Walker v. State

FINAL COPY

                 S20A0170. WALKER v. THE STATE.


      BOGGS, Justice.

      Appellant Vashon Londell Walker challenges his 2016

conviction for felony murder for the shooting death of his girlfriend,

Jessica Osborne. He contends that the evidence was legally

insufficient, that the trial court erred in admitting a shell casing and

related photographs in violation of his constitutional right to

confront his accusers, and that he was denied the effective

assistance of counsel. As explained below, Appellant’s contentions

lack merit. Accordingly, we affirm.1


      1  Osborne was killed on June 17, 2014. On December 16, 2014, a
Muscogee County grand jury indicted Appellant for malice murder, felony
murder, aggravated assault with a deadly weapon, and possession of a firearm
by a convicted felon. During Appellant’s first trial in December 2015, a portion
of a recording that the parties had agreed was inadmissible was inadvertently
played for the jury as a result of a technical glitch, and the trial court granted
the defense’s motion for mistrial. At Appellant’s second trial in April 2016, the
jury acquitted him of malice murder but found him guilty of felony murder and
aggravated assault. The firearm charge was bifurcated for trial, and on May 3,
2016, the trial court granted the State’s motion to enter an order of nolle
prosequi on that charge. On May 10, 2016, the trial court held a sentencing
      1.    “It is incumbent upon the Court to question its

jurisdiction in all cases in which jurisdiction may be in doubt.”

Woods v. State, 

 (

) (2005). On November

5, 2019, the State filed a motion to dismiss this appeal, noting that

Appellant filed his motion for new trial pro se; the record contains

no written order permitting his trial counsel to withdraw; by the

time Appellant’s current counsel filed an entry of appearance and




hearing and pronounced a sentence of life in prison without the possibility of
parole for felony murder; the aggravated assault verdict merged for
sentencing.
       After the pronouncement of the sentence, a question arose as to whether
Appellant, who was represented by retained counsel at trial and at the
sentencing hearing, wanted to waive his right to counsel and proceed pro se as
to a motion for new trial due to a lack of funds. After a colloquy in which the
court advised Appellant of his right to appointed counsel and explained the
dangers and disadvantages inherent in self-representation, Appellant
indicated that he wished to proceed pro se, and the court made a finding on the
record that Appellant had freely, intelligently, and knowingly elected to waive
his right to counsel and to represent himself. Later the same day, the trial
court entered a final disposition. On May 11, 2016, Appellant, acting pro se,
filed a motion for new trial. More than a year later, on May 31, 2017,
Appellant’s current, appointed counsel filed an entry of appearance in the trial
court. Appellant, through his current counsel, then amended his new trial
motion on June 1, 2017, and again on March 18 and April 18, 2019. After a
hearing, on June 21, 2019, the trial court denied the new trial motion. On June
26, 2019, Appellant filed a notice of appeal. The case was docketed in this Court
to the term beginning in December 2019 and submitted for decision on the
briefs. The State filed a motion to dismiss the appeal, which we denied by order
on December 23, 2019.
an amended new trial motion, the 30-day deadline to file a new trial

motion had long since passed; and absent the filing of a timely new

trial motion in 2016, Appellant’s 2019 notice of appeal was untimely

by more than three years. The State argued that because Appellant

filed his motion for new trial pro se while he was still represented

by counsel, his filing was a legal nullity, and this Court therefore

lacks jurisdiction over this appeal. See OCGA § 5-6-38 (a) (“A notice

of appeal shall be filed within 30 days after entry of the appealable

decision or judgment complained of; but when a motion for new trial

. . . has been filed, the notice shall be filed within 30 days after the

entry of the order granting, overruling, or otherwise finally

disposing of the motion.”).

     The State’s motion to dismiss relied primarily on this Court’s

statement in Tolbert v. Toole, 

 (

) (2014), that

“[a] formal withdrawal of counsel cannot be accomplished until after

the trial court issues an order permitting the withdrawal. Until such

an order properly is made and entered, no formal withdrawal can

occur and counsel remains counsel of record.” 

 (citations
and punctuation omitted). The State also cited this Court’s decision

in White v. State, 

 (

) (2017), in which we

said:

        [A]t a minimum, legal representation continues – unless
        interrupted by entry of an order allowing counsel to
        withdraw or compliance with the requirements for
        substitution of counsel, see [Uniform Superior Court
        Rule] 4.3 (1)-(3) – through the end of the term at which a
        trial court enters a judgment of conviction and sentence
        on a guilty plea . . . .

 at 319 (citing Tolbert). Accord Dos Santos v. State, 

 (

) (2019). See also Jones v. State, 

, ___

(

) (2020) (quoting Dos Santos, in turn quoting White).2

        On December 23, 2019, we issued an order denying the State’s

motion to dismiss. Unlike this case, White did not involve on direct



        2 The Court of Appeals has repeated the quoted language from Tolbert

and White in a number of cases. See Branner v. State, ___ Ga. App. ___, ___
(___ SE2d ___) (2020) (quoting Dos Santos, in turn quoting White); Black v.
State, 

, 115 (

) (2019) (physical precedent only)
(quoting Tolbert and White); Cason v. State, 

, 829-830 (

) (2019) (same); Clifton v. State, 

, 407-408 (

) (2018) (physical precedent only) (same); Soberanis v. State, 

, 404-405 & n.2 (

) (2018) (same); Hernandez-Ramirez v. State,

, 402-403 (

) (2018) (quoting White). See also In
the Interest of A. B., 

, 582 (

) (2019) (McFadden,
P. J., dissenting) (quoting Tolbert).
appeal an explicit invocation of a defendant’s constitutional right to

self-representation. See also Dos Santos, 

(vacating order denying on the merits the defendant’s pro se motion

to withdraw her guilty pleas filed during the same term of court in

which sentence was entered and remanding the case to the trial

court with direction to dismiss the motion as inoperative because the

defendant’s plea counsel did not request to withdraw from the case

until a week after the term of court had ended and the trial court

did not enter an order permitting plea counsel to withdraw until

more than a week after that); Jones, 

 (vacating order

denying the defendant’s pro se motion for out-of-time appeal filed

more than five years after entry of convictions and sentence on her

guilty pleas and remanding the case for the trial court to hold a

hearing on whether the failure to file a timely notice of appeal was

due to ineffective assistance of plea counsel). Neither did most of the

Court of Appeals cases cited in footnote 2 above.3 See, e.g., Cason v.



      3 The only exception is In the Interest of A. B., which quoted Tolbert only

in the dissent. See 350 Ga. App. at 582 (McFadden, P. J., dissenting).
State, 

, 829-830 (

) (2019) (vacating

order denying the defendant’s pro se motion to withdraw his guilty

plea filed during the same term of court in which sentence was

entered and remanding the case to the trial court with direction to

dismiss the motion because the record did not contain an order

allowing plea counsel to withdraw); Hernandez-Ramirez v. State,

, 402-403 (

) (2018) (same).

     Tolbert did involve such an explicit invocation, but Tolbert

came to us on review of an order denying habeas relief and, more

importantly,   is   factually   inapposite.   David   Tolbert,   whose

convictions for armed robbery and other crimes had been affirmed

by the Court of Appeals, filed a habeas petition alleging among other

things that his pro se notice of appeal from the trial court’s pretrial

oral ruling denying his motion for discharge and acquittal on

statutory speedy trial grounds had never been resolved and

therefore deprived the trial court of jurisdiction to try him,

rendering the resulting judgments of conviction void. See Tolbert,

. The habeas court denied relief, and we granted
Tolbert’s application for a certificate of probable cause to appeal to

consider whether the habeas court erred in ruling that Tolbert had

procedurally defaulted his jurisdictional claim. See 

 We held that

the habeas court’s procedural default ruling was erroneous but

nevertheless affirmed the judgment denying relief after concluding

that, contrary to Tolbert’s assertion and the habeas court’s

assumption, the record on appeal did not show that Tolbert was

authorized to proceed pro se when he filed his pretrial notice of

appeal in his criminal case. See 

.

     In the month before his criminal trial was specially set to begin,

Tolbert, who was represented by appointed counsel, filed a pro se

motion to remove his counsel for alleged ineffective assistance and a

pro se motion for discharge and acquittal on statutory speedy trial

grounds. See Tolbert, 

. Two days later, the trial

court held a hearing and orally denied both motions. See 

.

Tolbert then invoked his constitutional right to represent himself,

and the trial court, after discussing with Tolbert “why that might be

a bad idea,” said that it was relieving Tolbert’s appointed counsel
and was signing a written order to that effect. 

 If that were all,

our decision in Tolbert would, as the State argues, dictate that we

dismiss this appeal.

     But that was not all. In Tolbert, even though the trial court

said on the record at a motions hearing that it was signing a written

order relieving Tolbert’s counsel, no such written order appeared in

the record. See 

 The habeas record did not contain any order

permitting Tolbert’s appointed counsel to withdraw in the criminal

case or even a request for such an order, as required by Uniform

Superior Court Rule 4.3. See Tolbert, 

 & n.5.

Moreover, two weeks after the hearing, Tolbert’s appointed counsel

— who Tolbert claimed had already been relieved from representing

him — filed a “Notice of Withdrawal” as counsel of record, which

undercut Tolbert’s assertion that the trial court had already

removed his counsel. See 

. And on the same day that

Tolbert filed his notice of appeal pro se — August 1, 2008 — a private

attorney signed and served an “Entry of Appearance” on Tolbert’s

behalf in his criminal case, which further suggested that Tolbert was
never authorized to proceed pro se. See 

. With

that private attorney representing him, Tolbert was tried in August

2008 and again in December 2008, with both proceedings ending in

mistrials, and he was tried a third time in 2009, which resulted in

the convictions that Tolbert challenged in the habeas court. See 

.

     We held that under this particular factual scenario, as reflected

in the habeas court record transmitted to this Court on appeal,

Tolbert was represented by counsel when he filed his pro se notice

of appeal on August 1, 2008, rendering his notice of appeal a legal

nullity. See Tolbert, 

. We explicitly noted that it

was Tolbert’s burden, as the party challenging the habeas court’s

ruling denying relief, “to affirmatively show error from the record on

appeal.” 

.

     Nothing similar occurred here. Instead, as explained in

footnote 1 above, after the trial court pronounced Appellant’s

sentence, a question arose as to whether Appellant, who had been

represented up to that point by retained counsel, wanted to waive
his right to counsel and proceed pro se as to a motion for new trial

due to a lack of funds. After a colloquy in which the trial court

advised Appellant of his right to appointed counsel and explained

the dangers and disadvantages inherent in self-representation,

Appellant indicated that he wished to proceed pro se, and the court

made a finding on the record that Appellant had freely, intelligently,

and knowingly elected to waive his right to counsel and to represent

himself. See McCoy v. Louisiana, 

, ___ (

, 200 LE2d 821) (2018) (“[T]he right to defend is personal, and

a defendant’s choice in exercising that right must be honored out of

that respect for the individual which is the lifeblood of the law.”

(citation and punctuation omitted)).

     It may have been preferable for the trial court to sign and file

with the trial court clerk a written order granting Appellant’s

request to proceed pro se. However, Uniform Superior Court Rule

4.3, which addresses attorney requests to withdraw as counsel

(either with or without the client’s consent) and substitutions of

counsel in accordance with the client’s wishes, currently does not
require a written order granting an Appellant’s request to proceed

pro se. The State has not pointed us to any other legal authority

requiring the entry of a written order to effectuate the removal of

counsel when a criminal defendant invokes his constitutional right

to self-representation and that request is granted on the record in

open court. And unlike in Tolbert, nothing in this record suggests

that the trial court’s oral order was not understood, by the court or

the defendant’s existing or replacement counsel, to immediately

remove Appellant’s counsel without the entry of a written order for

the purposes of allowing Appellant to proceed pro se. Thus, the trial

court’s on-the-record finding that Appellant had freely, intelligently,

and knowingly elected to waive his right to counsel and to represent

himself was sufficient to make effective Appellant’s pro se motion

for new trial filed on the next day, May 11, 2016. Cf. Soberanis v.

State, 

, 403-405 (

) (2018) (opinion by

Ellington, P. J.) (dismissing appeal where the defendant filed his pro

se notice of appeal within the same term of court in which sentence

was entered on his guilty pleas and the record on appeal did not
show that the trial court had entered an order permitting plea

counsel to withdraw and did not contain an on-the-record finding

that the defendant had waived his constitutional right to the

assistance of counsel on appeal and elected to exercise his right to

represent himself). Appellant’s motion for new trial was therefore

timely, and he filed his notice of appeal within 30 days of the trial

court’s order denying his new trial motion as required by OCGA § 5-

6-38 (a). Accordingly, we have jurisdiction over this appeal.

     2.   Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. In August 2012, Jessica

Osborne and her sister Latasha Houston moved from Mississippi to

Columbus, Georgia. They saw and talked to each other every day

until April 2014, when Osborne met and began dating Appellant.

Appellant isolated Osborne from her sister, limiting their

communication and their contact outside his presence. Appellant

took away Osborne’s cell phone, forcing her to get a new one, and

monitored her Facebook messages.
     By the end of May 2014, Osborne and her three daughters had

moved from an apartment into a house with Appellant at the corner

of Forrest Road and Reese Road. Kaylie Kohlbry, a ten-year-old

neighbor who lived across Reese Road and down one house from

Appellant and Osborne’s house, saw Appellant and Osborne on the

day they moved in. Osborne was in the moving truck taking out

boxes, and Appellant was yelling at Osborne that she was not

helping him even though she was the only one doing anything.

     On the morning of May 30, 2014, Osborne called Houston.

Osborne sounded scared and told her sister that Appellant was

being abusive to her, had kicked in the door to her apartment before

she moved into the house with him, and had hit her with a gun. After

the call, Osborne sent Houston a text message that said not to tell

anyone, but

     [j]ust promise me if anything ever happen to me you get
     my babies and don’t let nobody split them up [crying face
     emoji] their dad’s [sic] don’t do anything for them now so
     please Tasha if this guy hurt me... You get my kids and
     never let them be apart... Love you sis always.

On the morning of June 16, 2014, Appellant waited in the car while
Osborne dropped off her middle daughter with Houston at a

playground, and Houston noticed scratches and bruises on

Osborne’s face.

     At about noon on June 17, 2014, Kohlbry was playing outside

when she saw Appellant and Osborne in their driveway yelling at

each other and heard Appellant tell Osborne that she could “get the

‘F’ out of the city.” Sarah Means lived next to Kohlbry and directly

across Reese Road from Appellant and Osborne’s house. At about

4:00 p.m. on June 17, 2014, Means was on a raised porch in her back

yard when she noticed Appellant and Osborne arguing by a car in

their driveway. Means then went inside.

     A few hours later, Appellant came out the front door of his

house, slammed the door, and retrieved a gun from a silver car in

the driveway before going back inside the house and slamming the

front door again. Crime scene analysis and evidence regarding

Osborne’s autopsy indicated that Appellant fought with Osborne in

their living room, tearing her blouse and bra, striking her several

times in the face and head, and knocking her to the floor. As Osborne
lay on her side, Appellant pressed the gun against her head above

her right ear and pulled the trigger, killing her almost instantly.

Testing later showed that DNA on the bullet, which traveled

through the floor and into the crawl space, came from Osborne.

     Around the time of the shooting, Kohlbry, who was on her front

porch, saw Appellant retrieve a gun from the silver car and heard

the “bang” from the gunshot five to ten minutes later, which scared

her, so she went inside. Means had just come out on her back porch

and also heard the “bang.” Unlike Kohlbry, Means — who by her

own admission was being “nosy” — stayed on her back porch to

watch what happened across the street. She saw Appellant come out

a side door toward the back of his house that faced Reese Road with

a cell phone in his hand. Appellant went back inside his house, came

out again, and then kicked in his own side door. Appellant then went

down the stairs leading from the side door to the ground and turned

left to go into his back yard, where he stayed for five to ten minutes.

Means could not see what Appellant was doing in the back yard

because of his six-foot-tall wooden privacy fence, but she heard him
banging on something that sounded like metal against metal.

Appellant then went back inside his house, and the police arrived

five to ten minutes later.

     Appellant was on his front porch when the first officer arrived.

When Appellant saw the patrol car and the officer, he screamed and

ran back into the house. The officer told Appellant to come back out,

and Appellant complied. Appellant had blood on his shirt and shoes,

was acting erratically, and said that his girlfriend had been shot.

The officer patted him down for weapons and found none. A police

sergeant then arrived and asked Appellant what happened, and

Appellant said, “They shot her.” The sergeant went inside and saw

Osborne’s body on the living room floor. An officer who arrived with

the sergeant went to clear the house.

     The sergeant came back outside and talked to Appellant, who

was sitting on the front porch at the top of the stairs. Appellant

again said, “[T]hey shot her,” adding: “They were looking for my

dope, they were looking for my dope, I don’t even sell dope.” The

sergeant tried unsuccessfully to get a description of the alleged
assailants from Appellant, but all Appellant said was that he “did

not know who it was.” When the sergeant asked about the type of

vehicle the assailants were in, Appellant said that it was a pickup

truck that was parked down Reese Road. Appellant could not give

such details as the color of the truck or the direction in which it left,

instead saying, “[A]sk the neighbor, ask the neighbor, the neighbor

saw me running after them.” The sergeant asked whether the

shooter got in on the driver side or the passenger side of the truck,

and Appellant did not have an answer.

     Appellant, who appeared to be very upset, leaned over and lay

on his stomach, and he started pounding the porch, saying that “they

shot her.” The sergeant attempted to hold down Appellant’s hands,

but the sergeant’s hands slipped off Appellant’s forearms and hands,

which were wet with water. Appellant then tried to go back into the

house, but the sergeant stopped him. Appellant was later taken to

the police station. On the way, he was not asked any questions, but

he kept asking, “[I]s she okay”?
     When Appellant arrived at the police station, he was put in an

interview room where he spoke to a lieutenant about what

happened. Appellant was not in handcuffs during their discussion

and was not under arrest. Appellant told the lieutenant that he and

Osborne had just gotten home, that Osborne had gone in the house,

and that he was still in the car looking for his cell phone when he

heard a scream and a commotion and ran into the house. Appellant

said that Osborne was lying on the living room floor with a man who

looked like “Mario” standing over her. Appellant claimed that the

man said, “You know what this is, give it up,” and started walking

toward Appellant but turned around and fired a shot back toward

Osborne.

     Appellant, who had no visible injuries, said that he punched

the man, and the man hit him in the head with the gun, kneed him

in the face, and elbowed and choked him. Appellant also complained

that his hip was sore from the struggle. Appellant said that he got

the gun away from the man, but the man eventually got it back, and
Appellant got up and ran to the back bedroom area as the man

opened fire, shooting at Appellant at least twice.

     Appellant claimed that after a second, he saw the man running

out the side door, so he grabbed a hammer and chased after the man

out the side door, down the steps, and to the right through a gate

into the driveway, where Appellant saw a gray pickup truck on

Reese Road peel out and speed away. Appellant did not see the man

he was chasing get into the pickup truck. Appellant said that he saw

a lady across Reese Road who must have seen the whole thing.

Appellant described the gunman as a light-skinned male, 5′8″ tall,

with a low, small Afro and a goatee who was wearing a gray, long-

sleeved shirt, leather-type batting gloves, and dark blue jeans. When

the lieutenant left the room, he learned that there was an order for

Appellant’s arrest in an unrelated matter, so he returned to the

interview room and placed Appellant under arrest.

     The lieutenant then went to the crime scene and waited with

other officers until a search warrant was signed. The search then

began, and a sergeant called and told the lieutenant that Means said
that only one person came out of the house — Appellant — who went

into the back yard. The lieutenant went into the back yard and found

the gun used to shoot Osborne in a corner hidden under leaves and

vegetation. The gun was dry on the outside but wet on the inside,

indicating that it had recently been washed off and then dried. A

shell casing from a bullet fired from the gun that was used to shoot

Osborne was found in the back seat of the silver car parked in the

driveway.

     At 12:36 a.m. on June 18, 2014, Appellant was advised of his

rights pursuant to Miranda v. Arizona, 

 (

,

16 LE2d 694) (1966), which he waived. He was then interviewed by

David Stokes, the lead detective on the case. Appellant told

Detective Stokes several times during the interview that the man

who kicked down Osborne’s apartment door a few weeks earlier was

the same person who killed Osborne.

     At Appellant’s trial, Kohlbry testified that she did not see a

pickup truck on Reese Road at all, that she did not see any other

cars going up and down the street, and that she did not hear any
tires screeching. Means testified that she did not see Appellant

chasing anybody, did not see anybody running down Reese Road, did

not hear the sound of screeching tires, and did not see a truck

“rushing around the area” or “anything like that,” adding that when

she heard Appellant across the street after the police arrived yelling

about a truck on Reese Road, she laughed, because “[t]here was no

truck there.” A GBI agent testified that forensic analysis of a

gunshot residue kit revealed the presence of gunshot residue on both

of Appellant’s hands. A GBI footwear and tire print examiner

testified that the footprint on the side door that was kicked in

matched the shoes that Appellant was wearing when he was

interviewed at the police station. The State also presented evidence

of other acts of violence by Appellant against two prior girlfriends.

     Appellant did not testify. His defense theory was that an

unknown intruder committed the murder, that law enforcement

rushed to judgment, and that the case was not thoroughly

investigated. To support that theory, he called four defense

witnesses.
     The defense called a GBI forensic serologist who was involved

in the case but was not called by the prosecution. She testified that

testing of the water in the P-traps underneath the kitchen and

bathroom sinks did not reveal the presence of blood. A police officer

testified for the defense that he interviewed Means and that she was

unable to identify Appellant in a photographic lineup as the shooter,

although her description of the clothes worn by the only person who

left the house after the shooting and before the police arrived

matched the clothes that Appellant was wearing when he was

arrested. A private investigator hired by the defense testified that a

railing on the stairs leading from the side door to the ground

appeared to have been broken recently. And a woman who saw

Appellant and Osborne on the day before the shooting testified that

they seemed comfortable with each other and appeared to care very

much about one another.

     When viewed in the light most favorable to the verdicts, the

evidence presented at trial and summarized above was sufficient as

a matter of constitutional due process to authorize a rational jury to
find Appellant guilty beyond a reasonable doubt of the felony

murder of Osborne. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). See also Vega v. State, 

 (

) (2009) (“‘It was for the jury to determine the

credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence.’” (citation omitted)).

     3.    Appellant contends that the trial court violated his right

to confront his accusers by admitting State’s Exhibits 121-126,

which consisted of the shell casing recovered from the back seat of

the silver car in the driveway that ballistics testing showed was fired

from the gun used to shoot Osborne and photographs of the shell

casing and of the location in the car where the shell casing was

found. But the Confrontation Clause applies only to testimonial

statements, not to inanimate objects that cannot be cross-examined

like the shell casing and photographs here. See U. S. Const. Amend.

VI (“In all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him . . . .”);

Melendez-Diaz v. Massachusetts, 

 (

,
174 LE2d 314) (2009) (“[The Confrontation Clause] guarantees a

defendant’s right to confront those who bear testimony against him.”

(citation and punctuation omitted)); United States v. Herndon, 536

F2d 1027, 1029 (5th Cir. 1976) (“[The Confrontation Clause] is by its

terms restricted to ‘witnesses’ and does not encompass physical

evidence as well.”). See also State v. Williams, 

(Tenn. 1996) (holding that the Confrontation Clause does “not

encompass physical evidence or objects, such as photographs,” and

collecting cases); Starkes v. United States, 

 (D.C.

1981) (holding that the defendant’s inability to cross-examine a

police dog did not violate his rights under the Confrontation Clause).

     Appellant also contends that the trial court violated his right

to confront his accusers by preventing him from fully cross-

examining Corporal James Banville, the crime scene unit officer

who collected the shell casing from the car and took the photographs.

Specifically, he complains that he was not allowed to ask Corporal

Banville why Detective Valerie Holder, who told Corporal Banville
about the shell casing and asked him to photograph and collect it,

was terminated by the police department.

     When the State moved to admit State’s Exhibits 121-126,

Appellant objected because Corporal Banville was not the officer

who first spotted the shell casing. During a colloquy outside the

jury’s presence, Appellant claimed that Detective Holder was

terminated for improper investigations. The State then made a

proffer of Corporal Banville’s testimony by questioning him, and

Appellant questioned Corporal Banville but chose not to ask if he

knew why Detective Holder was terminated or whether it was for

conduct related to Appellant’s case. The trial court denied the

objection.

     Appellant never attempted to cross-examine Corporal Banville

about why Detective Holder was terminated from the police

department. In any event, it was within the trial court’s discretion

to prevent Appellant from asking Corporal Banville questions that

Appellant had not shown that Corporal Banville could answer based

on his personal knowledge. See OCGA § 24-6-602 (“A witness may
not testify to a matter unless evidence is introduced sufficient to

support a finding that the witness has personal knowledge of such

matter. Evidence to prove personal knowledge may, but need not,

consist of the witness’s own testimony. . . .”); Moss v. State, 

 (

) (2016) (holding that the defendant’s

right to confront his accusers did not require the trial court to allow

him “to introduce evidence based purely on rumor, speculation, and

conjecture” (citation and punctuation omitted)). See also Melendez-

Diaz, 

 n.1 (“[W]e do not hold, and it is not the case,

that anyone whose testimony may be relevant in establishing the

chain of custody . . . must appear in person as part of the

prosecution’s case. . . . It is up to the prosecution to decide what

steps in the chain of custody are so crucial as to require evidence;

but what testimony is introduced must (if the defendant objects) be

introduced live.” (citations omitted; emphasis in original)).

Accordingly, Appellant’s Confrontation Clause claim fails.

     4.   Finally, Appellant contends that he was denied the

effective assistance of counsel in two respects. A convicted
defendant’s claim that his attorney’s assistance was so defective as

to require reversal of his conviction generally must prove both that

the attorney’s performance was professionally deficient and that

this deficiency resulted in prejudice to his case. See Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984).

To establish deficient performance, the defendant must show that

his counsel’s acts or omissions were objectively unreasonable,

considering all the circumstances at the time and in the light of

prevailing professional norms. See 

. To establish

resulting prejudice, the defendant must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” 

. If there is no showing of deficient performance,

we need not address the prejudice prong. See Romer v. State, 

 (

) (2013) (citing Strickland, 

). Appellant has not proved deficient performance in this case.

     Appellant claims first that his trial counsel were professionally
deficient in failing to subpoena Detective Holder to testify at trial.

But one of Appellant’s trial counsel testified that the defense made

a strategic decision not to subpoena Detective Holder, because the

benefit of her testimony was outweighed by the value of being able

to argue, as counsel did, that without it the State could not establish

a proper foundation for admission of the shell casing found in the

car. “This type of decision-making is classic trial strategy, to which

this Court must be highly deferential.” Sifuentes v. State, 

 (

) (2013). Appellant has not shown that this

strategic decision by his trial counsel was so patently unreasonable

that no competent attorney would have done the same. See Brown

v. State, 

 (

) (2013) (reiterating

that decisions about what witnesses to call are matters of trial

strategy and constitute professionally deficient performance only

when they are unreasonable ones that no competent attorney would

make). Appellant therefore has not shown deficient performance by

his trial counsel in this regard.
     Appellant also claims that his trial counsel were professionally

deficient in failing to object when Detective Stokes testified that the

crime scene looked as if it could have been “staged.” But Detective

Stokes was the State’s last witness, and by the time he testified, the

jury hardly would have been surprised to hear that the lead

detective thought that the crime scene looked staged, particularly in

light of Means’ testimony that she saw Appellant kick in the side

door and the testimony by the GBI footwear and tire print examiner

that the footprint on the side door matched the shoes that Appellant

was wearing when he was arrested. Given the lack of a clear benefit

to the defense from even a successful objection to Detective Stokes’

testimony, it would have been objectively reasonable for counsel to

decide not to object to avoid drawing attention to the testimony. See

Babbage v. State, 

 (

) (2015). Appellant

therefore has not shown deficient performance in this regard either.

Accordingly, his ineffective assistance of counsel claim fails.

     Judgment affirmed. All the Justices concur.
                       DECIDED MAY 18, 2020.
     Murder. Muscogee Superior Court. Before Judge Land.
     Bentley C. Adams IV, for appellant.
     Julia F. Slater, District Attorney, Frederick Lewis, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Alex M. Bernick, Assistant Attorney
General, for appellee.