¶1NOTICE: 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
¶2 Decided: October 25, 2022
¶3 S22A0801. WILLIS v. THE STATE.
¶4 PINSON, Justice.
¶5 Stephen Willis was convicted along with four co-defendants of
¶6crimes arising from the shooting death of Nicholas Hagood.1 On
¶7 The crimes occurred on April 16, 2014. On July 18, 2014, a Fulton 1
¶8County grand jury indicted Willis and four co-defendants—Tavius Bates, Demetrius Fortson, Octavious Jordan, and Jeremy Southern—on eight counts each: malice murder, armed robbery, felony murder predicated on armed robbery, hijacking a motor vehicle, felony murder predicated on hijacking a motor vehicle, aggravated assault, felony murder predicated on aggravated assault, and possessing a firearm during the commission of a felony. Willis alone was also indicted for possession of a firearm by a convicted felon and felony murder predicated on that charge. The defendants were tried together before a jury from August 28 to September 8, 2017. The jury found Willis not guilty of malice murder but guilty of all other counts. The jury found Southern guilty of all counts and found Fortson, Bates, and Jordan not guilty of malice murder but guilty of the remaining counts. We affirmed Fortson’s convictions on appeal. See Fortson v. State, 313 Ga. 203 (869 SE2d 432) (2022). Willis was sentenced to life in prison for felony murder predicated on armed robbery, 20 years in prison for hijacking a motor vehicle, 5 years in prison for possessing a firearm as a convicted felon, and 5 years in prison suspended for possessing a firearm during the commission of a felony, all to run concurrently. The aggravated assault and armed robbery counts merged for sentencing purposes with the felony murder count predicated on armed robbery, and the other appeal, Willis contends that (1) the evidence was insufficient to
¶9sustain his convictions, (2) the trial court plainly erred by failing to
¶10instruct the jury that the testimony of an accomplice requires
¶11corroboration, and (3) his trial counsel was ineffective for allowing
¶12an exhibit to be introduced that included information about his prior
¶13encounters with law enforcement, not requesting a limiting
¶14instruction as to how the jury could consider that felony conviction,
¶15and failing to move to suppress the search warrant that yielded
¶16Willis’s phone records.
¶17 We conclude that the evidence was sufficient to support Willis’s
¶18convictions. Further, the failure to give an accomplice-corroboration
¶19jury instruction was not plain error, because even assuming the
¶20instruction should have been given, the failure to give it was not
¶21likely to have affected the outcome of the trial in light of the
¶22felony murder sentences were vacated by operation of law. On September 13, 2017, Willis filed a timely motion for new trial, which he amended twice through new counsel. After a hearing, the trial court denied the motion for new trial, as amended, on January 28, 2022. On February 1, 2022, Willis filed a timely notice of appeal. The case was docketed to the April 2022 term of this Court and submitted for a decision on the briefs. 2 substantial evidence against Willis. Finally, Willis failed to
¶23establish that he received ineffective assistance of counsel at trial.
¶24He has not shown that he was prejudiced by the introduction of the
¶25exhibit that showed his prior criminal history, and his counsel was
¶26not deficient for failing to move to suppress the search warrant
¶27because the warrant was supported by probable cause: the warrant
¶28application relied in part on a statement from a named informant
¶29that was against the informant’s penal interest. So we affirm.
¶30 1. The evidence at trial showed the following. On April 16,
¶312014, just after 12:30 p.m., Rayshon Smith was robbed at gunpoint.
¶32Smith was outside his cousins’ apartment building in Austell, in
¶33Cobb County, when he noticed a car driving past slowly. The car was
¶34a silver or gray Ford Taurus with tinted windows, and Smith could
¶35see four men inside. Smith then noticed two men walking towards
¶36him. One of them came right up to Smith, pointed a gun at him, and
¶37went through his pockets while looking him in the eye. The man took
¶38Smith’s wallet, phone, and keys. The other man also had a gun but
¶39did not come as close.
¶40 3 After the men left, Smith went into the apartment building and
¶41called the police. He gave the police the number of his phone that
¶42was stolen. Later, Smith identified Willis’s co-defendant Jeremy
¶43Southern in a photo array as the man who had been closest to him
¶44during the robbery.
¶45 About a half hour later, at around 1:00 p.m., Joseph James was
¶46at home in his apartment in Fulton County, not far from where
¶47Smith was robbed. James was looking out the window into the
¶48parking lot when he noticed two cars pulling up. One of the cars,
¶49which was driven by Hagood, pulled into a parking space. The other
¶50car wedged behind it. When Hagood got out of the car, he seemed
¶51“out of place” and “slightly disoriented.” James saw Hagood and a
¶52man with dreadlocks standing next to the car that Hagood had been
¶53driving, while a third man remained in that car. Four or five men
¶54were in the other car. As James watched, Hagood appeared to check
¶55his pockets, and then appeared to mouth “I don’t have anything” or
¶56“I don’t have it” to the man with dreadlocks. The man with
¶57dreadlocks appeared to “check” Hagood, “like trying to figure out
¶58 4 does he have something.” At that point, one of the men from the
¶59second car got out, holding a gun, and moved toward Hagood and
¶60the man with dreadlocks. Hagood tried to run. James heard a
¶61gunshot. The medical examiner testified at trial that Hagood was
¶62killed by a gunshot wound to the back.
¶63 James called 911 at 1:16 p.m. Later, when shown photo arrays,
¶64James identified Southern as the man with the gun and another of
¶65Willis’s co-defendants, Tavius Bates, as the man with dreadlocks
¶66who had been speaking to Hagood.2
¶67 Detective Scott Demeester, the lead investigator on the case,
¶68arrived at the scene at around 1:45 p.m. Detective Demeester
¶69contacted Hagood’s wife, who told him that Hagood normally would
¶70have a cell phone and a car, neither of which was found at the crime
¶71scene. Hagood’s wife gave the detective Hagood’s cell-phone number
¶72and the tag number for his white Toyota Corolla. Detective
¶73Demeester put out alerts for both the phone and the car.
¶74 2 At trial, James admitted that he was “troubled” when he identified Bates in the photo array, because the photo of Bates in the array did not show him with a dreadlocks hairstyle. See Fortson, 313 Ga. at 210 (1). 5 At the murder scene, police found a wallet and set of keys
¶75belonging to Smith, who had recently been robbed nearby. Detective
¶76Demeester contacted Smith and learned that his cell phone had been
¶77stolen in the robbery. The detective then subpoenaed the phone
¶78records associated with Smith’s stolen phone, as well as those
¶79associated with Hagood’s missing phone.
¶80 The records from Hagood’s phone showed that after the
¶81shooting, at 1:29 p.m., someone sent a text message to Hagood’s
¶82phone. But that message was not received until 3:10 p.m., indicating
¶83that the phone was powered off or otherwise disconnected in the
¶84interim. When Hagood’s phone finally received the message, it
¶85“pinged” off a cell tower in the area of an apartment complex on
¶86Kelly Lake Road in Decatur. The aunt of one of Willis’s co-
¶87defendants, Octavius Jordan, lived in that apartment complex.
¶88Jordan himself was living at a nearby hotel, and Southern lived in
¶89the area too. A maintenance man from the Kelly Lake Road
¶90apartment complex testified that he had seen Hagood’s white Toyota
¶91Corolla and the defendants’ silver Ford Taurus parked at that
¶92 6 apartment complex later in the week, after the shooting. Hagood’s
¶93car was eventually recovered in the same area.
¶94 The records from Smith’s cell phone showed that someone used
¶95it several hours after it was stolen to call Metro PCS customer
¶96service to unlock it. After it was unlocked, the phone was used to
¶97place and receive calls and text messages to and from people the
¶98phone had never been used to contact before it was stolen. The new
¶99contacts included Jordan’s girlfriend, Willis, Southern, and a phone
¶100number belonging to the mother of the fourth co-defendant,
¶101Demetrius Fortson, who often used his mother’s phone. Police
¶102searched the phone of another of the new contacts in Smith’s phone,
¶103Dionte Wooten, and found that Smith’s number was saved in
¶104Wooten’s phone under Jordan’s nickname, “Tay Tay.”
¶105 Jordan and Bates were arrested and interviewed. Portions of
¶106their statements were played for the jury. In Jordan’s interview, he
¶107admitted that he was present at the armed robbery of Smith, that
¶108he took Smith’s phone (and later sold it), and that he then drove to
¶109another location where a “white man” was robbed. Bates, in his
¶110 7 statement, admitted that he was present at both the robbery of
¶111Smith and the shooting of Hagood. Neither Jordan nor Bates
¶112mentioned Willis or any other co-defendant in the redacted portions
¶113of their statements that were played at trial.
¶114 In the portion of Jordan’s interview that the jury did not hear,
¶115Jordan identified Willis and the other co-defendants. Using that
¶116information, Detective Demeester obtained a search warrant for the
¶117cell-phone records of Willis, Southern, Bates, and Jordan, as well as
¶118of Fortson’s mother. From those records, detectives put together a
¶119timeline of the defendants’ whereabouts and phone activities on the
¶120day of the crimes.
¶121 The cell-phone evidence showed the following. On the morning
¶122of the crimes, Willis, Jordan, and Southern were in contact with each
¶123other. Jordan and Southern started out in the area of Decatur where
¶124they both lived, and Willis started out somewhere west of Stone
¶125Mountain. Shortly after 10:30 a.m., Jordan and Southern drove
¶126north on I-285 toward the Stone Mountain Highway, then east on
¶127the highway toward Stone Mountain. Jordan and Southern called
¶128 8 Willis at 10:48 a.m. and 10:59 a.m., respectively; all three phones
¶129pinged off the same cell tower near Stone Mountain. A little later,
¶130Southern and Jordan drove west on the Stone Mountain Highway
¶131and south on I-285, heading back the way they had come. (There was
¶132no testimony about Willis’s phone activity during that period.) At
¶13312:05 p.m., Southern called Fortson’s mother’s phone while
¶134Southern was approaching Fortson’s home in southeast Atlanta.
¶135 A short time later, just after Smith was robbed, Jordan
¶136received a call at 12:37 p.m., and Willis made and received calls at
¶13712:43 p.m. and 12:47 p.m., all in the area of the robbery. Southern’s
¶138phone pinged off a cell tower in the same area at the same time.
¶139Likewise, minutes before Hagood was killed, Willis, Southern, and
¶140Jordan all made calls near the murder scene.
¶141 The phones went silent for a time after the murder. Then at
¶1421:47 p.m., Willis made a call near Fortson’s home. The other four
¶143defendants’ phones all pinged off the same cell tower around that
¶144time. At 2:11 p.m., Southern called Willis from near Southern’s
¶145home. All five defendants’ phones pinged off cell towers in the same
¶146 9 area that afternoon—as did Hagood’s stolen phone, at 3:10 p.m.
¶147 Detective Demeester testified that in the six-week period for
¶148which he reviewed Willis’s phone records, the day of the crime was
¶149the only time Willis’s phone pinged near either Fortson’s home or
¶150Jordan’s and Southern’s homes.
¶151 Willis was arrested at the home of his girlfriend in Austell. He
¶152was found hiding in a bedroom closet. Police seized his cell phone;
¶153Willis later denied having the cell-phone number that was
¶154associated with that phone. He also denied knowing Jordan,
¶155although one of the contacts in his phone was listed under Jordan’s
¶156nickname with the phone number of Jordan’s girlfriend.
¶157 None of the defendants testified at trial.
¶158 2. Willis contends that the evidence was not sufficient to
¶159sustain his convictions. Relying on OCGA § 24-14-6, he argues that
¶160the evidence that he was a party to the crimes, which was entirely
¶161circumstantial, did not exclude all reasonable hypotheses other than
¶162 10 his guilt.3
¶163 A conviction can rest on circumstantial evidence alone if that
¶164evidence “exclude[s] every other reasonable hypothesis save that of
¶165the guilt of the accused.” OCGA § 24-14-6. See Davenport v. State,
¶166309 Ga. 385, 388 (1) (846 SE2d 83) (2020). Not every hypothesis is a
¶167“reasonable” one, and the evidence “need not exclude every
¶168conceivable inference or hypothesis,” only the reasonable ones.
¶169Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation
¶170and punctuation omitted). The questions whether any alternative
¶171hypotheses are reasonable and whether the circumstantial evidence
¶172excludes any such hypotheses are for the jury. Id. See also Merritt v.
¶173State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009). And we will not
¶174disturb the jury’s findings on those questions unless they are
¶175“insupportable as a matter of law.” Graves, 306 Ga. at 487 (1)
¶176(citation and punctuation omitted).
¶177 3 Although Willis cites Jackson v. Virginia, 403 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), he makes no argument about the constitutional sufficiency of the evidence, relying instead solely on his arguments under OCGA § 24-14-6. 11 A jury may find a defendant guilty beyond a reasonable doubt
¶178if the evidence shows either that he directly committed the crime or
¶179that he was a “party thereto.” See OCGA § 16-2-20 (a). A person is a
¶180party to the crime if he aids or abets in its commission or if he
¶181“advises, encourages, hires, counsels, or procures another” to
¶182commit it. Id. at (b) (4). See also Carter v. State, __ Ga. __, __ (2) (a)
¶183(877 SE2d 170) (2022). And although the defendant’s mere presence
¶184at the scene is not enough to convict him as a party to the crime, the
¶185jury may infer his criminal intent from his “presence,
¶186companionship, and conduct before, during, and after the offense.”
¶187Jones v. State, 314 Ga. 214, 231-32 (3) (875 SE2d 737) (2022)
¶188(citation and punctuation omitted).
¶189 Here, there was sufficient evidence for the jury to find both that
¶190Willis’s co-defendants directly committed the crimes and that Willis
¶191was guilty as a party to the crimes. To begin with, as Willis concedes,
¶192there was direct evidence that his co-defendants committed the
¶193crimes. A witness to the murder, James, identified Southern as the
¶194shooter and Bates as the second person who confronted Hagood.
¶195 12 Jordan also admitted to his own participation. See Thrift v. State,
¶196310 Ga. 499, 502 (1) (852 SE2d 560) (2020) (confessions are direct
¶197evidence of guilt); Jackson v. State, 307 Ga. 770, 772 (838 SE2d 246)
¶198(2020) (eyewitness testimony is direct evidence of guilt). And ample
¶199circumstantial evidence corroborated these accounts. After the
¶200murder, Hagood’s stolen phone pinged in the area where Southern,
¶201Bates, and Fortson all lived, and Hagood’s stolen car was recovered
¶202in the same area. See Carter v. State, 305 Ga. 863, 867 (2) (828 SE2d
¶203317) (2019) (circumstantial evidence of guilt included the location of
¶204the victim’s phone after the victim’s death). In addition, there was
¶205evidence suggesting that the men who shot Hagood were the same
¶206men who had earlier robbed Smith—Smith’s stolen wallet and keys
¶207were found at the murder scene—and from that inference flowed
¶208further evidence implicating the group. Smith identified Southern
¶209as one of the robbers, and after the murder, Jordan used Smith’s
¶210stolen phone and later sold it. See Eckman v. State, 274 Ga. 63, 65
¶211(1) (548 SE2d 310) (2001) (circumstantial evidence of guilt included
¶212defendant’s use of “the fruits of the multi-county crime spree”).
¶213 13 There was also sufficient evidence from which the jury could
¶214find that Willis was part of the group that committed the crimes.
¶215Both eyewitnesses, James and Smith, saw at least four men at the
¶216respective crime scenes. Willis’s cell-phone records offered strong
¶217support that he was one of those men. The phone records showed not
¶218only that Willis was near the location of both crimes at the time they
¶219were committed, but also that he moved around the city with his co-
¶220defendants after the crimes, and that he was in communication with
¶221them throughout the day. Willis called or texted with Southern and
¶222Jordan in the morning as the latter two drove toward Stone
¶223Mountain, where Willis started his day. Later, Willis’s phone was
¶224used in the area where Smith was robbed, and shortly thereafter, it
¶225was used again near where Hagood was murdered. Still later, his
¶226phone was active near Fortson’s home, and then near Southern’s
¶227and Jordan’s homes—as were the phones of all his co-defendants.
¶228Detective Demeester testified that the day of the crimes was the only
¶229day in a six-week span in which Willis’s phone pinged near
¶230Fortson’s, Southern’s, or Jordan’s homes. And when Willis was
¶231 14 arrested, he denied having the phone number associated with the
¶232phone in his possession, and denied knowing Jordan despite
¶233evidence to the contrary.
¶234 This evidence authorized the jury to reject as unreasonable the
¶235hypotheses that Willis urges on appeal—that he was merely present
¶236at the scene of Hagood’s murder, and that when his phone pinged
¶237near the Smith robbery, he was actually at his girlfriend’s home
¶238nearby. See OCGA § 24-14-6; Poole v. State, 312 Ga. 515, 522-23 (863
¶239SE2d 93) (2021). See also Copeland v. State, 314 Ga. 44, 46-47 (2)
¶240(875 SE2d 636) (2022) (evidence of guilt included cell-site location
¶241data that placed defendant at scene of crime and corroborated
¶242witness’s account). The jury instead could have inferred Willis’s
¶243criminal intent from his presence at the crime scenes, his
¶244companionship and communication with the group before and after
¶245the crimes, and his later disavowal of both his own cell-phone
¶246number and of knowing Jordan. See Jones, 314 Ga. at 232 (3)
¶247(citation and punctuation omitted). Compare Taylor v. State, 297
¶248Ga. 132, 135 (2) (772 SE2d 630) (2015) (evidence of guilt insufficient
¶249 15 when only corroborating evidence of defendant’s participation was
¶250testimony of one witness who saw defendant in co-defendant’s car
¶251some time later). Because the jury’s finding was not insupportable
¶252as a matter of law, we do not disturb it. Graves, 306 Ga. at 487 (1).
¶253 3. Willis contends that the trial court erred by failing to give a
¶254jury instruction about the statutory requirement of accomplice
¶255corroboration. Under OCGA § 24-14-8, “[t]he testimony of a single
¶256witness is generally sufficient to establish a fact”; but in a felony
¶257case, if “the only witness is an accomplice,” then the testimony of
¶258that witness “shall not be sufficient” and requires corroboration. The
¶259“corroboration requirement applies even when the accomplice does
¶260not testify in court, if his statements are admitted through another
¶261witness.” Finney v. State, 311 Ga. 1, 10 (2) (b) (855 SE2d 578) (2021).
¶262In Willis’s view, the accomplice-corroboration instruction should
¶263have been given in light of the out-of-court statements from Jordan
¶264and Bates that were played at trial.
¶265 (a) The trial court gave several jury instructions that related
¶266to the co-defendants’ out-of-court statements. First, the court
¶267 16 instructed the jury that the testimony of a single witness is enough
¶268to establish a fact. Then the trial court began to tell the jury that an
¶269“exception” to this rule exists when the witness is an accomplice, in
¶270which case the accomplice’s testimony must be supported by some
¶271other evidence. But the State objected to that charge, arguing that
¶272it was an “improper charge for this case,” and the trial court agreed,
¶273saying, “Strike that. Strike that.” Finally, the trial court instructed
¶274the jury that it could consider each of the co-defendants’ out-of-court
¶275statements only against the defendant who had made the statement.
¶276 (b) Willis did not object at trial to the failure to give an
¶277accomplice-corroboration instruction, so we review the claim for
¶278plain error. See Harris v. State, 313 Ga. 872, 879 (3) (874 SE2d 73)
¶279(2022). To show plain error, an appellant must show that (1) the
¶280alleged error was not affirmatively waived, (2) it was obvious beyond
¶281reasonable dispute, and (3) it affected the appellant’s substantial
¶282rights, which ordinarily means showing that it affected the outcome
¶283of the trial. See Hawkins v. State, 304 Ga. 299, 302 (3) (818 SE2d
¶284513) (2018). Finally, if those three prongs are satisfied, an appellate
¶285 17 court has the discretion to remedy the error only if the error
¶286“seriously affect[ed] the fairness, integrity, or public reputation of
¶287judicial proceedings.” Id. at 302 (citation and punctuation omitted).
¶288 Pretermitting whether it was error for the trial court not to
¶289give an accomplice-corroboration jury instruction in this case, Willis
¶290has not shown that the failure to give the instruction likely affected
¶291the outcome of his trial. As we recounted in Division 2, ample
¶292evidence of Willis’s guilt did not come from Jordan’s and Bates’s
¶293statements, including eyewitnesses identifying his co-defendants as
¶294the direct perpetrators of the crimes, and cell-phone records placing
¶295Willis at the crime scenes and underscoring that he and his co-
¶296defendants were in communication with each other and in each
¶297other’s presence throughout the day. The evidence against him did
¶298not rely entirely, or even significantly, on the statements from
¶299Jordan and Bates. See Payne v. State, 314 Ga. 322, 326 (1) (877 SE2d
¶300202) (2022) (failure to give accomplice-corroboration instruction did
¶301not likely affect outcome of trial in light of significant evidence of
¶302guilt other than accomplice testimony); Hawkins, 304 Ga. at 303 (3)
¶303 18 (same). Compare State v. Johnson, 305 Ga. 237, 241 (1) (824 SE2d
¶304317) (2019) (“because virtually all of the incriminating evidence
¶305flowed from [an accomplice], the outcome of the trial court
¶306proceedings was ‘likely affected’ by the trial court’s failure to provide
¶307an accomplice corroboration instruction”) (emphasis added). Indeed,
¶308the only portions of Jordan’s and Bates’s statements that were
¶309played at trial made no mention of Willis, and did not connect him
¶310to the crimes. Cf. Pindling v. State, 311 Ga. 232, 236 (2) (857 SE2d
¶311474) (2021) (statute requires accomplice-corroboration instruction
¶312“if there is evidence that could support a finding that a witness was
¶313an accomplice to the crime, and that witness provides testimony that
¶314directly links the defendant to the crime”). Moreover, the trial court
¶315instructed the jury to consider Jordan’s and Bates’s statements only
¶316against the men who made them—Jordan and Bates, respectively—
¶317and “[q]ualified jurors under oath are presumed to follow the trial
¶318court’s instructions.” Holland v. State, 314 Ga. 181, 192 (3) (b) (875
¶319SE2d 800) (2022) (citation and punctuation omitted). Given the
¶320significant other evidence against Willis, and the minimal degree to
¶321 19 which Jordan’s and Bates’s statements implicated him, Willis has
¶322not shown that the failure to give an accomplice-corroboration
¶323instruction likely affected the outcome of his trial. Without that
¶324showing, we find no plain error. See Hawkins, 304 Ga. at 302 (3).
¶325 4. Willis contends that his trial counsel rendered
¶326constitutionally ineffective assistance in a number of ways.
¶327 To succeed on a claim of ineffective assistance, a defendant
¶328must establish both that his counsel’s performance was deficient
¶329and that he was prejudiced as a result of that deficient performance.
¶330See Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022)
¶331(citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt
¶3322052, 80 LE2d 674) (1984)). To establish deficient performance, a
¶333defendant must establish that counsel “performed his duties in an
¶334objectively unreasonable way, considering all the circumstances and
¶335in the light of prevailing professional norms.” Id. (citation and
¶336punctuation omitted). To overcome the “strong presumption” that
¶337counsel performed reasonably, the defendant must show that “no
¶338reasonable lawyer would have done what his lawyer did, or would
¶339 20 have failed to do what his lawyer did not.” Id. (citation omitted). And
¶340counsel’s decisions about trial tactics and strategy in particular may
¶341not form the basis of an ineffectiveness claim unless they were “so
¶342patently unreasonable that no competent attorney would have
¶343followed such a course.” Id. (citation omitted). To establish prejudice,
¶344a defendant must establish that there is a “reasonable probability
¶345that, but for counsel’s deficiency, the result of the trial would have
¶346been different.” Id. A reasonable probability is a probability
¶347“sufficient to undermine confidence in the outcome” of the trial. Neal
¶348v. State, 313 Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and
¶349punctuation omitted).
¶350 If the defendant fails to satisfy either part of the
¶351Strickland test, his claim fails, and we need not address the other
¶352part. Washington, 313 Ga. at 773 (3). Finally, when reviewing
¶353ineffective-assistance claims, we accept the trial court’s factual
¶354findings unless clearly erroneous, but we independently apply legal
¶355principles to the facts. See Lyons v. State, 309 Ga. 15, 25 (8) (843
¶356SE2d 825) (2020).
¶357 21 (a) Willis first contends that trial counsel was ineffective for
¶358failing to limit the jury’s access to State’s Exhibit 115, a certified
¶359copy of Willis’s 2013 felony conviction (by guilty plea) for possession
¶360of cocaine. The State introduced the exhibit to establish that Willis
¶361was a previously convicted felon. But the exhibit also showed Willis’s
¶362misdemeanor convictions from the same incident for possession of
¶363marijuana and obstructing a law enforcement officer. The narrative
¶364of the incident described Willis jumping off a second-floor balcony to
¶365avoid arrest. In addition, the exhibit showed that three days before
¶366the cocaine possession incident, Willis had an arrest warrant issued
¶367for battery and obstructing a 911 call, and that he had had his bond
¶368revoked as a result. Willis argues that counsel should have
¶369stipulated to his status as a convicted felon to prevent the jury from
¶370seeing the full exhibit.
¶371 Even assuming counsel’s performance was deficient for the
¶372reasons Willis gives, Willis has failed to establish prejudice. A
¶373defendant may be prejudiced by the admission of a prior conviction
¶374into evidence when the “prior conviction is of the nature likely to
¶375 22 inflame the jury’s passions and raise the risk of a conviction based
¶376on improper considerations.” Parker v. State, 309 Ga. 736, 745 (5)
¶377(848 SE2d 117) (2020) (citation and punctuation omitted). But here,
¶378the material in Exhibit 115—information about Willis’s
¶379misdemeanor convictions for possession of marijuana and
¶380obstructing a law enforcement officer, the narrative of him jumping
¶381off a balcony to elude arrest, and the booking report showing his
¶382arrest for battery and the revocation of his bond—was relatively
¶383mild compared to the crimes with which Willis was charged—
¶384murder, armed robbery, and carjacking, among others. Because
¶385such information was unlikely to “inflame the jury’s passions”
¶386against him, and the evidence against Willis was strong, Willis has
¶387not established a reasonable probability that the result of his trial
¶388would have been different if his counsel had prevented the exhibit
¶389from being introduced in full. See id. at 744-47 (5) (in a murder case,
¶390defendant not prejudiced by counsel’s failure to stipulate to
¶391convicted felon status, because evidence of guilt was strong and
¶392jury’s passions were unlikely to be inflamed by prior convictions for
¶393 23 aggravated robbery and bringing prohibited item into government
¶394facility); Moore v. State, 306 Ga. 532, 534 & n.2 (2) (a) (832 SE2d
¶395384) (2019) (same, with past convictions for possession of marijuana,
¶396eluding a police officer, and driving violations); Ballard v. State, 297
¶397Ga. 248, 251-52 (6) (a) (773 SE2d 254) (2015) (same, with past
¶398convictions for aggravated assault and burglary with intent to
¶399commit aggravated assault). So Willis’s claim of ineffective
¶400assistance on this ground fails.
¶401 (b) In a related enumeration, Willis contends that his trial
¶402counsel was ineffective for failing to request a jury instruction
¶403limiting the jury’s use of Exhibit 115 to establishing Willis’s status
¶404as a convicted felon (and for failing to object when the trial court’s
¶405jury charge did not include that limiting instruction). But Willis has
¶406not shown a reasonable probability that the result of his trial would
¶407have been different if the trial court had given that instruction. As
¶408we explained in Division (4) (a), the evidence against Willis was
¶409strong, and the information in Exhibit 115 was relatively mild
¶410compared to the crimes with which he was charged. So the jury
¶411 24 knowing all of that information—rather than knowing only that
¶412Willis was a convicted felon—was not reasonably likely to change
¶413the verdict. By the same token, the absence of an instruction
¶414allowing the jury to consider the information in Exhibit 115 only for
¶415the purpose of establishing that Willis was a convicted felon was not
¶416reasonably likely to change the verdict. Willis’s claim of ineffective
¶417assistance on this ground fails, too.
¶418 (c) Finally, Willis contends his trial counsel was ineffective for
¶419failing to move to suppress search warrant SW-007220, which
¶420authorized the seizure of his cell-phone records. Willis contends that
¶421the warrant, which he introduced into evidence at the hearing on
¶422the motion for new trial, was not supported by probable cause
¶423because it rested on the uncorroborated statement of his co-
¶424defendant, Jordan.
¶425 A magistrate may issue a search warrant upon the sworn
¶426application of a law enforcement officer that (1) sets forth “facts
¶427sufficient to show probable cause that a crime is being committed or
¶428has been committed” and (2) “particularly describes the place or
¶429 25 person, or both, to be searched and things to be seized.” OCGA § 17-
¶4305-21 (a). To determine whether probable cause exists, the magistrate
¶431must review the search-warrant application and “make a practical,
¶432common-sense decision whether, given all the circumstances set
¶433forth in the affidavit before him, there is a fair probability that
¶434contraband or evidence of a crime will be found in a particular
¶435place.” Johnson v. State, 310 Ga. 685, 694 (4) (b) (853 SE2d 635)
¶436(2021) (citation and punctuation omitted). The magistrate’s decision
¶437to issue the warrant is entitled to “substantial deference” by a
¶438reviewing court, whose task is to determine if the magistrate had a
¶439“substantial basis” for concluding that probable cause existed. Id.
¶440(citations and punctuation omitted). And we have held that “when a
¶441named informant makes a declaration against penal interest and
¶442based on personal observation, that in itself provides a substantial
¶443basis for the magistrate to credit the statement.” Graddy v. State,
¶444277 Ga. 765, 766 (1) (596 SE2d 109) (2004) (citation and punctuation
¶445omitted; emphasis in original). See also id. (“inculpatory statements
¶446that are made by a known or identified informant can establish
¶447 26 probable cause for issuance of a search warrant”).
¶448 Here, Willis has not met the high burden required to overturn
¶449the magistrate’s probable-cause determination, or, by extension, to
¶450suppress warrant SW-007220. See Johnson, 310 Ga. at 694 (4) (b).
¶451In the probable-cause affidavit supporting the warrant application,
¶452Detective Demeester described how he identified Jordan as the
¶453possessor of Hagood’s stolen cell phone, and how Jordan, in his
¶454interview, identified Willis and the other co-defendants, admitted
¶455that he was the driver of the group’s car at the robbery of Smith, and
¶456admitted that he was the driver of one of the group’s cars when
¶457Hagood was killed. In other words, Jordan, a named informant, gave
¶458a statement against his penal interest and based on his personal
¶459knowledge. That statement by itself provided a substantial basis for
¶460a magistrate to find probable cause. See Graddy, 277 Ga. at 766 (1).
¶461Moreover, Jordan’s statement was not the only evidence supporting
¶462the warrant application. The affidavit also attested that Willis’s
¶463number appeared in Smith’s stolen cell phone, which tended to
¶464confirm that, at the very least, he knew the person who had stolen
¶465 27 it.
¶466 Because the magistrate had a “substantial basis” for
¶467concluding that probable cause existed, a motion to suppress would
¶468have been meritless. And failing to file a meritless motion to
¶469suppress is not deficient performance. See, e.g., Keller v. State, 308
¶470Ga. 492, 499 (2) (c) (842 SE2d 22) (2020). So Willis’s final claim of
¶471ineffective assistance fails.
¶472 Judgment affirmed. All the Justices concur, except Peterson, P. J., not participating.
¶473 28