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: January 28, 2025
S24A1303. BLALOCK v. THE STATE.
S24A1304. RYAN v. THE STATE.
BETHEL, Justice.
Appellants Damone Blalock and Rodalius Eugene Ryan, Jr.,
were convicted for the malice murder of Jamari Holmes, the
aggravated assaults of two other individuals, and other related
crimes.1 On appeal, both Appellants contend that trial counsel
The crimes occurred on February 23, 2019. In May 2019, a Fulton
1
County grand jury indicted Appellants for participation in criminal street gang
activity (Count 1), malice murder (Count 2), felony murder (Counts 3-5),
aggravated assault with a deadly weapon (Counts 6-8), criminal damage to
property in the first degree (Count 9), and possession of a firearm during the
commission of a felony (Count 10). Counts 1 and 5 were bifurcated for trial;
ultimately, those counts were not presented to the jury and were nolle prossed.
Appellants were tried together before a jury from September 21 to October 1,
2021, and the jury found Appellants guilty on all presented counts. The trial
court sentenced Appellants to serve life in prison on Count 2; ten consecutive
years on Count 7; ten consecutive years on Count 8; ten concurrent years on
Count 9; and five consecutive years on Count 10. The remaining counts merged
or were vacated by operation of law.
Appellants each filed timely motions for new trial, which were amended
several times through new counsel. Following hearings, the trial court denied
the amended motions on May 20, 2024. Appellants filed timely notices of
rendered ineffective assistance in several ways. We also review
whether counsel’s alleged deficiencies, when viewed cumulatively,
require reversal of his convictions. For the reasons that follow, we
affirm.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. On the day of the
crimes, Appellants, Tyherra Hartfield, and Mariah Smith were at
Blalock’s apartment. Hartfield invited Bernard Mitchell, Rodney
Ooten, and Jamari Holmes (the “victims”) to meet up with her and
Smith. When the victims arrived, Hartfield and Smith got into the
victims’ car, and Hartfield directed them to a nearby apartment
complex where Ryan resided to buy marijuana.
Upon arrival, Mitchell parked his vehicle, and the victims gave
money to Hartfield, who exited the vehicle to purchase the
marijuana. Hartfield returned a few minutes later and told Smith to
come with her because “somebody need[ed] to see” her. Smith got
appeal, and the cases were docketed to this Court’s August 2024 term. Blalock’s
appeal was orally argued before this Court in November 2024, and Ryan’s
appeal was submitted for a decision on the briefs.
2
out of the car and, when she reached the apartment stairs, heard
gunshots and saw Appellants shooting at the victims’ car. Neither
Mitchell nor Ooten saw the perpetrators clearly enough to identify
them, but both told the police they saw a shooter who was “tall with
dread[lock]s” come out of the apartment breezeway with an “assault
rifle shooting at the car.” Mitchell also told the police he saw another
shooter at the corner of the building, though Mitchell did not recall
seeing a second shooter at trial. Mitchell and Ooten fled on foot after
Mitchell’s vehicle malfunctioned. Smith and Hartfield hid nearby
until Ryan picked them up, and they returned to Blalock’s
apartment.
When officers arrived at the crime scene, they found Holmes,
who had been shot in the back of the head, in the passenger seat of
the victims’ car, which had several bullet holes in the exterior.
Holmes was taken to the hospital and died shortly thereafter.
Investigators determined that the fatal bullet entered through the
rear of the car, pierced the backseat, and exited through the front
passenger seat where Holmes was sitting. A 7.62-millimeter bullet
3
fragment was recovered from Holmes’ head during the autopsy. At
the crime scene, officers recovered 7.62-millimeter shell casings and
9-millimeter shell casings. Ballistics testing showed that all the
7.62-millimeter casings were fired from the same gun, most likely a
rifle, and all the 9-millimeter casings were fired from the same gun,
most likely a pistol. Investigators determined that the 9-millimeter
rounds were likely fired from the corner of the building close to the
victims’ vehicle, consistent with Mitchell’s initial account of where
the second shooter appeared.
After fleeing, Mitchell and Ooten called Hartfield and asked,
“[W]hy they shoot at us?” Hartfield replied, “[T]hey said that y’all
was parked in front of the spot.” Hartfield then texted Mitchell,
claiming “we [did not] set you up.” Mitchell and Ooten reported
Smith’s and Hartfield’s potential involvement to police, and shortly
thereafter, officers located and interviewed the two women; the
interviews were video-recorded and were admitted into evidence at
trial. Although Smith initially refused to admit that she saw
Appellants shooting at the victims and instead provided several
4
alternative accounts of the crimes, she ultimately admitted to seeing
Appellants shoot at the victims. In contrast, the lead investigator
testified that Hartfield was “not cooperative” during her interview
and did not provide any information about what happened at the
incident. After her interview with police, Hartfield messaged
Appellants on Instagram that she “stayed solid” and told police that
she did not know what happened, but that Smith was “snitching” so
the police “know about [Blalock] but not [Ryan].” Blalock replied
that he “knew that [Smith] was a rat,” and asked what Smith said
about him.
At trial, Mitchell, Ooten, Smith, and Hartfield testified for the
State. Smith’s explanation of events at trial aligned with the victims’
testimony of what took place at the crime scene – that is, that the
victims picked up Hartfield and Smith from Blalock’s apartment,
Hartfield directed the victims to the scene of the crime, Hartfield
exited the vehicle before returning to retrieve Smith, and then shots
were fired at the victims’ vehicle. Smith also specifically testified
that she saw Appellants fire their weapons at the victims and
5
explained that she initially lied during her interview with police
because she feared retribution by Appellants. During Hartfield’s
testimony, she invoked her right against compelled selfincrimination numerous times because, although not charged in
connection with this case, she was under indictment for other
charges at the time of trial. However, Hartfield also provided some
substantive answers, such as denying that she knew Ryan, denying
setting up the victims, and denying directing Appellants to shoot the
victims.
Appellants’ theory of defense was that neither Appellant was
present during the crimes. Throughout trial, Appellants implied
that Hartfield and Smith were shielding the real perpetrators.
Blalock argued in his opening that the reason Appellants were on
trial was because Hartfield and Smith “don’t want to tell what really
happened.” To that end, Appellants sought to persuade the jury that
the State failed to present sufficient evidence to prove Appellants’
guilt beyond a reasonable doubt by highlighting Smith’s shifting
accounts of the crimes and Hartfield’s invocation of her right against
6
self-incrimination. For example, during closing, Ryan explained that
“the problem” with Hartfield’s invocation of her right against selfincrimination was that her silence “didn’t really help [the jury]
figure out what happened.”
2. Both Appellants contend that trial counsel rendered
constitutionally ineffective assistance by (a) failing to object and
move to strike Hartfield’s testimony after she invoked her right
against self-incrimination in the jury’s presence and failing to object
to the trial court’s charge on how the jury should assess Hartfield’s
invocation of that right; (b) failing to review and introduce certain
evidence that would support Appellants’ defense; and (c) not
objecting to each of the prosecutor’s comments on Appellants’ silence
during closing argument. Ryan separately argues that trial counsel
was ineffective for failing to investigate his alibi. We address these
arguments in turn.
To prevail on a claim of ineffective assistance, Appellants bear
the burden of showing both that trial counsel’s performance was
professionally deficient and that they were prejudiced as a result of
7
that performance. See Strickland v. Washington, 466 U. S. 668, 687
(III) (104 SCt 2052, 80 LE2d 674) (1984). “This burden, though not
impossible to carry, is a heavy one.” Blackmon v. State, 302 Ga. 173,
175 (2) (805 SE2d 899) (2017) (citation and punctuation omitted).
To show deficient performance, Appellants must demonstrate
that counsel “performed at trial in an objectively unreasonable way
considering all the circumstances and in light of the prevailing
professional norms.” Butler v. State, 313 Ga. 675, 683 (4) (872 SE2d
722) (2022) (citation and punctuation omitted). Our inquiry focuses
on the objective reasonableness of counsel’s performance, which we
evaluate “in conjunction with the attendant circumstances” and
through the lens of “counsel’s perspective at the time,” while also
making every effort “to eliminate the distorting effects of hindsight.”
Davis v. State, 306 Ga. 140, 143-144 (3) (829 SE2d 321) (2019)
(citations and punctuation omitted). “Thus, deficiency cannot be
demonstrated by merely arguing that there is another, or even a
better, way for counsel to have performed.” Id. Nor does counsel’s
subjective state of mind have any bearing on our analysis. See State
8
v. Tedder, 305 Ga. 577, 584 (826 SE2d 30) (2019) (The fact that
defense counsel “failed to articulate any strategic reasons” for his
failure made “no difference because our inquiry is focused on the
objective reasonableness of counsel’s performance, not counsel’s
subjective state of mind.” (citation and punctuation omitted)).
Rather, “if a reasonable lawyer might have done what the actual
lawyer did—whether for the same reasons given by the actual
lawyer or different reasons entirely—the actual lawyer cannot be
said to have performed in an objectively unreasonable way.” Scott v.
State, 317 Ga. 218, 223 (2) (a) (892 SE2d 744) (2023) (citation and
punctuation omitted).
To show prejudice, Appellants “must establish a reasonable
probability that, in the absence of counsel’s deficient performance,
the result of the trial would have been different.” Butler, 313 Ga. at
683 (4). “It is not enough to show that the errors had some
conceivable effect on the outcome of the proceeding.” Henderson v.
State, 310 Ga. 231, 240 (3) (850 SE2d 152) (2020). And if an
appellant is unable to satisfy one prong of the Strickland test, this
9
Court is not required to examine the other prong. See Bradley v.
State, 318 Ga. 142, 144 (2) (897 SE2d 428) (2024).
(a) In their first claim of ineffective assistance, Appellants
challenge trial counsel’s performance with respect to counsel’s
handling of the following series of events. Before Hartfield testified
at trial, her attorney indicated that Hartfield would invoke her right
against self-incrimination pursuant to the Fifth Amendment of the
federal Constitution. Outside the jury’s presence, the trial court
discussed at length Hartfield’s anticipated testimony with the
parties and Hartfield’s attorney, as well as the types of questions to
which Hartfield could potentially respond without incriminating
herself. The trial court emphasized several times, and the parties
agreed, that Hartfield could not refuse to respond to questions that
would not elicit incriminating responses. The State ultimately called
Hartfield to testify. On both direct and cross-examination, Hartfield
invoked her right against self-incrimination numerous times,
though she also provided substantive responses to some questions.
Appellants raised no objection during Hartfield’s testimony to her
10
invoking her right against self-incrimination. During closing
arguments, counsel relied on Hartfield’s silence to argue that the
State failed to present sufficient evidence to prove Appellants’ guilt
beyond a reasonable doubt. During deliberations, the jury submitted
the following question to the trial court: “How shall we interpret
pleading the Fifth?” After both the State and defense counsel
assisted in crafting a response the court instructed the jury as
follows:
The Fifth Amendment to the United States Constitution
guarantees that an individual cannot be compelled by the
government to provide incriminating information about
herself, the so-called right to remain silent. When an individual
takes the Fifth, she invokes that right and refuses to answer
questions or provide information that might incriminate her
about this case or any other. How this concept factors in to your
fact-finding and ultimate decision is for you to decide.
Appellants did not object to this instruction.
Appellants now argue that trial counsel performed deficiently
by (i) failing to object and move to strike Hartfield’s testimony after
she invoked her right against self-incrimination in the jury’s
presence and (ii) failing to object to the trial court’s response to the
11
jury’s question. In support of these claims, Appellants highlight the
testimony of both their trial counsel at the motion for new trial
hearing, specifically, testimony that counsel had no strategic reason
for not objecting to either Hartfield’s invocation of the right against
self-incrimination in the jury’s presence or the trial court’s response
to the jury’s question. We are not persuaded.
(i) We turn first to Appellants’ argument that trial counsel
were deficient by failing to object and move to strike Hartfield’s
testimony after she invoked her right against self-incrimination in
the jury’s presence. Pointing to decisions of this Court and others
that have recognized the potential for unfair prejudice that may
arise from a witness’s assertion of her right against selfincrimination and the adverse inferences that may follow,
Appellants contend that their rights to due process and to confront
the witnesses against them were violated by Hartfield’s assertions
of that right here. See, e.g., Davis v. State, 255 Ga. 598, 604 (7) (340
SE2d 869) (1986) (“Neither side has the right to benefit from any
inferences the jury may draw simply from the witness’ assertion of
12
the privilege either alone or in conjunction with questions that have
been put to him.” (citation and punctuation omitted)). So, they say,
trial counsel were deficient for failing to object and move to strike
Hartfield’s responses on that basis.
But even assuming that an objection and motion to strike
Hartfield’s testimony would have succeeded, we conclude that it was
not an objectively unreasonable strategy to forgo objecting and
moving to strike Hartfield’s testimony since this strategic decision
is one of several a reasonable counsel could have made. The record
shows that, rather than objecting and moving to strike Hartfield’s
testimony, trial counsel opted to use Hartfield’s testimony—or lack
thereof—to bolster Appellants’ theory of defense. Specifically,
during closing arguments, trial counsel emphasized Hartfield’s
refusal to respond to questions about her role in the crimes as part
of their defense that the State failed to present sufficient evidence
to prove Appellants’ guilt beyond a reasonable doubt. Ryan pointed
out that Hartfield “declined to answer almost everything she was
asked” and explained that “the problem” with Hartfield’s
13
invocations was that her silence “didn’t really help [the jury] figure
out what happened.” Both Appellants referred to Hartfield’s silence
in an effort to cast doubt on the evidentiary value of the inculpatory
Instagram messages sent by Hartfield to Appellants that were
introduced during trial, namely Hartfield’s message to Appellants
that she “stayed solid” after her interview with police by telling the
officers that she did not know what happened, but that Smith was
“snitching” so the police “know about [Blalock] but not [Ryan].” Ryan
urged the jury that Hartfield’s refusal to respond to questions about
the Instagram messages was critical because the case “is about what
is proved, not about something that is suspicious, not about what
might have been . . . [i]t’s about evidence.” Ryan also suggested
different reasons why Hartfield sent that message that did not
implicate either Appellant as the shooter, concluding that “without
the context of that message” the State had not proved its case.
Blalock likewise emphasized the dearth of evidence presented by the
State, arguing that the State’s case hinged on Smith’s shifting
accounts of the crimes and the inculpatory Instagram messages—an
14
argument that was only strengthened by Hartfield’s refusal to
provide any substantive response regarding the crimes. Choosing to
address Hartfield’s testimony this way in closing arguments rather
than objecting and moving to strike Hartfield’s testimony was an
objectively reasonable trial strategy and provides no basis for
deficiency. See Hartsfield v. State, 294 Ga. 883, 889 (3) (b) (757 SE2d
90) (2014) (it is “a sound defense strategy to minimize objections [to
a witness’s testimony] in an effort to show the jury that the defense
ha[s] nothing to hide” and to instead use the witness’s testimony to
counsel’s advantage during closing argument); Moon v. State, 288
Ga. 508, 516 (9) (705 SE2d 649) (2011) (“the making of objections
falls within the realm of trial tactics and strategy and thus usually
provides no basis for reversal of a conviction” (citation and
punctuation omitted)).
Moreover, a reasonable attorney also could have decided not to
object and move to strike Hartfield’s testimony to avoid drawing the
jury’s attention to the questions and Hartfield’s invocation of her
right against self-incrimination in response. See Rashad v. State,
15
318 Ga. 199, 213 (3) (e) (897 SE2d 760) (2024) (“It would not be
objectively unreasonable for trial counsel, as a matter of trial
strategy, to refrain from objecting to this testimony so as not to draw
attention to it[.]”).
Finally, trial counsel were not deficient for failing to object and
move to strike Hartfield’s testimony because Hartfield gave several
substantive answers that supported, at least by implication,
Appellants’ defense. Hartfield denied knowing Ryan and denied
setting up the victims or directing Appellants to shoot the victims.
Each of these denials could help to cast doubt on Appellants’ guilt.
As such, it was not an objectively unreasonable strategy to forgo
objecting and moving to strike Hartfield’s testimony. That the jury
apparently reached different conclusions about Hartfield’s
testimony does not mean that no reasonable attorney could have
chosen this approach. See Anderson v. State, 302 Ga. 74, 82 (4) (805
SE2d 47) (2017) (“the law is well-settled that decisions relating to
trial strategy and tactics are not to be judged by hindsight”).
(ii) We now turn to Appellants’ argument that trial counsel
16
were deficient by failing to object to the trial court’s response to the
jury’s question because, they assert, it improperly authorized the
jury to draw inferences from Hartfield’s invocation of her right
against self-incrimination that were adverse to Appellants. But as
we have already discussed, the record reflects that, during closing
arguments, trial counsel sought to capitalize on Hartfield’s
invocation of her right against self-incrimination as part of their
theory of defense, repeatedly pointing to Hartfield’s silence as
demonstrative of the State’s failure to produce sufficient evidence to
prove Appellants’ guilt. In light of that closing argument, it was not
an objectively unreasonable strategy to forgo objecting to a jury
instruction that permitted the jury to factor Hartfield’s silence into
its deliberations in hopes that the jury would view the lack of
testimony from a key witness as to what happened on the night of
the crimes as an indication that the State had not presented
sufficient evidence to prove its case. 2 Thus, under the circumstances
2 Because Appellants raise no claim of trial court error with respect to
the jury instruction, we do not address whether the trial court erred by
17
of this case, we cannot say that trial counsel’s decision to forgo
objecting to a jury instruction that could have benefitted the defense
was objectively unreasonable. See Barboza v. State, 309 Ga. 319,
325-326 (b) (845 SE2d 673) (2020) (trial counsel’s decision not
deficient where failure to object to trial court’s comments could be
“helpful to [a]ppellant’s case”). Cf. Hampton v. State, 295 Ga. 665,
670 (2) (763 SE2d 467) (2014) (trial counsel not deficient where
failure to object to introduction of certain evidence may have helped
defense); McKinney v. State, 307 Ga. 129, 140 (4) (834 SE2d 741)
(2019) (counsel’s decision not to object to prosecutor’s comments that
may have “helped support the defense” not objectively
unreasonable). For all these reasons, we conclude that Appellants
have failed to establish that trial counsel’s performance was
deficient, and this claim of ineffective assistance fails.
(b) In their next claim of ineffective assistance, Appellants
argue that trial counsel performed deficiently by failing to review
instructing the jury as it did. Rather, we only conclude that trial counsel were
not objectively unreasonable for failing to object for the reasons discussed
herein.
18
and introduce into evidence Instagram messages provided by the
State during discovery that, according to Appellants, would have
cast doubt on the State’s theory of the case. Specifically, Appellants
point to Instagram messages sent by an unidentified user who asked
Mitchell how he “let” Holmes “get killed,” to which Mitchell
responded, “We didn’t let him get killed[.] [Hartfield and Smith] set
us up[.] [W]e shot ba[c]k.” Mitchell reiterated in another message,
“[W]e w[ere] shooting back.” When asked about these messages at
the motion for new trial hearing, Blalock’s counsel did not recall
seeing these messages during her review of the records, and Ryan’s
counsel testified that he was not aware of the messages before trial.
Appellants argue that these messages undermine the State’s
ballistics evidence and testimony from investigators that two
shooters fired from outside the vehicle and that none of the victims
returned fire, as well as Mitchell’s testimony that, although he had
a gun, it was unloaded, he did not fire at anyone, and he did not see
anybody else fire from within the victims’ vehicle. The trial court
found that trial counsel were “deficient in failing to find” the
19
Instagram messages, and the State does not dispute that finding.
However, the trial court also found that Appellants had failed to
establish Strickland prejudice as a result of this deficiency. We
agree.
Although Mitchell’s message about “shooting back” may cast
doubt on some of the State’s evidence, we cannot say that
“introducing the [evidence] would have created a reasonable
probability” of a different outcome — here, an acquittal. Lee v. State,
318 Ga. 412, 422 (b) (i) (897 SE2d 856) (2024). First, given that
Mitchell claimed to have fired “back,” the text messages in fact
bolster evidence that shots were fired from outside the vehicle first.
Second, the messages do nothing to undermine other strong
evidence that the fatal shot came from outside the car. Investigators
determined that the fatal shot entered the rear of the car, pierced
the backseat, and exited through the front passenger seat where
Holmes was sitting. Further, evidence showed that the fatal 7.62-millimeter bullet could not have been fired by a .22-caliber gun,
which was the caliber of weapon that Mitchell admitted was on his
20
person at the time of the shooting. Third, even if Mitchell’s messages
were presented to the jury and we assume the jury would have
credited them, the messages do not definitively prove that “there
had only been one person shooting at the victims” as Appellants
claim. Appellants appear to reason that the ballistic evidence
presented at trial showed there were only two guns used at the crime
scene; therefore, Mitchell’s message would show there was at least
one victim shooting from the car accounting for one of the guns,
leaving only one shooter outside the vehicle firing the other gun at
the victims. However, the State’s ballistics expert testified that “at
least two different guns” were fired but explicitly clarified that he
could not testify that only two guns were fired. Accordingly,
Appellants’ argument that Mitchell’s messages would have
conclusively dispelled the State’s theory is inaccurate.
Given these circumstances, Appellants have failed to establish
a reasonable probability that the result of the trial would have been
different had trial counsel reviewed and introduced into evidence
the Instagram messages and, thus, have not shown the requisite
21
prejudice to support their claim of ineffective assistance. See SteppMcCommons v. State, 309 Ga. 400, 408 (4) (b) (845 SE2d 643) (2020)
(no prejudice from counsel’s failure to review a witness’s prior
contradictory statement because, among other reasons, such
evidence was not exculpatory); White, 293 Ga. at 827 (2) (a) (no
prejudice where, even if counsel had not failed to carefully review
the case files, the outcome of the trial would not have changed based
on other evidence).
(c) Appellants also argue that trial counsel were ineffective for
not objecting to the prosecutor’s comments during closing
arguments, which they contend impermissibly commented on the
invocation of their right to remain silent. Again, we disagree.
During closing arguments, the prosecutor acknowledged that
the defendants “carry no burden” but urged the jury to listen for
Appellants’ explanation in response to the following question: “[I]f
[the defendants] were not committing the murders, where were
they?” Appellants objected to the comment as burden-shifting, but
the trial court overruled the objection. The prosecutor repeated the
22
question, emphasizing that “[the defendants] are both saying . . .
they weren’t there. Tell us where you were. We didn’t hear any
evidence of it, obviously, but I would still like to hear that answer.”
Blalock again objected to the statements as burden-shifting. The
trial court sustained this objection and instructed the jury, “Tell us
where they were should be disregarded”
In his rebuttal closing, the prosecutor returned to the same
theme: “I wanted to hear the answer to [the] question[]: if they
weren’t committing the murders, where were they?” The prosecutor
continued and asked, “At any point did you hear an answer to [the]
question[]? I did not, because they can’t. They can’t answer [the]
question[]. Because the answer . . . is they were committing this
murder.” The prosecutor continued, “The defense does not have to
call a single witness or present a single piece of evidence in this case.
. . . But they can if they have it. . . . But they didn’t because they
don’t have it.” Trial counsel did not object to these comments.
Pretermitting whether trial counsel were deficient by failing to
23
object to each of the prosecutor’s purportedly improper comments,3
Appellants have failed to establish the requisite prejudice in light of
the strong evidence of their guilt, including Smith’s testimony
identifying them as the shooters, the victims’ testimony that
corroborated Smith’s account of the crimes, and the inculpatory
3 In a number of cases, we have said that a prosecutor may emphasize
that a defendant has not “successfully rebutted or explained the State’s
evidence.” Kimbro v. State, 317 Ga. 442, 452 (7) (893 SE2d 678) (2023) (“Viewed
properly in context, the prosecutor’s comment merely emphasized to the jury
that [the defendant] had not successfully rebutted or explained the State’s
evidence.”). See also, e.g., Ridley v. State, 315 Ga. 452, 458 (4) (a) (883 SE2d
357) (2023) (concluding it was not improper for the prosecutor to argue in
closing that defendant had failed to rebut or explain evidence of his guilt and
rejecting assertion that such comments amount to improper burden-shifting);
Johnson v. State, 271 Ga. 375, 383 (15) (a) (519 SE2d 221) (1999) (holding that
State’s “make them explain” argument did not impermissibly shift the burden
of proof and did not comment on defendant’s failure to testify); Ward v. State,
262 Ga. 293, 296 (6) (a) (417 SE2d 130) (1992) (same).
In this case, however, many of us have serious concerns that some of the
prosecutor’s comments went beyond a permissible “make them explain”
argument and instead amounted to a comment on Appellants’ failure to testify.
See Pyne v. State, 319 Ga. 776, 785 (2) (906 SE2d 755) (2024) (“[A] prosecutor
may not comment on the failure of a defendant to testify, but he may argue
that evidence showing guilt has not been rebutted or contradicted.” (citation
and punctuation omitted)). Nevertheless, because we have determined that
Appellants have failed to meet their burden of showing that they were
prejudiced by counsel’s failure to object, we need not address whether the
prosecutor’s comment was, in fact, improper such that trial counsel were
deficient by failing to object. See Bradley, 318 Ga. at 144 (2) (“The failure to
demonstrate either deficient performance or resulting prejudice is fatal to a
claim of ineffective assistance of counsel and obviates the need even to consider
the other.”).
24
messages sent between Appellants and Hartfield. See Davis, 306 Ga.
at 149 (3) (i) (no prejudice from counsel’s failure to object to
comments during State’s closing argument where the State
presented “substantial evidence” of the appellant’s guilt); Strother
v. State, 305 Ga. 838, 848-849 (5) (828 SE2d 327) (2019) (no prejudice
where, even assuming counsel was deficient by failing to object
during closing argument, other evidence of the appellant’s guilt was
“very strong”). In addition, “the prosecutor’s statements were not
evidence, and the trial court properly instructed the jury as much.”
Denson v. State, 307 Ga. 545, 549 (3) (837 SE2d 261) (2019). This
claim of ineffective assistance therefore fails.
(d) Ryan argues separately that trial counsel was deficient by
failing to investigate and present his alibi to the jury. Specifically,
Ryan argues counsel should have called his half-brother, who would
have testified that he and Ryan were home playing video games at
the time of the shooting. We disagree that trial counsel performed
deficiently in this respect.
Counsel “has a duty to make reasonable investigations or to
25
make a reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s
judgments.” Terry v. Jenkins, 280 Ga. 341, 346-347 (2) (c) (627 SE2d
7) (2006) (citation omitted). Moreover, “[a] decision as to which
defense witnesses to call is a matter of counsel’s trial strategy and
tactics and will not support a claim of ineffective assistance of
counsel unless it is so unreasonable that no competent attorney
would have made the decision under the circumstances.” Smith v.
State, 308 Ga. 81, 92 (4) (839 SE2d 630) (2020).
Here, trial counsel testified at the motion for new trial hearing
that he was aware of the potential alibi defense but elected not to
pursue it any further after he conducted a mock examination of
Ryan, which did not go well. Counsel testified that he did not believe
an alibi defense would be persuasive unless Ryan testified and also
noted that evidence at trial contradicted the purported alibi.
Counsel instead “thought it would be better to argue that there was
26
only one shooter and that the other shots came back from the alleged
victims[.]”As a result, counsel elected not to investigate the alibi
defense any further. Given the conflicting evidence and counsel’s
objectively reasonable concern about the strength of an alibi, we
cannot say that counsel’s strategic decision not to investigate and
present Ryan’s alibi defense was unreasonable. See Smith, 308 Ga.
at 91-92 (4) (claim that counsel was ineffective for failing to
investigate and present alibi defense failed where a witness placed
defendant at the crime scene and counsel believed that an alibi
presented by defendant’s girlfriend would not be persuasive).
Accordingly, this claim fails.
3. Finally, we consider whether the combined prejudicial effect
of trial counsel’s assumed deficiencies warrants a new trial. See
Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56) (2007),
overruled on other grounds, State v. Lane, 308 Ga. 10 (838 SE2d 808)
(2020). In our review of Appellants’ claims, we assumed that counsel
were deficient for failing to review and introduce into evidence
Mitchell’s two Instagram messages and failing to object to each of
27
the prosecutor’s comments on silence in closing argument. As
discussed in Divisions 2 (b) and (c), counsel’s assumed failures are
unlikely to have affected the outcome of the trial, and we do not see
that the prejudice from these two deficiencies would cumulate in any
way to cast doubt on the verdict. See Lee, 318 Ga. at 431 (6) (h)
(“Given the relatively minor impact of counsel’s assumed errors, [the
appellant] has not shown that the cumulative prejudice from those
assumed errors likely affected the outcome of [his] trial.”) This
claim, therefore, fails.
Judgments affirmed. All the Justices concur.
28