Ballinger, Warden v. Watkins ( 2022 )


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  •  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
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    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
    16
    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
    23
    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.”
    26
    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”).
    28
    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.
    29