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In the Supreme Court of Georgia

Decided: January 21, 2026

S25A1261. STAPLETON v. THE STATE.

WARREN, Presiding Justice.

Appellant Calvin Stapleton was convicted of malice murder in

connection with the shooting death of Andre Taylor.1 On appeal,

Stapleton contends he is entitled to a new trial because the bailiffs

at his trial were unsworn; his trial counsel rendered ineffective

1 Taylor was shot and killed on April 3, 2017. In June 2017, a Bibb
County grand jury indicted Stapleton for malice murder, felony murder
predicated on aggravated assault, aggravated assault, and three violations of
the Street Gang Terrorism and Prevention Act (Gang Act). At a jury trial in
August 2018, the jury found Stapleton guilty of malice murder, felony murder,
and aggravated assault, but found him not guilty of the three Gang Act counts.
Stapleton was sentenced to life in prison without the possibility of parole for
malice murder, and the trial court merged the felony murder and aggravated
assault counts. Stapleton timely filed a motion for new trial in August 2018
and amended it several times through new counsel, most recently in November
2024. In February 2025, the trial court amended Stapleton’s sentence,
recognizing that the felony murder count was vacated by operation of law
rather than merged, and denied his motion for new trial. Stapleton filed a
timely notice of appeal, and his appeal was docketed to this Court’s August
2025 term and submitted for a decision on the briefs.
assistance by failing to object to the admission of post-incision

autopsy photographs and evidence of his prior conviction; and the

trial court erred by denying his requested jury instruction on

voluntary manslaughter. For the reasons explained below, we

affirm.

1. The evidence presented at trial showed the following.

Despite belonging to rival gangs in Macon, Taylor—a leader of the

Westside Gangster Crips—and Stapleton—a member of the

Gangster Disciples—were “homeboys” from the same neighborhood.

On the evening of April 2, 2017, Stapleton visited Taylor’s “bootleg”

bar, where the two got into an “altercation.” Stapleton went to the

hospital that night with an arm injury.

The next day, several members of the Westside Gangster Crips,

including Sheldon Beard, were socializing in the vestibule of a

convenience store that was known as a “Crip hangout” in Macon.

Surveillance video from the convenience store showed that Taylor

eventually arrived in his car and went inside. Stapleton, who was

wearing a black shirt, blue jeans, and had his arm in a sling, entered

2
the parking lot on foot shortly thereafter. Beard testified that he

tried to go into the parking lot to talk with Stapleton, but Taylor told

him not to and that Taylor would “go talk to him” instead.

Surveillance video captured Taylor exiting the store, adjusting

his waistband, and approaching Stapleton, who initially backed

away from Taylor before walking with him across the parking lot.

Beard testified that although he did not know what Taylor and

Stapleton were discussing during their “walk and talk” across the

parking lot, it appeared “normal” and “no[t] heated.” After walking

for approximately 50 seconds, the pair arrived at the opposite end of

the parking lot and stopped near a dumpster, where they continued

talking.

A gray sedan pulled next to the men, and Taylor bent over to

speak with its passengers. He stood up and spoke briefly with

Stapleton again, who was by then behind the dumpster and out of

the camera’s view, before bending back down to speak with the

passengers of the sedan. Approximately 10 seconds later, Stapleton

emerged from behind the dumpster and shot Taylor in the back of

3
the head. Taylor immediately fell to the ground, and the gray sedan

sped away.

A witness saw Stapleton “walk[] fast” across the street and

tuck a gun into his back pocket. Beard ran after Stapleton but was

unable to catch him. Surveillance video showed that over the next

approximately seven minutes, several cars and people surrounded

Taylor’s body in the parking lot. Taylor was then taken by

ambulance to the hospital, where he died.2

That evening, Stapleton, still wearing a black shirt and blue

jeans, went to the police station on his own accord to speak with

investigators. Investigator Robert Shockley conducted an interview

of Stapleton, which was recorded and played for the jury. During

the interview, Stapleton told Investigator Shockley that he went to

the station because people on Facebook were suggesting Stapleton

killed Taylor. After discussing the incident at Taylor’s “bootleg” bar

from the evening prior, which Stapleton claimed occurred “because

2 The medical examiner testified that “the bullet passed through the
cerebellum and the cerebrum, which [was] a devastating fatal injury to the
brain, and Mr. Taylor died as a result of this significant brain injury.”
4
[he] was asking for a beer,” Stapleton assured Investigator Shockley

that he did not shoot Taylor; instead, he simply saw and heard the

shooting but did not know who the shooter was. After Investigator

Shockley told Stapleton that surveillance video showed he was the

shooter, Stapleton maintained that he was not, asked for a lawyer,

and was placed under arrest.

At trial, Stapleton testified in his own defense as follows. He

shot Taylor, but did so “out of fear” and in “self-defense” because he

was “scared for [his] life.” Stapleton had known Taylor for “25 years,

20 years, something like that,” and prior to the altercation at

Taylor’s “bootleg” bar, the two never had any issues. At the bar,

Stapleton “went … to get a beer,” but he was “something like $0.50

short.” Taylor told him he could not have the beer and to “get out.”

When Stapleton was not “leaving fast enough,” Taylor “got a couple

of his boys … to try to push [Stapleton] out.” Taylor “came with a

big log swinging and broke [Stapleton’s] arm.” The next day,

Stapleton arrived at the convenience store “to get [himself] a soda.”

As he approached the store, Taylor emerged from the store “at full

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speed,” looked “very angry,” and “pulled his gun from his waist.”3

Taylor told him that he could not enter the store, and they began

“walking and talking” across the parking lot. Taylor told Stapleton

that he could not “come around this area no more,” cursed at him,

and called him “all types of names.” Once the pair made their way

to the other side of the parking lot, a gray sedan arrived, and Taylor

told its occupants to “run over” Stapleton if he tried to get away and

that Taylor would “kill [Stapleton] if [he tried] to go in the store.”

Stapleton felt as though he could not leave, because he would be “run

over,” but also that he could not stay, because he would be killed by

Taylor or his friends in the store. Stapleton walked away briefly and

located a pistol behind the dumpster in the parking lot. He then

“took it upon [himself]” and shot Taylor. According to Stapleton, as

he fled the scene, Beard shot at him; Stapleton dropped the gun; and

3 During the trial, Stapleton’s counsel showed three law enforcement

witnesses a still image from surveillance video of Taylor exiting the
convenience store. When asked whether it looked like he had a gun, each
answered indecisively. However, Beard and the State’s gang expert testified
that Taylor was not known to carry a weapon, and investigators did not find
one on his body.
6
Beard took it. Stapleton admitted lying to the investigator about

shooting Taylor, but claimed he did so because “at the time [he] was

trying … to get out of it.”

2. Stapleton first contends that he is entitled to a new trial

because the bailiffs at his trial were not sworn. As explained more

below, this claim fails.

Under Georgia law, bailiffs are required to swear an oath

before taking charge of a jury at trial. See OCGA § 15-12-140.4 We

have long held that the “[f]ailure of a bailiff to take the oath … is

ground for the grant of a new trial.” Jackson v. State, 152 Ga. 210,

210 (1921). See also, e.g., Hannah v. State, 212 Ga. 313, 320–24

4 OCGA § 15-12-140 provides:

The following oath shall be administered to all bailiffs on duty in
any court in this state conducting a jury trial:
“You shall take all juries committed to your charge to the jury room
or some other private and convenient place designated by the court
and you shall not allow the jurors to receive any books, papers,
nourishment, or hydration other than water, or to use any
electronic communication device except as directed and approved
by the court. You shall make no communication with the jurors
nor permit anyone to communicate with the jurors except as
specifically authorized by the court. You shall discharge all other
duties which may devolve upon you as bailiff to the best of your
skill and power. So help you God.”
7
(1956); Roberts v. State, 72 Ga. 673, 678 (1884). “But, where bailiffs

take charge of juries, there is a presumption that they were

regularly sworn[.]” Jackson, 152 Ga. at 210. To rebut that

presumption, an appellant must point to affirmative evidence that

the bailiffs at his trial were not sworn. See id. See also Arnold v.

State, 250 Ga. App. 461, 461 (2001) (acknowledging that an

appellant bears the “burden of showing affirmatively that his bailiff

was not sworn”). Indeed, the presumption cannot be rebutted by

“mere negative testimony,” such as that of the bailiff that “he had

no recollection of taking the oath, and of others who were present …

in the courtroom that they had no recollection of seeing him

sworn[.]” Jackson, 152 Ga. at 210.

At the hearing on Stapleton’s motion for new trial, Stapleton’s

trial attorneys testified that they could not recall whether they saw

the bailiffs take the oath prior to trial. And neither the trial

transcripts nor the court reporter’s audio recordings, which were

admitted into evidence at the motion for new trial hearing, indicate

whether the oath was administered. Stapleton argues this

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constitutes evidence sufficient to rebut the presumption that the

bailiffs at trial were sworn.

We disagree. Neither the “negative testimony” of Stapleton’s

trial attorneys “that they had no recollection of seeing [the bailiffs]

sworn,” nor the absence of the oath from the transcripts and audio

recordings affirmatively show that the oath had not been

administered to the bailiffs such that they were not sworn before

Stapleton’s trial. See Jackson, 152 Ga. at 210 (concluding that “the

mere negative testimony” of trial attendees that they could not recall

whether the oath was administered, in addition to “the fact that

there was no record … of the oath having been taken” did not

affirmatively show that the bailiffs were not sworn). Compare

Hannah, 212 Ga. at 319–20 (granting a new trial where a deputy

sheriff took charge of jurors at trial and later testified that he had

not taken the oath for bailiffs). Because Stapleton has failed to rebut

the presumption that the bailiffs at his trial were sworn, his claim

fails.

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3. Stapleton contends that his trial counsel provided

constitutionally ineffective assistance when they failed to object to

the admission of post-incision autopsy photographs under OCGA

§ 24-4-403 (“Rule 403”) and to evidence of his prior conviction under

OCGA § 24-6-609 (“Rule 609”). Because trial counsel did not

perform deficiently, these claims fail.

To prevail on his claims, Stapleton must establish that trial

counsel’s performance was constitutionally deficient and that he

suffered prejudice as a result. See Strickland v. Washington, 466

US 668, 687 (1984); Davis v. State, 299 Ga. 180, 182 (2016). To prove

deficient performance, Stapleton must show that his trial counsel

“performed [their] duties in an objectively unreasonable way,

considering all the circumstances and in the light of prevailing

professional norms.” Davis, 299 Ga. at 182–83. “This is no easy

showing, as the law recognizes a strong presumption that counsel

performed reasonably[.]” Id. at 183 (quotation marks omitted).

Stapleton bears the burden of overcoming this presumption, and to

do so “he must show that no reasonable lawyer would have done

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what his lawyer[s] did, or would have failed to do what his lawyer[s]

did not.” Id. “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.” Id. (quotation marks omitted). And

failing to lodge “a meritless objection” is not deficient performance.

Lyons v. State, 309 Ga. 15, 28 (2020). To prove prejudice, Stapleton

must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Davis, 299 Ga. at 183 (quotation marks omitted). We

need not address both parts of the Strickland test if Stapleton does

not meet his burden of establishing one. See Strickland, 466 US at

697; Davis, 299 Ga. at 183.

(a) Stapleton first argues that his trial counsel was deficient

for failing to object to the admission of two post-incision autopsy

photographs under Rule 403, which provides in pertinent part that

“[r]elevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice[.]”

11
Because such an objection would have been meritless, this claim

fails.

During the medical examiner’s testimony at trial, the State

tendered two post-incision autopsy photographs. The first depicted

the back of Taylor’s skull and scalp, which the medical examiner

used to explain “the hemorrhage in the soft tissue around the

entrance gunshot wound.” The second depicted the inside of Taylor’s

skull, which the medical examiner used to show “the inside portion

of the skull defect” and explain how it was consistent with “an

entrance gunshot wound to the skull.” Stapleton’s trial counsel did

not object, and his lead trial attorney testified at the motion for new

trial hearing that he did not think the photos were inflammatory or

that an objection thereto would have had merit.

Stapleton claims that an objection to the photographs under

Rule 403 would have been sustained because Taylor’s cause of death

was “immediately apparent” from pre-incision autopsy photographs

and, to the extent internal examination was necessary, x-ray images

that were also admitted would have been an equally probative and

12
less gruesome alternative.

We conclude that, although Taylor’s cause of death was not

disputed, the autopsy photographs were relevant and probative of

the nature and location of his injuries. See OCGA § 24-4-401

(defining “relevant evidence” as “evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence”); Albury v. State, 314 Ga. 459, 461

(2022) (“Autopsy photographs may be relevant and probative to

show the nature and location of a victim’s injuries, even if the cause

of death is not disputed.” (quotation marks omitted)). The medical

examiner used the photographs to explain the bullet’s entry into and

path through Taylor’s skull and the internal damage it inflicted.

And although the x-ray images were less graphic, they could not

show the severity of Taylor’s injuries, which the medical examiner

emphasized in explaining Taylor’s cause of death. See Flowers v.

State, 307 Ga. 618, 624 (2020) (determining a post-incision autopsy

photograph of the decedent’s brain was probative of the “severity” of

13
his injuries). Further, the photographs were not “especially gory or

gruesome in the context of autopsy photographs in a murder case,”

thus diminishing the danger of unfair prejudice. Pike v. State, 302

Ga. 795, 799–800 (2018). See also Jackson v. State, 317 Ga. 95, 102

(2023) (“The prejudicial effect of evidence is unfair if the evidence

has the capacity to lure the factfinder into declaring guilt on a

ground different from proof specific to the offense charged, or an

undue tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.” (quotation marks

omitted)); Davis v. State, 306 Ga. 140, 145 (2019) (“[P]hotographic

evidence that fairly and accurately depicts a body or crime scene and

is offered for a relevant purpose is not generally inadmissible under

Rule 403 merely because it is gruesome.” (quotation marks

omitted)). Because the probative value of the photographs was high

and the danger of unfair prejudice was minimal, the trial court

“would have been well within its discretion under [Rule 403] in

overruling the objection and admitting” the photographs. Davis, 299

Ga. at 190 (concluding that trial counsel was not deficient for failing

14
to object to post-incision autopsy photographs under Rule 403

because the trial court would have been within its discretion to

conclude the probative value of the photographs was not

substantially outweighed by risks of unfair prejudice and overrule

such an objection). Consequently, Stapleton’s trial counsel was not

deficient for failing to object to this evidence, and this claim fails.

(b) Stapleton next argues that trial counsel was deficient for

not objecting to evidence of one of his prior convictions under Rule

609, which provides in relevant part that, when more than 10 years

have elapsed since the date of one’s conviction or release from

confinement, evidence of that conviction is inadmissible unless the

“probative value of the conviction … substantially outweighs its

prejudicial effect.” Because Stapleton has not shown that no

reasonable lawyer would have failed to make such an objection, this

claim fails.

On direct examination, Stapleton testified that he had

previously been convicted of drug charges. On cross-examination,

the State elicited testimony from Stapleton that he had been

15
convicted of possession of cocaine with intent to distribute in 2002.

Stapleton’s attorneys did not object. The State then tendered into

evidence a certified copy of Stapleton’s prior conviction without

objection.5 At the motion for new trial hearing, Stapleton’s trial

counsel testified that he “couldn’t tell” why he did not object to

evidence of the 2002 conviction but that he “should have.”

Although Stapleton’s trial counsel testified at the motion for

new trial hearing that he could not recall a strategic reason for not

objecting, trial counsel’s failure “to articulate any strategic reasons

for his failure to [object] makes no difference, because our inquiry is

focused on the objective reasonableness of counsel’s performance,

not counsel’s subjective state of mind” during trial. State v. Tedder,

305 Ga. 577, 584 (2019) (quotation marks omitted). “Reasonable

decisions as to whether to raise a specific objection are ordinarily

matters of trial strategy and provide no ground for reversal,”

5 Immediately after introducing evidence of the 2002 conviction, the
State introduced Stapleton’s 2014 conviction for possession of cocaine and
marijuana. On appeal, Stapleton does not challenge the admission of evidence
of the 2014 conviction.
16
Ballard v. State, 297 Ga. 248, 254 (2015) (quotation marks omitted),

and Stapleton has not argued, let alone shown, that “no reasonable

lawyer would have … failed to” object to evidence of his 2002

conviction, Davis, 299 Ga. at 183. A reasonable lawyer could have

had a strategic basis not to object to this evidence. For example,

Stapleton had just testified on direct examination that he was

previously convicted of more than one drug charge, so introduction

of the 2002 conviction merely corroborated Stapleton’s testimony. A

reasonable lawyer could have concluded that allowing Stapleton to

answer one question about the charges was a better strategy than

potentially succeeding on an objection, particularly given the

importance of Stapleton’s credibility to his defense. See Copney v.

State, 922 SE2d 43, 50 (2025) (concluding it was objectively

reasonable, and thus not deficient, for counsel not to object to “older

convictions” under Rule 609 based on “a desire to establish [the

defendant’s] credibility by having him admit to his prior crimes

while denying the charges at issue”). Because trial counsel’s failure

to object was objectively reasonable, Stapleton has not shown that

17
counsel performed deficiently, and this claim fails.

4. Finally, Stapleton contends that the trial court erred in

declining his request to instruct the jury on voluntary

manslaughter. Because there was not even slight evidence to

support such a charge here, the trial court did not err in declining to

give it.

OCGA § 16-5-2(a) defines ‘‘voluntary manslaughter’’ as the

killing of another person under circumstances that would otherwise

be murder when the killer “acts solely as the result of a sudden,

violent, and irresistible passion resulting from serious provocation

sufficient to excite such passion in a reasonable person[.]” To

warrant a jury charge on voluntary manslaughter, there must be at

least slight evidence that “the accused was so influenced and excited

that he reacted passionately rather than simply in an attempt to

defend himself.” Beck v. State, 310 Ga. 491, 496 (2020) (quotation

marks omitted). “A charge on voluntary manslaughter is not

available to a defendant whose own statement unequivocally shows

that he was not angered or impassioned when a killing occurred, and

18
when the other evidence does not show otherwise.” Id. at 497

(quotation marks omitted). “[A]cting out of fear of bodily harm is

not the same as acting in the heat of passion, and only evidence of

the latter supports a voluntary manslaughter conviction.” Burke v.

State, 302 Ga. 786, 790–91 (2018). See also Morton v. State, 306 Ga.

492, 496 (2019) (“The distinguishing characteristic between [self-

defense and voluntary manslaughter] is whether the accused was so

influenced and excited that he reacted passionately rather than

simply in an attempt to defend himself.” (quotation marks omitted)).

Here, Stapleton argues that his trial testimony supported the

theory that Taylor’s conduct on the night before the shooting—

throwing Stapleton out of the “bootleg” bar and breaking his arm—

and Taylor’s conduct immediately preceding the shooting—flashing

a gun at Stapleton and then threatening and berating him—

amounted to a serious provocation that caused Stapleton to react

passionately. But Stapleton “never testified that he was angry or

mad or that he had any other response showing he might have

reacted passionately.” Collins v. State, 312 Ga. 727, 740 (2021).

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Instead, he unwaveringly claimed that he shot Taylor “out of fear”

and in “self-defense” because he was “scared for [his] life.” Because

the record does not reveal even the slight evidence required to

support an instruction on voluntary manslaughter, we conclude that

the trial court did not err in declining to give one. See id. (concluding

that the trial court did not err in declining to give a voluntary

manslaughter instruction where the victim pulled a gun on the

defendant, threatened to kill him, and berated him, but the

defendant never testified that he was angry, mad, or reacted

passionately rather than in self-defense); Browning v. State, 283 Ga.

528, 529–31 (2008) (concluding that a voluntary manslaughter

charge was not warranted where the defendant’s “own testimony

belie[d] the claim that he acted in the heat of passion” and instead

“plainly attempted to portray that [he] shot [the victim] in order to

protect himself”).

Judgment affirmed. All the Justices concur, except Colvin, J.,
disqualified.