¶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.
¶2In the Supreme Court of Georgia
¶3 Decided: January 28, 2025
¶4 S24A1303. BLALOCK v. THE STATE. S24A1304. RYAN v. THE STATE.
¶5 BETHEL, Justice.
¶6 Appellants Damone Blalock and Rodalius Eugene Ryan, Jr.,
¶7were convicted for the malice murder of Jamari Holmes, the
¶8aggravated assaults of two other individuals, and other related
¶9crimes.1 On appeal, both Appellants contend that trial counsel
¶10 The crimes occurred on February 23, 2019. In May 2019, a Fulton 1
¶11County grand jury indicted Appellants for participation in criminal street gang activity (Count 1), malice murder (Count 2), felony murder (Counts 3-5), aggravated assault with a deadly weapon (Counts 6-8), criminal damage to property in the first degree (Count 9), and possession of a firearm during the commission of a felony (Count 10). Counts 1 and 5 were bifurcated for trial; ultimately, those counts were not presented to the jury and were nolle prossed. Appellants were tried together before a jury from September 21 to October 1, 2021, and the jury found Appellants guilty on all presented counts. The trial court sentenced Appellants to serve life in prison on Count 2; ten consecutive years on Count 7; ten consecutive years on Count 8; ten concurrent years on Count 9; and five consecutive years on Count 10. The remaining counts merged or were vacated by operation of law. Appellants each filed timely motions for new trial, which were amended several times through new counsel. Following hearings, the trial court denied the amended motions on May 20, 2024. Appellants filed timely notices of rendered ineffective assistance in several ways. We also review
¶12whether counsel’s alleged deficiencies, when viewed cumulatively,
¶13require reversal of his convictions. For the reasons that follow, we
¶14affirm.
¶15 1. Viewed in the light most favorable to the jury’s verdicts, the
¶16evidence presented at trial showed the following. On the day of the
¶17crimes, Appellants, Tyherra Hartfield, and Mariah Smith were at
¶18Blalock’s apartment. Hartfield invited Bernard Mitchell, Rodney
¶19Ooten, and Jamari Holmes (the “victims”) to meet up with her and
¶20Smith. When the victims arrived, Hartfield and Smith got into the
¶21victims’ car, and Hartfield directed them to a nearby apartment
¶22complex where Ryan resided to buy marijuana.
¶23 Upon arrival, Mitchell parked his vehicle, and the victims gave
¶24money to Hartfield, who exited the vehicle to purchase the
¶25marijuana. Hartfield returned a few minutes later and told Smith to
¶26come with her because “somebody need[ed] to see” her. Smith got
¶27appeal, and the cases were docketed to this Court’s August 2024 term. Blalock’s appeal was orally argued before this Court in November 2024, and Ryan’s appeal was submitted for a decision on the briefs. 2 out of the car and, when she reached the apartment stairs, heard
¶28gunshots and saw Appellants shooting at the victims’ car. Neither
¶29Mitchell nor Ooten saw the perpetrators clearly enough to identify
¶30them, but both told the police they saw a shooter who was “tall with
¶31dread[lock]s” come out of the apartment breezeway with an “assault
¶32rifle shooting at the car.” Mitchell also told the police he saw another
¶33shooter at the corner of the building, though Mitchell did not recall
¶34seeing a second shooter at trial. Mitchell and Ooten fled on foot after
¶35Mitchell’s vehicle malfunctioned. Smith and Hartfield hid nearby
¶36until Ryan picked them up, and they returned to Blalock’s
¶37apartment.
¶38 When officers arrived at the crime scene, they found Holmes,
¶39who had been shot in the back of the head, in the passenger seat of
¶40the victims’ car, which had several bullet holes in the exterior.
¶41Holmes was taken to the hospital and died shortly thereafter.
¶42Investigators determined that the fatal bullet entered through the
¶43rear of the car, pierced the backseat, and exited through the front
¶44passenger seat where Holmes was sitting. A 7.62-millimeter bullet
¶45 3 fragment was recovered from Holmes’ head during the autopsy. At
¶46the crime scene, officers recovered 7.62-millimeter shell casings and
¶479-millimeter shell casings. Ballistics testing showed that all the
¶487.62-millimeter casings were fired from the same gun, most likely a
¶49rifle, and all the 9-millimeter casings were fired from the same gun,
¶50most likely a pistol. Investigators determined that the 9-millimeter
¶51rounds were likely fired from the corner of the building close to the
¶52victims’ vehicle, consistent with Mitchell’s initial account of where
¶53the second shooter appeared.
¶54 After fleeing, Mitchell and Ooten called Hartfield and asked,
¶55“[W]hy they shoot at us?” Hartfield replied, “[T]hey said that y’all
¶56was parked in front of the spot.” Hartfield then texted Mitchell,
¶57claiming “we [did not] set you up.” Mitchell and Ooten reported
¶58Smith’s and Hartfield’s potential involvement to police, and shortly
¶59thereafter, officers located and interviewed the two women; the
¶60interviews were video-recorded and were admitted into evidence at
¶61trial. Although Smith initially refused to admit that she saw
¶62Appellants shooting at the victims and instead provided several
¶63 4 alternative accounts of the crimes, she ultimately admitted to seeing
¶64Appellants shoot at the victims. In contrast, the lead investigator
¶65testified that Hartfield was “not cooperative” during her interview
¶66and did not provide any information about what happened at the
¶67incident. After her interview with police, Hartfield messaged
¶68Appellants on Instagram that she “stayed solid” and told police that
¶69she did not know what happened, but that Smith was “snitching” so
¶70the police “know about [Blalock] but not [Ryan].” Blalock replied
¶71that he “knew that [Smith] was a rat,” and asked what Smith said
¶72about him.
¶73 At trial, Mitchell, Ooten, Smith, and Hartfield testified for the
¶74State. Smith’s explanation of events at trial aligned with the victims’
¶75testimony of what took place at the crime scene – that is, that the
¶76victims picked up Hartfield and Smith from Blalock’s apartment,
¶77Hartfield directed the victims to the scene of the crime, Hartfield
¶78exited the vehicle before returning to retrieve Smith, and then shots
¶79were fired at the victims’ vehicle. Smith also specifically testified
¶80that she saw Appellants fire their weapons at the victims and
¶81 5 explained that she initially lied during her interview with police
¶82because she feared retribution by Appellants. During Hartfield’s
¶83testimony, she invoked her right against compelled self-
¶84incrimination numerous times because, although not charged in
¶85connection with this case, she was under indictment for other
¶86charges at the time of trial. However, Hartfield also provided some
¶87substantive answers, such as denying that she knew Ryan, denying
¶88setting up the victims, and denying directing Appellants to shoot the
¶89victims.
¶90 Appellants’ theory of defense was that neither Appellant was
¶91present during the crimes. Throughout trial, Appellants implied
¶92that Hartfield and Smith were shielding the real perpetrators.
¶93Blalock argued in his opening that the reason Appellants were on
¶94trial was because Hartfield and Smith “don’t want to tell what really
¶95happened.” To that end, Appellants sought to persuade the jury that
¶96the State failed to present sufficient evidence to prove Appellants’
¶97guilt beyond a reasonable doubt by highlighting Smith’s shifting
¶98accounts of the crimes and Hartfield’s invocation of her right against
¶99 6 self-incrimination. For example, during closing, Ryan explained that
¶100“the problem” with Hartfield’s invocation of her right against self-
¶101incrimination was that her silence “didn’t really help [the jury]
¶102figure out what happened.”
¶103 2. Both Appellants contend that trial counsel rendered
¶104constitutionally ineffective assistance by (a) failing to object and
¶105move to strike Hartfield’s testimony after she invoked her right
¶106against self-incrimination in the jury’s presence and failing to object
¶107to the trial court’s charge on how the jury should assess Hartfield’s
¶108invocation of that right; (b) failing to review and introduce certain
¶109evidence that would support Appellants’ defense; and (c) not
¶110objecting to each of the prosecutor’s comments on Appellants’ silence
¶111during closing argument. Ryan separately argues that trial counsel
¶112was ineffective for failing to investigate his alibi. We address these
¶113arguments in turn.
¶114 To prevail on a claim of ineffective assistance, Appellants bear
¶115the burden of showing both that trial counsel’s performance was
¶116professionally deficient and that they were prejudiced as a result of
¶117 7 that performance. See Strickland v. Washington, 466 U. S. 668, 687
¶118(III) (104 SCt 2052, 80 LE2d 674) (1984). “This burden, though not
¶119impossible to carry, is a heavy one.” Blackmon v. State, 302 Ga. 173,
¶120175 (2) (805 SE2d 899) (2017) (citation and punctuation omitted).
¶121 To show deficient performance, Appellants must demonstrate
¶122that counsel “performed at trial in an objectively unreasonable way
¶123considering all the circumstances and in light of the prevailing
¶124professional norms.” Butler v. State, 313 Ga. 675, 683 (4) (872 SE2d
¶125722) (2022) (citation and punctuation omitted). Our inquiry focuses
¶126on the objective reasonableness of counsel’s performance, which we
¶127evaluate “in conjunction with the attendant circumstances” and
¶128through the lens of “counsel’s perspective at the time,” while also
¶129making every effort “to eliminate the distorting effects of hindsight.”
¶130Davis v. State, 306 Ga. 140, 143-144 (3) (829 SE2d 321) (2019)
¶131(citations and punctuation omitted). “Thus, deficiency cannot be
¶132demonstrated by merely arguing that there is another, or even a
¶133better, way for counsel to have performed.” Id. Nor does counsel’s
¶134subjective state of mind have any bearing on our analysis. See State
¶135 8 v. Tedder, 305 Ga. 577, 584 (826 SE2d 30) (2019) (The fact that
¶136defense counsel “failed to articulate any strategic reasons” for his
¶137failure made “no difference because our inquiry is focused on the
¶138objective reasonableness of counsel’s performance, not counsel’s
¶139subjective state of mind.” (citation and punctuation omitted)).
¶140Rather, “if a reasonable lawyer might have done what the actual
¶141lawyer did—whether for the same reasons given by the actual
¶142lawyer or different reasons entirely—the actual lawyer cannot be
¶143said to have performed in an objectively unreasonable way.” Scott v.
¶144State, 317 Ga. 218, 223 (2) (a) (892 SE2d 744) (2023) (citation and
¶145punctuation omitted).
¶146 To show prejudice, Appellants “must establish a reasonable
¶147probability that, in the absence of counsel’s deficient performance,
¶148the result of the trial would have been different.” Butler, 313 Ga. at
¶149683 (4). “It is not enough to show that the errors had some
¶150conceivable effect on the outcome of the proceeding.” Henderson v.
¶151State, 310 Ga. 231, 240 (3) (850 SE2d 152) (2020). And if an
¶152appellant is unable to satisfy one prong of the Strickland test, this
¶153 9 Court is not required to examine the other prong. See Bradley v.
¶154State, 318 Ga. 142, 144 (2) (897 SE2d 428) (2024).
¶155 (a) In their first claim of ineffective assistance, Appellants
¶156challenge trial counsel’s performance with respect to counsel’s
¶157handling of the following series of events. Before Hartfield testified
¶158at trial, her attorney indicated that Hartfield would invoke her right
¶159against self-incrimination pursuant to the Fifth Amendment of the
¶160federal Constitution. Outside the jury’s presence, the trial court
¶161discussed at length Hartfield’s anticipated testimony with the
¶162parties and Hartfield’s attorney, as well as the types of questions to
¶163which Hartfield could potentially respond without incriminating
¶164herself. The trial court emphasized several times, and the parties
¶165agreed, that Hartfield could not refuse to respond to questions that
¶166would not elicit incriminating responses. The State ultimately called
¶167Hartfield to testify. On both direct and cross-examination, Hartfield
¶168invoked her right against self-incrimination numerous times,
¶169though she also provided substantive responses to some questions.
¶170Appellants raised no objection during Hartfield’s testimony to her
¶171 10 invoking her right against self-incrimination. During closing
¶172arguments, counsel relied on Hartfield’s silence to argue that the
¶173State failed to present sufficient evidence to prove Appellants’ guilt
¶174beyond a reasonable doubt. During deliberations, the jury submitted
¶175the following question to the trial court: “How shall we interpret
¶176pleading the Fifth?” After both the State and defense counsel
¶177assisted in crafting a response the court instructed the jury as
¶178follows:
¶179 The Fifth Amendment to the United States Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about herself, the so-called right to remain silent. When an individual takes the Fifth, she invokes that right and refuses to answer questions or provide information that might incriminate her about this case or any other. How this concept factors in to your fact-finding and ultimate decision is for you to decide.
¶180Appellants did not object to this instruction.
¶181 Appellants now argue that trial counsel performed deficiently
¶182by (i) failing to object and move to strike Hartfield’s testimony after
¶183she invoked her right against self-incrimination in the jury’s
¶184presence and (ii) failing to object to the trial court’s response to the
¶185 11 jury’s question. In support of these claims, Appellants highlight the
¶186testimony of both their trial counsel at the motion for new trial
¶187hearing, specifically, testimony that counsel had no strategic reason
¶188for not objecting to either Hartfield’s invocation of the right against
¶189self-incrimination in the jury’s presence or the trial court’s response
¶190to the jury’s question. We are not persuaded.
¶191 (i) We turn first to Appellants’ argument that trial counsel
¶192were deficient by failing to object and move to strike Hartfield’s
¶193testimony after she invoked her right against self-incrimination in
¶194the jury’s presence. Pointing to decisions of this Court and others
¶195that have recognized the potential for unfair prejudice that may
¶196arise from a witness’s assertion of her right against self-
¶197incrimination and the adverse inferences that may follow,
¶198Appellants contend that their rights to due process and to confront
¶199the witnesses against them were violated by Hartfield’s assertions
¶200of that right here. See, e.g., Davis v. State, 255 Ga. 598, 604 (7) (340
¶201SE2d 869) (1986) (“Neither side has the right to benefit from any
¶202inferences the jury may draw simply from the witness’ assertion of
¶203 12 the privilege either alone or in conjunction with questions that have
¶204been put to him.” (citation and punctuation omitted)). So, they say,
¶205trial counsel were deficient for failing to object and move to strike
¶206Hartfield’s responses on that basis.
¶207 But even assuming that an objection and motion to strike
¶208Hartfield’s testimony would have succeeded, we conclude that it was
¶209not an objectively unreasonable strategy to forgo objecting and
¶210moving to strike Hartfield’s testimony since this strategic decision
¶211is one of several a reasonable counsel could have made. The record
¶212shows that, rather than objecting and moving to strike Hartfield’s
¶213testimony, trial counsel opted to use Hartfield’s testimony—or lack
¶214thereof—to bolster Appellants’ theory of defense. Specifically,
¶215during closing arguments, trial counsel emphasized Hartfield’s
¶216refusal to respond to questions about her role in the crimes as part
¶217of their defense that the State failed to present sufficient evidence
¶218to prove Appellants’ guilt beyond a reasonable doubt. Ryan pointed
¶219out that Hartfield “declined to answer almost everything she was
¶220asked” and explained that “the problem” with Hartfield’s
¶221 13 invocations was that her silence “didn’t really help [the jury] figure
¶222out what happened.” Both Appellants referred to Hartfield’s silence
¶223in an effort to cast doubt on the evidentiary value of the inculpatory
¶224Instagram messages sent by Hartfield to Appellants that were
¶225introduced during trial, namely Hartfield’s message to Appellants
¶226that she “stayed solid” after her interview with police by telling the
¶227officers that she did not know what happened, but that Smith was
¶228“snitching” so the police “know about [Blalock] but not [Ryan].” Ryan
¶229urged the jury that Hartfield’s refusal to respond to questions about
¶230the Instagram messages was critical because the case “is about what
¶231is proved, not about something that is suspicious, not about what
¶232might have been . . . [i]t’s about evidence.” Ryan also suggested
¶233different reasons why Hartfield sent that message that did not
¶234implicate either Appellant as the shooter, concluding that “without
¶235the context of that message” the State had not proved its case.
¶236Blalock likewise emphasized the dearth of evidence presented by the
¶237State, arguing that the State’s case hinged on Smith’s shifting
¶238accounts of the crimes and the inculpatory Instagram messages—an
¶239 14 argument that was only strengthened by Hartfield’s refusal to
¶240provide any substantive response regarding the crimes. Choosing to
¶241address Hartfield’s testimony this way in closing arguments rather
¶242than objecting and moving to strike Hartfield’s testimony was an
¶243objectively reasonable trial strategy and provides no basis for
¶244deficiency. See Hartsfield v. State, 294 Ga. 883, 889 (3) (b) (757 SE2d
¶24590) (2014) (it is “a sound defense strategy to minimize objections [to
¶246a witness’s testimony] in an effort to show the jury that the defense
¶247ha[s] nothing to hide” and to instead use the witness’s testimony to
¶248counsel’s advantage during closing argument); Moon v. State, 288
¶249Ga. 508, 516 (9) (705 SE2d 649) (2011) (“the making of objections
¶250falls within the realm of trial tactics and strategy and thus usually
¶251provides no basis for reversal of a conviction” (citation and
¶252punctuation omitted)).
¶253 Moreover, a reasonable attorney also could have decided not to
¶254object and move to strike Hartfield’s testimony to avoid drawing the
¶255jury’s attention to the questions and Hartfield’s invocation of her
¶256right against self-incrimination in response. See Rashad v. State,
¶257 15 318 Ga. 199, 213 (3) (e) (897 SE2d 760) (2024) (“It would not be
¶258objectively unreasonable for trial counsel, as a matter of trial
¶259strategy, to refrain from objecting to this testimony so as not to draw
¶260attention to it[.]”).
¶261 Finally, trial counsel were not deficient for failing to object and
¶262move to strike Hartfield’s testimony because Hartfield gave several
¶263substantive answers that supported, at least by implication,
¶264Appellants’ defense. Hartfield denied knowing Ryan and denied
¶265setting up the victims or directing Appellants to shoot the victims.
¶266Each of these denials could help to cast doubt on Appellants’ guilt.
¶267As such, it was not an objectively unreasonable strategy to forgo
¶268objecting and moving to strike Hartfield’s testimony. That the jury
¶269apparently reached different conclusions about Hartfield’s
¶270testimony does not mean that no reasonable attorney could have
¶271chosen this approach. See Anderson v. State, 302 Ga. 74, 82 (4) (805
¶272SE2d 47) (2017) (“the law is well-settled that decisions relating to
¶273trial strategy and tactics are not to be judged by hindsight”).
¶274 (ii) We now turn to Appellants’ argument that trial counsel
¶275 16 were deficient by failing to object to the trial court’s response to the
¶276jury’s question because, they assert, it improperly authorized the
¶277jury to draw inferences from Hartfield’s invocation of her right
¶278against self-incrimination that were adverse to Appellants. But as
¶279we have already discussed, the record reflects that, during closing
¶280arguments, trial counsel sought to capitalize on Hartfield’s
¶281invocation of her right against self-incrimination as part of their
¶282theory of defense, repeatedly pointing to Hartfield’s silence as
¶283demonstrative of the State’s failure to produce sufficient evidence to
¶284prove Appellants’ guilt. In light of that closing argument, it was not
¶285an objectively unreasonable strategy to forgo objecting to a jury
¶286instruction that permitted the jury to factor Hartfield’s silence into
¶287its deliberations in hopes that the jury would view the lack of
¶288testimony from a key witness as to what happened on the night of
¶289the crimes as an indication that the State had not presented
¶290sufficient evidence to prove its case. 2 Thus, under the circumstances
¶291 2 Because Appellants raise no claim of trial court error with respect to
¶292the jury instruction, we do not address whether the trial court erred by
¶293 17 of this case, we cannot say that trial counsel’s decision to forgo
¶294objecting to a jury instruction that could have benefitted the defense
¶295was objectively unreasonable. See Barboza v. State, 309 Ga. 319,
¶296325-326 (b) (845 SE2d 673) (2020) (trial counsel’s decision not
¶297deficient where failure to object to trial court’s comments could be
¶298“helpful to [a]ppellant’s case”). Cf. Hampton v. State, 295 Ga. 665,
¶299670 (2) (763 SE2d 467) (2014) (trial counsel not deficient where
¶300failure to object to introduction of certain evidence may have helped
¶301defense); McKinney v. State, 307 Ga. 129, 140 (4) (834 SE2d 741)
¶302(2019) (counsel’s decision not to object to prosecutor’s comments that
¶303may have “helped support the defense” not objectively
¶304unreasonable). For all these reasons, we conclude that Appellants
¶305have failed to establish that trial counsel’s performance was
¶306deficient, and this claim of ineffective assistance fails.
¶307 (b) In their next claim of ineffective assistance, Appellants
¶308argue that trial counsel performed deficiently by failing to review
¶309instructing the jury as it did. Rather, we only conclude that trial counsel were not objectively unreasonable for failing to object for the reasons discussed herein. 18 and introduce into evidence Instagram messages provided by the
¶310State during discovery that, according to Appellants, would have
¶311cast doubt on the State’s theory of the case. Specifically, Appellants
¶312point to Instagram messages sent by an unidentified user who asked
¶313Mitchell how he “let” Holmes “get killed,” to which Mitchell
¶314responded, “We didn’t let him get killed[.] [Hartfield and Smith] set
¶315us up[.] [W]e shot ba[c]k.” Mitchell reiterated in another message,
¶316“[W]e w[ere] shooting back.” When asked about these messages at
¶317the motion for new trial hearing, Blalock’s counsel did not recall
¶318seeing these messages during her review of the records, and Ryan’s
¶319counsel testified that he was not aware of the messages before trial.
¶320Appellants argue that these messages undermine the State’s
¶321ballistics evidence and testimony from investigators that two
¶322shooters fired from outside the vehicle and that none of the victims
¶323returned fire, as well as Mitchell’s testimony that, although he had
¶324a gun, it was unloaded, he did not fire at anyone, and he did not see
¶325anybody else fire from within the victims’ vehicle. The trial court
¶326found that trial counsel were “deficient in failing to find” the
¶327 19 Instagram messages, and the State does not dispute that finding.
¶328However, the trial court also found that Appellants had failed to
¶329establish Strickland prejudice as a result of this deficiency. We
¶330agree.
¶331 Although Mitchell’s message about “shooting back” may cast
¶332doubt on some of the State’s evidence, we cannot say that
¶333“introducing the [evidence] would have created a reasonable
¶334probability” of a different outcome — here, an acquittal. Lee v. State,
¶335318 Ga. 412, 422 (b) (i) (897 SE2d 856) (2024). First, given that
¶336Mitchell claimed to have fired “back,” the text messages in fact
¶337bolster evidence that shots were fired from outside the vehicle first.
¶338Second, the messages do nothing to undermine other strong
¶339evidence that the fatal shot came from outside the car. Investigators
¶340determined that the fatal shot entered the rear of the car, pierced
¶341the backseat, and exited through the front passenger seat where
¶342Holmes was sitting. Further, evidence showed that the fatal 7.62-
¶343millimeter bullet could not have been fired by a .22-caliber gun,
¶344which was the caliber of weapon that Mitchell admitted was on his
¶345 20 person at the time of the shooting. Third, even if Mitchell’s messages
¶346were presented to the jury and we assume the jury would have
¶347credited them, the messages do not definitively prove that “there
¶348had only been one person shooting at the victims” as Appellants
¶349claim. Appellants appear to reason that the ballistic evidence
¶350presented at trial showed there were only two guns used at the crime
¶351scene; therefore, Mitchell’s message would show there was at least
¶352one victim shooting from the car accounting for one of the guns,
¶353leaving only one shooter outside the vehicle firing the other gun at
¶354the victims. However, the State’s ballistics expert testified that “at
¶355least two different guns” were fired but explicitly clarified that he
¶356could not testify that only two guns were fired. Accordingly,
¶357Appellants’ argument that Mitchell’s messages would have
¶358conclusively dispelled the State’s theory is inaccurate.
¶359 Given these circumstances, Appellants have failed to establish
¶360a reasonable probability that the result of the trial would have been
¶361different had trial counsel reviewed and introduced into evidence
¶362the Instagram messages and, thus, have not shown the requisite
¶363 21 prejudice to support their claim of ineffective assistance. See Stepp-
¶364McCommons v. State, 309 Ga. 400, 408 (4) (b) (845 SE2d 643) (2020)
¶365(no prejudice from counsel’s failure to review a witness’s prior
¶366contradictory statement because, among other reasons, such
¶367evidence was not exculpatory); White, 293 Ga. at 827 (2) (a) (no
¶368prejudice where, even if counsel had not failed to carefully review
¶369the case files, the outcome of the trial would not have changed based
¶370on other evidence).
¶371 (c) Appellants also argue that trial counsel were ineffective for
¶372not objecting to the prosecutor’s comments during closing
¶373arguments, which they contend impermissibly commented on the
¶374invocation of their right to remain silent. Again, we disagree.
¶375 During closing arguments, the prosecutor acknowledged that
¶376the defendants “carry no burden” but urged the jury to listen for
¶377Appellants’ explanation in response to the following question: “[I]f
¶378[the defendants] were not committing the murders, where were
¶379they?” Appellants objected to the comment as burden-shifting, but
¶380the trial court overruled the objection. The prosecutor repeated the
¶381 22 question, emphasizing that “[the defendants] are both saying . . .
¶382they weren’t there. Tell us where you were. We didn’t hear any
¶383evidence of it, obviously, but I would still like to hear that answer.”
¶384Blalock again objected to the statements as burden-shifting. The
¶385trial court sustained this objection and instructed the jury, “Tell us
¶386where they were should be disregarded”
¶387 In his rebuttal closing, the prosecutor returned to the same
¶388theme: “I wanted to hear the answer to [the] question[]: if they
¶389weren’t committing the murders, where were they?” The prosecutor
¶390continued and asked, “At any point did you hear an answer to [the]
¶391question[]? I did not, because they can’t. They can’t answer [the]
¶392question[]. Because the answer . . . is they were committing this
¶393murder.” The prosecutor continued, “The defense does not have to
¶394call a single witness or present a single piece of evidence in this case.
¶395. . . But they can if they have it. . . . But they didn’t because they
¶396don’t have it.” Trial counsel did not object to these comments.
¶397 Pretermitting whether trial counsel were deficient by failing to
¶398 23 object to each of the prosecutor’s purportedly improper comments,3
¶399Appellants have failed to establish the requisite prejudice in light of
¶400the strong evidence of their guilt, including Smith’s testimony
¶401identifying them as the shooters, the victims’ testimony that
¶402corroborated Smith’s account of the crimes, and the inculpatory
¶403 3 In a number of cases, we have said that a prosecutor may emphasize
¶404that a defendant has not “successfully rebutted or explained the State’s evidence.” Kimbro v. State, 317 Ga. 442, 452 (7) (893 SE2d 678) (2023) (“Viewed properly in context, the prosecutor’s comment merely emphasized to the jury that [the defendant] had not successfully rebutted or explained the State’s evidence.”). See also, e.g., Ridley v. State, 315 Ga. 452, 458 (4) (a) (883 SE2d 357) (2023) (concluding it was not improper for the prosecutor to argue in closing that defendant had failed to rebut or explain evidence of his guilt and rejecting assertion that such comments amount to improper burden-shifting); Johnson v. State, 271 Ga. 375, 383 (15) (a) (519 SE2d 221) (1999) (holding that State’s “make them explain” argument did not impermissibly shift the burden of proof and did not comment on defendant’s failure to testify); Ward v. State, 262 Ga. 293, 296 (6) (a) (417 SE2d 130) (1992) (same). In this case, however, many of us have serious concerns that some of the prosecutor’s comments went beyond a permissible “make them explain” argument and instead amounted to a comment on Appellants’ failure to testify. See Pyne v. State, 319 Ga. 776, 785 (2) (906 SE2d 755) (2024) (“[A] prosecutor may not comment on the failure of a defendant to testify, but he may argue that evidence showing guilt has not been rebutted or contradicted.” (citation and punctuation omitted)). Nevertheless, because we have determined that Appellants have failed to meet their burden of showing that they were prejudiced by counsel’s failure to object, we need not address whether the prosecutor’s comment was, in fact, improper such that trial counsel were deficient by failing to object. See Bradley, 318 Ga. at 144 (2) (“The failure to demonstrate either deficient performance or resulting prejudice is fatal to a claim of ineffective assistance of counsel and obviates the need even to consider the other.”).
¶405 24 messages sent between Appellants and Hartfield. See Davis, 306 Ga.
¶406at 149 (3) (i) (no prejudice from counsel’s failure to object to
¶407comments during State’s closing argument where the State
¶408presented “substantial evidence” of the appellant’s guilt); Strother
¶409v. State, 305 Ga. 838, 848-849 (5) (828 SE2d 327) (2019) (no prejudice
¶410where, even assuming counsel was deficient by failing to object
¶411during closing argument, other evidence of the appellant’s guilt was
¶412“very strong”). In addition, “the prosecutor’s statements were not
¶413evidence, and the trial court properly instructed the jury as much.”
¶414Denson v. State, 307 Ga. 545, 549 (3) (837 SE2d 261) (2019). This
¶415claim of ineffective assistance therefore fails.
¶416 (d) Ryan argues separately that trial counsel was deficient by
¶417failing to investigate and present his alibi to the jury. Specifically,
¶418Ryan argues counsel should have called his half-brother, who would
¶419have testified that he and Ryan were home playing video games at
¶420the time of the shooting. We disagree that trial counsel performed
¶421deficiently in this respect.
¶422 Counsel “has a duty to make reasonable investigations or to
¶423 25 make a reasonable decision that makes particular investigations
¶424unnecessary. In any ineffectiveness case, a particular decision not to
¶425investigate must be directly assessed for reasonableness in all the
¶426circumstances, applying a heavy measure of deference to counsel’s
¶427judgments.” Terry v. Jenkins, 280 Ga. 341, 346-347 (2) (c) (627 SE2d
¶4287) (2006) (citation omitted). Moreover, “[a] decision as to which
¶429defense witnesses to call is a matter of counsel’s trial strategy and
¶430tactics and will not support a claim of ineffective assistance of
¶431counsel unless it is so unreasonable that no competent attorney
¶432would have made the decision under the circumstances.” Smith v.
¶433State, 308 Ga. 81, 92 (4) (839 SE2d 630) (2020).
¶434 Here, trial counsel testified at the motion for new trial hearing
¶435that he was aware of the potential alibi defense but elected not to
¶436pursue it any further after he conducted a mock examination of
¶437Ryan, which did not go well. Counsel testified that he did not believe
¶438an alibi defense would be persuasive unless Ryan testified and also
¶439noted that evidence at trial contradicted the purported alibi.
¶440Counsel instead “thought it would be better to argue that there was
¶441 26 only one shooter and that the other shots came back from the alleged
¶442victims[.]”As a result, counsel elected not to investigate the alibi
¶443defense any further. Given the conflicting evidence and counsel’s
¶444objectively reasonable concern about the strength of an alibi, we
¶445cannot say that counsel’s strategic decision not to investigate and
¶446present Ryan’s alibi defense was unreasonable. See Smith, 308 Ga.
¶447at 91-92 (4) (claim that counsel was ineffective for failing to
¶448investigate and present alibi defense failed where a witness placed
¶449defendant at the crime scene and counsel believed that an alibi
¶450presented by defendant’s girlfriend would not be persuasive).
¶451Accordingly, this claim fails.
¶452 3. Finally, we consider whether the combined prejudicial effect
¶453of trial counsel’s assumed deficiencies warrants a new trial. See
¶454Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56) (2007),
¶455overruled on other grounds, State v. Lane, 308 Ga. 10 (838 SE2d 808)
¶456(2020). In our review of Appellants’ claims, we assumed that counsel
¶457were deficient for failing to review and introduce into evidence
¶458Mitchell’s two Instagram messages and failing to object to each of
¶459 27 the prosecutor’s comments on silence in closing argument. As
¶460discussed in Divisions 2 (b) and (c), counsel’s assumed failures are
¶461unlikely to have affected the outcome of the trial, and we do not see
¶462that the prejudice from these two deficiencies would cumulate in any
¶463way to cast doubt on the verdict. See Lee, 318 Ga. at 431 (6) (h)
¶464(“Given the relatively minor impact of counsel’s assumed errors, [the
¶465appellant] has not shown that the cumulative prejudice from those
¶466assumed errors likely affected the outcome of [his] trial.”) This
¶467claim, therefore, fails.
¶468 Judgments affirmed. All the Justices concur.
¶469 28