1 The crimes occur red on December 31, 2007. Appellant was indict ed by a Gly

nn Co unty grand jur

y on March 19, 2008, on charges of murde r, fel ony murder , v oluntary manslau ghter, and possess ion of a fi rearm duri ng the commissi on of a crime. Appellant was found guilt

y of al l charge s after

a jury tri al hel d on Ju ne 22, 24- 26, 200 9. He was sentenced on June 26, 2009, to li fe impri sonment for t he malice murde r convict ion and a consecut ive five-y ear term of i mprisonment on hi s convict ion for pos sessi on of a fire arm. The remai ning charges were merged orva ca te d by ope ra ti on o f l aw. His motion for new trialwas filed on July 17, 2009, a mended on November 19, 2012, and deni ed on Feb rua ry 13, 2 013

. A notice of appeal was file d on March 8, 201 3. Th e app eal w as do ckete d in this Co urt for the A pril 201 4 ter m a nd s ubm itted for dec ision on t he b rief s. 295 Ga. 126 FINAL C OPY

S14A063 4. GRANT v. THE STATE. THOMPSON, Chief Ju stice. Appella ntDevon Grant wa s c on victed of mal ice m

urder an d possessi on of a firearm during the c ommission of a crime inconnec tion with the shooting deathof Kattil ius (“De ebo”) M iddlebroo ks. 1 He appeals from the denial of his motion for n ew trial , and fo r the r easons set fo rth b elow, we af firm. 1. Viewed in the light most favorable to the ju ry’s verdict, the evid ence adduced at

trial e stablis hed that

in Dec embe r 2007, appellan t and Mid dlebrooks

were in an apartment at Broo klyn Homes in Brun swick where , for a two dollar entrance fee, patrons c ould gam ble. A ppella nt was accuse d of not payi ng the entrance fee a

nd an arg ument e nsued, during which Middlebrooks pushed his2

hand i nto appe llant’s face. A s appellant left the a partment, he told Middlebro oks, “I’m goi ng to kill you when I get back .” Two days la

ter, a ppella nt approa ched Mi ddlebrooks as he played dice in the parking l ot outside

of the apa rtme nt com

plex and shot him in t he bac k of the neck. A witness saw appe llant walk toward Mi ddlebroo ks carr ying a da rk, semi-automa

tic pistol a

nd heard appell ant say, “I’m going to murk him,” which in street parlance means, “I am going t o kill him.” As appellant walked away, he stated, “I told you I was goin g to kill h im.” Taliyah Thomas , appellant’ s cousin, testifi ed that

on the day of t

he shootin g, appe llant c amehome up set and looking for

his mot her. She heard a ppella nt tell his moth er that

he shot someone named Deebo over a dice game. Middlebr ooks was f

ound lying in the pa

rking lot, where he died f

rom a gunsho t wound. We conclude the evidence wa s s ufficient to ena

ble thejury to f

ind appell ant guilty of the crimes for which he was convicte d beyond a reasonable doubt. Jackson

v. Virginia , 443 U. S. 307 (99 SCt 2 781, 61 LE 2d 560) (1979). 2. Appe llant c ontends he was de nied a

fair tri al bec ause the State failed to produce du ring disco very a video t aped interview of Britta ny Gardner in which Gardner stated th at Le dell Ellis tol d her he shot Middlebro oks. See3

Brady v. Maryland , 373 U. S. 83 (83 SCt 11 94, 10 LE 2d215) (1963). The State concedes that the videot aped interview, made dur ing the i nvestig ation of a separate murde r inv estiga tion, and a detec tive’s related report were inadvertently not turn ed over to app ellant before tri al. To prevail on a Brady

claim , appe llant

must show that the State posses sed evidence favora

ble to h im, t

hat he did not posse ss the e vidence and coul d not obtain it himself with rea sonable diligence, th at the S tate s uppresse d the favorable evidence, and that, if the evidence had been disclosed to him, a reasonable probabili ty exis ts that t he outco me of t

he proce eding woul d have been differ e nt. See Kyles v. Whitley , 514 U. S. 419, 433 -434 (115 SCt 1555, 131 LE2d 490) (1995); Blackshear v. Sta te , 285 Ga. 619, 622 (680 SE2d 850) (2009). Preter

mitting the iss ue of whe ther ap pellan t met his burden

with re gard to the first thre e prongs of his Brady claim , we find no revers ible er ror beca use appell ant has faile d to show a

reasona ble proba bility t hat ea rlier di sclosure

of the evidenc e would ha

ve produc ed a different outcom e at tr ial. T he defense theory at trial was to chal leng e the su fficie ncy of t he Stat e’s evi denceby focusing on the we akn esses in the State’s case and appellant’s state ment to police that he

was not in the Bru

nswick a rea wh en t

he sh ooting occurred.4

Although Gardne r’s intervi ew and relat ed polic e report from the other shooting

were n ot provi ded to defense co unsel, couns el was given a copy of the entir e police file in the Midd lebrooks case, includin g a copy of Ellis’ interview with police in which he deni ed shootin g Middlebr ooks, witn es s inte rviews identifying Ellis as a possib l e suspec t, and do cume nts refl ecting the Sta te’s conclus ionthat El lis was not involved i n the Middleb rooks sh ooting. Defen se counsel used this in formation at trial to questio n the lead detective abo ut other suspect s, and more sp eci fically, about Ellis , to which the detecti ve respond ed that Ellis was eliminated as a sus pect when it was confirmed that he was not at the scene of the shoo ting. Although appell ant arg ues tha t his tria l strate gy wouldhave c hanged had he known a bout the Gardner interview, he pres ents no evidenc e demons trating how his strategy would have c hanged or that this informa tion would hav e led t o other e vidence favorab le to his defense . In light of defense counsel ’s and the jur y’s knowledg e t hat Ellis had been questi oned and elim inated

as a pos sible sus p ect, the tes timony of an ey ewitne ss who identified appell ant as t

he perso n who shot M iddlebroo ks, and appellant’s own admis sion

that he shot som eone na

med D eebo ov er a di ce ga me, we con clude that there w ould not

have be en a re asonabl e probabi lity of a differentoutco me5

at trial if appellant had b een given that in formation. See Blackshear , supra, 285 Ga. at 622; Hester v. State , 282 Ga. 239, 2 42-243 (647 SE2d 60) (200 7). 3. Appellant’s claim that the trial court erred by closing the courtroom to inquire whether the State had made a deal with a witness h as not been pres erved for appea l beca

use no obje ction to t

he clos u re was made at trial. See State v

. Aberna thy , 289 Ga. 603, 611 (715 SE2d 48) (2011) (issue of closure may only be raised in contex t of an ineffectiv e assistan ce of c ou nsel cl aim w hen no objection to closure is made at trial)

. 4. During de libera

tions, th e jury s ent sev eral no tes to th e tria l court. In one, jurors asked to review a transcript o f Taliyah Thomas’ testimon y. The trial court read th e contents of this note to c ounsel a nd state d its intention

not to give the transc ript to the

jury but instead to allow the jury to hear a repl ay of th e testimony in the c ourtroom . After asking if th is was agreeable to bo th parties and rece iving input from

both sides , the trial court r esponded, tell ing juro rs they could rehearthe wit

ness’ te stimony

in the c ourtroom . The jury then sent a note askingto also rehear investigato r S cott Ha rrell’s testimony. T he trial judge followed the same pr ocedure of reading the note to cou nsel an d discusse d the amount of time it would t ake to replay Harrell’s t estimony. The court info rmed6

the par ties tha t it intended to de nythe requests to rehear the t estimony of both witnesses beca

use it fe ared ju

rors were going to w ant to r ehear all of the evidence and possib ly cause a mistrial. To avoid thi s outcome, the cou rt told the jury that [t]he Court has decide d not to go over again any . . . of th e testimony. You must rely on your memory of the evidence as it was present ed. The jury then se nt a fina

l note to the tria

l court, asking: May we return to the

courtroom to rehea

r the te stimony

and let the courtreporter replay just Ta liyah Thomas only , please, a nd th an k you. After read in g this note

in open c ourt, an d without e liciting a res ponse from either party, the court, c onsistent with its orig inal ruling, informed counsel it wouldrespond b y stating, “No.” Non e of the exchanged notes we re marked as exhibits , and the

y do not a ppear in the re cord. Appella ntargues that the tria l court v iolate d the re quirem ents for j ury

comm unications laid out by this C our t in Lowery v. State , 282 Ga . 68 (646 SE2d 67) ( 2007 ), by no t ma rking the jury notes a s exhibit s and not providing him a full opportunity to respond to the juror s’ reque sts to re hear te stimony . In7

Lowery , we st ated: In an exercise of this Court’s in herent power to maintain a c our t system capa ble of prov iding for the administ ration of justice in an orderlyand eff

icient manner, we t ake thi s opportunit y to req uire trial courts to have jurors’ comm unications submitt ed t o the co urt in writing; to mark the written communicatio n as a court exhibit in the presenc e of coun sel; to a ffor d co unsel a full opportunity to suggest an appro priate

response ; and

to ma ke counse l awa

re of the substance of the trial cou rt’s intend edresponse in order th at counsel may seek w hatever modifi cation s counse l deem s appropri ate be fore the jury is expo sed to the ins truction. Id. at 76. It is undisput ed in the

present casethat the jury no tes were not marked as exhibits

. Their contents, n evertheless, were read in to the record an d are not disputed by the p artie s i n this a ppeal. Therefore, alth ough the b etter practice wouldhave be en for the

trial c ourt to m ark thenotes as exhibits to be included with t he appellate re cord, appellant has shown no harm from the trial court’ s failure to do so in this instance. S ee Humphreys v. State , 287 Ga. 63, 78 (694 SE2d 316) (2010) (d efenda

ntrequired to show harm as well as erro r where trial court did not re ad jury

note to c ounsel verbatim ). See also Burtts v. State , 269 Ga. 402, 403-404 (499 SE2d 326) (199 8) (court’ s denial of jury request to reheartestimony with out no tifyi ng defendant or counsel not prejudicial to8

defenda nt). We simil arly f

ind no reversible error in the trial c ourt’s handlin g of the juror’s notes re questing to rehea r the te stimony

of Thom as and Harrell

. C ontrary to appe llant’s assert

ion, the record shows tha

t defen se couns el wa s given ample

opportunity

to suggest

an appropria

te res ponse to t

he jury ’s reque st to rehear Thomas’ testimony an d counsel, in f act, informe d t he court

that he preferred the court tell jurors they c ould not rehear this evidence. With reg ard to the req

uest for H arrell ’s t estim ony , the re cord dem onstrate s that de fense counsel again had th e op portunity to suggest

an alt ernative respo nse, but he made none. The record, th erefore, does not s upport h is assertion that he was denied an opportunity to suggest an alternative to either request. More over, this

enumeration

of error f

ails be cause

appell ant has not shown w hat di ff erent o r further action he would have taken had the trial court fol lowed more clo sely t he procedures set out in Lowery . S ee Humphreys , supra, 287 Ga. at 7 8. Appella ntfurther argues that the trial court erred in refusing to allow

the jury to rehear the requ ested testimony. It is within the trial court’s discre tion to decide wheth er to allow a jury at its own instigatio n to rehear eviden ce after9

delibe rations begin, and wefind no abu se of that discret ion in thi s appeal. See Burtts , supra, 269 G a. at

403 ; Byrd v. State , 237 Ga . 781, 782 ( 1) (229 SE2d 631) (1976). 5. Appellant alleges o n several grounds that trial c ounsel prov ide d ineffe ctiveassistance, thereby entitling him to a new trial. In order to p revail on his claim of ineffe ctive a ssistanc e, app ellant must sh ow both that

counsel ’s performance was de ficie nt and that the deficienc y prejudiced him such tha t there is a re asonabl e probabi lity tha t, but for the def icienc y, the

outcome of his tr ial wouldhave been differen t. Strickla nd v. Washingt on , 466 U. S. 668 (III ) (104 SCt 2052, 80 LE2d 67 4) (1984). “This burden, although not impossible to carry, is a heav y one.” Young v. State , 292 Ga . 443, 445 ( 738 SE2d 575) (2013). Mo reover,

a court need no t determine whether cou nsel's perfo rmance was defici ent before examining theprejudic e suffe red by t he defenda

nt as a result of the alleg ed deficiencies. The o bj ect of an ineffe ctiven ess claim

is not to grade counsel 's performance. If it is easier to dispo se of an ineffe ctiven ess cla im on the ground of

lack of suffici ent pre

judice , whic h we ex

pect w ill ofte n be so, that course should be f

ollowed. Strickla nd , supra, 4 66 U. S. at 697. In review ing a claim of ineffe ctive10

assistance, we give deference to th e trial court’s f actual findings and credibility determ inations u nless clearly erron eous, but we revi ew a trial court’s leg al conclus ions de novo. Sanford v. State , 287 Ga . 351, 356 ( 695 S E 2d 579) (2010). (a) Appella

nt conte nds trial

counsel provided ineffe ctive a ssistanc e by failing to raise a Batson

c hallenge to the Sta

te’s use of its pe rempt ory stri kes. See Batson v . Kent

ucky , 476 U. S. 79 (106 SCt 1 712, 90 LE 2d 69) (1986). In support of his claim, he argues that because he is Africa n-American a

nd the jur y

was compris ed of el even wh ite memb ers and one Afri can-America n mem ber, counsel was defi cient for failin g to make a Batson challenge. “To succeed on [his ] claim of ineffective assist ance, [ap pellant] was required to show n ot o nly that trial cou nsel shoul d have raised a Batson challenge, but also t

hat thechallenge would

have been successfu l.” Pierce v. State , 286 Ga. 194, 199 ( 686 SE2d 656) (20 09). The burde n of ensuring that th e trial court had sufficient informati on before it to rule o n a Batson

challe nge rested on appel lant be cause the cha llengeis being raised in the co ntext of a claim of ineffectiven ess. See Stokes v. State , 289 Ga . 702, 704 (715 SE2d 81)11

(2011); Pierce , supra, 286 Ga. at 200. The re cord dem onstrate s, howe ver, that appell ant failed to present to the tria l court evidence of any

kin d pertain ing to the State’ s use of its per emptory strikes. The o nly question asked of trial counsel at t

he m otion fo r new trial hearing pertaining t o the Batson issue was why counsel did not raise a Batson challe nge, to w hich tri al couns el res ponded, “I didn’t . . . believe . . . that the strikes that were made wer e base d o n a ra ce basis.

. . . I didn’t feel th at the strikes th at were being used b y the Stat e warranted that type of challeng e.” Appellant’s con jecture, based s olely o n the ultimate compos ition of the jury, is, by i tself, insuffic ient ev idence of purposef

ul discrim inatory intent. See Livingston v. State , 271 Ga. 714, 7 18 (524 SE2d 222) (1999) (“Even though ‘circumstantia l evidence of inv idious in tent may include proof of disproportionate impact,’ numbers alone may not e stablis h a disproportionate exerc ise of st rikes suf fic ient to raise a pri ma facie inference that the strikes were e xercis ed with d iscrim inatory intent. [Cit.] ”). Se e also Mitchell v. State , 275 Ga . 42, 45 (561 SE2d 803) (2002); Whitaker v. State , 269 Ga. 462, 464 (499 SE2d 888) (1 998). B ecause appell ant failed to carry his burden of esta

blishing a prim a fac ie ca se of purpos eful discrimination , the trial12

court did not err by den ying his claim of ineffe ctiven ess bas ed on coun sel’s failure to raise a Batson

challenge. (b) Appellant’s claim that trial counsel was ineffective by faili ng to obj ect to the trial court’s denial of his request to char ge the jury on leni ency in charges

or sentence similarly fails. Th e trial court refu sed to give the requ ested leniency charge becau se no evidence of a grant of im munity or promise of leniency in exchange for a witn ess’ testimony was pr esented at trial. A requested charge m

ust be legal, apt, and precisely a djusted to some principl e involve d in the c ase a nd be aut

horized by the evidence. If any port ion of the re quest to c harge fa ils in the se require ments , denial of the r equest is proper. (Punctua tion, footnotes and em

phasis om

itted. ) Lane v. State , 268 Ga. 678, 680 (492 SE2d 230) (1997). In the absence of any e vidence supporti ng th e requested charge, the trial cour t did not err by ref using to give it. See id.; Stokes v. State , 281 Ga. 875, 877 (644 SE2d 116) (2007); Harris v. State , 274 Ga. 422, 426 (554 SE2d 458) (2001). Trial counsel’s failure to raise a meri tless objectionis not eviden ce of ineffective assi stance. See Hayes v. State , 262 Ga. 881, 884 -885 (42 6 SE2d 88 6) (1993 ). Moreove r, even assuming counsel wa s deficient in failing to objec t to the2 At the hea ring on a motion for

new tria l, appellant’s trial counsel testified that he spoke to appellant for many hours prior

to trial, reviewed the State’s files, and subpoenaed appe llant’s mother and Officer Wan Thorpe to testify at trial. Counsel also testified that he attempted to c ontact other potentia l witnesse s by

telephone, but he was unable to reach them. 13 denial of this re quest to c harge, appell ant has f ailed to esta

blish ine ffective assistance bec ause the second pr ong of Strickla

ndhas not be en me t. Be cause there was no e vidence

of a dea l or leni ency toward a

witnes s at tria

l, we c annot

conc lude there is a reasonabl e likelihood that the omissio n of the req ueste d charge affected the ou tcome of the proceedin gs. (c) Finally , appe llant a rgues tha t trial counsel provided ine ffe ctive assistan ce by failing to adequately prepare for trial, a

nd more specifica

lly , failing to inter view pot ential

witnes ses. Even assu

ming, arguendo , that de fense counsel ’s prepara

tion const ituted de ficie nt perform

ance, appell ant

has failed to showthat counsel’ s performance preju dicially affected him. 2 See Goodwin v. Cruz-Padillo , 265 Ga. 614, 614-615 (458 SE2d 623 ) (1995) . Appel lant presented no evidence of wh at further investiga tion by c ounsel wo uld have revealed and failed to identify any witnes s not interv iewedby defense couns el whose testimony would have been favorable to appellant. Absent a proffer of what evidence would h ave been discovered had other witn esses been14

intervie wed, appellant cannot show that th e failure to inter view them affected the outc ome of

trial. See id. Accordingly, his cla im of ineffectiveness on this assert ed ground fa

ils. Judgme nt affir

med. All the

Justice s concur .

Decid ed April

22, 2014. Murder. Glynn S uperior Cou rt. Before Judg e Lane. Earle J. Dunc an III , for appellant. Jacquelyn L. Johnson , District Attorne y, Andrew J. E konomou, Assista

nt District Attor ney, Samu el S. Olens, Attorn ey General, Patricia B. Attaway Burton, Deputy Attorney Gener al, Paula K . Sm ith, Senior Assistant Atto rney General, Katherine L. Iannu zzi, Assistant Atto rney General , for appellee.