concurring in part, concurring in judgment only in part, and dissenting in part.
Because Bass was deprived of effective assistance of counsel by the failure of trial counsel to object when the trial court allowed Wilson — the sheriff who had investigated the case and testified as a key witness for the prosecution — to act as bailiff, his convictions (except for simple battery)39 shouldbe reversed. Therefore, regarding the majority’s Division 2 (a), I concur in part and dissent in part. I concur fully with the majority’s Divisions 1,2 (b), and 3. Regarding all remaining divisions, I concur in the judgment only.
To prevail on such a claim, a defendant must establish that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense.40 Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.41 In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.42
(a) Deficient Performance. Bass argues that his trial counsel performed deficiently by failing to object when the trial court allowed Wilson — the sheriff who had investigated the case and who testified as a key prosecution witness — to then act as bailiff of the jury in the trial. Wilson began acting as bailiff at the start of the third day of the four-day trial; the state had rested its case-in-chief at the close of the second day. Bass cites cases such as Turner v. Louisiana,43 Radford v. State,44 and Bishop v. State.45
*702In Turner, two key prosecution witnesses, who were also deputy sheriffs, acted as jury bailiffs throughout a three-day trial. The [United States Supreme] Court explained that it would have undermined the basic guarantees of trial by jury for two key prosecution witnesses to have associated with the jury in any event, but their role as sheriffs deputies made the association even more prejudicial. And this was true notwithstanding an assumption that the facts of the case were not discussed in the many conversations between the two witness-bailiffs and the jury.46
Subsequently, the Supreme Court of Georgia instructed in Rad-ford that
Turner did not set down a rigid, per se rule automatically requiring the reversal of any conviction whenever any government witness comes into any contact with the jury. Turner specifically indicated that association with the jury by a witness whose testimony was confined to some uncontroverted or merely formal aspect of the case for the prosecution would hardly present a constitutional problem. And it indicated that a mere brief encounter, by chance, with the jury would not generally contravene due process principles. Certain chance contacts between witnesses and jury members, while passing in the hall or crowded together in an elevator, are often inevitable.47
Thereafter, the Supreme Court of Georgia explained in Bishop that “contact between the jury and a witness for the State who is also an officer of the court is not grounds for an automatic reversal. The factors to be considered are the type and duration of the contact and the significance of the testimony.”48
In this case, the interaction between the jury and Wilson, the witness for the state who also acted as an officer of the court, was not limited to passing in the hall, being crowded together in an elevator, or to some other brief, chance encounter that generally would not contravene due process principles. Rather, Wilson acted as bailiff from the start of the defense presentation of its case through the end *703of the trial, until the jury reached its verdict. Under such circumstances, Wilson had substantial and continuing contact with and authority over the jurors during a significant portion of the trial.49
As Bass had pled not guilty to the 23 counts under consideration by the jury, the state had the burden of proving beyond a reasonable doubt every element of these offenses.50 In meeting this burden, the state relied upon testimony by the sheriff that was not “ ‘confined to some uncontroverted or merely formal aspect of the case for the prosecution,’ ”51 but testimony that tended to show Bass’s guilt. Wilson, who had both participated in and supervised the investigations of some of the charged crimes, was a key witness for the prosecution.
Under these circumstances, permitting the sheriff to play the dual roles of a key state witness and bailiff undermined the basic guarantees of trial by jury.52 “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors.”53 A safeguard of that right is a jury free of outside influence, which is implemented, in part, “by the presence of bailiffs, officers of the court designated as unbiased administrative attendants, whose sworn duty is to take custody of the jury. . . ,”54
Our adversary system of criminal justice demands that the respective roles of prosecution and defense and the neutral role of the court be kept separate and distinct in a criminal trial. When a key witness against a defendant doubles as the officer of the court specifically charged with the care and protection of the jurors, associating with them on both a *704personal and an official basis while simultaneously testifying for the prosecution, the adversary system of justice is perverted.55
The Supreme Court of Georgia has plainly “condemn[ed] allowing law enforcement officers who give key testimony for the State to be charged with the care and protection of the jurors.”56 There is no question that Bass’s trial counsel performed deficiently by failing to object to Wilson acting as bailiff.57
(b) Prejudice. In assessing the prejudice component of an ineffectiveness claim,58 a court must consider the totality of the evidence to determine the effect of trial counsel’s deficient performance.59 “Some errors [by trial counsel] will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.”60
While the evidence in this case was sufficient to support Bass’s convictions,61 it was not overwhelming. The case was largely circumstantial and hinged on the credibility of the prosecution witnesses, one of whom was Wilson. Wilson described what he and others in his office had done to investigate the crimes, including conducting more than a dozen stakeouts in connection with the fires, and examining the scenes of damaged vehicles. In addition, evidence showed that the sheriffs office had participated in the execution of the search warrant upon Bass’s residence that yielded the type of saw that could have been used to cut down the trees.
Moreover, Wilson corroborated the testimony concerning the tracking dog by other prosecution witnesses. In addition, Wilson was recalled to the stand immediately after Moshell’s neighbor testified about the man he had observed walking down Moshell’s driveway the night Moshell’s car was vandalized. The neighbor had testified that he did not know Bass by name as of that night, but that the sheriff later identified Bass to him. On recall, Wilson testified about his interview with the neighbor concerning that night. According to Wilson, Moshell’s neighbor already knew Bass and reported during the interview that the man he had observed walked and looked like *705Bass, but he (the neighbor) would not identify the person as Bass for fear his house would be burned down.
“Issues regarding the credibility of the witnesses fall solely within the province of the jury.”62 Yet, during significant parts of the trial, including jury deliberations, the sheriff was acting as bailiff. The official character of bailiff — as an officer of the court — beyond question carries great weight with a jury, as the court has placed the jury in the bailiffs charge and care.63 This role could only foster the jurors’ confidence in one who was their official guardian during significant periods of the trial and lead to undue emphasis being placed upon his testimony and the part he and his office played in investigating the underlying crimes.64
Furthermore, the record shows that Wilson had been the county’s elected sheriff since 1985. It has been recognized that
[a]ny person holding the office of sheriff is not only recognized as the symbol of that county’s law, but is the law to his constituents when he speaks. It is for this reason that the testimony of such an officer may influence a jury’s verdict, and the impact of his presence [as bailiff] is increased considerably whenever he is brought into such close company with the jurors.65
Since Turner, the United States Supreme Court has reiterated the proposition that a jury cannot, “consistent with due process, try a case after it ha[s] been placed in the protective custody of the principal prosecution witnesses, notwithstanding the possibility that the jurors might not be influenced by the association.”66 Thus, I cannot agree with the majority’s reasoning to affirm this case because of the lack of evidence that the sheriff ate meals with the jurors and because the sheriff testified that, while acting as bailiff, he restricted his association with the jurors to the judge’s instructions. In light of all the foregoing, I find these points of little to no consequence because, as the Supreme Court of the United States has held, “even if it could be assumed that the [sheriff] never did discuss the case directly with any members of the jury, it would be blinking at reality not to recognize the extreme prejudice inherent in the continual *706association [during] the trial between the jurors and [this] key witness [ ] for the prosecution.”67
Nor can I agree with the majority’s reasoning to affirm what happened in this case merely for the sake of deferring to (perceived) local circumstances or practices commonly employed by trial court judges. And while the majority labels as strategy the trial counsel’s failure to object as trial,
invoking the words “tactics” and “strategy” does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances. “Tactics” and “strategy” provide no talismanic protection against an ineffective assistance of counsel claim. Even assuming that trial counsel in this case knowingly made the tactical decision to forego [an objection], it [was] not a reasonable decision a competent attorney would have made under the same circumstances.68
Counsel’s error reviewed here — failing to object to the sheriffs roles as state’s witness and bailiff — did not have a mere isolated, trivial effect, but a pervasive effect on the inferences to be drawn from the evidence.69 The factors relied upon by the majority fail to negate the prejudice in this case. Because the circumstances of this case show a reasonable probability (i.e., “a probability sufficient to undermine confidence in the outcome”70) that, but for counsel’s deficient performance, the result of the proceeding would have been different, I believe we should reverse all of Bass’s convictions, except for simple battery.
(c) Simple Battery Conviction. In his first trial, Bass was found guilty of simple battery against Miller. In the second trial, the jury was not asked to consider that charge; instead, the parties stipulated to the verdict from the first trial; therefore, that verdict could not have been affected by the sheriff acting as bailiff.
See further part (e) of this dissent.
See Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).
Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993).
Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).
3 79 U. S. 466 (85 SC 546, 13 LE2d 424) (1965).
263 Ga. 47 (426 SE2d 868) (1993).
2 68 Ga. 286 (486 SE2d 887) (1997).
Radford, supra at 48 (1) (punctuation omitted) (analyzing Turner, supra).
Id. (citations and punctuation omitted) (citing Gonzales v. Beto, 405 U. S. 1052, 1054-1055 (92 SC 1503, 31 LE2d 787) (1972) (Stewart, J., concurring)).
Bishop, supra at 293 (10) (citation omitted).
See Gonzales, supra (reversing conviction under Turner, supra, where county sheriff played dual roles of key prosecution witness and bailiff at a trial that lasted only one day and the jury was not sequestered with the county sheriff).
See Tompkins v. State, 278 Ga. 857, 858 (1) (607 SE2d 891) (2005) (a plea of not guilty requires the state to prove every element of the crime charged).
Radford, supra at 49 (4) (quoting Turner, supra at 473).
See Turner, supra at 473-474; Radford, supra at 49-50 (4)-(6); see also Gonzales, supra at 1053-1054 (Stewart, J., concurring) (cited with approval in Radford, supra at 48-50 (1), (6)); see Yelton v. State, 277 S2d 912, 914-915 (I) (Ala. Crim. App. 1973) (because basic guarantees of a jury trial are undermined by permitting certain commingling between jurors and a witness in a position of authority, reversible error occurred in allowing any association of the jury with a witness who had testified at trial, even though sheriffs interaction with jurors did not approach the prohibitedbehavior in Turner, supra), rev'd on other grounds, 317 S2d331 (1974); accord Turpin v. Todd, 271 Ga. 386, 390 (519 SE2d 678) (1999) (recognizing that the very nature of the bailiffs position serves to heighten the prejudicial potential a bailiffs communication may have on the jury).
Turner, supra at 471 (citation and punctuation omitted).
Turpin, supra at 389; see OCGA§ 15-12-140.
Radford, supra at 49-50 (6) (citation omitted).
Bishop, supra at 293 (citation and punctuation omitted).
See Gonzales, supra; Turner, supra; Yelton, supra; see also Jowers v. State, 260 Ga. 459, 462 (396 SE2d 891) (1990) (counsel’s function is to make the adversarial testing process work in the particular case).
Bass’s appellate counsel affirmatively stated at oral argument before this court that Bass is not contending presumptive prejudice.
Strickland v. Washington, 466 U. S. 668, 695 (104 SC 2052, 80 LE2d 674) (1984).
Id. at 695-696.
See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
McKee v. State, 280 Ga. 755, 756 (1) (632 SE2d 636) (2006) (citation omitted); see OCGA § 24-9-80.
Parker v. Gladden, 385 U. S. 363, 365 (87 SC 468, 17 LE2d 420) (1966); accord Turpin, supra at 390.
See Turner, supra at 474; Yelton, supra at 914.
Yelton, supra; see Turner, supra at 474.
Peters v. Kiff, 407 U. S. 493, 502 (92 SC 2163, 33 LE2d 83) (1972).
Turner, supra at 473; see Radford, supra at 48.
Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004) (citation and punctuation omitted; emphasis in original).
Strickland, supra at 695-696.
Id. at 694.