1 Harris was killed on June 16, 2006. On August 21 , 2006, a Telfair County g rand jury indicted Dubose, along with Lamont Armstrong and Shenerica Clark, for malice murder. Dubose was tried alone before a jury March 27-30, 2 007, foun d guil ty of felony murder while in the commission of aggravated assualt, and on March 30, 2007, was sentenced to life in prison for that crime

. Dubose moved for a new trial on April 23, 2007; he amended the motion on August 11, 2009, February

9, 2010, February

10, 2010, February

11, 2010, and finally on Marc h 30, 2010. On June 17, 2013, the motion, as amended, was de nied. On July 12, 2013, Dubose filed a notice of appe al; the appeal was docketed in this Court for the September 2013 term and submitted fo r decision on the briefs. FINAL C OPY 294 Ga. 579 S13A184 2. DUBOSE v. THE STATE

. H INES , Presiding Justice. Kenneth Dubose appea ls from

his convi ction a

ndsenten ce for t

he felo ny murder of Rosco e Harr

is, whil e in the

comm ission of agg ravated assault

. For the reas ons t hat fo llow, w e affir m. 1 Construed to support t

he verdi ct, the

evidenc e showe d that Du bo s e was

an associate of La

mont Armstrong, who was the brother of Harris’s wif

e. O n June 9, 2006, a fter se eking him for more than a year, law enforcement o fficer s arrested Armst

rong on a vari ety of d

rug and assault charg es. Harris worked as

a jailer f or th e Telfair Count y Sheri ff, and Armstro ng con sider ed him to blame for Armst rong’s arrest. A fter the arrest , Shene rica C lark, A rmstron g’s girlfrie nd, moved into Harris ’s home ; she ke pt in cont act w ith Arm strong, w ho2

had secured a

cell p hone desp ite bei

ng in jail . At le ast onc e after Arms trong’s arrest, Dubose was i nside the Harris home with Clark. On the night

of the shoo ting, Dub ose we nt into Ha rris’s hou s e, and into the ma ster be droom, whereHarris, his wife, and baby were asleep; Harr is was position edwith his head at thefoot of the bed, towar d the door. Du bose turned

on the light, and fatally

shot Harris once in the hea d; he then fle d throughthe living room

of the hous e and out

the front do or. Harris’s wi fe, who had taken

a powerful pain-relieving pill, awoke to find the bedroom light on, a nd Harris

on the bed; he had a bu llet hole in his h ead and was posit ioned as though h e had sat up from lying down, and was fall ing back. Armst rong testified that, b y cell phone, he d irected Dubose to go to Harris’ s home on

the night of the

shooting to s careHarris by shootin g him in the leg; shor tl y before the shooting, Arm strong told Clark t o open the door to the house. C ell phone

records showed numerous calls betwe en the c ell phone s of Clark, Dubose, and Arm strong bef ore and a fter the

shooting. Clark testifi ed that

she did not

open thedoor to the house an d did not know how Dubose

entere d. She als o testif

ied tha t Dubose calle d her just

before the shootingand asked her why th e children in th e house were still u p; she then2 Miranda v. Arizona , 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 3 took at least one child to a

bedroom and went to her ownbedroom and cov ered herhead w ith blank ets, a s she knew t hat Dubos e would s oon shoot Ha rris. When the shot

was fired, she emerged fro m the bedroom, asked a child what had happene d, and saw

a ma n running from

the house; she

could not s ee his f

ace, but identified Du bose by his “ body figu re.” After being given his Miranda 2 warn ings , Dubose gave a cust odial state ment to Agent Durden of the Georgia Bu reau of Investigation; in it, D ubose admitted shooting Ha

rris for fe ar of Arm stron g, but said he th ought he was shootinghim in t

he leg, as it w as dark in the be droom. At trial, Dubose produced an alibi witness who testif ied that he went to Dubose’s residence to buy marijuana a

nd was conversing there with him during th e time t hat Harris

was killed; Dubo se testified that he had no t ment ioned thi s witne ss to Durden, believ ing that the

informa tion was best sa

ved for his defense

attorney. Dubo se also testifi ed that

he was approac hed about shooting Ha

rr is to s carehim, b ut refused , and tha

t on the ni ght of theshoot ing, h e had lent his cell phone to Quinton Johnekin s; by the time law enforcement o fficer s arrived at his r esidence afterthe shooting, John ek ins had re turned to the res idence and thecell p hone3 Jackson v. Denno , 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

4 The recording was not transcribe d.

5 Extraneous noise makes Dubose’s speech on the recording unclear.

6 Ina prior interview, Dubose, who was 21 y ears of age, had expressed the desire to speak with his mother. 4 was then insi de the r esidenc e. He also testifi ed that

he was lyingwhen he told Durden that he ha d attem pted to sh oot Harr

is on an e arlie r date, but did not when a child appeared outside th e home. 1. The ev ide nce a

uthorize d the jury

to find Dub ose gui lty bey ond a reasonable doub t of th e crime of which he was con victed. Jackson v. Virginia , 443 U. S. 307 (99 SCt 2 781, 61 LE 2d 560) (1979). 2. Dubose c ontends th at thetrial c ou rt erred in denying his motion to suppress the writte n state ment h e gaveto Agent Durden on

June 18, 2006. An audio recording of the i nterview dur ing which th e statement was made was introdu ced

at the Jacks on v. De

nno 3 hearing

and pla yed for the court, and th en introdu ced

into evidence at tr ial and played for the jury. 4 Duringthe interview, Dubose apparently as ked whether Durden 5 could “fin d out abou t giving me a lawyer now. I c an’t talk to nobody . I don’t even t hink my mama (and th em) know whereI’m at.” 6 Durden assure d Dubose t hat his pa rents did know whe re7 The rec ording i s not clea r on this po int. 5 he was, told Dubose that lawye rs “come around” through the

jail, and tha

t he could talk wi th one. D urde n th en said that, since Dubo se had “mentioned talking to a lawyer, ” the rules were “clear,” a nd that if Dubose wanted to talk to

a lawye r before speaki ng with Durden any fur ther, D urden nee ded to “m ake sure they w ere clear on that”; he also said that if Dubose was asking for a law y er , Durden neede d to stop talkin g to Dubos e, but if Dubo se wanted to talk more, Durden needed to make

sure they were “clear on that.” Dubose apparently asked what D urden woul d do in his place, 7 and Durden said tha t he cou ld not discuss that unti l it wa s clea r whether Dub ose was as king for a lawye r, or wished to talk f

urther. Dubose r esp onded tha t he woul d talk fur

ther, w as not askingfor a law yer ri ght now, bu

twas “gonna

need one eventua lly,” and tha t he and Durden could talk more. Later in this int erview, Dubose si gned a document stating t h at: he was threa

tened with being killed if he did not coopera te with Armst rong; on Arms trong’s instructio ns, he shot Harr is in what he beli eved to be the leg; it was dark in the room in wh ich he shot Harr is; and, Clark h ad informed him by cell ph one that Harris was inside the ho me. Dubose contends that he invoked his right to c ounsel, that at that point,6

Durden should h ave ceased the int erview, and that everyth ing that tran spired during the interview, including the w ritten state me nt, should have been suppres sed. See Edwards v. Arizon a , 451 U. S. 477 , 484-485 (II) (101 SCt 1880, 68 LE 2d 378) (1981).

A suspect

who asks f

or a law yer a t any time du

ring a custodial interrog ation m ay not be subjected to further q

uestioning by l aw enf

orcem ent until

an att orney ha s been made a vailab le or until the suspe ct rei

nitiate s the convers ation. If the police persist in questioning a suspect who has requeste d that counsel be present, any resulting state ments made by the s uspect are inadmissible in the Sta te’s case -in-chief. In order for a suspect to properly invoke his right to counsel during a custodial interrog ation, he must articula te h i s desire to have counsel pre sent sufficiently cle arly that a reasonable policeoffice r in the circum stance s would understand the state ment to be a request

for an a ttorney . (Cita

tions and punctua tion omitted.) [Cit.] Willis v. State , 287 Ga. 703, 704 (2) (699 SE2d 1) (2010 ). “‘An invoc ation m ust be clear and unam

biguous; the

mere menti on of the wo rd “attor ney” or “lawy er” without more, does not a

utoma tical ly invok e the right to counsel.’ [Cits .]” Reaves v. State , 292 Ga . 582, 586 ( 2) (b) (740 SE 2d 141) (2013). [I]f the def endant “ make s reference to an at torney that is a

mbiguous or equivoc al in tha

t a rea sonableoffice r i n light of t he c ircumstances would have understood only that the suspect might be invoking the

right to c ounsel, ” ces sation of the que stioning is not require d. Davis v. United Sta tes , 512 U. S. 452, 459 (114 SC 2350, 129 LE2d 362 ) (1994).8 “[F]ollowing a Jackson v. Denno hearing, this Court will not disturb the trial court’s factual and cred ibility dete rmina tionsunle ss the

y a re cl earl y e rron eous . [Cit. ]” Wrigh t v. State , 285 Ga. 428, 432 (2) (677 SE2d 82) (2009). Although the issue of invocation of the right to counsel was not the focus of the Jackson v. Denno hearing, in ruling on Dubose’s motion, the trial court stated: “I find no problems with Miranda warnings being given a t the appropriate opportunity a nd the waiver f

orms indicating that the defendant did not want a lawy er. There is no indication he ever as kedfor a lawyer.”

9 Then OCGA § 15-6-18 read: (a) If f or any cause it shall or ma

y be imp ractica

ble to hold any session or 7 Fitz v. State , 275 Ga . 349, 353 ( 3) (b) (566 SE 2d 668) (2002) (Emphasis supplied)

. Such an uncl ear re ferenc e to an a ttorney is what occurre d here. Dubose’s menti on o f a l awyer was c oupled with what appeare d to be a renewal of his request to spea k with his fami ly, a

nd it was uncert ain what he was

comm unicating; Dur den procee ded to c larify that unc ertai nty, a

nd Dubose clearly state d that he

did not wis h to spea

k with a lawye

r at tha t point, b ut anticipated wantin g one later. See Reaves , supra a t 586-587. 8 3. At the ti me of

trial, the Te lfair C ounty co urthouse w as under going renovation, the courtroom availa ble therein

wa s deem ed inade quate, and consequently

Dubose’s trial w as held in the Whe eler C ount y cour thouse. OCGA§ 15-6-18 , as in effect at the tim e of tria l, and s pecifi cally

OCGA § 15-6- 18 (c) (1), 9 required essentially two things for a cr

iminal trial

in a cou nty thesizesitting of any super ior or state court at the courthouse or other place provided by law therefor, it shall be

lawful to hold cour

t and any session or

sittin g thereof a

t such place as the pr

oper aut horities o f the cou

nty in and for

which the

court is to

be held may from time

to time provide for such purpose, provided that exce pt as prov ided in subsection(b) of this Code section no session or sitting of any superior court may be hel d under thi s subsection at any plac e other than the county site of the county of such court. (b) The provisions of this subsection shall apply only in a county in which there exists a state court with one or more courtrooms regularly utilized by

the state court outside the county site. I n any such county

any session of

superior court may be held o utside the county site in a courtr oom of the state court, subject to the following condition s and limita

tions: (1) The senior judge or chief judge of superior court (such terms meaning

the activ e judge

who is senior in

time of se rvice) must enter a written

order for such

session of

superior court to b e so held outside the county site, and such or der must incorporate a wri tte n finding that it is impractica ble for the session of court to be held at the count y si te; (2 ) A judge of the state court must enter a written orde r consenting for such session of superior court to be held in the courtro om of the s tate cou rt; (3) The holding of superior court sessions shall not affect the place of filing of documents to be filed with the superior court, except for do cuments filed in open court which may be filed where t

h e session of court is held; and (4) Any state cour

tmaking courtroom spaceavailable to the superior court under this subsection sha ll be authorized under the same rule s to hold sessions of state court in facilities of the superior court. ( c) Notwithstanding the provisions of subsections (a) and (b) of t his Cod e section: (1) In each county of this state having a pop ul ation of not more than 50,000 according to the United States decennial census of 1990 or any future

such census, if for any

cause it shall or may be impractical to hold any session or sitting of any super

ior or state court at th e c ou rt ho us e o r o th er pl ac e p ro vi de d b y l aw theref or or if it should appear to the governing a uthority of the county

that the b est intere st of the pub lic would b e serve d by the furn ishing of alterna te or additional facilities for the holding of any session or sitting of any superior or state court, it shall be lawful to hold court and any session or sitting thereof at such place or places a s the governing authority of the county in and

for which the court is to be held may fromtime to 8time, by appropria te resol ution , provide for such purpose, provided that no session or sitting of any supe rior court or state court may be held under this subsection at any pla c e that is not open to and access ible by the public; provided, furthe r, that no criminal jury

trial shallbe conducted in such alternate or additiona l facility without the consent of the accused; and (2) In e ach cou

nty of this state where the county site is located in an unincorporated

area of the count y a nd the g overning

authority of su c h county

determines by

appropr iate res olution tha

t the best interest of the citiz ens of such county would be served by the constructionof

a courthouse annexor satellite courthouse outside the county site, it shall be lawful to hold any session or sitting of superior or state co urt or g rand jur y a nd to cond

uct all other re lated bus iness of the courts at such annex or satellite courthouse. (d) All acts of a superior court or state court done at a place provided therefor by the count

y a uthoritie s, other than at the county cour thouse or other place of holding such court as fixed by law, sha ll have the same force and effe ct as if the same had been done at the regular courthouse or other plac e fixed by law for the holding of such court, includingthe satisfaction of the requirements of Code Section 15-6-17.

9 of Telfair County

to be he ld in a lo cation

other tha n the co unty cou

r thouse o f that county: provision fo r such a l ocatio n by the proper governing auth ority of the county, and theconsent of the accused. Althoug h the record sh ows that Dubose consented to the move, nothin g in the record on appeal sho ws a proper resoluti on b y the County B oard of C ommi ssioners authoriz ing the a ction. However, a failure to show full compl iance with the n-OCGA

§ 15-6-18 (c ) (1) does not esta

blish rev ersible

error; ha rm from the

irregula rity m ust also b e shown. Goodman v. State , 293 Ga. 80, 83 (2) (742 SE2d 719 ) (2013)

. Dubose fa

ils to show

any such harm. In this Court, Dubose a sserts that,10

had trial been held in the Telfair Count y c ourthou se, certain evidence that appellate couns el beli eve s might have been us eful would h ave been readily at hand. However, he ra

ised the issue of n oncompl iance

with the n-OCGA

§ 15-6- 18 (c) (1) in an amendment to his motion for new trial, but at the hearin g thereon , he produc ed no evi de nce that th e conduct of his trial was ne gatively impactedby the c hange in locati on, and thus fa

ils to es tablish any ha

rm thereby. 4. Dubose a sserts t

hat, a fter tri al, the

State destroy ed a vid eotape from a convenience store tha

t depic ted a

police informant and an other perso n together

near the timeof the m

urder, a nd posits th at theState destroyed the videotape to protect the inf

ormant, who was the tr ue killer of Harr is. In dealing with th e failure of the s t ate to preserve evid ence which might have exonera

ted thedefenda

nt, a c ourt

must determi

ne both whether the evidence was material and whether the [State ] acted in bad faith in failin g to preserv e the evidence. Arizona v. Youngblood , 488 U.S. 51 (109 SC 333, 102 LE2d 28 1) (1 988). To mee t the standar dof consti tutional

materialit

y, the evidence must poss ess an exculpa tory value t hat wa s appare

nt before it was destroy ed, an d be of such a na

ture tha t the de fendant would be unable to obtain comparableevidence b y o ther re asonably ava ilable mea ns. Cal ifornia v. Trombetta , 467 U. S. 479 (104 SC2528, 81 LE 2d 413) (19 84). [Cit.] Clay v. State , 290 Ga . 822, 841- 842 (5) (C) (725 SE2d 260) (2012). A nd10 The court also instructed the jury on the law of parties to a crime. 11 Dubose fails to sho w either materiality of the evi dence or bad faith by the State. No evidenc e was p resent ed that the cl aime d inform ant ac tually appea red on the videotape; the tape was a vailable at trial, and

trial counsel testifie d that, to his recoll ection , the tape quality was suc h that not

hing of value could be d iscerned from it. Furt her, Du bose fai ls to show t

hat theState acte d in bad faith in destroying the tape. Id. 5. The trial court in structed the ju ry on the law of witne ss identi fication and that it was for th e jury to deter mine w hether, under the

facts and circumstances of the case, wi tnesses “sufficiently ide ntif[ie d] the d efenda nt beyond a reasona ble doubt a s the pe rpetra

tor of theallege d crim e or that he was

a party to it.” 10 Dubose c ontends the reference to being a party to the crime was

error because no eyewitness id entified anyon e but Dubos e, and that identifi cation

was simply fa lse. However, in addition to her testimony tha t it

was Dubose sh e saw r

unning from the h ome im media tely a fter the

shooting, Clark testified that Dubose ca

lled her cell phone shortly beforethe shooting and asked why the children we re still u p. Thedefense attac ked the credibi lity of Clark’s eyew itness identification, elic ited testimony tha t Harris’s nine-year-old11 OCGA § 17- 8-57 rea ds: It is error for any

judge in any

criminal case, during its progress or in h is charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision

in the ca se reve

rsed, an d a new tr ial gra nted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully g ive. 12 stepdaught er

had give n a desc ription of t he ma n who ran f

ro m the hom e that conflicted with Clark’s identif icati on and with Du

bose’s appearan ce, and argued that this discrep ancy helped establis h reasonable do ubt. G iv en Cla rk’s testimony regarding Dubose’ s tele

phone call immediate ly befo re the shooting, the jury co uld inf

er that, even if her eyewitn ess identificati on of him was incorrect, he was working in conce rt with so meone else in an att empt to ensure that the chi ldren were not in a position e ither to be harmed wh en Harris was shot, or t o serve as witn esses. Accor dingly, the portion of

the jury instruct ion referr ing to Dubose be ing a party to the crime was autho rized by the eviden ce. See White v. State , 289 Ga . 511, 513 ( 2) (712 SE2d 834 ) (2011); Mallory v. State, 271 Ga. 150, 152-153 (4) (517 SE2 d 780) (1999). Nor didthe court’s d eterm

ination regardin g what ju ry instr uctions w ere authorized by t he evide nc e amount to a comment upon t he evidence. See OCGA§ 17-8-57. 11 That “‘sta tu te is vio lated o nly whe n the tri al cour t’s13

instruct ion, considered as a whole, assumes certain th ings as facts and intimates to the jury wha

t the judge believes t he evidence to be.’ [Ci t.]” Simmons v. State , 291 Ga. 705 , 708 (5) ( 733 SE2d 280) (20 12). The court i nstructed th e jury that

no ruling, comment, or

facial expression of the court’ s was intended t o convey

an y opinion of the evidence, and if the jury had so construed any such ruli ng , comment, or faci al expr ession, it was to put tha t impre ss ion a side. Viewed in

c ontex t, no reas onable j uror would c onstrue t he court ’s instruc tion on identifi cation

to be a comm ent upon th e evidence. Id. 6. Finally, Dubose co ntends tha t his tria l counse l faile d to provide effec tive representation in several respects. In ord er to prevail on such a claim, he must sho w both tha

t counse l’s perfo rmanc e was d efici ent, a nd that th e defici ent performance was prejud icial to his defens e. Smith v. Francis , 253 Ga. 782, 783 (1) (325 SE 2d 362) (1985), citing Strick land v. Washingt

on , 466 U. S. 668 (104 SCt 205 2, 80 LE 2d 674) (19 84). To me et the first prong of the required test, he must overcome the “ strong presum ption” th at couns el’s performance fell wi thin a “w ide ran ge of reasonable professi onal con duct,” and that counsel’s d ecisions were “made in th e exercise of reasonab le professio nal judgment.” Id. The

reasona bleness o f counsel’ s conduct is exam ined from14

counsel ’s perspec tive at

the tim e of

trial and und er

the particular circu mstances of the case. Id. at 784. To meet the second prong of the test, he must show that there is a reasonable probabil ity tha t, absent any un

professi onal er

rors on counsel ’s part, the result o f his trial would have been different. Id. a t 783. “‘We

acce ptthe trial court’ s factual findi ngs an d credibi lity de term inations unless clearly erroneous, but we independently apply the legal pri nciples to th e facts.’ [Cit.]” Robinson v. State , 277 Ga. 75, 76 (586 SE2d 313) (20 03). (a) Dubose contends trial counsel wa s ineffective in not fully arguing th at the trial court should

suppress any and all statements made after he contends th at he invoked h is right to counsel. See Divis ion 2, sup ra. Howev er, as outlined above, id., Dubose made no cle ar invocation of his right to c ounsel, and thus a ny failure to make this argument does no t provid e support f or findin g trial couns el ineffective. Nations v. State , 290 Ga . 39, 44 (4 ) (d) (717 SE 2d 634) (2011). (b) Evidence of Dubose’s interview s wit h D urden wa s prese nted to th e jury by playing audio recordin g s of them . At ti mes du ring the intervie ws, Durden told Dubo se that he knew Dubose was not telling the truth, and related to Dubose what was said durin g the investi gation by oth er persons w

ho did not testi fyat trial. Dubose n ow contends t hat trial couns el should h ave moved t o15

redact these statements. See Axelburg v. State , 294 Ga . App. 612, 615-617 (2) (669 SE2d 439) (20 08). First, trial counsel tes tified duri ng the hearing on the motion f or new trial that he wan

ted thejury to un dersta

nd “how m

uch browbe ating, how much interrog ation”had taken place. Given th e evidence trial coun sel had to combat, including the statement Dubos e had given Dur den, Dubose fa ils to sho w that this was an unreasonab le strategy. See W oods v. State , 291 Ga . 804, 808 ( 2) (733 SE2d

730) (2012); Lambert

v. State , 287 Ga . 774, 776 ( 2) (700 SE2d 3 54) (2010). Further, Dubose fails to show prejudice from the fa ilure to move to redact the intervi ews. “ It is true

enough that, g enerally spe aking, ‘ [a] tr ial wit ness may not give opini on testimony on ultimat e mat ters within th e jury's prov ince, including the def endant’ s credibility.’ [Ci t.]” Butler v. State , 292 Ga . 400, 405 (3) (a) (738 SE2d 74) (2013) (Footnote omitted). But an interview er in Durden’s position is not offer ing opinion t estim ony , but fa ct tes timony about what was, in fact, said durin g the in terviews, even though such statements themselves contained an opinion . As we have e xplaine d be fore, “law16

enforcement

interrogations are, by the ir very nature, a tt e mpts to determ ine the ultimate i ssue and the credibility of witnesses.” [Ci t.] “Comments made in such an interview and designed to elici t a response from a suspect do not am ount to opini on testimony, even w hen [testimony reflectin g] the comments is admitted at tri al.” [Cits.] Id. at 406 . To the ex tent th at Dubo se now argues that th e stateme nts sh ould have been redac ted beca

use the y were

“without p robative

value o r [were ] too prejudic ia l to be ad

mitte d,” id. , he fails to show such. There w as proba

tive value in explaining why

Dubose’s version of

events change d, and, under the circum stance s, any re asonabl e juror w ould have expec ted tha

t Durden did no t believ e Dubose ’s earl ier ver sions of e vents. Id. at 4 06-407. (c) Dubose c ontends th at trial counse l should ha ve objecte d to what

he describes as the illegal seiz ure of his cell phon e when he first went to the police station. However , “‘[w]hen trial counsel’ s fai lure t o file a motion to suppress is the basis for a cl aim of

ineffe ctive a ssistanc e, the defenda ntmust make a strong show ing that t

he dam aging ev ide nce wou l d have been suppress edhad counsel made the motion.’” Biggs v. State , 281 Ga. 627, 631 -632 (64 2 SE2d 74 ) (2007) (citation omitted ). Williams v. State , 290 Ga . 533, 535 ( 2) (a) (722 SE2d 847) (20 12). And Dubose fails to me et this b urden; a lthough Dubo se test ified a t the he aring on t

he motion12 The substa nce of th e stepda

ughter ’s sta

te ment to the investigator was placed before the jury throu gh the cross-examination of a different investigator, and trial counsel argued that it contributed to showing reasonable doubt. See Division 5, supra. 17 for new trial, he d id not addr ess this iss ue. As the trial court noted in its order

on the m otion for

new tri al, the

evidenc e rega

rding thecell p hone’s a cquisiti on bylaw enforcement officers presented at trial, wh ich rel ated to the cha in of custody , did not sh ow that i t was il legall y seiz ed. (d) Dubose c ontends that trial c ounsel shou ld have secure d the te stimony of Harris’s nine-year-old

stepda ughter, or of the law e nforcement inve stigator who interviewed her. D ubose spe culate s that she could ha ve testifi ed that

she knew him and did not recognize him as the person she

saw on th e night of

the murder

. However, he did

not prod uce either the stepd aughter or the inv estiga tor to present evidence during the hearing on the m otion for new trial, and thus fails to show a re asonabl e probabi lity tha t the outcome of his trial would have been differentif trial counsel had secured the testimony of e ither witn ess. Se e Crowder v. State , 294 Ga . 167, 169 ( 3) (751 SE2d 3 34) (2013). 12 Similarly, to the extent that Dubose c ontends that trial counsel faile d to investigate other crimes committed by oth er persons , so as t o show tha t those persons could

have c ommi tted the

murde r of Harr

is, he has failed to p lace such18

evidenc e in the

record, and

thus fails t o show a reasona ble proba bility t hat the outco me of his tri al would have b een different if trial counsel h ad acted as Dubose now

contend s he should

have. Id. Judgme nt affir

med. All the

Justice s concur .

Decid ed Februa

ry 24, 201 4. Murder. Telfair Superi or Court. Before Judge Mul lis. John G. Wo linski, J imm onique R. S. Rodge rs , for appellant. Timot hyG. Vaughn, District A ttorney , Joshua W. Powe ll, Ass istant District Attorne y, Sa

mu el S. Olens, Attorn ey General, Patricia B. Attaway Burton, Deputy Attorney Gener al, Paula K. S mith, Senior Ass istant Attor ney General, Ryan A. Kolb, Assis tant Attorney Gener al , for appellee.