¶1In the Supreme Court of Georgia
¶2 Decided March 1, 2021
¶3 S20A1548. McKELVEY v. THE STATE.
¶4 LAGRUA, Justice.
¶5 Appellant Sacorey McKelvey was convicted of murder and
¶6other crimes in connection with the shooting death of Corey Owens.1
¶7On appeal, McKelvey contends that the evidence presented at trial
¶8was insufficient to support his convictions; that the trial court erred
¶9by admitting into evidence his 2009 convictions for terroristic
¶10threats; that the trial court erred in striking two potential jurors for
¶11 1 The crimes occurred on April 24, 2014. In March 2015, a Muscogee County grand jury indicted McKelvey for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. After a trial in July 2017, the jury found McKelvey guilty of all counts. The trial court sentenced McKelvey to serve life in prison without the possibility of parole for malice murder and a five-year consecutive term for the firearm- possession count. The other counts merged or were vacated by operation of law. McKelvey filed a timely motion for new trial in September 2017, which he twice amended through new counsel. After a hearing, the trial court denied McKelvey’s motion on March 4, 2020. McKelvey filed a timely notice of appeal, and his case was docketed to the August 2020 term of this Court and submitted for a decision on the briefs. cause; and that his trial counsel rendered constitutionally
¶12ineffective assistance by failing to call two alibi witnesses. For the
¶13reasons set forth below, we affirm.
¶14 1. Viewed in the light most favorable to the verdicts, the
¶15evidence presented at trial showed the following: Owens had a
¶16biological brother, Gregory Owens, and a step-brother, Matthew
¶17Mungin. Elexis Cooper is the mother of Gregory’s children. In
¶18March 2009, McKelvey confronted Elexis and her cousin after an
¶19altercation between their families, pointing a gun in Elexis’s face
¶20and threatening to kill her. Following this incident, McKelvey was
¶21arrested and incarcerated. On November 17, 2009, McKelvey
¶22pleaded guilty to three counts of terroristic threats and was
¶23sentenced to three concurrent probated terms of five years.
¶24 On April 22, 2014, McKelvey ran into Owens and told him he
¶25wanted to meet with Owens, Gregory, and Mungin. That evening,
¶26Owens, Gregory, and Mungin met McKelvey in a field adjacent to a
¶27group of apartment homes on Adair Avenue in Columbus. People
¶28who frequent this area often refer to it as “Adair.” Soon after
¶29 2 meeting the brothers, McKelvey got angry and started talking about
¶30his past “trouble for a pistol charge” – referencing the 2009 incident
¶31with Elexis. McKelvey told the brothers that they “owed” him
¶32money or drugs for what happened in 2009, blaming Gregory, in
¶33particular, for McKelvey’s arrest, incarceration, and inability to get
¶34a job. Gregory said they owed him nothing, and McKelvey pulled a
¶35gun and aimed it at Gregory’s face. Gregory charged McKelvey, and
¶36the two fell to the ground fighting. Mungin and Owens joined in,
¶37trying to wrestle the gun away from McKelvey. Ultimately, Mungin
¶38was able to get the gun away from McKelvey. McKelvey told Mungin
¶39he was going to get another gun and come back. McKelvey then ran
¶40away, saying he was going to kill all of them. The brothers
¶41immediately left the area.
¶42 Elexis’s mother, Debra, witnessed the incident in the field from
¶43her apartment. Debra, who has known McKelvey since he was a
¶44child, testified that she saw him tussling with Owens, Gregory, and
¶45Mungin and heard someone say “he got a gun,” referring to
¶46McKelvey. Debra said the brothers “wrestled [McKelvey] down and
¶47 3 took the gun.” Everyone then scattered and left, and Debra heard
¶48McKelvey tell the brothers that he “was going to kill them all.”
¶49 Later the same night, Debra was standing on her back porch
¶50when she saw McKelvey approach with a gun. McKelvey was angry,
¶51and Debra tried to calm him down, encouraging him to “just leave it
¶52alone, . . . just let it go.” McKelvey told her he “had to kill them;”
¶53she understood “them” to mean Owens, Gregory, and Mungin. 2
¶54McKelvey then mentioned Debra’s daughter, Elexis, and the fact
¶55that Gregory lived with her. Debra got upset, explaining that Elexis
¶56had nothing to do with what happened earlier that day. Debra
¶57called Elexis and made McKelvey speak with her. McKelvey told
¶58Elexis he would not go to her house “with the mess,” but he was
¶59going to kill Owens, Gregory, and Mungin. 3 When Debra saw
¶60McKelvey again the next day, he confirmed he would not go to
¶61 2 Debra testified that earlier the same night, McKelvey kicked in the door of an apartment in Adair where the brothers hung out and sold drugs, but no one was in the apartment at the time. 3 After Elexis spoke to McKelvey, she contacted the police to report his
¶62threats against the brothers. A day or two later, Elexis also contacted McKelvey’s probation officer to report the threats.
¶63 4 Elexis’s house. For the next couple of days, Owens, Mungin, and
¶64Gregory stayed away from Adair and their apartment because,
¶65according to Mungin and Gregory, they continued receiving threats
¶66that McKelvey was going kill them.
¶67 On April 24, Mungin spoke to Owens on the phone between
¶681:00 and 2:00 p.m. Owens indicated that he was going to Adair to
¶69pick up his children and would call Mungin when he returned to his
¶70house. At 1:28 p.m., McKelvey picked up his paycheck from the
¶71construction company where he worked. Debra McNeil, the owner
¶72of the company, gave McKelvey his paycheck and observed that he
¶73was dressed in all black. McKelvey was accompanied by Kazarita
¶74Piatt, his sister’s boyfriend. From McNeil’s position in the front
¶75office, she had a view of the parking area, and she noted McKelvey
¶76was traveling in a black car with tinted windows. McNeil’s husband,
¶77David, was in his truck in the parking lot at the same time and also
¶78noticed that McKelvey was traveling in a compact, black car with
¶79tinted windows. After getting his paycheck, McKelvey and Piatt left
¶80in the black car.
¶81 5 The same afternoon, Martin DeJesus and Nigel Staples were
¶82walking in Adair near the intersection of Wynnton Road and Adair
¶83Avenue when they saw a black car pull up. A man with dark skin
¶84and shoulder-length dreadlocks jumped out of the car and hid
¶85behind some nearby poles. About ten minutes later, DeJesus saw a
¶86white SUV travelling towards the intersection where the man was
¶87hiding, and at that point, the man came out from behind the poles
¶88and “went to shooting.” The man fired towards the SUV a couple
¶89times and then approached the car, continuing to shoot. Staples
¶90yelled out, and the man looked at them, ran to a church around the
¶91corner, and disappeared. DeJesus went up to the SUV and saw a
¶92man – later identified as Owens – seated in the driver’s seat,
¶93bleeding from gunshot wounds and struggling to breathe. DeJesus
¶94was interviewed at the scene and then taken to police headquarters,
¶95where he identified McKelvey from a photographic line-up as the
¶96shooter. Prior to that day, DeJesus had never seen McKelvey or
¶97Owens.
¶98 6 Adair resident Gwendolyn Woodson also witnessed the
¶99shooting. She was walking down Adair Avenue towards Wynnton
¶100Road that afternoon when she saw Owens driving a white SUV. She
¶101then saw a man, whom she recognized as McKelvey, run alongside
¶102Owens’s SUV, shooting at Owens. McKelvey ran across the street
¶103in front of Woodson towards a nearby church, and as he passed her,
¶104he turned around to shoot at the SUV again. Police later showed
¶105Woodson a photographic line-up and she identified McKelvey as the
¶106shooter. In the picture, McKelvey wore dreadlocks. Woodson was
¶107familiar with Owens and McKelvey, having known Owens for a long
¶108time and recognizing McKelvey “from the streets.”
¶109 Another witness, Betty McMiller, was in a nearby apartment
¶110in Adair at the time of the shooting. McMiller testified that she
¶111heard multiple gunshots and then saw a man with dreadlocks,
¶112dressed in black, running away from the scene around the back of
¶113the church.
¶114 Dominic Cobb was also in the area at the time. Cobb, his wife,
¶115and some friends were driving through the Adair neighborhood
¶116 7 when they observed “a black male in all black” with dreadlocks
¶117standing in front of the Adair Apartments. Cobb saw the man pull
¶118out a handgun, heard gunshots, and turned to see a white SUV
¶119driven by Owens, a childhood friend, slam on its brakes as it was hit
¶120by gunfire. Cobb saw the shooter “empty his gun out” on Owens’s
¶121vehicle. Cobb then saw the shooter run up to the intersection of
¶122Wynnton Road and Adair Avenue and jump into a black Pontiac
¶123“Trans Am.” Cobb told his friend to follow the car and asked his wife
¶124to call 911. During the 911 call, which was placed at 1:50 p.m.,
¶125Cobb’s wife provided a partial license plate number for the vehicle,
¶126a description of the vehicle, and a description of the shooter. Later
¶127that afternoon, Cobb was interviewed by the police and confirmed
¶128that prior to April 24, he did not know and had never encountered
¶129McKelvey.
¶130 Police officers and emergency personnel responded to the scene
¶131of the shooting, where they found a white SUV in the middle of the
¶132roadway near the intersection of Adair Avenue and Wynnton Road.
¶133Owens was still seated in the driver’s seat of the SUV and was non-
¶134 8 responsive. Emergency personnel transported Owens to the
¶135hospital, where he later died from a gunshot wound to the head.
¶136Investigators at the scene noted that there were multiple bullet
¶137holes through the driver’s-side windows and doors. Officers
¶138searched the area, but did not recover a weapon. 4
¶139 At trial, an officer with the Columbus Police Department
¶140testified that she checked the partial tag number provided by 911
¶141dispatch and received a hit for Georgia license plate number
¶142PRW6200; associated with a 2003 black Pontiac Grand Am
¶143registered to Okevia McKelvey, McKelvey’s sister.
¶144 Police were immediately dispatched to Okevia’s address, where
¶145they located the Grand Am. The hood of the car and brake rotors
¶146were hot, as if the car had just been running. Okevia gave consent
¶147to a search of her apartment and said the Grand Am had not been
¶148moved since that morning. Officers did not find anyone matching
¶149the description of the shooter inside the residence. Inside the Grand
¶150 4 Law enforcement never located the gun used to shoot Owens. 9 Am, officers found McKelvey’s April 24 paycheck on the center
¶151console.
¶152 Billy Moss, who dated McKelvey’s mother, Michelle, spoke to
¶153McKelvey on the afternoon of April 24 when McKelvey was picking
¶154up his paycheck. Moss testified that later the same afternoon,
¶155between 2:00 and 4:00 p.m., Michelle received a phone call, became
¶156very upset, and fainted. Moss later learned about the shooting in
¶157Adair and that McKelvey had left Columbus to avoid the police.
¶158Shortly thereafter, Moss saw McKelvey with Michelle in Phenix
¶159City, Alabama.
¶160 On April 25, warrants were taken out for McKelvey’s arrest,
¶161and officers began searching for him. In early June, based upon
¶162information Moss provided, law enforcement located McKelvey at a
¶163Columbus residence. McKelvey fit the description the eyewitnesses
¶164had provided, including wearing his hair in long dreadlocks. When
¶165officers first apprehended McKelvey, he gave them a false name, but
¶166he soon admitted his true identity.
¶167 10 On the night of his arrest, McKelvey agreed to waive his
¶168Miranda 5 rights and give a statement to the police. During the
¶169interview, McKelvey admitted that a couple days before the murder,
¶170he was in a fight with Owens, Gregory, and Mungin and had his gun
¶171taken away from him. He told the police that he never liked the
¶172brothers because “they sent me to jail on some bulls***.” He claimed
¶173that during the meeting, the brothers “surrounded” him, “jumped
¶174on” him, and “grabbed [his] strap.” McKelvey stated that he
¶175returned on the same day of the altercation “ready to fight,” but the
¶176brothers “were nowhere to be found.” He acknowledged that he
¶177spoke to Debra that night and asked her to tell the brothers to bring
¶178his “strap” and “come on back.” McKelvey was angry that his only
¶179gun was taken because it was “hard as s*** to come up on,” and “it
¶180was a blessing” that he had it. McKelvey said he wanted his gun
¶181back, so he decided when the brothers came back to Adair he would
¶182“catch them one by one” and “whoop their motherf****** a**.”
¶183 5 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 11 McKelvey stated that at the time of the murder on April 24, he
¶184was at his employer’s office and then at Okevia’s apartment,
¶185admitting that when the police arrived, he “ran out the back door”
¶186and “took off.” Following the interview, McKelvey was charged with
¶187Owens’s murder and taken into custody.
¶188 On June 7, 2014, while incarcerated at the Muscogee County
¶189Jail, McKelvey sent a written message to the deputies at the jail,
¶190stating, “i scary for life i kill his cuz and he in here i scary for life
¶191[sic].” When a deputy spoke with McKelvey about the message to
¶192better understand what it meant, McKelvey explained that there
¶193was a person in the cell with him that was a cousin of the person
¶194McKelvey killed, and he wanted to be relocated from that cell. The
¶195next day, deputies received another written message from
¶196McKelvey, stating, “I scary for my cause i kill his homie boy [sic].”
¶197 2. McKelvey contends that the evidence presented at trial
¶198was insufficient to support his convictions based upon the following:
¶199(a) there was not enough time for McKelvey to travel from his
¶200employer’s office at 1:28 p.m. and arrive at the crime scene by 1:50
¶201 12 p.m. because of the distance between these locations; (b) there was
¶202no evidence to show how McKelvey knew or could have known
¶203Owens’s whereabouts at the time of the murder; (c) the eyewitness
¶204identifications of McKelvey as the shooter were unreliable; (d)
¶205Owens could have been shot by another person in relation to
¶206Owens’s drug-dealing activities; and (e) the evidence was
¶207inadequate to establish that McKelvey sent the written
¶208communications to deputies at the jail. We disagree and conclude
¶209that the evidence presented at trial was sufficient to support
¶210McKelvey’s convictions.
¶211 When evaluating challenges to the sufficiency of the evidence
¶212to support criminal convictions as a matter of constitutional due
¶213process, “we view the evidence presented at trial in the light most
¶214favorable to the verdicts and ask whether any rational trier of fact
¶215could have found the defendant guilty beyond a reasonable doubt of
¶216the crimes of which he was convicted.” Boyd v. State, 306 Ga. 204,
¶217207 (1) (830 SE2d 160) (2019) (citing Jackson v. Virginia, 443 U.S.
¶218307, 319 (99 SCt 2781, 61 LE2d 560) (1979) and Jones v. State, 304
¶219 13 Ga. 594, 598 (820 SE2d 696) (2018)). Here, the evidence presented
¶220at trial included the testimony of multiple eyewitnesses who
¶221positively identified McKelvey as the shooter. Other witnesses
¶222testified about McKelvey’s motive for shooting Owens, which
¶223included blaming Owens and his brothers for his 2009 incarceration,
¶224as well as the physical altercation that occurred on April 22,
¶225resulting in the loss of McKelvey’s gun. Witnesses also testified that
¶226after this altercation, McKelvey made multiple threats to kill Owens
¶227and his brothers. McKelvey admitted that he was angry and wanted
¶228to fight with Owens, Gregory, and Mungin after what happened on
¶229April 22, and McKelvey also admitted to the deputies at the jail that
¶230he killed someone.
¶231 Additionally, evidence was presented at trial to show that the
¶232drive from McKelvey’s workplace to the crime scene could be
¶233completed in about 15 minutes – within the roughly 20-minute
¶234period between the time McKelvey left his employer’s office and the
¶235time Owens was shot in Adair. 6 McKelvey’s arguments to the
¶236 6 One of the officers who testified for the State confirmed that the 14 contrary, like his other arguments concerning the reliability of the
¶237evidence and the possibility of another shooter, were matters within
¶238the province of the jury to consider and decide. See Lowery v. State,
¶239___ Ga. ___ (1) (a) (851 SE2d 538) (2020).
¶240 This evidence of McKelvey’s guilt was not only sufficient for a
¶241reasonable jury to find him guilty beyond a reasonable doubt; it was
¶242overwhelming. See Brown v. State, 300 Ga. 446, 447-448 (1) (796
¶243SE2d 283) (2017) (evidence, including testimony of multiple
¶244eyewitnesses who identified defendant as the shooter, not only
¶245sufficient to support convictions, but overwhelming). As such, this
¶246enumeration of error fails.
¶247 3. McKelvey contends that the trial court abused its
¶248discretion by admitting into evidence his 2009 convictions for
¶249terroristic threats because they were not admissible as intrinsic
¶250evidence or to prove prior difficulties with the Owens brothers or
¶251motive under OCGA § 24-4-404 (b). We disagree and conclude that
¶252distance between McKelvey’s workplace and Adair is approximately nine miles – a 15-minute drive. 15 the trial court did not abuse its discretion in admitting the evidence
¶253on this basis.
¶254 Evidence is admissible as intrinsic evidence, rather than extrinsic evidence subject to Rule 404 (b), when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense. Even when evidence is intrinsic, however, it must also satisfy Rule 403. It is within the trial court’s sound discretion to determine whether to admit such evidence, so we review a trial court’s ruling admitting evidence as intrinsic for an abuse of that discretion.
¶255 Evidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted as intrinsic evidence if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury. Moreover, intrinsic evidence remains admissible even if it incidentally places the defendant’s character at issue.
¶256Harris v. State, ___ Ga. ___ (2) (b) (850 SE2d 77, 83) (2020) (citation
¶257and punctuation omitted). See Williams v. State, 302 Ga. 474, 485-
¶258486 (IV) (d) (807 SE2d 350) (2017).
¶259 Evidence relating to McKelvey’s 2009 convictions pertained to
¶260the chain of events explaining the “context, motive, and set-up of the
¶261 16 crime” and was reasonably necessary for the State to “complete the
¶262story of the crime” to the jury. This evidence helped to explain why
¶263the April 22 altercation between McKelvey and the Owens brothers
¶264occurred and how the altercation established a motive for
¶265McKelvey’s shooting of Owens on April 24. See Harris, 850 SE2d at
¶26683; see McCammon v. State, 306 Ga. 516, 522 (2) (832 SE2d 396)
¶267(2019) (concluding that the backstory explaining why one person
¶268would decide to rob another person was intrinsic to the charged
¶269crimes). Moreover, by McKelvey’s own admission in his statement
¶270to police following his arrest, the April 22 altercation was, at least
¶271in part, motivated by the fact that he blamed the brothers for his
¶2722009 convictions. The testimony of Mungin and Gregory also
¶273supported this notion.
¶274 McKelvey also argues that the 2009 incident was not intrinsic
¶275to the charged crimes because it was too remote in time and did not
¶276specifically involve the brothers; however, we have previously
¶277recognized:
¶278 17 It is true that whether evidence is linked in time and circumstances with the charged crime is pertinent to the intrinsic-evidence analysis, but there is no bright-line rule regarding how close in time evidence must be to the charged offenses, or requiring evidence to pertain directly to the victims of the charged offenses, for that evidence to be admitted properly as intrinsic evidence.
¶279Harris, 850 SE2d at 86 (citations and punctuation omitted). We
¶280thus conclude that the 2009 convictions were sufficiently linked to
¶281Owens’s shooting and that the trial court did not abuse its discretion
¶282in admitting this intrinsic evidence in this case. See Clark v. State,
¶283306 Ga. 367, 373-374 (4) (829 SE2d 306) (2019) (three-year-old
¶284incident between defendant and victim’s wife was intrinsic to
¶285charged crimes).
¶286 4. McKelvey contends that the trial court erred by granting
¶287the State’s motion to strike Jurors 31 and 48 for cause over his
¶288objection. See OCGA § 15-12-164 (requiring court to excuse for
¶289cause any jurors determined to be “incompetent” or “substantially
¶290impaired in [their] ability to be fair and impartial”). We disagree.
¶291 “Whether to strike a juror for cause is a matter committed to
¶292the sound discretion of the trial court, and we will not find error in
¶293 18 an exercise of that discretion absent a showing that the discretion
¶294was manifestly abused.” Carter v. State, 302 Ga. 685, 686 (2) (808
¶295SE2d 704) (2017). Such discretion includes the “‘broad discretion to
¶296determine a potential juror’s impartiality and to strike for cause
¶297jurors who may not be fair and impartial.’” Lanier v. State, ___ Ga.
¶298___ (4) (852 SE2d 509) (2020) (quoting DeVaughn v. State, 296 Ga.
¶299475, 477 (2) (769 SE2d 70) (2015)). “‘A conclusion on an issue of juror
¶300bias is based on findings of demeanor and credibility which are
¶301peculiarly in the trial court’s province, and those findings are to be
¶302given deference.’” Id. (quoting Peterson v. State, 282 Ga. 286, 288 (2)
¶303(647 SE2d 592) (2007)).
¶304 During voir dire, when the prosecutor asked if any of the panel
¶305members knew McKelvey, Juror 31 stated that he was friends with
¶306McKelvey in middle school. When asked whether he would “be able
¶307to set that relationship aside and decide this case based on the
¶308evidence that’s presented,” Juror 31 answered, “No.”
¶309 Similarly, Juror 48 stated that she had gone to middle school
¶310with McKelvey. When asked if she would “be able to set that
¶311 19 relationship aside,” Juror 48 said, “I don’t want to do it.” When the
¶312prosecutor asked Juror 48 a second time whether she thought she
¶313would be able to set the relationship aside, Juror 48 replied, “No sir.
¶314Oh, no, sir.” Neither the prosecutor nor defense counsel asked any
¶315further questions in an attempt to rehabilitate the jurors.
¶316 Following voir dire, the State moved to strike both jurors for
¶317cause, and McKelvey objected. After hearing argument from both
¶318sides, the trial court noted that Juror 31 “could not decide the case
¶319fairly” and that Juror 48 “could not set aside [her] prior relationship”
¶320with McKelvey, and the court struck both jurors for cause.
¶321 The trial court did not abuse its discretion by striking Juror 31
¶322based on his statement that he would not be able to set aside his
¶323relationship with McKelvey and decide the case based on the
¶324evidence presented. Likewise, the trial court did not abuse its
¶325discretion by striking Juror 48 based on her statement indicating
¶326that she would not be able to set aside her relationship with
¶327McKelvey. See Lanier, ___Ga. at ___ (no abuse of discretion where
¶328trial court struck for cause juror who expressed bias towards
¶329 20 defendant based on their relationship); Hillman v. State, 296 Ga.
¶330App. 310, 313 (2) (674 SE2d 370) (2009) (no abuse of discretion
¶331where trial court struck jurors for cause based on their personal
¶332relationship with defendant). Thus, this enumeration also fails.7
¶333 5. McKelvey contends that his trial counsel rendered
¶334constitutionally ineffective assistance by failing to call two alibi
¶335witnesses: his sister, Okevia, and her boyfriend, Piatt. According to
¶336McKelvey, these witnesses could have provided information about
¶337his whereabouts at the time of the shooting, and he asked his trial
¶338counsel to call both as witnesses.
¶339 To prevail on a claim of ineffective assistance of counsel, a
¶340defendant generally must show that counsel’s performance was
¶341deficient and that the deficient performance resulted in prejudice to
¶342 7 Within this enumeration of error, McKelvey also contends that while his trial counsel objected to Jurors 31 and 48 being struck for cause, to the extent she did not seek to voir dire these jurors further, she rendered constitutionally ineffective assistance. Even were we to assume that counsel performed deficiently by not questioning these jurors further, McKelvey presented no evidence demonstrating that either juror could have been rehabilitated. Thus, McKelvey failed to meet his burden of demonstrating that counsel’s alleged deficiency prejudiced McKelvey under the standard of Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984). See Anderson v. State, __ Ga. __ (5) (b) (847 SE2d 572) (2020). 21 the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
¶343(104 SCt 2052, 80 LE2d 674) (1984); see also Wesley v. State, 286 Ga.
¶344355, 356 (3) (689 SE2d 280) (2010). To satisfy the deficiency prong,
¶345a defendant must demonstrate that his attorney “performed at trial
¶346in an objectively unreasonable way considering all the
¶347circumstances and in the light of prevailing professional norms.”
¶348Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013); see also
¶349Strickland, 466 U.S. at 687-688. To satisfy the prejudice prong, a
¶350defendant must establish a reasonable probability that in the
¶351absence of counsel’s deficient performance, the result of the trial
¶352would have been different. See Strickland, 466 U.S. at 694. “A
¶353reasonable probability is a probability sufficient to undermine
¶354confidence in the outcome.” Id. “In reviewing the trial court’s
¶355decision, we accept the trial court’s factual findings and credibility
¶356determinations unless clearly erroneous, but we independently
¶357apply the legal principles to the facts.” Andrews v. State, 293 Ga.
¶358701, 703 (2) (749 SE2d 734) (2013) (citation and punctuation
¶359omitted). “If an appellant fails to meet his or her burden of proving
¶360 22 either prong of the Strickland test, the reviewing court does not have
¶361to examine the other prong.” Lawrence v. State, 286 Ga. 533, 533-
¶362534 (2) (690 SE2d 801) (2010).
¶363 At the motion for new trial hearing, McKelvey’s trial counsel
¶364testified that she could not remember exactly why she elected not to
¶365call Okevia and Piatt as witnesses, but she did “recall there was a
¶366significant reason why.” Trial counsel also testified that it was in
¶367McKelvey’s best interest not to call Piatt, as his testimony could
¶368have been detrimental. She further stated that she was aware of
¶369Okevia and Piatt prior to trial, but neither had any information or
¶370knowledge about what happened on the day of the murder to assist
¶371in McKelvey’s case. While McKelvey testified that he believed
¶372Okevia and Piatt would have given “helpful” testimony, he provided
¶373no further information or details about what information they would
¶374have provided. Moreover, neither Okevia nor Piatt testified at
¶375McKelvey’s motion for new trial hearing. 8 In the trial court’s order
¶376 8In his appellate brief, McKelvey contends that he presented an affidavit from Okevia at his motion for new trial hearing, in which she averred that she “would have come to court if subpoenaed for trial, she would have testified that 23 denying McKelvey’s motion for new trial, the trial court found that
¶377he failed to show that “either person could have provided a
¶378believable alibi.”
¶379 “A decision as to which defense witnesses to call is a matter of
¶380counsel’s trial strategy and tactics and will not support a claim of
¶381ineffective assistance of counsel unless it is so unreasonable that no
¶382competent attorney would have made the decision under the
¶383circumstances.” Smith, 308 Ga. at 92 (citation and punctuation
¶384omitted). We conclude that trial counsel’s decision to forgo seeking
¶385Okevia’s or Piatt’s testimony was a strategic decision because their
¶386testimony would not have been helpful – and may even have been
¶387harmful – to McKelvey’s defense, and because the trial court found
¶388no value to their testimony as alibi witnesses based on a lack of
¶389evidence of what they would have said. Therefore, McKelvey has
¶390failed to overcome the “strong presumption” that his trial counsel’s
¶391her brother was with [Piatt] and that they had just come from picking up their paychecks.” That affidavit, however, is not included in the record on appeal, and thus, we cannot consider it. See Ware v. State, 279 Ga. 17, 18 (2) (608 SE2d 643) (2005) (appellant has burden to show counsel’s ineffectiveness and to “compile a complete record of what transpired in the trial court”). 24 decision to not call Okevia or Piatt to testify at trial fell “within the
¶392broad range of professional conduct.” Reid v. State, 286 Ga. 484, 486
¶393(3) (a) (690 SE2d 177) (2010) (trial counsel’s decision not to call
¶394potential alibi witness because counsel thought witness’s testimony
¶395“would be detrimental to the defense” was not deficient); see also
¶396Andrews, 293 Ga. at 703 (trial counsel’s decision not to call
¶397defendant’s girlfriend as potential alibi witness because counsel
¶398“believed that doing so would not have been helpful to [defendant’s]
¶399case” was not deficient).
¶400 McKelvey has also failed to demonstrate any prejudice as he
¶401has not shown that either witness would have given him “a solid and
¶402complete alibi for the time of the murder.” Moss v. State, 298 Ga.
¶403613, 619 (5) (d) (783 SE2d 652) (2016). As such, this enumeration of
¶404error also fails.
¶405 Judgment affirmed. All the Justices concur.
¶406 25