¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: December 20, 2022
¶4 S22A0958. DAVIS v. THE STATE.
¶5 PINSON, Justice.
¶6 Patricko Davis was convicted of felony murder and other
¶7crimes in connection with the July 2014 shooting death of Takeenan
¶8Williams. 1 On appeal, Davis contends that (1) he was denied his
¶9 1 The shooting occurred on July 24, 2014. In November 2014, Davis was indicted for malice murder (Count 1), two counts of felony murder (Counts 2 and 3), and aggravated assault (Count 4) in relation to the shooting death of Williams. He was also indicted for criminal attempt to sell marijuana (Count 5), two additional counts of aggravated assault in relation to two other alleged victims (Counts 6 and 7), and possession of a firearm during the commission of a felony (Count 8). At Davis’s trial in February 2017, the trial court directed verdicts on Counts 6 and 7. As to the remaining counts, the jury found Davis guilty of one count of felony murder, the aggravated assault underlying the felony murder, and the firearm-possession count, and not guilty of the remaining counts. Davis was sentenced to serve life in prison for the felony murder plus a consecutive, suspended five-year term for the firearm-possession count; the trial court merged the aggravated assault count into the felony murder count for sentencing purposes. On March 2, 2017, Davis filed a premature motion for new trial, which ripened upon the entry of Davis’s final disposition on March 7, 2017. See Southall v. State, 300 Ga. 462, 464-467 (1) (796 SE2d 261) (2017). Through new counsel, Davis filed an amended motion for new trial in September 2021. Following a hearing, the trial court denied constitutional right to a speedy trial; (2) the trial court erred by
¶10declining to admit “reverse 404 (b)” evidence about a later crime
¶11committed by a friend of Williams who was present when Williams
¶12was shot, which Davis claimed was relevant to the friend’s “intent”
¶13and “opportunity” to carry a gun; and (3) trial counsel rendered
¶14constitutionally ineffective assistance by failing to call a bullet-
¶15trajectory expert to support Davis’s self-defense claim and in his
¶16handling of the reverse 404 (b) evidence.
¶17 None of Davis’s claims has merit. The trial court did not abuse
¶18its discretion in rejecting Davis’s speedy-trial claim based on the
¶19court’s careful application of the relevant factors, which included
¶20determinations that Davis was himself responsible for some portion
¶21of the delay, did not assert his right to a speedy trial promptly, and
¶22failed to establish any actual prejudice resulting from the delay.
¶23Davis’s claim that the trial court erred by not admitting his reverse
¶24the motion in an order entered on March 15, 2022. Davis filed a timely notice of appeal on March 16, 2022 and an amended notice of appeal on March 22, 2022. The appeal was docketed to the August 2022 term of this Court and was thereafter submitted for a decision on the briefs. 2 404 (b) evidence fails because the court never ruled that the evidence
¶25was not admissible; rather, Davis simply gave up on trying to
¶26introduce the evidence. Finally, his claims of ineffective assistance
¶27fail because he has not established that trial counsel performed
¶28deficiently: Counsel made a strategic decision to establish the facts
¶29needed to support Davis’s self-defense claim through cross-
¶30examination of a prosecution witness and succeeded in getting
¶31favorable testimony. And the reverse 404 (b) evidence would not
¶32have been admissible because it was classic propensity evidence, so
¶33counsel was not deficient for failing to introduce it. We therefore
¶34affirm Davis’s convictions and sentences.
¶35 1. On the afternoon of July 24, 2014, Davis shot and killed
¶36Williams during a drug transaction between Davis and Williams’s
¶37friend, Demetrise Maye. Davis never denied shooting Williams.
¶38Rather, he claimed at trial that he shot Williams in self-defense. His
¶39story was that Maye pulled a gun to try to rob him, so he pulled his
¶40own gun and shot Williams in the ensuing fray.
¶41 3 (a) The shooting was witnessed by several bystanders who
¶42were walking in the parking lot of a Sandy Springs office complex
¶43where they worked. The group noticed three men having a heated
¶44argument in the adjacent parking lot of the neighboring Sheraton
¶45Hotel. The witnesses testified that one of the men was waving a gun
¶46at one of the other men, yelling, “give me my sh*t” or “where’s my
¶47sh*t,” and they described hearing a single gunshot followed by a
¶48pause and then five or six more shots.
¶49 One of these witnesses testified that, after the first shot, the
¶50victim tried to crawl away over the guard rail separating the two
¶51parking lots and that, when the five or six shots were fired, the
¶52shooter was standing and “closing in” on the victim, whose back and
¶53side were facing the shooter. That witness, who tried to render aid
¶54after the shooting stopped, testified that the victim was lying on the
¶55ground beyond the guard rail “like falling down the hill but face up,”
¶56with his feet higher than his head.
¶57 (b) Maye and Williams’s girlfriend, Elizabeth Lazalde, both
¶58testified for the State. They each testified that on the day of the
¶59 4 shooting, Lazalde drove Maye and Williams to meet Davis at a
¶60Sandy Springs apartment complex. Lazalde parked at the nearby
¶61Sheraton Hotel and stayed in the car while Williams and Maye got
¶62out and walked over to the apartments.
¶63 Maye testified that he found Davis at the apartments, and
¶64Davis gave Maye seven grams of marijuana. Maye gave Davis half
¶65the money owed, said Williams had the other half, and led Davis
¶66back to Lazalde’s car. Williams joined him along the way, and Maye
¶67gave Williams the marijuana. As they reached the car, Maye heard
¶68Williams and Davis arguing and saw Davis produce a gun and point
¶69it at Williams, saying, “give me my sh*t.” Maye backed away, heard
¶70the two “scuffling,” and saw Williams take off running. Davis began
¶71firing, emptying his clip, and then ran away.
¶72 Lazalde testified that she sat in her car while Williams and
¶73Maye went to the apartments. When the pair returned, along with
¶74Davis, she observed Davis and Williams talking in a “hostile”
¶75manner. She then saw Davis pull out a gun and point it at Williams,
¶76prompting Williams to try to grab the gun from Davis’s grip. The
¶77 5 pair began wrestling, and the gun hit the ground. Davis picked it up
¶78and fired the first shot, followed by five or six more shots. According
¶79to Lazalde, neither Williams nor Maye was carrying a gun that day.
¶80 (c) The defense presented several witnesses, including Davis.
¶81Davis testified that on the day of the shooting, Maye arranged to buy
¶82some marijuana. After the transaction, Maye asked Davis if he was
¶83selling his watch, and Davis responded that he was and allowed
¶84Maye to try it on. Maye then said he wanted to buy the watch, told
¶85Davis his money was in the car, and, joined by Williams along the
¶86way, led Davis to the Sheraton parking lot. Once back at the car,
¶87Maye asked whether Davis had change. Davis responded that he did
¶88and pulled out some cash, at which point Maye turned around,
¶89pointed a gun at Davis, and told him to “give it up.” Davis pulled out
¶90the gun he was carrying in his waistband and cocked it, and
¶91Williams walked over and grabbed Davis. Williams and Davis
¶92tussled over the gun, the gun discharged, both men fell to the
¶93ground, and, as Williams got up to charge at Davis, Davis grabbed
¶94his gun and fired it. Davis testified that he did so because he believed
¶95 6 Williams was going to kill him, and that he ran because he was
¶96scared.
¶97 (d) Aside from Davis’s testimony, there was no evidence that
¶98Maye had a gun in his possession or that more than one gun was
¶99present at the scene. The evidence in fact suggested the opposite:
¶100the seven shell casings recovered from the scene were determined to
¶101have been fired from the same .40-caliber Smith & Wesson Taurus
¶102firearm, and the three intact bullets recovered from Williams’s body
¶103were also confirmed to have been fired from the same .40-caliber
¶104gun. A box for a Taurus .40-caliber handgun with two magazines
¶105inside was found in a search of Davis’s apartment.
¶106 The medical examiner testified that Williams had sustained a
¶107total of five gunshot wounds, including a fatal wound to the back.
¶108Some of the shots entered from the front of his body and some from
¶109the back, and all entered at an upward angle. The medical examiner
¶110testified on cross-examination that this upward trajectory “could be”
¶111consistent with the shots having been fired up from the ground, as
¶112the defense argued. But on redirect she testified that the angles of
¶113 7 the shots were also consistent with the victim having been shot
¶114while lying with his feet higher than his head. Crime-scene
¶115investigators testified that the pattern of shell casings left at the
¶116scene suggested that the shooter was moving around while firing the
¶117gun.
¶118 2. Davis first contends that he was denied his constitutional
¶119right to a speedy trial. In reviewing the trial court’s ruling on this
¶120issue, we accept the trial court’s factual findings unless they are
¶121clearly erroneous, and we will affirm its ultimate conclusion absent
¶122an abuse of discretion. See Burney v. State, 309 Ga. 273, 286 (4) (845
¶123SE2d 625) (2020).
¶124 (a) About 30 months elapsed between Davis’s arrest in August
¶125of 2014 and his trial in February 2017. Davis was indicted in
¶126November 2014, roughly three months after his arrest. Following
¶127his indictment, Davis filed a number of pretrial motions, and the
¶128State served Davis with its discovery materials. In May 2015, Davis
¶129moved for a 60-day continuance from an upcoming motions calendar,
¶130citing the “voluminous” discovery and investigative materials in the
¶131 8 case and the numerous witnesses whom the defense still intended to
¶132interview. In a June 2015 motion seeking additional funds for the
¶133defense, Davis noted that the defense still needed to interview “over
¶134twenty witnesses.”
¶135 On April 5, 2016, Davis submitted a filing styled “Request for
¶136Trial,” stating that he was “ready for trial” and “would request that
¶137this matter proceed to trial immediately.”2 Nine months later, on
¶138January 9, 2017, Davis filed a motion to dismiss his indictment,
¶139asserting that the continued delay in bringing his case to trial
¶140violated his constitutional right to a speedy trial. After a hearing,
¶141 2 Although this filing may have been intended as a statutory speedy-trial demand, it did not comply with the speedy-trial statute. See OCGA § 17-7-171. That Code section provides that, absent “special permission of the court,” any speedy-trial demand must be filed “at the term of court at which the indictment is found or at the next succeeding regular term thereafter.” Id. at (a). Davis was indicted on Friday, November 7, 2014, which was in the November 2014 term of court, and the succeeding (January 2015) term would have ended on March 1, 2015, the day before the first Monday in March. See OCGA § 15-6-3 (3) (terms of Fulton County Superior Court begin on first Monday of January, March, May, July, September, and November). So the Request for Trial was filed more than a year after the statutory deadline. Also, OCGA § 17-7-171 (a) requires that the demand “clearly be titled ‘Demand for Speedy Trial’” and “reference this Code section within the pleading”; the Request for Trial complied with neither of these requirements.
¶142 9 the trial court denied the motion, and trial began on February 13,
¶1432017. After he was convicted, Davis renewed his speedy-trial claim
¶144in a motion for new trial. The court reaffirmed its earlier ruling,
¶145concluding that Davis was not denied his constitutional right to a
¶146speedy trial.
¶147 (b) The Sixth Amendment to the United States Constitution
¶148guarantees that, “[i]n all criminal prosecutions, the accused shall
¶149enjoy the right to a speedy and public trial,” U.S. Const., Amend. VI.
¶150When a criminal defendant claims that this right has been violated,
¶151the trial court conducts a two-step inquiry. See Johnson v. State, 300
¶152Ga. 252, 257 (3) (794 SE2d 60) (2016) (citing Barker v. Wingo, 407
¶153U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United
¶154States, 505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992)). First, the
¶155court must decide whether the interval between the defendant’s
¶156arrest and his trial is long enough to be considered “presumptively
¶157prejudicial.” Redding v. State, 309 Ga. 124, 129 (3) (844 SE2d 725)
¶158(2020) (citation and punctuation omitted). A delay of a year or more
¶159typically is long enough to presume prejudice. See id.
¶160 10 If presumptive prejudice is established, the trial court then
¶161weighs four factors to determine whether the defendant was denied
¶162his right to a speedy trial. See Henderson v. State, 310 Ga. 231, 235
¶163(2) (850 SE2d 152) (2020); Redding, 309 Ga. at 129 (3). This “difficult
¶164and sensitive balancing process” assesses (1) the length of the delay;
¶165(2) the reasons for the delay; (3) the defendant’s assertion of his right
¶166to a speedy trial; and (4) the prejudice to the defendant. Henderson,
¶167310 Ga. at 235 (2) (invoking “the Barker-Doggett factors” to assess
¶168federal and state constitutional speedy-trial claims). This
¶169assessment is “context-focused,” and the trial court’s discretion in
¶170applying this framework is “substantial.” Johnson, 300 Ga. at 257-
¶171258 (3) (citations and punctuation omitted).
¶172 We apply these steps in turn.
¶173 (c) The presumptive-prejudice step is straightforward here.
¶174“The constitutional right to a speedy trial attaches on the date of the
¶175arrest or when formal charges are initiated, whichever occurs first.”
¶176Fallen v. State, 289 Ga. 247, 248 (1) (710 SE2d 559) (2011) (citation
¶177and punctuation omitted). The trial court thus properly calculated
¶178 11 the length of the delay here as 30 months, the interval between
¶179August 2014 and the start of Davis’s trial in February 2017. As the
¶180trial court recognized, a 30-month delay is presumptively
¶181prejudicial. See Redding, 309 Ga. at 129 (3).
¶182 (d) We turn next to the four-factor Barker-Doggett analysis.
¶183 (i) Having calculated the delay at 30 months, the trial court
¶184weighed the length of delay against the State, but only “lightly.”
¶185Davis does not contest that conclusion, and we find no abuse of
¶186discretion. See, e.g., Taylor v. State, 312 Ga. 1, 13 (4) (b) (i) (860 SE2d
¶187470) (2021) (30-month delay properly weighed against the State);
¶188Cash v. State, 307 Ga. 510, 515 (2) (b) (i) (837 SE2d 280) (2019) (no
¶189abuse of discretion where trial court weighed 28-month delay only
¶190lightly against the State).
¶191 (ii) In assessing the reasons for the delay, the trial court must
¶192consider which party was responsible for the delay, whether the
¶193delay was intentional, and, if it was intentional, what the motive
¶194was for seeking or causing the delay. See, e.g., Taylor, 312 Ga. at 13
¶195(4) (b) (ii) (where both prosecution and defense sought continuances,
¶196 12 trial court properly determined that reasons for delay weighed
¶197“neutrally”); State v. Johnson, 291 Ga. 863, 865-866 (2) (b) (734 SE2d
¶19812) (2012) (noting that “[a] deliberate attempt to delay the trial in
¶199order to hamper the defense” should weigh heavily against the
¶200State, whereas an unintentional delay due to the prosecutor’s
¶201negligence or an overcrowded trial court docket should weigh less
¶202heavily). When there is no apparent reason for the delay, the delay
¶203is “treated as caused by the State’s negligence” but “should be
¶204weighed only slightly against the State.” Higgenbottom v. State, 290
¶205Ga. 198, 201-202 (1) (B) (719 SE2d 482) (2011); accord Fallen, 289
¶206Ga. at 248-249 (2).
¶207 Here, the trial court noted that Davis had not alleged that the
¶208delay was due to any deliberate effort on the part of the State.
¶209Instead, the court found, the delay was due in equal parts to “over-
¶210crowded dockets” and to the defense’s needs in completing its
¶211investigation. Thus, the court concluded that this factor weighed
¶212neutrally.
¶213 That conclusion was within the court’s discretion. The record
¶214 13 clearly supports the court’s finding that the delay was attributable
¶215in part to Davis’s own needs and requests: Davis sought a
¶216continuance in May 2015, nine months after his arrest; two months
¶217after that, his counsel indicated to the court he still had more than
¶21820 witnesses to interview; and Davis did not ask for a trial date until
¶219some 20 months after his arrest, when he filed his Request for Trial.
¶220As for the State’s role in the delay, it appears that, after Davis filed
¶221the Request for Trial, the case appeared on several trial calendars
¶222but was not called, and at some point it ended up on the court’s
¶223“backlog calendar.” It was thus appropriate for the trial court to
¶224attribute some portion of the delay to the State. See Higgenbottom,
¶225290 Ga. at 201-202 (1) (B); Williams v. State, 290 Ga. 24, 26 (2) (717
¶226SE2d 640) (2011) (trial court took judicial notice of court’s heavy
¶227dockets in assessing reasons for delay in trial). Because the record
¶228shows that both sides bore some responsibility for the delay, the
¶229court did not abuse its discretion in determining that this factor
¶230weighed neutrally. See Phan v. State, 290 Ga. 588, 595 (1) (b) (723
¶231SE2d 876) (2012) (where both State and defense bore responsibility
¶232 14 for delay, this factor “remain[ed] neutral”).
¶233 (iii) The third factor asks whether the defendant “asserted the
¶234right to a speedy trial in due course.” Cash, 307 Ga. at 517 (2) (b)
¶235(iii) (citations and punctuation omitted). This factor focuses on “the
¶236timing, form, and vigor of the accused’s demands to be tried
¶237immediately.” Id. (citation and punctuation omitted). Although an
¶238accused need not demand a trial at the “first available opportunity,”
¶239id., his failure to assert his right “with reasonable promptness” will
¶240ordinarily weigh heavily against him. State v. Alexander, 295 Ga.
¶241154, 158-159 (2) (c) (758 SE2d 289) (2014). Accord Johnson, 291 Ga.
¶242at 866 (2) (c) (“Because delay often works to the defendant’s
¶243advantage, the failure of the accused to assert his right in due course
¶244generally is accorded strong evidentiary weight.” (citations and
¶245punctuation omitted)).
¶246 Here, the trial court concluded that Davis failed to timely
¶247assert his right to a speedy trial. Noting that Davis was represented
¶248by counsel “every step of the way,” the court determined that, to the
¶249extent the Request for Trial was intended as a statutory speedy-trial
¶250 15 demand, it was untimely and otherwise failed to comply with
¶251statutory requirements, and the court took note of his long delay
¶252before asserting his constitutional speedy-trial right.
¶253 This conclusion, too, was within the trial court’s discretion. The
¶254court was correct that Davis’s Request for Trial was, if construed as
¶255a statutory speedy-trial demand, untimely and non-compliant. See
¶256note 2. It was not an abuse of discretion to conclude that this
¶257determination, along with Davis’s 29-month delay in asserting his
¶258constitutional speedy-trial right, weighed heavily against him. See
¶259Phan, 290 Ga. at 595-596 (1) (c) (this factor weighed heavily against
¶260defendant where he failed to “assert any objection to the slow pace
¶261of [his] case” for a “years-long period” and then “actively sought
¶262further delay” when public-defender funding issues emerged);
¶263Higgenbottom, 290 Ga. at 201 (1) (C) (this factor weighed heavily
¶264against defendant where defendant himself was granted a
¶265continuance, failed to file a statutory speedy-trial demand, and
¶266waited for more than two years after his arrest to seek dismissal on
¶267speedy-trial grounds).
¶268 16 (iv) The final factor is prejudice. When prejudice is presumed
¶269based on the length of a delay in trying the case, that presumption
¶270not only remains in place but “increases in weight over time.” Cash,
¶271307 Ga. at 518 (2) (a) (iv) (citation and punctuation omitted). But
¶272that does not mean this factor always weighs against the State. If a
¶273defendant cannot show evidence of actual prejudice, that failure can
¶274counterbalance and even outweigh any presumptive prejudice in
¶275this analysis. See id. at 518-519 (2) (a) (iv) (where defendant failed
¶276to show actual prejudice, prejudice factor did not weigh in
¶277defendant’s favor, despite presumptive prejudice from 28-month
¶278delay).
¶279 Actual prejudice is assessed by considering evidence, if any, of
¶280“oppressive pretrial incarceration,” “anxiety and concern of the
¶281accused,” and potential impairment of the defense caused by fading
¶282memories of witnesses or the loss of exculpatory evidence. Cash, 307
¶283Ga. at 519 (2) (a) (iv). Of these types of prejudice, the last is the most
¶284serious, “because the inability of a defendant adequately to prepare
¶285his case skews the fairness of the whole system.” Id. (citation
¶286 17 omitted). Accord Weis v. State, 287 Ga. 46, 55 (1) (d) (694 SE2d 350)
¶287(2010) (possibility of harm to defense is the “most serious” of the
¶288forms of prejudice (quoting Barker, 407 U.S. at 532)).
¶289 At the hearing on Davis’s motion to dismiss, Davis testified
¶290about the conditions of his confinement at the Fulton County jail,
¶291citing gang violence within the jail, thefts of his belongings, inedible
¶292food, extreme cold, and trauma from seeing another inmate who had
¶293hanged himself. He also testified about the anxiety he experienced
¶294from being separated from his children, not knowing when he would
¶295go to trial, and the deaths of several people close to him during his
¶296time in jail. Davis’s counsel further noted the defense’s concerns that
¶297a particular eyewitness who was “crucial” to establishing exactly
¶298how the shooting transpired might become uncooperative, although
¶299he conceded he had been in touch with the witness and that she had
¶300indicated she would accept a subpoena.
¶301 The trial court found that Davis had failed to establish any
¶302actual prejudice. Noting the absence of any contemporaneous
¶303documentation of Davis’s complaints about jail conditions and the
¶304 18 court’s own assessment that Davis was “obviously exaggerat[ing]” in
¶305his testimony, the court found that Davis had offered no specific
¶306evidence of undue oppressiveness or unusual anxiety. See Jackson
¶307v. State, 272 Ga. 782, 785 (534 SE2d 796) (2000) (to show
¶308oppressiveness, defendant must offer specific “proof of sub-standard
¶309conditions or other oppressive factors beyond those that necessarily
¶310attend imprisonment” (citation and punctuation omitted)).
¶311Likewise, the court found no evidence of any prejudice to Davis’s
¶312defense, noting that the witness in question was under subpoena. 3
¶313On this record, the trial court’s factual findings were not clearly
¶314erroneous, and the court did not abuse its discretion in determining
¶315that Davis failed to establish prejudice. See Weis, 287 Ga. at 55 (1)
¶316(d) (no prejudice established where no witnesses were unavailable
¶317for defense’s case-in-chief); Jackson, 272 Ga. at 785 (no prejudice
¶318established where defense offered no evidence beyond “general
¶319claims of anxiety [and] poor conditions” in the jail). See also
¶320Sweatman v. State, 287 Ga. 872, 874-875 (4) (700 SE2d 579) (2010)
¶321 3 This witness did in fact testify at trial for the defense. 19 (trial court’s findings of fact on a speedy-trial claim are given
¶322particular deference where they are “based on live testimony and
¶323the trial court[’s] . . . opportunity to assess the credibility of the
¶324witnesses”).
¶325 (e) Having assessed each of the Barker-Doggett factors, the trial
¶326court concluded that, although the State was negligent in failing to
¶327bring Davis to trial in a timely manner, that negligence was
¶328outweighed by Davis’s “significant” delay in asserting his right to a
¶329speedy trial, combined with the absence of any actual prejudice. This
¶330conclusion was reasonable and did not amount to an abuse of
¶331discretion. See Cash, 307 Ga. at 520 (2). So we affirm the trial court’s
¶332denial of Davis’s constitutional speedy-trial claim.
¶333 3. Davis next contends that the trial court erred by declining to
¶334admit reverse 404 (b) evidence about an incident that occurred in
¶335Alabama 16 months after Williams’s murder, in which Maye had
¶336allegedly pulled a gun in a bar fight. Davis filed a pretrial notice of
¶337intent, which stated that he intended to present this evidence to
¶338show “Maye’s opportunity and intent to carry a gun on his person.”
¶339 20 See generally OCGA § 24-4-404 (b) (“[e]vidence of other crimes,
¶340wrongs, or acts . . . . may . . . be admissible [to show] opportunity[
¶341or] intent”). He claimed that this evidence was relevant to his self-
¶342defense claim.
¶343 Davis contends that the trial court erred in “declining to admit”
¶344this evidence. But Davis has failed to identify any ruling to that
¶345effect by the trial court. Before trial, the court took the matter under
¶346advisement without ruling on it. And at trial, a different judge, while
¶347expressing skepticism about whether the evidence was admissible,
¶348let Davis explore opportunities to introduce it. First, the court
¶349allowed Davis’s counsel to voir dire Maye about this incident outside
¶350the jury’s presence, but Maye asserted his privilege against self-
¶351incrimination under the Fifth Amendment to the United States
¶352Constitution and declined to testify further on the subject.4 Next, the
¶353court agreed to Davis’s counsel’s request to have an out-of-state
¶354 4 Maye had already testified—at an earlier point during his testimony and also outside the jury’s presence—that he had been arrested in connection with this incident but not yet charged and that his lawyer had instructed him not to discuss the case. 21 subpoena issued for the police officer to whom Maye had allegedly
¶355made a statement about the Alabama incident. But the next day,
¶356before the court issued anything, Davis’s counsel told the court that
¶357the defense had decided to “move beyond” the issue, and no further
¶358efforts were made to present this evidence. Absent a ruling
¶359preventing Davis from introducing evidence of the prior incident,
¶360and given his abandonment of the issue, Davis’s claim that the trial
¶361court erred in this regard necessarily fails. See, e.g., Dobbins v.
¶362State, 309 Ga. 163, 167 (3) (844 SE2d 814) (2020) (defendant could
¶363not assert error in trial court’s failure to give a curative instruction
¶364where the trial court offered to give such an instruction and
¶365defendant declined).
¶366 4. In his final enumeration, Davis contends that his trial
¶367counsel rendered ineffective assistance in two respects. To succeed
¶368on a claim of ineffective assistance, a defendant must establish both
¶369that his counsel’s performance was deficient and that he was
¶370prejudiced as a result of that deficient performance. See Washington
¶371v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022) (citing
¶372 22 Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80
¶373LE2d 674) (1984)).
¶374 To prove deficient performance, a defendant must establish
¶375that counsel “performed his duties in an objectively unreasonable
¶376way, considering all the circumstances and in the light of prevailing
¶377professional norms.” Id. (citation omitted). To overcome the “strong
¶378presumption” that counsel performed reasonably, the defendant
¶379must show that “no reasonable lawyer would have done what his
¶380lawyer did, or would have failed to do what his lawyer did not.” Id.
¶381(citation omitted). To prove prejudice, a defendant must establish
¶382that there is a “reasonable probability that, but for counsel’s
¶383deficiency, the result of the trial would have been different.” Id. A
¶384reasonable probability is a probability “sufficient to undermine
¶385confidence in the outcome” of the trial. Neal v. State, 313 Ga. 746,
¶386751 (3) (873 SE2d 209) (2022) (citation omitted). An ineffective-
¶387assistance claim fails if the defendant fails to establish either
¶388deficient performance or prejudice. See Washington, 313 Ga. at 773
¶389(3).
¶390 23 In reviewing a trial court’s determination on an ineffective-
¶391assistance claim, we accept the trial court’s factual findings and
¶392credibility determinations unless they are clearly erroneous, but we
¶393independently apply the relevant legal principles to the facts. See
¶394Sullivan v. State, 301 Ga. 37, 40 (2) (799 SE2d 163) (2017).
¶395 (a) Davis first contends that trial counsel performed deficiently
¶396by failing to call an expert witness “to explain bullet trajectory,” to
¶397show that the shot to Williams’s back did not necessarily indicate
¶398that he was being fired on while running away.
¶399 At the motion-for-new-trial hearing, Davis called a witness
¶400whom the trial court qualified as a bullet-trajectory expert. That
¶401witness testified that, after reviewing the evidence, he believed the
¶402shooting could have taken place the way Davis described it: that is,
¶403Davis had been firing from the ground, hit Williams first in the legs
¶404as Williams approached him, and then, as Williams instinctively
¶405began turning away, the fatal bullet hit him in the back. In addition
¶406to this expert witness, Davis also called trial counsel, who testified
¶407that he had not considered hiring a bullet-trajectory expert for trial.
¶408 24 Counsel testified that he believed the most critical fact to establish
¶409in support of Davis’s self-defense claim was that Davis had fired his
¶410gun from the ground and that he had believed he could establish this
¶411fact through his cross-examination of the medical examiner. Counsel
¶412also testified that, in hindsight, he should have done more to show
¶413the jury that the shot to Williams’s back was not a straight shot fired
¶414at him as he was running away.
¶415 Based on this record, Davis has failed to prove that trial
¶416counsel’s performance was deficient. An attorney’s decision about
¶417which defense witnesses to call is a classic matter of trial strategy,
¶418and such a decision will not form the basis for an ineffectiveness
¶419claim “unless it is so unreasonable that no competent attorney would
¶420have made th[at] decision under the circumstances.” Sullivan v.
¶421State, 308 Ga. 508, 511 (2) (a) (842 SE2d 5) (2020) (citation and
¶422punctuation omitted). Accord Butler v. State, 313 Ga. 675, 684 (4) (b)
¶423(872 SE2d 722) (2022). In addition, “hindsight has no place in an
¶424assessment of the performance of trial counsel, and a lawyer second-
¶425guessing his own performance with the benefit of hindsight has no
¶426 25 significance for an ineffective assistance of counsel claim.” Simpson
¶427v. State, 298 Ga. 314, 318 (4) (781 SE2d 762) (2016) (citation and
¶428punctuation omitted). Here, the record shows that trial counsel
¶429made a strategic choice to establish the facts needed to support
¶430Davis’s self-defense claim through cross-examination of the medical
¶431examiner. And counsel succeeded in getting the medical examiner
¶432to admit that Davis’s gunshot wounds could have been inflicted by
¶433shots being fired from the ground, which counsel believed was the
¶434critical fact. Davis has thus failed to overcome the strong
¶435presumption that counsel’s performance was objectively reasonable.
¶436See Birdow v. State, 305 Ga. 48, 52-53 (2) (823 SE2d 736) (2019) (no
¶437deficient performance where counsel opted not to call defense expert
¶438and instead relied on cross-examination of State’s witness to help
¶439establish self-defense claim); Matthews v. State, 301 Ga. 286, 289 (2)
¶440(800 SE2d 533) (2017) (no deficient performance where counsel
¶441elected to use cross-examination and argument to advance defense
¶442theory rather than calling defense expert). And counsel’s
¶443assessment in hindsight that he could have done more does not
¶444 26 change this conclusion. See Simpson, 298 Ga. at 318 (4). So this
¶445claim of ineffective assistance fails.
¶446 (ii) Davis also contends that trial counsel’s handling of the
¶447reverse 404 (b) evidence amounted to ineffective assistance. Davis
¶448claims that the defense lost the opportunity to present evidence of
¶449the Alabama bar incident, which showed “Maye’s inclination to pull
¶450guns on other people,” because counsel was not prepared to present
¶451an alternative witness when Maye asserted his Fifth Amendment
¶452privilege.
¶453 This claim fails as well. Davis’s own description of the purpose
¶454for offering this evidence makes clear that the evidence was
¶455“propensity” evidence, which is not admissible. See OCGA § 24-4-
¶456404 (a) (“Evidence of a person’s character or a trait of character shall
¶457not be admissible for the purpose of proving action in conformity
¶458therewith on a particular occasion.”); Roberts v. State, No.
¶459S22A0420, 2022 WL 16627232, at *5 (Ga. Nov. 2, 2022) (“[B]efore
¶460evidence of other acts is admitted, the State has to show that the
¶461other act helps prove something other than the defendant's
¶462 27 character or propensity for wrongdoing.”). Although Davis argued
¶463before the trial court that the evidence was being offered to show
¶464Maye’s “intent” and “opportunity” to wield a gun, neither of these
¶465issues was relevant to Davis’s self-defense claim: this evidence could
¶466have been helpful to Davis only if the jury could infer that evidence
¶467that Maye brandished a gun in an incident 16 months after this one
¶468made it more likely that he brandished a gun here. That is textbook
¶469propensity evidence, which the jury would not have been allowed to
¶470consider. See Roberts, 2022 WL 16627232, at *5; State v. Jones, 297
¶471Ga. 156, 159 (1) (773 SE2d 170) (2015). And failing to introduce
¶472inadmissible evidence is not deficient performance. See Mosby v.
¶473State, 300 Ga. 450, 454 (2) (796 SE2d 277) (2017). Davis has
¶474therefore failed to prove ineffective assistance on this ground.
¶475 Judgment affirmed. All the Justices concur.
¶476 28