromer argues that his trial counsel should have called an expert witness to refute this

testimony and explain how that print might have survived multiple shots being fired.

      At the motion for new trial hearing, Cromer’s new counsel proffered expert

testimony from a former firearm examiner at the Georgia Bureau of Investigation who

opined that the fingerprint at issue “would [survive] the heat” generated by several

shots being fired. But Cromer’s proffered expert never examined the pistol used in

this case and could not have addressed the fact that the slide would have marked or

damaged the fingerprint had it been left prior to the shootout at the robbery. When

Cromer’s trial counsel was asked about his approach to challenging the State’s expert

testimony, trial counsel explained that he had hired a fingerprint expert to advise him

on the case. Based on what trial counsel learned from the expert, including that the

evidence “would . . . have some linkage there between the fingerprint and a possible

person operating the gun,” he decided for strategic reasons not to “run away” from

the fingerprint evidence, instead pointing out that the fingerprint could have been

from a different occasion.

                                           6
             It is well established that the decision as to which defense
      witnesses to call is a matter of trial strategy and tactics. In particular, the
      decision of how to deal with the presentation of an expert witness by the
      opposing side, including whether to present counter expert testimony,
      to rely upon cross-examination, to forego cross-examination and/or to
      forego development of certain expert opinion, is a matter of trial strategy
      which, if reasonable, cannot be the basis for a successful ineffective
      assistance of counsel claim.8


Based on the record before us, including testimony from Cromer’s trial counsel about

his strategic reasons for not calling an expert, we discern no basis for reversal.

      2. Cromer next contends that his due process right to a fair trial was violated

when the trial court failed to sua sponte recuse himself due to alleged ex-parte

communications with the State revealing a bias against Cromer. We disagree.

      At the motion for new trial hearing, which hearing was heard by a different

superior court judge, Cromer presented evidence that after his conviction in this case,

his trial counsel was contacted by another attorney who, while doing unrelated work,

happened to encounter courtroom video depicting the trial judge in this case speaking




      8
       (Punctuation omitted.) Davis v. State, 342 Ga. App. 889, 895-896 (2) (806
SE2d 3) (2017).

                                            7
informally with the State’s attorneys in open court about the schedule for the next

week’s trial (i.e., Cromer’s trial). The following conversation ensued.

      Trial judge: Seventeen witnesses? Really?


      State: We may be able to cut it down a little bit.


      Trial judge: Nowadays it seems like more is better, unfortunately.


      State: The thin-to-win strategy is a preferable strategy at trial.


      [Brief mention of the presence of similar transaction evidence.]


      Trial judge: Well, hopefully this jury does the right thing. Had some
      unusual cases lately, unusual juries.


      State: Yeah, it’s hard to get a fair shake in Cobb County.


      Trial judge: God, that was crazy. That one was crazy. . . . [T]he whole
      time I was saying you’re putting too much evidence on, you’re making
      a mountain out of a mole hill. I couldn’t believe . . . they weren’t going
      to convict on the [testimony from the] cop. I did not believe it on the
      EMT. I was really surprised by that. That was kind of . . . crazy.




                                          8
Apart from this colloquy, Cromer points to no evidence of bias in the hearing of his

case, including the conduct of trial and the sentencing by the trial court.9

      Cromer contends that the above exchange, which occurred without the

presence or knowledge of defense counsel, reveals the presence of actual bias against

Cromer that deprived him of his right to a fair trial under the Due Process Clause.

             A trial judge generally ought not give advice to a lawyer about
      trial strategy in a case in which the judge is presiding. At least in some
      circumstances, the giving of such advice could create an appearance of
      partiality, which is a proper ground for a motion to recuse under our
      Code of Judicial Conduct. And for the purposes of this appeal, we will
      assume — without deciding — that the conversation in [open court]
      created such an appearance of partiality. But not every violation of the
      Code of Judicial Conduct implicates the constitutional guarantee of due
      process. . . . [T]he Due Process Clause demarks only the outer
      boundaries of judicial disqualifications, and generally speaking, the
      codes of judicial conduct provide more protection than due process
      requires. Accordingly, the constitutional standard for judicial
      disqualification is confined to rare instances. . . .


             [D]ue process is concerned with actual bias, and absent a showing
      of actual bias, due process requires recusal only in particular


      9
        Cf. Barnett v. State, 300 Ga. 551, 555 (2) (796 SE2d 653) (2017) (“[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.”)
(punctuation omitted).

                                           9
      circumstances in which the probability of actual bias on the part of the
      judge or decisionmaker is too high to be constitutionally tolerable. For
      instance, due process may require recusal when a judge has a direct
      pecuniary interest in the outcome of a case, when a judge has an
      indirect, but substantial, pecuniary interest in the outcome, when a judge
      has executive responsibilities for the finances of an organization with a
      direct pecuniary interest in the outcome, when a person with a personal
      stake in a particular case had a significant and disproportionate
      influence in placing the judge on the case by raising funds or directing
      the judge’s election campaign when the case was pending or imminent,
      when a judge personally was responsible for the bringing of the charges
      to be tried, and when a judge has been so personally vilified by a party
      charged with contempt as to necessarily become embroiled in a running,
      bitter controversy with the contemnor.10


When determining whether there is a due process violation, a reviewing court looks

at “whether, as an objective matter, the average judge in his position is likely to be

neutral, or whether there is an unconstitutional potential for bias.”11

      Here, there is no allegation nor any evidence that the trial judge in this case had

a personal or pecuniary interest in the case or any relationship to a party such that


      10
        (Citations and punctuation omitted, emphasis in original.) Pyatt v. State, 298
Ga. 742, 751-752 (5) (784 SE2d 759) (2016).
      11
       (Punctuation omitted.) Williams v. Pennsylvania, 579 U. S. __ , __ (II) (A)
(136 SCt 1899, 195 LE2d 132) (2016).

                                          10
Cromer’s due process interest was implicated. With respect to the particular

comments at issue, the better practice would be to avoid such discussions, particularly

with attorneys appearing before the court. Nevertheless, the trial judge’s comments

essentially addressed certain witness testimony in an unrelated trial that already had

concluded. Even if the judge’s comments reflected his view on the credibility of a

particular police officer’s testimony in the unrelated trial, the comments did not

amount to an opinion that all law enforcement testimony should be believed or that

it should be believed in Cromer’s case. Likewise, the comments about the jury doing

the “right thing” did not state what the “correct” outcome should be with respect to

any particular case, including Cromer’s.

      In sum, despite Cromer’s well-made argument to the contrary, the record does

not reveal an unacceptable risk of bias such that the average judge in this

circumstance is not likely to be neutral.12

      12
         See Pyatt, 298 Ga. at 749-753 (5). Cromer also argues that a new trial is
necessary in light of State v. Wakefield, 324 Ga. App. 587 (751 SE2d 199) (2013),
which affirmed the grant of new trials based on the discovery that the trial judge had
engaged in an affair with a public defender who appeared before the judge. See id.
at 594 (2) (c). Wakefield was based on the mandatory recusal standard in Canon 3 (E)
of the Code of Judicial Conduct, which is implicated when a trial judge’s impartiality
might reasonably be questioned based on, e.g., a personal bias concerning a party or
an attorney. In light of the stark difference between the conduct at issue in Wakefield
and in this case, we find Cromer’s argument unpersuasive.

                                           11
Judgment affirmed. Dillard, C. J., and Mercier, J., concur.




                                  12
