¶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: May 16, 2023
¶4 S23A0259. BLALOCK v. THE STATE.
¶5 LAGRUA, Justice.
¶6 Appellant Dwight Blalock, Jr., was convicted of malice murder
¶7and other crimes in connection with the fatal shooting of Carlos
¶8Wright and the aggravated assault of Bryan Morrow on November
¶913, 2014. 1 On appeal, Blalock contends that (1) the trial court
¶10 1 On March 3, 2017, Blalock was indicted by a Cobb County grand jury on charges of malice murder, two counts of felony murder, two counts of aggravated assault, and two counts of possession of a firearm during the commission of a felony. On May 26, 2017, the State filed a superseding indictment, adding one count of violation of the Georgia Street Gang Terrorism and Prevention Act and one count of felony murder predicated on violation of the Criminal Street Gang Act. In June 2017, a jury found Blalock guilty of all counts. The trial court sentenced Blalock to serve life in prison without the possibility of parole for the malice murder count, plus 35 years to run concurrently for one of the aggravated assault counts and the gang count, plus an additional 10 years consecutive for the firearms counts. The felony murder counts were vacated by operation of law, and one of the aggravated assault counts merged with the malice murder count for sentencing purposes. On July 10, 2017, Blalock filed a motion for new trial, which he amended through new counsel on June 24, 2020. Following an evidentiary hearing, the trial court denied Blalock’s motion for new trial on May 18, 2022. Blalock filed a timely notice of appeal to this Court, and the case was docketed to the term of this abused its discretion and denied Blalock due process by refusing to
¶11grant his motion for continuance; (2) Blalock’s trial counsel rendered
¶12ineffective assistance by failing to argue that the discovery statute,
¶13OCGA § 17-16-4, was unconstitutional as applied in this case; and
¶14(3) the trial court erred in permitting a State’s witness to comment
¶15on Blalock’s silence. For the reasons that follow, we affirm Blalock’s
¶16convictions.
¶17 The evidence presented at Blalock’s trial2 showed that, on the
¶18evening of November 13, 2014, Wright and Morrow were interested
¶19in purchasing cocaine, so Wright contacted his neighbor, Savante
¶20Hubbard, who had set up a cocaine purchase for Wright a few weeks
¶21earlier. On that occasion, Hubbard had arranged for Wright to buy
¶22cocaine from Blalock, and then, Hubbard, Wright, and Muriel
¶23Johnson—Wright’s girlfriend—drove to a nearby apartment
¶24Court beginning in December 2022 and submitted for a decision on the briefs. 2 “In light of the harmless-error analysis we undertake in Division [3] of
¶25this opinion, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done [] as opposed to viewing it all in the light most favorable to the jury’s verdict.” Moore v. State, 315 Ga. 263, 264 (1) n.2 (882 SE2d 227) (2022) (quotation and punctuation omitted).
¶26 2 complex to complete the sale with Blalock. 3 According to Hubbard,
¶27a few days after that transaction, Blalock called him and said that
¶28one of the five dollar bills Wright had given him during the sale was
¶29“counterfeit.” Blalock told Hubbard, “I thought we were cooler than
¶30that to let somebody get down on me for $5.00.” Hubbard replaced
¶31the five dollar bill, feeling “obligated” to do so because he “brought
¶32[Wright] over there” and still had “intentions of dealing with
¶33[Blalock].”
¶34 On the night of November 13, Wright called Hubbard and
¶35asked if Hubbard could set up a cocaine purchase for him again.
¶36Hubbard was not available to go with Wright that night, and he was
¶37“cautious” about reconnecting Wright and Blalock because he did
¶38not want Wright to “try the same thing and try to give [Blalock] fake
¶39money again.” But Hubbard agreed to put Wright in touch with
¶40Blalock. At that time, Blalock did not have a working cell phone, so
¶41 3 Following Blalock’s arrest in this case, Johnson was shown a photographic lineup and asked if she could identify the man Wright purchased cocaine from in October 2014. Johnson selected Blalock’s picture from the lineup, and Johnson identified Blalock again at trial. 3 Hubbard called Jeremy Dyer—a friend of Blalock’s who often let
¶42Blalock use his phone—and spoke to Blalock about setting up
¶43another deal with Wright. According to Hubbard, Blalock agreed to
¶44sell to Wright and did not “say anything” about “the $5.00 bill
¶45incident.” However, Hubbard was “concerned about putting them
¶46together” because he “knew what kind of guy” Blalock was and “had
¶47these concerns” about what Blalock might do.
¶48 At trial, Johnson testified that she overheard Wright speaking
¶49to Blalock on the phone that evening, arranging a meeting time for
¶50later that night. Around 10:00 p.m., Wright and Morrow left
¶51Wright’s apartment to meet Blalock. Wright drove Morrow’s car—a
¶522013 brown Honda Civic—because he was more familiar with the
¶53Bellemeade area. According to Morrow, he and Wright drove to a
¶54duplex located at 816-B Bellemeade Way and parked in the adjacent
¶55cul-de-sac. 4 Wright then called his contact—Morrow did not actually
¶56 4 Dyer and Dyer’s girlfriend, Latoya Ross, lived at 816-B Bellemeade Way with their children, and Dyer testified that Blalock frequently hung out there. Neighbors described 816-B as a “dope house” and a “drug hangout” that was “filled with people running drugs.” 4 know the identity of the person at that time—to say that “he was
¶57outside.” Morrow testified that, seconds later, someone wearing a
¶58red hoodie approached the back side of the vehicle and started
¶59shooting, walking around the front of the car towards the driver’s
¶60side. The shooter “shot up the glass” on the driver’s side, and Wright
¶61and Morrow “both got down.” Morrow got out of the car and ran
¶62towards the duplex and through the adjacent woods, hearing shots
¶63as he ran away.
¶64 Officers with the Marietta Police Department responded to the
¶65scene between 10:45 and 11:00 p.m. on November 13 and observed
¶66a man—later identified as Wright—lying face-down in the cul-de-
¶67sac just outside the driver’s side door of a brown Honda Civic.
¶68Officers rolled Wright’s body over, cut his shirt off, and discovered
¶69“two entrance wounds” in his torso. The medical examiner testified
¶70at trial that Wright died at the scene from “a gunshot wound to the
¶71torso with perforations of the lungs, heart, and liver.”
¶72 Detective Lee Greene was called to process the scene. He
¶73located two 7.62-millimeter shell casings on the driver’s side of the
¶74 5 vehicle and two .380-caliber shell casings on the passenger side of
¶75the vehicle, which he testified would have been fired from a 7-
¶76millimeter handgun and .380-caliber handgun, respectively.
¶77Detective Greene also observed bullet holes in both sides of the
¶78vehicle. On this basis, Detective Greene determined that there were
¶79two shooters involved in the shooting—one shooter who was using a
¶807-millimeter handgun and another who was using a .380-caliber
¶81handgun. No weapons were recovered at the scene or inside the
¶82vehicle, and neither weapon was ever found. Morrow testified that
¶83neither Wright nor Morrow was carrying a weapon that night, and
¶84at trial, Morrow identified Blalock as one of the shooters.
¶85 One of the detectives who canvassed the crime scene area after
¶86the shooting observed “fresh” saliva—where someone apparently
¶87spit on the ground—near the walkway leading to 816-B Bellemeade
¶88Way. The detective collected a sample of the saliva, and subsequent
¶89GBI testing determined it to be a match for Blalock’s DNA.
¶90 Detective Michael Selleck, who also responded to the scene
¶91that night, testified that a man approached him while he was
¶92 6 standing near the shooting location and motioned for him to walk
¶93over to “a darker back corner of the cul-de-sac.” The man identified
¶94himself as Lee Hill and told Detective Selleck that “Blalock, that is
¶95your guy,” and “if anybody hears me saying this, you will find me in
¶96a ditch.” At trial, Hill testified that he heard about the shooting on
¶97the night of November 13, and shortly afterwards, Blalock came to
¶98his house and told him, “I did it.” Hill admitted that he went up to
¶99the crime scene area afterwards and spoke to a detective, and while
¶100he could not recall saying “Blalock” is “your guy,” he did tell “the
¶101truth” when he said, “If anyone hears me telling you this, you will
¶102find me in a ditch.” Hill also testified that he had seen Blalock
¶103wearing a red hoodie earlier in the day.
¶104 Dyer also testified at trial. According to Dyer, around 9:00 or
¶1059:30 p.m. on November 13, Blalock was hanging out with Dyer and
¶106some other friends at Dyer’s house, and Dyer let Blalock use his
¶107phone, which he did “fairly often.” At some point, Blalock told Dyer
¶108that “he was going to go outside to catch a Joe,” which Dyer testified
¶109meant to “sell drugs” to someone. About 10 or 15 minutes later, Dyer
¶110 7 heard gunshots. Dyer stepped outside after the shooting stopped
¶111and saw Wright lying in the cul-de-sac. At trial, Dyer testified that
¶112he did not see Blalock with a gun that night, but he knew Blalock
¶113owned and carried a 7-millimeter handgun—a gun Dyer had “never
¶114heard of” until he saw Blalock with one.
¶115 Detective Michael Merritt, the lead investigator in this case,
¶116testified that, on November 14, he interviewed several of the
¶117witnesses who were in the area that night, including Morrow, Hill,
¶118and Dyer. Based on those interviews, Detective Merritt identified
¶119Blalock as a possible suspect in the shooting. On November 15,
¶120officers located Blalock at an apartment in Cobb County with
¶121O’Reicha Usher, his girlfriend, and Gerald Florence, his cousin.
¶122Florence and Blalock were detained and taken to police
¶123headquarters for questioning. During Blalock’s interview, Blalock
¶124did not deny being at 816-B Bellemeade Way on November 13, but
¶125said he left prior to the shooting. Blalock also denied knowing or
¶126ever having met Wright. Florence also denied any knowledge of the
¶127crime or Blalock’s potential involvement in the crime. Detective
¶128 8 Merritt testified that he did not take out an arrest warrant for
¶129Blalock at that time because he wanted to acquire more information.
¶130 On December 6, 2016, Florence was arrested in Cobb County
¶131on an unrelated matter and was interviewed by Detective Merritt
¶132again. At trial, Florence testified that, at this point, he had decided
¶133to give Detective Merritt “what he want[ed]” to “get it off [his]
¶134conscience.” Florence told Detective Merritt that, on the night of
¶135November 14, 2014, Florence went to Blalock’s apartment, and
¶136Blalock told Florence that “he shot that man off Bellemeade Way”
¶137the night before. Blalock said that Wright had tried to rob him, so
¶138he shot him, and after the shooting, Blalock “fled to the home of Lee
¶139Hill.” According to Florence, Blalock then asked for a ride back over
¶140to the Bellemeade area, and Florence drove Blalock and Usher to
¶141Hill’s house. When they arrived, Blalock and Usher went through
¶142“a pathway” between Hill’s house and 816-B Bellemeade Way
¶143“where the shooting occurred.” Usher came out carrying a bag,
¶144which she handed to Blalock, and Florence understood there was a
¶145gun in the bag. Florence, Blalock, and Usher then left in Florence’s
¶146 9 truck. On the way back to Blalock’s apartment, Blalock “pulled the
¶147gun out” and “threw the clip” out of the window, and Blalock asked
¶148Florence to stop at Fair Oaks Park, where Blalock threw the gun
¶149somewhere in the woods. Florence testified that, during this
¶150timeframe, Blalock carried a 7-millimeter handgun. Blalock was
¶151arrested shortly after Florence’s interview.
¶152 At trial, Agent Paul Reynolds—a gang investigator who
¶153testified for the State as an expert in criminal street gangs, criminal
¶154street gang activity, and criminal street gang identification—
¶155testified that, based on Blalock’s body tattoos and his relationship
¶156to Florence—Blalock’s cousin who was a known member of the
¶157Bloods, specifically, the “Bounty Hunter Blood[s]”—Blalock was “a
¶158member[,] or at least at a minimum[,] an associate to the Bloods
¶159criminal street gang.”
¶160 1. On appeal, Blalock contends that the trial court abused its
¶161discretion and violated Blalock’s due process rights by refusing to
¶162grant his request for a continuance after he received a large amount
¶163 10 of discovery from the State 13 days before trial. We see no merit to
¶164this claim.
¶165 The record reflects that Blalock was indicted on March 3, 2017,
¶166and on April 3, 2017, he filed a statutory demand for speedy trial.
¶167On April 7, 2017, Blalock filed 21 motions—16 of which were related
¶168to discovery. On April 20, 2017, the State requested and Blalock
¶169delivered approximately 40 blank compact discs to the State for
¶170purposes of copying the State’s discovery in this case. The State
¶171returned one of the discs with discovery on it to Blalock on April 21,
¶1722017.
¶173 On April 25, 2017, during Blalock’s formal arraignment
¶174hearing, the trial court noted Blalock’s speedy trial demand and
¶175inquired whether the parties would like “to go ahead and have a
¶176specially set [trial] date.” Both sides responded affirmatively, and
¶177the trial court advised that it would specially set trial for June 19,
¶1782017. The prosecutor informed the trial court that “there might be
¶179a superseding indictment” involving “some gang act charges,” but
¶180the State would still “be ready on the 19th on that charge.” Defense
¶181 11 counsel responded that “any superseding indictment involving gang
¶182activity” could affect Blalock’s “ability to go forward on June the
¶18319th.” The trial court inquired whether Blalock might “withdraw
¶184[his] speedy trial demand,” and defense counsel responded that he
¶185was “not saying that right now.” The trial court reiterated that it
¶186had specially set trial for June 19.
¶187 On May 15, 2017, Blalock filed a motion to compel the State’s
¶188responses to Blalock’s discovery motions, and the trial court heard
¶189the motion on May 25. At the hearing, defense counsel argued that
¶190he had only received one compact disc of discovery from the State,
¶191and the prosecutor responded that the State did “not plan on giving
¶192discovery” on this indictment because the State “expected that the
¶193Grand Jury would be considering additional charges including
¶194violation of the Gang Act.” The prosecutor advised the trial court
¶195that, once he had the new case number, the State would “comply
¶196with discovery as the statute requires.”
¶197 Defense counsel inquired whether the new indictment would
¶198“eliminate the trial scheduled for June the 19th,” and the trial court
¶199 12 responded that trial would still likely proceed at that time unless
¶200Blalock withdrew his speedy-trial demand. Defense counsel did not
¶201indicate that Blalock would be withdrawing his speedy-trial
¶202demand, and he asked the trial court to rule on Blalock’s motion to
¶203compel and require the State to turn over discovery on the current
¶204indictment immediately. The prosecutor argued that the State did
¶205“not want to provide discovery on an indictment” that would be nolle
¶206prossed, and if Blalock opted into “reciprocal discovery on the new
¶207case for the 19th,” then the State would turn over discovery in
¶208accordance with the discovery statute. The trial court advised
¶209Blalock that it was denying the motion to compel at that time
¶210because the State would be “go[ing] forward on a different
¶211indictment,” for which Blalock would need to opt into discovery
¶212again, and the trial court further noted that because Blalock “filed
¶213the speedy trial demand,” it meant he was “ready for trial” and to
¶214“try me just as soon as you can.”
¶215 The superseding indictment was filed on May 26, 2017, adding
¶216one count of felony murder and one count of violation of the Street
¶217 13 Gang Terrorism and Prevention Act. 5 On June 2, Blalock was
¶218formally arraigned on the new indictment, and defense counsel
¶219advised the trial court that he wanted to “revisit this discovery
¶220issue,” asking the trial court to order the State to turn over discovery
¶221immediately since Blalock had opted into discovery on the new
¶222indictment, as well. The prosecutor indicated that the State would
¶223turn over discovery “as soon as possible.” The trial court set a
¶224motions hearing for June 16.
¶225 On June 6, the State produced discovery to Blalock on 37
¶226compact discs. On June 14, Blalock filed a withdrawal of his demand
¶227for speedy trial. On June 15, Blalock filed a motion for continuance,
¶228seeking a continuance of the trial set for June 19 based on the
¶229volume of discovery the State produced.
¶230 At the motions hearing on June 16, defense counsel advised the
¶231trial court that Blalock had withdrawn his demand for speedy trial
¶232as of June 14, and the trial court indicated it had not been made
¶233 5 The other charges from the original indictment were also included in the superseding indictment. 14 aware of the withdrawal. Defense counsel argued that there was
¶234“absolutely no way [they could] actually prepare [for trial] with the
¶235breadth of information” provided by the State, and defense counsel
¶236did not “know of a competent attorney that would announce ready
¶237for trial on a murder case that has gang-related issues to it.”
¶238Defense counsel further argued that “there [was] no time to prepare
¶239for this case in a proper fashion” because they “need[ed] time to
¶240interview witnesses to determine whether or not their testimony
¶241[was] credible and whether [they] need[ed] to put them under
¶242subpoena” and “just [didn’t] have the time to do it.”
¶243 The prosecutor responded that Blalock could have withdrawn
¶244the speedy-trial demand “weeks ago,” but waited until right “before
¶245the start of a specially-set trial.” The prosecutor argued that it was
¶246“the defense’s strategic choice of filing a demand” for a speedy trial—
¶247which was “an assertion that the defense [was] ready for trial”—and
¶248then immediately filing for discovery. The prosecutor asserted that
¶249the State’s discovery was “timely” and “in excess” of the ten days
¶250required by statute, having been turned over 13 days before trial.
¶251 15 See OCGA § 17-16-4 (a) (3) (A).6 The prosecutor also argued that
¶252Blalock’s “filing [of] a speedy trial demand and withdrawing [it] at
¶253the last minute” was a “strategic maneuver” Blalock should not be
¶254allowed to use to “force the State into a position of [] hurrying up
¶255and getting ready and going out and subpoenaing witnesses,” to only
¶256be informed “at the last minute” that a speedy trial was “not really
¶257what [the defense] want[ed].” The prosecutor emphasized that
¶258Blalock had been in possession of the State’s timely discovery “for
¶259the better part of almost a week now” and reiterated that the State
¶260was “ready for trial.”
¶261 In response, defense counsel argued that “[t]he State
¶262essentially want[ed] to punish Mr. Blalock for exercising his right to
¶263 6 Pursuant to OCGA § 17-16-4 (a) (3) (a), the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant.
¶264 16 file a speedy demand for trial,” and that defense counsel did not
¶265“have time to prepare” and “need[ed] a continuance.” The trial court
¶266observed that it “thought this might be what [Blalock] might
¶267attempt to do, but [the trial court’s staff] moved Heaven and Earth
¶268to get the case tried next week.” The trial court denied the motion
¶269for continuance and advised that trial would proceed on June 19.
¶270The trial proceeded as scheduled.
¶271 In denying Blalock’s motion for new trial, the trial court held
¶272that it did not abuse its discretion in denying Blalock’s motion for
¶273continuance because: (1) there was no discovery violation by the
¶274State given that the State provided all of its discovery to Blalock
¶275more than ten days prior to trial; (2) Blalock’s argument that he did
¶276not have adequate time to review the discovery or prepare for trial
¶277was “belied by the entirely reasonable strategy that [Blalock] was
¶278able to employ during the trial and by the excellent performance of
¶279his well-seasoned trial counsel, who had decades of experience and
¶280who had tried hundreds of felony criminal jury trials”; (3) Blalock
¶281was required to show that he was harmed by the denial of the motion
¶282 17 for continuance and failed to do so; and (4) the gang expert and the
¶283crime scene expert Blalock presented at the motion for new trial
¶284hearing did not proffer any testimony which, had it been offered at
¶285trial, would have affected the outcome of the trial with any
¶286“reasonable probability,” especially in light of “the overwhelming
¶287evidence” of Blalock’s guilt. 7
¶288 On appeal, Blalock contends that the trial court abused its
¶289discretion by refusing to grant his motion for continuance, asserting
¶290the following: (1) Blalock exercised due diligence “in consistently
¶291bringing the issue of no discovery before the trial court” and
¶292“confront[ing]” the trial court with “the dire situation regarding the
¶293discovery,” but the trial court denied Blalock’s motion to compel
¶294discovery and his motion for continuance, improperly relying solely
¶295 7 At the motion-for-new-trial hearing, the gang expert stated that he would have testified at trial that Blalock’s gang-related tattoos looked faded and did not necessarily indicate that Blalock was a gang member at the time the crimes were committed. The crime scene expert stated that he would have testified that Morrow, the passenger in Wright’s car, was likely the second shooter. In denying Blalock’s motion for new trial, the trial court noted that the gang expert’s testimony was “common sense” and that Blalock “was able to present a cogent, reasonable defense even without the crime scene expert’s testimony.” 18 on Blalock’s speedy-trial demand; (2) while “the State did comply
¶296with the letter of the law” in turning over discovery, the State
¶297“outwardly refused to give discovery for months” and “waited until
¶298the last minute to provide this massive amount of discovery”; (3)
¶299because of the State’s “intentional delay,” the defense was “tactically
¶300prevented” from conducting important deliberation and preparation
¶301for trial; and (4) if Blalock had been given more time to prepare, he
¶302would have consulted a gang expert and ballistics expert to testify
¶303for the defense at trial, and he was “greatly harmed” by being
¶304precluded from doing so.
¶305 In considering a motion for continuance, the trial court enjoys broad discretion and may grant or refuse the motion as the ends of justice may require. To obtain a new trial based upon the denial of a motion for continuance, an appellant must show not only a clear abuse of discretion on the part of the trial court in denying the motion but also that he was harmed by that denial.
¶306Mann v. State, 307 Ga. 696, 703 (2) (d) (838 SE2d 305) (2020)
¶307(citations and punctuation omitted). See also Terrell v. State, 304
¶308Ga. 183, 185 (2) (815 SE2d 66) (2018) (“[R]equests for continuances
¶309are addressed to the sound discretion of the trial court, and this
¶310 19 Court will not interfere unless there was a clear abuse of discretion.”
¶311(citing OCGA § 17-8-22 8)). Blalock has not met this burden.
¶312 Our review of the record demonstrates that the trial court
¶313considered several factors in denying Blalock’s request for a
¶314continuance, including the trial court’s special setting of the trial
¶315date (and the efforts of its staff to accommodate that setting) to
¶316comply with Blalock’s speedy-trial demand under OCGA § 17-7-
¶317171—which Blalock did not withdraw until a few days before trial
¶318and which was the impetus behind the shortened timeframe for
¶319trial—as well as the fact that Blalock’s demand for a speedy trial
¶320was an assertion that he was ready for trial. See Higuera-
¶321Hernandez v. State, 289 Ga. 553, 559 (3) (714 SE2d 236) (2011)
¶322(concluding that “it was apparent by his demand for trial [that]
¶323Appellant had shortened the time for trial[,] which constituted a
¶324factor for the trial court to consider when setting the trial date,” and
¶325 8 OCGA § 17-8-22 provides in pertinent part: “All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.” 20 the trial court’s prompt setting of the trial date was its attempt “to
¶326comply with the demand for trial” (citation and punctuation
¶327omitted)). See also Dalton v. State, 269 Ga. 138, 140 (429 SE2d 89)
¶328(1993) (noting that, when the defendant filed a speedy-trial demand,
¶329the trial court’s special setting of “the date of trial such that it would
¶330be timely held” was the trial court’s “scrupulous[] attempt[] to
¶331comply with the defendant’s demand that he be brought to trial
¶332expeditiously,” and the defendant’s subsequent “motion for
¶333continuance of this trial date” was an “affirmative action to ensure
¶334that his trial could not be held within two terms of his demand for a
¶335speedy trial”). The trial court also determined that the State timely
¶336provided discovery to Blalock in accordance with OCGA § 17-6-4 (a)
¶337(3) (A). “Given these facts, we cannot say that the trial court abused
¶338its discretion in denying” Blalock’s “motion for continuance.” Mann,
¶339307 Ga. at 703 (2) (d).
¶340 Moreover, in considering the issue of the continuance at
¶341Blalock’s motion for new trial hearing, the trial court assessed the
¶342expert testimony that Blalock argued he would have introduced at
¶343 21 trial had a continuance been granted and concluded that Blalock
¶344failed to show that he was harmed by the trial court’s denial of his
¶345request for a continuance or that the outcome of his trial would have
¶346been different had this evidence been admitted. See Mann, 307 Ga.
¶347at 703 (2) (d). We agree.
¶348 As noted above, “to be entitled to a new trial based upon the
¶349denial of a motion for a continuance, a defendant has the burden to
¶350show that he was harmed by that denial.” Phoenix v. State, 304 Ga.
¶351785, 788 (2) (822 SE2d 195) (2018) (citation and punctuation
¶352omitted). Here, even if the trial court had abused its discretion in
¶353denying the motion for continuance, Blalock has “made no showing
¶354that this was harmful error.” Id. Although Blalock argues that a
¶355continuance was necessary to give his counsel an opportunity to
¶356consult experts to potentially testify on his behalf at trial, Blalock
¶357has not shown that this testimony would have helped him
¶358“formulate an effective defense” or “how the testimony would
¶359[otherwise have] benefit[ed] him” had it been presented at trial. Id.
¶360Under these circumstances, even if the trial court abused its
¶361 22 discretion in denying the requested continuance, the denial was not
¶362harmful to Blalock.
¶363 Blalock also contends that the trial court’s denial of his motion
¶364for continuance violated his right to due process of law by “forcing
¶365the case to trial” too quickly and denying Blalock the “effective
¶366representation of defense counsel” as a result. We disagree.
¶367 As noted above, approximately one month after he was
¶368indicted, Blalock filed a demand for a speedy trial, which meant he
¶369was ready for trial and the State was required to try him within the
¶370requisite timeframe. See OCGA § 17-7-171 (b) (providing that “[i]f
¶371more than two regular terms of court are convened and adjourned
¶372after the term at which the demand for speedy trial is filed and the
¶373defendant is not given a trial, then the defendant shall be absolutely
¶374discharged and acquitted of the offense charged in the indictment”).
¶375See also State v. Varner, 277 Ga. 433, 434 (589 SE2d 111) (2003)
¶376(explaining that “[t]he demand for trial statutes, OCGA §§ 17-7-170
¶377and 17-7-171, are regarded as in aid and implementation of the
¶378State constitutional right to a speedy trial,” and “[w]hen the State is
¶379 23 unable to meet its statutory requirement to try a defendant who has
¶380timely filed a compliant demand, the statute exacts a heavy toll—
¶381the absolute discharge and acquittal of that defendant”). During
¶382Blalock’s formal arraignment hearing, the trial court specially set
¶383Blalock’s trial to comply with his speedy-trial demand, and the State
¶384advised that it would likely be filing a superseding indictment with
¶385additional “gang act” charges, which would not interfere with the
¶386scheduled trial date. The trial court then inquired whether Blalock
¶387would be withdrawing his speedy-trial demand on this basis, and
¶388Blalock indicated he would not be doing so. Over the next several
¶389weeks, even after the superseding indictment was filed, Blalock did
¶390not withdraw his speedy-trial demand, waiting until a few days
¶391before the specially-set trial to do so. Accordingly, given that Blalock
¶392chose not to withdraw his speedy-trial demand when given the
¶393opportunity to do so and his delay in withdrawing the demand until
¶394shortly before his trial was scheduled to commence, we see no
¶395violation of Blalock’s due process rights in the trial court’s denial of
¶396his motion for continuance. For this additional reason, this
¶397 24 enumeration of error fails. 9
¶398 2. Blalock also contends that his trial counsel rendered
¶399ineffective assistance by failing to argue that the discovery statute,
¶400see OCGA § 17-16-4 (a) (3) (A), was unconstitutional as applied in
¶401this case. We conclude that Blalock failed to demonstrate that his
¶402trial counsel was constitutionally ineffective.
¶403 “To prevail on a claim of ineffective assistance of counsel, a
¶404defendant generally must show that counsel’s performance was
¶405deficient, and that the deficient performance resulted in prejudice to
¶406the defendant. Moss v. State, 311 Ga. 123, 126 (2) (856 SE2d 280)
¶407(2021) (citing Strickland v. Washington, 466 U.S. 668, 687-695 (104
¶408SCt 2052, 80 LE2d 674) (1984)). “To prove deficient performance,”
¶409a defendant “must show that his counsel performed in an objectively
¶410 9 While we recognize that, in a criminal case like this one, there may be valid strategic reasons for delayed action, we remind defense attorneys and prosecutors alike that trial strategy need not, and should not, require counsel to compromise their ethical obligations to practice law with a high degree of professionalism. See King v. State, 262 Ga. 477, 478 (421 SE2d 708) (1992) (Benham, J., concurring) (“We have sought to raise the level of consciousness of all those who participate in court proceedings to encourage them to adhere to principles of honesty, truthfulness, trustworthiness, integrity, fairness and civility.”). 25 unreasonable way considering all the circumstances and in light of
¶411prevailing professional norms.” Ward v. State, 313 Ga. 265, 273 (4)
¶412(869 SE2d 470) (2022) (citation and punctuation omitted).
¶413 The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case, and decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.
¶414Taylor v. State, 312 Ga. 1, 15-16 (6) (860 SE2d 470) (2021) (citations
¶415and punctuation omitted). See also Robinson v. State, 278 Ga. 31,
¶41636 (2) (d) (597 SE2d 386) (2004) (“As a general rule, matters of
¶417reasonable trial tactics and strategy, whether wise or unwise, do not
¶418amount to ineffective assistance of counsel,” and “[a] reviewing court
¶419evaluates trial counsel’s performance from counsel’s perspective at
¶420the time of trial.”). “To satisfy the prejudice prong, a defendant must
¶421establish a reasonable probability that, in the absence of counsel’s
¶422deficient performance, the result of the trial would have been
¶423different.” Moss, 311 Ga. at 126 (2). “If an appellant fails to meet
¶424his or her burden of proving either prong of the Strickland test, the
¶425 26 reviewing court does not have to examine the other prong.” Id.
¶426(citation and punctuation omitted).
¶427 On appeal, Blalock contends that the “timing of the receipt of
¶428the [State’s] discovery was the central issue throughout pre-trial
¶429motions” in this case, and while he does not dispute that the State’s
¶430production of discovery was timely under OCGA § 17-16-4 (a) (3) (A),
¶431he argues that his experienced trial counsel was nevertheless
¶432deficient for failing to take the “necessary step of arguing that the
¶433statute itself was unconstitutional” as applied in this case. Blalock
¶434further contends that “[t]he issue of the constitutionality of OCGA §
¶43517-16-4 is a critical argument” that this Court needs to address—in
¶436light of the increase in the amount of discovery over the last decade
¶437which negatively impacts “criminal defendants’ ability to prepare a
¶438meaningful defense”—and thus, the failure of his trial counsel to
¶439properly assert and preserve this issue prevented Blalock from
¶440seeking a ruling thereon and prejudiced him in this case.
¶441 Blalock has not cited any case addressing a constitutional
¶442challenge to OCGA § 17-16-4 (a) (3) (A), either on its face or as
¶443 27 applied, and given that we have found no authority even suggesting
¶444that the statute’s constitutionality might be doubted, “trial counsel’s
¶445failure to raise a novel legal argument does not constitute ineffective
¶446assistance of counsel.” Griffin v. State, 309 Ga. 516, 520 (2) (847
¶447SE2d 168) (2020) (quotation and punctuation omitted). See also
¶448Esprit v. State, 305 Ga. 429, 438 (2) (c) (826 SE2d 7) (2019) (“A
¶449criminal defense attorney does not perform deficiently when he fails
¶450to advance a legal theory that would require an extension of existing
¶451precedents and the adoption of an unproven theory of law.” (Citation
¶452and punctuation omitted.)). Because Blalock has not demonstrated
¶453that his trial counsel performed deficiently by failing to raise a
¶454constitutional challenge to OCGA § 17-16-4 (a) (3) (A), his claim of
¶455ineffective assistance fails.
¶456 3. In Blalock’s final contention, he asserts that the trial court
¶457erred in permitting one of the State’s witnesses to comment on
¶458Blalock’s post-arrest silence, which was “a violation of his
¶459constitutional rights.” We conclude that, even if the trial court
¶460 28 abused its discretion in allowing this evidence to be admitted, any
¶461such abuse of discretion was harmless error.
¶462 During defense counsel’s cross-examination of Agent
¶463Reynolds, the State’s gang expert, the following exchange occurred:
¶464 DEFENSE COUNSEL: “What chapter of Bloods or set or whatever you want to call it does Mr. Blalock belong to?” AGENT REYNOLDS: “I don’t know. He wouldn’t talk to me about it.” DEFENSE COUNSEL: “What were his local hangouts?” AGENT REYNOLDS: “I don’t know. He wouldn’t talk to me.”
¶465At the conclusion of the prosecutor’s redirect examination of this
¶466witness, defense counsel moved for a mistrial. At that point, the
¶467trial court inquired as to the basis for the motion, and the following
¶468exchange occurred:
¶469 DEFENSE COUNSEL: “The fact that this officer twice testified and violated the Defendant’s right to remain silent when he said that the Defendant refused to talk to me.” PROSECUTOR: “That was responsive to her question.” COURT: “It was responsive to her question. So I will overrule the objection. You asked him specifically what chapter does he belong to. He said, I don’t know; he wouldn’t talk to me.” DEFENSE COUNSEL: “He could have said, ‘I don’t know.’ I didn’t ask him—I said what chapter does he
¶470 29 belong to. He is qualified as a gang expert, your Honor. All of those questions that I asked about all of the research that he can do to determine what chapter he’s a gang member of, he didn’t do. That is the answer to the question, not that Defendant didn’t talk to me. There are a million other ways to figure out what chapter he is a member of, other than asking the Defendant a pointed question.” COURT: “Do you have anything else?” PROSECUTOR: “I do not.” COURT: “I will overrule the objection. I think it was responsive to the question.”
¶471 Later, in denying Blalock’s motion for new trial, the trial court
¶472concluded that Agent Reynolds’s comments did not require a
¶473reversal. In reaching this conclusion, the trial court relied on
¶474Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) (2008), in
¶475which the Court explained that
¶476 testimony about the defendant remaining silent is not deemed to be prejudicial if it is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant. Indeed, to warrant a reversal of a defendant’s conviction, the evidence of the election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.
¶477 30 Id. (citations and punctuation omitted). The trial court held that
¶478Agent Reynolds’s comments did not directly implicate Blalock’s
¶479defense and were not directed to any particular statement or defense
¶480offered by Blalock. The trial court concluded that nothing had been
¶481presented to show that Agent Reynolds’s comments “were intended
¶482to, or did, have the effect of being probative on the issue of guilt or
¶483innocence.”
¶484 On appeal, Blalock argues that the trial court erred in
¶485admitting Agent Reynolds’s testimony commenting on Blalock’s
¶486post-arrest silence.
¶487 Because this error involves the defendant’s constitutional rights, the defendant would be entitled to a new trial unless the error is harmless beyond a reasonable doubt. The determination of harmless error must be made on a case by case basis, taking into consideration the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of the defendant’s guilt.
¶488Brewer v. Hall, 278 Ga. 511, 513 (3) (603 SE2d 244) (2004). We
¶489conclude that, even assuming the trial court abused its discretion in
¶490 31 admitting Agent Reynolds’s testimony, any such abuse of discretion
¶491was harmless error.
¶492 An examination of the context in which this error occurred
¶493shows that Agent Reynolds’s testimony was very unlikely to have
¶494affected the jury’s verdict in any way. Our review of the record
¶495shows that the State made no “effort to draw the jury’s attention to
¶496the officer’s comment,” to “convince the jury to infer guilt from”
¶497Blalock’s silence, or to exploit the exercise of Blalock’s right to
¶498remain silent. Brewer, 278 Ga. at 513 (2). “Accordingly, analyzing
¶499the comment in context, it is very unlikely to have had any impact
¶500on the jury’s determination of guilt.” Id.
¶501 Additionally, the evidence of Blalock’s guilt in this case was
¶502strong. Blalock was charged with malice murder and other crimes
¶503connected with the fatal shooting of Wright on the night of
¶504November 13, 2014. The evidence shows that, earlier that night,
¶505Blalock and Wright spoke on the telephone and arranged to meet in
¶506the Bellemeade area to conduct a drug deal. Morrow, who
¶507accompanied Wright to meet Blalock, testified that he was in the car
¶508 32 during the shooting, and he identified Blalock as the shooter. Dyer
¶509testified that Blalock was at his house on Bellemeade Way—
¶510adjacent to the crime scene—minutes before the shooting took place,
¶511and saliva matching Blalock’s DNA was found in close proximity to
¶512the crime scene. Hill and Florence also testified that, shortly after
¶513the shooting, Blalock admitted that he shot someone on Bellemeade
¶514Way on the night of November 13. The day after the shooting,
¶515Florence took Blalock to Hill’s house, and he saw Blalock retrieve a
¶516bag from an area close to the crime scene. Florence later observed
¶517Blalock remove a handgun from the bag and dispose of it. Dyer and
¶518Florence testified that Blalock was known to carry a rare 7-
¶519millimeter handgun, and 7.62-millimeter shell casings were found
¶520at the crime scene.
¶521 For these reasons, we conclude that any improper testimony
¶522from Agent Reynolds regarding Blalock’s silence “was harmless
¶523beyond a reasonable doubt,” and the outcome of Blalock’s trial was
¶524not affected by the admission of this testimony. Brewer, 278 Ga. at
¶525513 (2). Thus, this final enumeration fails.
¶526 33 Judgment affirmed. All the Justices concur.
¶527 34