Ballinger, Warden v. Watkins

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: December 20, 2022

S22A1187. BALLINGER, Warden v. WATKINS.

PINSON, Justice.

During Joseph Watkins’s murder trial, a juror conducted a

“drive test” during a break in deliberations to see whether the

defendant could have been physically present at the time and place

the victim was shot. The next day, the jury voted to convict Watkins

of felony murder and other crimes, and he was sentenced to life in

prison. Years later, Watkins’s counsel learned about the juror’s

misconduct and filed the habeas petition in this case. The habeas

court ultimately granted relief on the juror-misconduct claim and

two other grounds. We conclude that Watkins has shown that the

juror’s misconduct caused him actual prejudice—for at least that

juror, her drive test “proved” a key and heavily disputed piece of the

State’s burden of proof against Watkins—and we affirm the grant of
habeas relief on the juror-misconduct claim.

1. Background

(a) Trial and Convictions

(i) On January 11, 2000, Isaac Dawkins was shot once in the

head as he was driving his white pickup truck north on Highway 27

from Floyd College, south of Rome, Georgia. He died the next day.

The physical evidence of the crime was limited: a lead bullet core

recovered from Dawkins’s body during the autopsy, a 9mm cartridge

case found near the crime scene, and a bullet fragment found inside

Dawkins’s car that had markings consistent with having been fired

from a 9mm firearm. No firearm was found.

On the evening of the shooting, Wayne Benson was also driving

north on Highway 27. He noticed a small blue car driving erratically

and interacting with a white pickup truck about a half mile north of

Floyd College. After losing sight of the vehicles “[f]or a few minutes”

and traveling about a mile to a mile-and-a-half down the road,

Benson saw a “flash of some kind” before the white truck drove

across the median, into southbound traffic, and then onto the far

2
shoulder. Benson pulled over and called 911 to report the accident,

and emergency services were dispatched at 7:19 p.m. No one else

witnessed the incident or reported a vehicle interacting with the

white truck.1

(ii) During that same time, Watkins allegedly was at home in

northeast Floyd County, getting ready to drive to see his girlfriend,

who lived 45 minutes south in Cedartown. While getting into his

own white pickup truck, Watkins called his girlfriend at 7:15 p.m.

The call lasted for 4 minutes and 23 seconds and originated in an

area covered by the Kingston cell tower—the only cell tower that

covered Watkins’s house. Watkins’s girlfriend testified that he

arrived in his white pickup truck at her house—south of the crime

scene—around 8:00 p.m.

1 One other witness, Barry Mullinax, a jailhouse informant who spent
time with Watkins’s codefendant Mark Free at a diversion center, also claimed
to have seen the accident, but his testimony not only was internally
inconsistent but also contradicted a statement he previously gave to
investigators after the accident; it appeared that he was actually describing a
different shooting that occurred on Highway 20 West around the same time.
3
 The parties’ expert witnesses agreed that Watkins’s cell phone

could not have been located at or near Floyd College when Watkins

called his girlfriend at 7:15 p.m. because that area was not covered

by the Kingston cell tower. The parties’ experts relied on maps and

models of various cell towers in the area when explaining their

opinions to the jury. The maps, which included shaded areas

corresponding to the different cell towers, did not show the exact

bounds of the cell towers based on street names or the exact location

of the crime. Neither expert witness was able to provide an exact

street location where the Kingston cell tower’s coverage ended.

The State argued at trial that Watkins still could have been

physically present at the scene when Dawkins was shot (just before

Benson’s 911 call at 7:19 p.m.). The State explained that Watkins

could have made the phone call at 7:15 p.m. from the absolute last

point within the Kingston tower’s coverage while driving south

toward the crime scene,2 then turned around into the northbound

2Although the expert witnesses had not identified an exact point where
the Kingston cell tower’s coverage ended, the State pointed to the intersection

4
lanes (the direction in which Dawkins was traveling) and arrived at

the crime scene, all in the four minutes between the call to his

girlfriend and the emergency-services dispatch from Benson’s 911

call. Based on this theory, Watkins then would have needed to turn

around again to continue driving south to his girlfriend’s house and

arrive there within 45 minutes of the call he placed to her at 7:15

p.m. No evidence about distances or travel times between the

relevant locations was presented. The State’s theory also did not

account for the fact that Watkins arrived at his girlfriend’s house in

his white pickup truck but the only eyewitness saw a blue car

interact with Dawkins’s truck.

Defense counsel argued that Watkins’s phone call could not

have been initiated from where Benson saw the blue car first

interacting with Dawkins’s truck near Floyd College. Both parties’

expert witnesses agreed. Given the 7:15 p.m. phone call, defense

of Chulio Road and Highway 411 as the starting point from where Watkins
could have driven to the crime scene while calling his girlfriend.
5
counsel argued that Watkins simply could not have been in the blue

car at the relevant times and locations.

(iii) The State’s theory of the case was that Watkins “despised

Isaac Dawkins” because Dawkins had dated Watkins’s ex-girlfriend,

and much of the testimony presented by the State concerned various

incidents and arguments between Dawkins and Watkins. The State

also presented testimony from a number of witnesses about

incriminating statements made by Watkins, but nearly all of those

witnesses were heavily impeached.3

3 For example, Tiffany Sledge testified that Watkins said he “would get
that son-of-a-b***h, Isaac, if it was the last thing he had to do and kill him,”
but she was Watkins’s former coworker who the jury could have believed cut a
deal to testify to benefit her boyfriend who was facing drug charges. Winford
Ellis, a jailhouse informant, allegedly told the State earlier that Watkins was
“laughing because [investigators] were out diving in Swan Lake all day, you
know, dragging the lake” when Watkins said “[the murder weapon is] in a lake
but it’s not in that lake,” but Ellis denied making these statements at trial and
said he had made it all up. Corey Jacobs, who was in jail at the time of
Watkins’s trial, said he overheard Watkins “just bragging about shooting
Isaac” in a home improvement store’s parking lot, but he also said he attended
Pepperell High School with Watkins, yet Watkins did not attend Pepperell.
Josh Flemister had previously told police officers that Watkins told him to say
that Watkins was with him all day the day of the shooting, but he testified at
trial that he made that up, explaining that the police intimidated him because
he was underage and drunk at the police station. And Chad Redden, who was
dating Watkins’s and Dawkins’s ex-girlfriend at the time and previously dated
Watkins’s sister, said Watkins “told me if I had waited a couple of more months

6
 The State also sought to link Watkins to Dawkins’s shooting by

presenting the jury with evidence about two deceased dogs. The first

dog was the Dawkins family’s pet, which was shot between the eyes

and killed while chained in a pen in Dawkins’s backyard about three

months before Dawkins’s death. Two witnesses testified that they

had heard from Watkins’s co-defendant, Mark Free, that Watkins

was involved in the shooting of the dog. Free denied making either

statement.

The second dog was found by Dawkins’s father several months

after his son’s death. While visiting Dawkins’s grave, his father

found a trash bag containing the remains of an unknown deceased

dog about 15 feet away from the grave that, based on the presence

of flies and a bad odor around the remains and around the grave,

seemed like it had previously been placed on Dawkins’s grave. Like

Dawkins’s dog, the dog on the grave had been shot between the eyes.

The only evidence presented at trial potentially connecting the

[before talking to the police] for him to get out of all this trouble, I would end
up just like Isaac.”
7
second dog to Watkins was the testimony of a jailhouse informant

discussing a conversation he had with Free about the dogs, and Free

again disputed that testimony.

(iv) The jury found Watkins not guilty of malice murder, but

guilty of felony murder predicated on aggravated assault,

aggravated assault, possession of a firearm during the commission

of a crime, and stalking. He was sentenced to serve life in prison for

felony murder, five years consecutive for the possession count, and

12 months for stalking.

After his motion for a new trial was denied, Watkins appealed,

challenging the sufficiency of the evidence and certain evidentiary

rulings. This Court affirmed his convictions and sentences. See

Watkins v. State, 276 Ga. 578 (581 SE2d 23) (2003).

(b) Initial Post-Conviction Proceedings

In 2004, Watkins filed a state habeas petition raising claims of

actual innocence and ineffective assistance of counsel. The habeas

court denied Watkins’s petition in 2011, and this Court denied his

application for a certificate of probable cause to appeal. See Watkins

8
v. Martin, S12H0816 (Oct. 15, 2012). Watkins then brought the

same claims in a federal habeas petition, which the district court

denied. The U.S. Court of Appeals for the Eleventh Circuit in turn

denied his request for a certificate of appealability.

(c) Second State Habeas Petition

(i) In 2017, Watkins filed a second state habeas petition,

raising three claims based on evidence newly discovered by his legal

team: (1) a juror-misconduct claim based on an independent drive

test conducted by a juror to test the State’s theory against the cell-

phone evidence presented; (2) a Brady4 claim based on a .22-caliber

bullet that was found inside the dog found near Dawkins’s grave but

never turned over to the defense team; and (3) a Napue5 claim based

on false or misleading testimony that the State allowed one of its

witnesses to give, which omitted information about the .22-caliber

bullet found in the same dog.6 The State moved to dismiss and, after

4 See Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963).
5 See Napue v. Illinois, 360 U.S. 264 (79 SCt 1173, 3 LE2d 1217) (1959).
6 Watkins initially raised two additional claims—one based on an alleged

drive test conducted by Fulton County Police Department and one based on
ineffective assistance of counsel—but both claims were abandoned.
9
a non-evidentiary, argument-only hearing, the habeas court

dismissed Watkins’s petition as untimely and successive. Watkins

applied to this Court for a certificate of probable cause to appeal,

which the Court granted. See Watkins v. Ballinger, S19H0061 (July

1, 2019). On appeal, this Court concluded that the habeas court had

erred in dismissing the petition on procedural grounds because

Watkins “alleged facts showing grounds for relief which could not

reasonably have been raised in his original habeas petition and

which could not have been discovered by the reasonable exercise of

due diligence.” Watkins v. Ballinger, 308 Ga. 387, 397 (2) (840 SE2d

378) (2020). We thus reversed the dismissal order and remanded the

case for further proceedings. See id.

(ii) On remand, the habeas court held a three-day evidentiary

hearing. Among other evidence, Watkins presented the testimony of

Juror Rogena Cordle. Cordle testified that she had been confused by

the cell-phone evidence presented at trial. So, after the first day of

deliberations on Saturday, despite the trial court’s explicit

instructions to not “go measuring distances or stopping by the scene

10
and investigating on your own,” 7 she decided to do a drive test to see

whether Watkins could have arrived at the scene of the crime

around the time Dawkins was shot—7:18 or 7:19 p.m. based on the

time of the emergency-services dispatch from Benson’s 911 call—

after making the phone call to his girlfriend from the Kingston

tower’s coverage area at 7:15 p.m.

The next day, a Sunday, Cordle used her car clock to time how

long it took her to drive northbound on Highway 27 from the area of

the crime to the intersection of Chulio Road and Highway 411. As

Cordle acknowledged at the habeas hearing, she drove the route

backwards from end point to start point, her car clock did not

indicate seconds, and she did not account for the time that it would

have taken for Watkins to turn around from traveling south through

the edge of the (supposed) Kingston cell-tower coverage area to head

back north in the direction of the crime. Nor did she account for the

testimony that the shooter had been seen traveling from the south

7Cordle testified that she either did not remember or did not hear this
admonition.
11
in tandem with Dawkins for “a few minutes” and at least a mile

before the shooting. And she did not know exactly where the crime

had occurred or where the Kingston cell tower’s coverage ended.

Nonetheless, based on her drive test, she determined that Watkins

could have been where Dawkins was shot at the relevant time.

On Monday morning, the day after Cordle’s drive test, the jury

voted to convict Watkins. While Cordle testified that she did not

remember telling other jurors about her drive test, she said it was

“possible” she told Watkins’s legal team in 2017 that she had told a

male juror about her test. But she affirmatively testified that she

“kn[e]w [she] told another male juror on Monday morning that I

thought that it was possible that [Watkins] could have traveled the

distance in the allotted time.”

Juror Rosemary Munton Evans, who testified that she suffered

memory loss following a recent heart attack, “[v]ery vaguely”

remembered telling Watkins’s legal team in July of 2021 that a

female juror told her that she had done a drive test during a break

in the deliberations. Juror Kandy Brown testified that she did not

12
remember much about the case, but “I just remember somebody

saying they did an independent study,” although she could not recall

if the person was male or female. Juror Steven Broome did not recall

anything about a juror conducting an independent investigation, but

he also misremembered key details about the case. Juror Alice

Pearson also had no recollection of a juror saying she had done her

own experiment.

(iii) In April 2022, the habeas court granted Watkins’s habeas

petition on three grounds: (1) Cordle’s drive test and her reporting

of its results to other jurors violated Watkins’s due-process and

confrontation rights; (2) the prosecution failed to disclose

exculpatory evidence in violation of Brady; and (3) the prosecution

presented and failed to correct false or misleading testimony in

violation of Napue.

As a threshold matter, the habeas court found that these

claims were neither untimely nor barred by Watkins’s failure to

raise them in his prior habeas petition. See OCGA § 9-14-51. A

habeas petition may be filed within four years from “[t]he date on

13
which the facts supporting the claims presented could have been

discovered through the exercise of due diligence,” OCGA § 9-14-42

(c) (4), and grounds raised for the first time in a second or successive

habeas petition are not waived if the court “finds grounds for relief

asserted therein which could not reasonably have been raised in the

original or amended petition,” OCGA § 9-14-51. As relevant here,

the court found that Watkins had no reason to have known about

Cordle’s drive test—the factual predicate for his juror-misconduct

claim—before his counsel learned about it in July of 2016, and he

filed the petition within a few months, so the claim “could not

reasonably have been raised” in his original habeas petition, and his

second petition was filed well within four years from the date on

which the factual predicate could have been discovered through the

exercise of due diligence.

On the juror-misconduct claim, the habeas court concluded

that Watkins had established a violation of his rights under the

Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution,

and Article I, Section I, Paragraphs I and XIV of the Georgia

14
Constitution. The court explained that “it is clear that the evidence

derived from [Cordle’s] drive test constitutes extraneous

information,” which “was considered by her while deliberating the

verdict and was likely considered by the other jurors who learned

about it too.” The court next reasoned that, although prejudice from

such juror misconduct would be presumed on direct appeal, Watkins

was required to show actual prejudice in a habeas proceeding. The

court ultimately determined that Watkins established actual

prejudice. First, the court found that the extraneous information

was obtained from a test designed specifically by the juror to test

critical evidence, which was conducted against explicit instructions

from the trial court and was also “riddled with inaccuracies.”

Second, the court found that the information did reach the jury,

citing the testimony of Cordle, who herself acknowledged that she

had told a male juror either about the drive test or how her opinion

had shifted based on her drive test, and the testimony of the two

jurors who remembered hearing about another juror conducting an

“independent study.” Finally, the court found that the State’s case

15
“was far from overwhelming,” which also weighed in favor of finding

actual prejudice. Based on this review, the court concluded that

Watkins established that he was actually prejudiced by the

extraneous evidence, and so the court granted him a writ of habeas

corpus based on his juror-misconduct claim.

The State appealed.

2. Analysis

In reviewing the grant of a petition for habeas corpus, we

accept the habeas court’s factual findings and credibility

determinations unless they are clearly erroneous, and we

independently apply the law to the facts. See Luckie v. Berry, 305

Ga. 684, 691 (2) (827 SE2d 644) (2019). For reasons we explain

below, we agree with the trial court that Watkins’s juror-misconduct

claim warrants habeas relief. We thus affirm on that basis, so we

need not address the other two grounds on which relief was granted.

(a) We start with a brief preliminary matter: whether

Watkins’s juror-misconduct claim is properly addressed in a habeas

corpus proceeding. Our statute governing post-conviction habeas

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corpus, OCGA § 9-14-42, limits the kinds of claims a petitioner may

bring in a habeas petition. To seek habeas relief under that statute,

a petitioner must assert “that in the proceedings which resulted in

his conviction there was a substantial denial of his rights under the

Constitution of the United States or of this state.” OCGA § 9-14-42

(a).

Watkins’s juror-misconduct claim fits that bill. Not every

instance of juror misconduct is necessarily an error of constitutional

dimensions. See, e.g., Smith v. Phillips, 455 U.S. 209, 217 (II) (102

SCt 940, 71 LE2d 78) (1982) (“[D]ue process does not require a new

trial every time a juror has been placed in a potentially

compromising situation. . . . [I]t is virtually impossible to shield

jurors from every contact or influence that might theoretically affect

their vote. Due process means a jury capable and willing to decide

the case solely on the evidence before it, and a trial judge ever

watchful to prevent prejudicial occurrences and to determine the

effect of such occurrences when they happen.”). But Watkins claims

that a juror gathered information from outside the trial—we have

17
typically called this information “extra-judicial” or “extraneous”—

which was prejudicial to Watkins’s defense and brought it into the

jury room. This particular kind of juror misconduct can violate a

defendant’s “right to confront and cross-examine witnesses against

[him]” under the Sixth Amendment to the United States

Constitution, which applies to the States through the Due Process

Clause of the Fourteenth Amendment. Hammock v. State, 277 Ga.

612, 613 (2) (592 SE2d 415) (2004). See Parker v. Gladden, 385 U.S.

363, 364 (87 SCt 468, 17 LE2d 420) (1966) (explaining that the Sixth

Amendment was “made applicable to the States through the Due

Process Clause of the Fourteenth Amendment”).8 We have explained

8 Federal cases are in accord. See Parker, 385 U.S. at 364–365 (holding
that a bailiff’s statements to several jurors regarding the defendant’s guilt
were prejudicial and violated the defendant’s rights of confrontation and cross-
examination); Ward v. Hall, 592 F3d 1144, 1175 (II) (E) (11th Cir. 2010)
(explaining that a jury’s use of extra-judicial information—here, a bailiff’s
response to a juror about whether life in prison without parole was a
sentencing option—violates the Sixth Amendment because “[i]ntegral to th[e
Sixth Amendment] right is the requirement that a jury base its verdict on the
evidence presented at trial”); Oliver v. Quarterman, 541 F3d 329, 334 (III) (A)
(5th Cir. 2008) (noting, in the context of a juror reciting passages from the Bible
on obeying the law and punishing murderers to a small group of jurors during
deliberations, that external influences on a jury are a potential violation of the
Sixth Amendment); United States v. Perkins, 748 F2d 1519, 1533–1534 (IV) (C)

18
that the constitutional right to confront witnesses is implicated by

jurors who do extra-judicial research—like visiting the crime

scene—because they “bec[o]me, in a real sense, unsworn witnesses

against the [defendant] in violation of the Sixth Amendment.”

Watkins v. State, 237 Ga. 678, 684 (229 SE2d 465) (1976) (relying on

Parker, 385 U.S. at 364). And “the rights of confrontation and cross-

examination are among the fundamental requirements of a

constitutionally fair trial.” Id. (quoting Parker, 385 U.S. at 365). See

also id. at 685 (“[T]he intentional gathering of extra judicial

evidence, highly prejudicial to the accused, by members of the jury

and the communication of that information to the other jurors in the

closed jury room is inimical to our present jury trial system.”). So

Watkins has asserted a constitutional claim that is cognizable in

habeas.9

(11th Cir. 1984) (noting that “[t]he sixth amendment guarantee of a trial by
jury requires the jury verdict to be based on the evidence produced at trial,”
where a juror stated during deliberations that he knew the defendant and
disputed the defendant’s testimony of where a person relevant to the trial
lived).
9 The State conceded at oral argument that the alleged juror misconduct

here rose to the level of a constitutional violation if the habeas court’s factual
findings were upheld.
19
 (b) A constitutional claim grounded in jurors’ exposure to extra-

judicial information ultimately turns on whether the defendant was

prejudiced by the exposure. See Hammock, 277 Ga. at 613 (2) (“[A

defendant’s] constitutional right to confront and cross-examine

witnesses against [him] . . . is violated when a juror gathers and

relays extra-judicial information that is so prejudicial that the

verdict must be deemed ‘inherently lacking in due process.’” (citation

and punctuation omitted)); Ward v. Hall, 592 F3d 1144, 1178–1180

(II) (E) (11th Cir. 2010) (“ultimate inquiry” for claim that juror was

exposed to “extraneous information” is whether the outside

“intrusion affect[ed] the jury’s deliberations and thereby its verdict”

(quoting United States v. Olano, 507 U.S. 725, 739 (113 SCt 1770,

123 LE2d 508) (1993))). In this context, we have said that “a new

trial will be granted if ‘there is a reasonable possibility that the

improper evidence collected by jurors contributed to the conviction,’”

because a verdict based on such extra-judicial information is

“‘inherently lacking in due process.’” Hammock, 277 Ga. at 613–614

(2) (quoting Bobo v. State, 254 Ga. 146, 146, 148 (1) (327 SE2d 208)

20
(1985); Williams v. State, 252 Ga. 7, 8 (1) (310 SE2d 528) (1984)).

Below, the habeas court placed the burden on Watkins to show

actual prejudice, reasoning that although prejudice from a juror’s

exposure to extra-judicial information would be presumed on direct

appeal, see Harris v. State, 314 Ga. 51, 53 (2) (875 SE2d 649) (2022),

it was Watkins’s burden as a habeas petitioner to prove actual

prejudice, see Turpin v. Todd, 268 Ga. 820, 828 (2) (b) (493 SE2d

900) (1997).10 Watkins argues before us that he is entitled to a

10 The habeas court’s determination that Watkins must prove actual
prejudice would seem to be well grounded in a habeas petitioner’s typical
burden to show both cause and actual prejudice to overcome the procedural bar
for claims raised in habeas proceedings. See OCGA § 9-14-48 (d) (providing
that habeas relief is unavailable absent “a showing of cause” for the failure to
properly assert or preserve claims of error and “actual prejudice”). As we
explained in Greer v. Thompson, 281 Ga. 419 (637 SE2d 698) (2006), “[e]ven if
the law presumes prejudice for certain errors when they are timely raised, a
convicted defendant who . . . is seeking to overcome a procedural bar . . . does
not have the benefit of that presumption of prejudice, and must instead meet
the actual prejudice test.” Id. at 421–422 (citation and punctuation omitted).
See also Whatley v. Warden, Ga. Diagnostic & Classification Ctr., 927 F3d
1150, 1186 n.60 (11th Cir. 2019) (“Even outside the ineffective assistance of
counsel context, the Supreme Court of Georgia has made clear that ‘a convicted
defendant seeking to overcome a procedural bar is not entitled to the benefit of
a presumption of prejudice that would otherwise apply.’ Instead, the defendant
must show actual prejudice to overcome the procedural bar.” (quoting Todd,
268 Ga. at 828 (2) (b))).
We note that below, neither the parties nor the habeas court addressed
OCGA § 9-14-48 (d) or the threshold cause-and-prejudice showing it requires

21
presumption of prejudice, and that the State had the burden to rebut

that presumption by showing that the exposure was harmless

beyond a reasonable doubt. But Watkins wins either way: even

assuming he must prove actual prejudice to prevail on his juror-

misconduct claim, he has.

As a general matter, showing actual prejudice means showing

“not merely that the errors at his trial created a possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional

dimensions.” Todd, 268 Ga. at 828 (2) (b) (quoting United States v.

Frady, 456 U.S. 152, 170 (IV) (102 SCt 1584, 71 LE2d 816) (1982)).

And specific to juror misconduct, we have explained that a court

to overcome that provision’s procedural bar. We see no apparent reason why
this showing of cause and prejudice would not be required here. But we need
not decide whether that showing was required, or whether the State waived
that issue by failing to raise it below or before us. The State does not challenge
on appeal the habeas court’s conclusion that the juror-misconduct claim could
not reasonably have been raised before Cordle’s drive test came to light in
2016; that finding would also establish cause. See Todd, 268 Ga. at 825 (2) (a)
(cause to overcome procedural bar may be established where “the factual or
legal basis for a claim was not reasonably available to counsel” at trial or on
appeal (citation and punctuation omitted)). And as we explain below, Watkins
has established actual prejudice from Cordle’s drive test.
22
assessing prejudicial impact properly considers “the type of extra-

judicial information at issue (e.g., whether the information

concerned sentencing or the underlying substantive law),” “how the

extra-judicial information might have been relevant to the issues

decided by the jury,” and “whether the record evidence suggested

that this . . . information would affect the jury’s decision on guilt or

innocence.” Harris, 314 Ga. at 56 (2) n.4 (cleaned up).

Here, the habeas court did not err in concluding that Watkins

established actual prejudice from Cordle’s unauthorized drive test.

That conclusion follows in large part from the drive test’s

significance in relation to the evidence that was properly before the

jury. That evidence showed that Watkins’s call to his girlfriend at

7:15 p.m. pinged off of a cell tower that did not cover the crime scene,

and the 911 dispatch received the call about Dawkins’s shooting at

7:19 p.m. Naturally, this evidence called into question whether

Watkins could even have been physically present when Dawkins

was shot. The State argued that he could have made it to the crime

scene in time if he had made his call just before reaching the

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southernmost boundary of the cell tower’s coverage; traveled for

some unknown distance to at least one mile south of the crime scene;

turned around to drive north on Highway 27; “interacted” with

Dawkins’s truck in a blue car while traveling the distance back to

the crime scene; and a little later, shot Dawkins before Benson called

911. But no evidence was introduced as to the time, distances, or any

other specifics of this hypothetical route. We need not speculate

about whether this was a significant sticking point in the State’s

case, at least for Cordle: her drive test was designed and carried out

specifically to address this key issue. In short, there is little question

that the extra-judicial information here was highly pertinent to a

critical substantive issue in the case.

Given the significance of the drive test, we cannot say the

habeas court erred in concluding that it caused Watkins actual

prejudice. Putting aside its serious flaws, the drive test “worked to

[Watkins’s] actual and substantial disadvantage,” Todd, 268 Ga. at

828 (citation and punctuation omitted), because it “proved” to at

least one juror (Cordle) that Watkins could have been physically

24
present when Dawkins was shot, clearing up and satisfying a key

and heavily disputed question of fact necessary to meet the State’s

burden of proof against Watkins. See Hammock, 277 Ga. at 614 (2)

(concluding that there was prejudice when a juror sought to “fill in

the gap left by the blood splatter expert’s testimony” by conducting

measurements in her own house similar to those made at the crime

scene); Watkins, 237 Ga. at 683 (concluding prejudice existed when

“two jurors made an unauthorized visit to the scene of the crime and

gauged the time it took to drive from there to appellant’s house”).

That prejudice conclusion gains further support from the sequence

of events: deliberations began on a Saturday and concluded without

reaching a verdict that evening; Cordle conducted her drive test on

Sunday; and on Monday morning, the jury voted to convict Watkins.

See Bobo, 254 Ga. at 148 (1) (explaining that prejudice was shown

in part because “the vote shifted in favor of conviction after the

improper evidence was introduced into the deliberations”). Although

we cannot know exactly what moved the needle for the jury between

25
Saturday and Monday,11 this timing is consistent with the

conclusion that the extra-judicial information here contributed to

the verdict. See United States v. Perkins, 748 F2d 1519, 1534 (IV)

(C) (11th Cir. 1984) (noting that “[t]he likelihood of prejudice on the

jury is obvious” when “a jury which for many hours had remained

hopelessly deadlocked” then reached a verdict after the introduction

of the extra-judicial information in question).

The State does not dispute that Cordle conducted the drive test

or that she determined, based on that test, that Watkins could have

been physically present when Dawkins was shot. Instead, the State

argues that the habeas court clearly erred in finding that Cordle

shared her drive test or its results with the other jurors. But even

assuming all of the findings that Cordle shared anything with other

11 Although jurors may testify about whether they were exposed to
“extraneous prejudicial information” or any improper “outside influence,” they
may not testify about “the effect of anything upon the jury deliberations or any
other juror’s mind or emotions as influencing the juror to assent to or dissent
from the verdict . . . or concerning the juror’s mental processes in connection
therewith.” OCGA § 24-6-606 (b). Consistent with that limitation, the habeas
court noted that Watkins did not ask jurors about, and the court expressly did
not consider, “the subjective effect of the extraneous evidence on the jury’s
verdict.”

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jurors were clear error—a doubtful conclusion on this record12—

Watkins has still shown actual prejudice because there is no dispute

that the extra-judicial information here was introduced to and

affected at least one juror: Cordle herself. A guilty verdict in a

criminal case requires a unanimous vote, see Glass v. State, 250 Ga.

736, 737 (300 SE2d 812) (1983) (explaining that “a criminal

defendant has a right to a unanimous jury verdict” unless the

defendant waives that right); Ramos v. Louisiana, ___ U.S. ___ (140

SCt 1390, 206 LE2d 583) (2020) (explaining that the Sixth

Amendment right to a jury trial requires a unanimous verdict to

convict a defendant of a serious offense in state court and in federal

court), so showing that even one juror based a verdict on extra-

judicial information can establish prejudice. See Turpin v. Todd, 271

12 As we recounted above, one juror testified at the habeas hearing that
she remembered “somebody said they did an independent study.” Another
testified that she vaguely remembered “[s]omebody talking about [a drive
test].” Cordle testified, “I know I told another male juror on Monday morning
that I thought that it was possible that [Watkins] could have traveled the
distance in the allotted time.” And when asked at the hearing if she told anyone
about the driving test specifically, she testified, “I don’t think I did,” but she
“may have” previously said that she told a male juror about the drive test. The
habeas court found the testimony of these jurors to be credible.

27
Ga. 386, 389 (519 SE2d 678) (1999) (upholding the habeas court’s

finding of actual prejudice based in part on the fact that “there was

a substantial probability that at least one juror would have voted for

life imprisonment” instead of the death penalty but for the improper

communication with the bailiff).13 Just so here.

In sum, the habeas court did not err in concluding that Watkins

has shown that Cordle’s improper drive test caused him actual

13 The State cites a handful of decisions in which we rejected juror-
misconduct claims based in part on the finding that the juror exposed to extra-
judicial information did not share it with other jurors. But our holding in each
of those cases was grounded in a determination that no juror’s verdict was
affected by the extra-judicial information at issue. See Burney v. State, 309 Ga.
273, 292–294 (5) (845 SE2d 625) (2020) (on direct appeal, holding that the State
rebutted the presumption of prejudice where a juror who had looked up the
definitions of “malice” and “malice murder” on her cell phone did not share the
results of her searches with the jury or make any argument about what she
read in deliberations, the trial court recharged the jury after the alleged
misconduct, and there was no evidence that any of the jurors “relied upon
anything other than the court’s instructions in reaching their verdicts”);
Hodges v. State, 302 Ga. 564, 568–569 (4) (807 SE2d 856) (2017) (on direct
appeal, holding that the State rebutted the presumption of prejudice from a
juror’s referring to a dictionary application during deliberations, where the
juror testified that the search had no impact on her as a juror, and there was
no evidence she shared any of her search results with other jurors); Pass v.
State, 273 Ga. 534, 535–536 (2) (543 SE2d 719) (2001) (rejecting juror-
misconduct claim based on juror seeing a defense witness interacting with the
defendant’s family members, where all jurors “submitted affidavits that the
verdict was based solely on the evidence presented in the courtroom and not
on any extra-judicial event,” and “there was no intentional gathering of extra-
judicial evidence by members of the jury and no showing that what one juror
witnessed was communicated to the other jurors”).
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prejudice. See Hammock, 277 Ga. at 614 (2); Bobo, 254 Ga. at 148;

Watkins, 237 Ga. at 683–685. We therefore affirm the habeas court’s

grant of habeas relief based on Watkins’s juror-misconduct claim.

Because that ground alone warrants habeas relief, we need not

address the remaining grounds on appeal.

Judgment affirmed. All the Justices concur.

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