dissenting.
The majority departs from settled federal and state law by utilizing a presumption of prejudice which is wholly inapplicable for two separate and compelling reasons. The majority also errs to the extent that it relies upon actual prejudice in concluding that the failure to object to Gary Wilson’s service as a bailiff constituted ineffective assistance of counsel.
1. “[Cjontact between the jury and a witness for the State who is also an officer of the court is not grounds for an automatic reversal. [Cit.]” Bishop v. State, 268 Ga. 286, 293 (10) (486 SE2d 887) (1997). See also Gonzales v. Beto, 405 U. S. 1052, 1054 (92 SC 1503, 31 LE2d 787) (1972) (Stewart, J., concurring); Radford v. State, 263 Ga. 47, 48 (1) (426 SE2d 868) (1993). The factors to be considered are both the importance of the bailiffs testimony and the type and duration of his association with the jury. Bishop v. State, supra; Walker v. State, 2 SW3d 655, 658 (Tex. App. 1999). Under Turner v. Louisiana, 379 U. S. 466 (85 SC 546, 13 LE2d 424) (1965), “[w]hen the bailiffs contact is extensive and the testimony addresses substantive issues of the defendant’s guilt, prejudice is presumed.” Agnew v. Leibach, 250 F3d 1123, 1135 (II) (C) (7th Cir. 2001). On the other hand, even where the bailiff was a key witness for the prosecution, “if the jury contact is minimal and the jury was not in a position of ascribing extra credibility to the testifying bailiff because of his assistance to them, there is no ground[ ] for reversal. [Cits.]” Walker v. State, supra. In *95evaluating the contact with the jury, courts “ ‘look to factual indicia of custody and control and not solely to the lawful authority to exercise such custody or control.’ [Cit.]” State v. Nicholson, 558 SE2d 109, 129 (N.C. 2002).
In this case, Wilson was sequestered with the other witnesses and, except for the duration of his testimony, did not appear in the courtroom during presentation of the State’s evidence. On the third day of trial, Wilson began acting as bailiff. On the morning of the fourth day, the jury began deliberations at 9:00 a.m., sent a note to the trial court at 9:35 a.m., reached a verdict at 10:22 a.m., and was excused shortly thereafter. It is undisputed that Wilson did not converse with any juror, nor did he have any contact or communication with the jury other than that which the trial court specifically directed. It is further undisputed that Wilson never entered the jury room and that, while the jury was out, he remained in a chair in the courtroom outside the door of the jury room. When there was a knock on the door, Wilson would inform the trial court and, pursuant to its direction, open the door in the presence of the defendant and the judge, see what the jury wanted, and report to the judge. The jurors were not sequestered overnight. During recesses, they were permitted to go downstairs by themselves for the restroom or for refreshments and were either instructed to return within a certain time or told that the judge would send the bailiff down to tell them when to return. Therefore, contrary to the majority opinion, there is not any indication that the jurors were “overseen” by Wilson during breaks. Furthermore, if Wilson handled the jury’s note during deliberations, he did so in the presence of the judge and the defendant. The majority also states that Wilson “possibly” provided the jurors with food. At most, that occurred only once and strictly under the direction of the trial court. The jury was effectively informed that the provision of food would require a decision by the trial court, and would not result from unilateral action by Wilson.
Thus, “the record does not conclusively support [the majority’s] interpretation of what transpired . . . .” Hudson v. State, 250 Ga. 479, 484 (5) (299 SE2d 531) (1983). To the contrary, the record shows that Wilson’s contact with the jury is readily distinguishable from Turner, Gonzales, and Radford, which are the primary cases upon which the majority relies. In Turner v. Louisiana, supra at 473, the bailiffs ate and conversed with the sequestered jurors, drove them to their lodgings, did errands for them and, therefore, had a “continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity, as [one bailiff] put it, to renew old friendships and make new acquaintances among the members of the jury.” In Gonzales v. Beto, supra, the plurality of three Justices noted that the sheriff-witness “associ-*96at[ed] extensively with the jurors during the trial” by, among other things, conducting them in and out of the courtroom, and eating and conversing with them in a private room at a restaurant. In Radford v. State, supra at 49 (5), the bailiff rode with the sequestered jurors on the bus, dined with them, stood guard where they congregated at their motel, and had numerous casual conversations with them. In each of those cases, the jurors were in the bailiffs’ “ ‘custody and under their charge out of the presence of the court for protracted periods of time with no one else present.’ [Cit.]” State v. Flowers, 489 SE2d 391, 402 (N.C. 1997). Those circumstances are what caused the Supreme Court of the United States in Turner v. Louisiana, supra, to recognize the “extreme prejudice inherent” in a close and continual association between the jurors and bailiffs who are also key witnesses.
Because such circumstances are not present here, the majority erroneously applies Turner’s presumption of prejudice. Wilson did not “ ‘associate] with [the jurors] on both a personal and an official basis . . . .’ [Cit.]” Radford v. State, supra at 49-50 (6). The nature of his association with the jury clearly was official only, and he “had no personal contact with the jurors.” Bishop v. State, supra. There is not any evidence that Wilson “fraternized with the jurors here.” Mills v. Commonwealth, 170 SW3d 310, 338 (IV) (A) (2) (d) (Ky. 2005). His jury contact was no more personal than the act of bringing coffee to jurors while they deliberated, which has been held to be an insignificant contact which did not demonstrate harm. Reed v. State, 974 SW2d 838, 840 (A) (Tex. App. 1998).
In this case, the circumstances of [Wilson’s] contact with the jury were considerably different from the contacts in Turner. First [there was not any evidence that he was ever] alone with the jury. . . . He was not singled out as “trustworthy” to enter the private realm of the jury room during deliberations. [Cit.] Both the judge and defense counsel were present to observe any inappropriate contacts between [Wilson] and the jurors. Second, the judge specifically instructed . . . the jurors not to discuss the case .... Third, the contact was not continuous throughout the trial, but was limited to [slightly more than] one day.
Cooper v. Calderon, 255 F3d 1104, 1113 (IV) (C) (9th Cir. 2001). With the apparent exception of occasional trips by Wilson from the courtroom to a public area of the courthouse to tell the jurors when the trial court was ready for them to return, his “contact with the jurors took place in the courtroom and occurred at various times over a period of less than a day and a half. [He] did not have specific *97contact or communication with any individual juror.” State v. Flowers, supra. Therefore, the jury’s exposure to Wilson “was brief, incidental, [and] without legal significance. [Cits.]” State v. Flowers, supra.
Accordingly, “[a] presumption of prejudice does not arise from [Wilson’s] limited exposure to the jury.” State v. Nicholson, supra at 130. Although we do not approve of the performance of court-related functions by a witness for the State, “there was no extensive contact with the jurors and, under these circumstances, [there was] no reversible error.” Bishop v. State, supra. Thus, even if defense counsel had objected to Wilson’s service as a bailiff, reversal would not be appropriate.
2. However, assuming that a timely objection would have required reversal due to the presumption of prejudice in Turner, that presumption does not apply when a defendant is procedurally barred from raising an issue of improper jury contact. As the majority itself reluctantly acknowledges near the end of its opinion, we have declined to presume prejudice from service by a key prosecution witness as bailiff in the absence of any objection. (Maj. op. p. 94.) Bishop v. State, supra; Hudson v. State, supra. There is a sound rationale for this precedent and, specifically, for its application in the context of an ineffective assistance claim.
In evaluating the prejudice component of a claim of ineffective assistance, we apply a presumption of prejudice only in extremely narrow circumstances which are not applicable here. [Cit.] “(E)ven if the law presumes prejudice for certain errors when they are timely raised,” a convicted defendant who, like [Bass], is seeking to overcome a procedural bar, whether in conjunction with or separate from a claim of ineffective assistance of counsel, “does not have the benefit of that presumption of prejudice, and must instead meet the actual prejudice test. . . .” [Cits.]
Greer v. Thompson, 281 Ga. 419, 421-422 (637 SE2d 698) (2006).
3. Both Turner v. Louisiana, supra, and Gonzales v. Beto, supra, imply that actual prejudice would be shown by evidence that the witness-bailiff spoke to the jurors about the case itself outside the courtroom. See Johnson v. Dugger, 932 F2d 1360, 1366 (II) (C), fn. 40 (11th Cir. 1991).
The central issue with respect to actual prejudice is whether the actions of the sheriff through his responsibilities as bailiff have undermined the impartiality of the jury. Turner v. Louisiana, [supra at 471-472], Applying this standard, *98[Bass] has failed to explain how the actions of the sheriff adversely and tangibly affected the reliability of the outcome of the [trial]. Thus, for example, there is no suggestion that Sheriff [Wilson] ever spoke to the jurors about [Bass’] case outside the courtroom. [Cit.]Decided January 26, 2009 — Reconsideration denied March 9, 2009. Brian Steel, for appellant. Charles M. Ferguson, District Attorney, for appellee.
Johnson v. Dugger, supra at 1366 (II) (C). Furthermore, there is not the slightest evidence that any juror actually ascribed “extra credibility” to Wilson because of his brief, incidental, and legally insignificant assistance to the jury. Bass “has made no showing of ‘actual prejudice’ sufficient to overcome the procedural bar. [Cit.]” Johnson v. Dugger, supra.
The majority relies on its determination that the evidence was not overwhelming, along with the fact that there was a hung jury in the first trial. These circumstances generally are relevant factors in considering an assertion that a certain instance of ineffective assistance was harmless in light of all the evidence. Standing alone, however, they obviously cannot establish that a particular deficient performance by defense counsel so prejudiced the defendant that, but for counsel’s specific error, there was a reasonable probability that the outcome of the trial would have been different. In the absence of any showing whatsoever that Wilson’s actions as bailiff “adversely and tangibly affected the reliability of the outcome,” “the likelihood that the outcome of the trial would have been different had [Wilson] not served as bailiff is negligible.” State v. Nicholson, supra. Therefore, I dissent to the reversal of the Court of Appeals’ judgment.