McKelvey v. State ( 2021 )

In the Supreme Court of Georgia
Decided March 1, 2021
S20A1548. McKELVEY v. THE STATE.
LAGRUA, Justice.
Appellant Sacorey McKelvey was convicted of murder and
other crimes in connection with the shooting death of Corey Owens.1
On appeal, McKelvey contends that the evidence presented at trial
was insufficient to support his convictions; that the trial court erred
by admitting into evidence his 2009 convictions for terroristic
threats; that the trial court erred in striking two potential jurors for
1 The crimes occurred on April 24, 2014. In March 2015, a Muscogee
County grand jury indicted McKelvey for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony. After a trial in July 2017, the jury found McKelvey guilty of all counts.
The trial court sentenced McKelvey to serve life in prison without the
possibility of parole for malice murder and a five-year consecutive term for the
firearm- possession count. The other counts merged or were vacated by
operation of law. McKelvey filed a timely motion for new trial in September
2017, which he twice amended through new counsel. After a hearing, the trial
court denied McKelvey’s motion on March 4, 2020. McKelvey filed a timely
notice of appeal, and his case was docketed to the August 2020 term of this
Court and submitted for a decision on the briefs.
cause; and that his trial counsel rendered constitutionally
ineffective assistance by failing to call two alibi witnesses. For the
reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following: Owens had a
biological brother, Gregory Owens, and a step-brother, Matthew
Mungin. Elexis Cooper is the mother of Gregory’s children. In
March 2009, McKelvey confronted Elexis and her cousin after an
altercation between their families, pointing a gun in Elexis’s face
and threatening to kill her. Following this incident, McKelvey was
arrested and incarcerated. On November 17, 2009, McKelvey
pleaded guilty to three counts of terroristic threats and was
sentenced to three concurrent probated terms of five years.
On April 22, 2014, McKelvey ran into Owens and told him he
wanted to meet with Owens, Gregory, and Mungin. That evening,
Owens, Gregory, and Mungin met McKelvey in a field adjacent to a
group of apartment homes on Adair Avenue in Columbus. People
who frequent this area often refer to it as “Adair.” Soon after
2
meeting the brothers, McKelvey got angry and started talking about
his past “trouble for a pistol charge” – referencing the 2009 incident
with Elexis. McKelvey told the brothers that they “owed” him
money or drugs for what happened in 2009, blaming Gregory, in
particular, for McKelvey’s arrest, incarceration, and inability to get
a job. Gregory said they owed him nothing, and McKelvey pulled a
gun and aimed it at Gregory’s face. Gregory charged McKelvey, and
the two fell to the ground fighting. Mungin and Owens joined in,
trying to wrestle the gun away from McKelvey. Ultimately, Mungin
was able to get the gun away from McKelvey. McKelvey told Mungin
he was going to get another gun and come back. McKelvey then ran
away, saying he was going to kill all of them. The brothers
immediately left the area.
Elexis’s mother, Debra, witnessed the incident in the field from
her apartment. Debra, who has known McKelvey since he was a
child, testified that she saw him tussling with Owens, Gregory, and
Mungin and heard someone say “he got a gun,” referring to
McKelvey. Debra said the brothers “wrestled [McKelvey] down and
3
took the gun.” Everyone then scattered and left, and Debra heard
McKelvey tell the brothers that he “was going to kill them all.”
Later the same night, Debra was standing on her back porch
when she saw McKelvey approach with a gun. McKelvey was angry,
and Debra tried to calm him down, encouraging him to “just leave it
alone, . . . just let it go.” McKelvey told her he “had to kill them;”
she understood “them” to mean Owens, Gregory, and Mungin. 2
McKelvey then mentioned Debra’s daughter, Elexis, and the fact
that Gregory lived with her. Debra got upset, explaining that Elexis
had nothing to do with what happened earlier that day. Debra
called Elexis and made McKelvey speak with her. McKelvey told
Elexis he would not go to her house “with the mess,” but he was
going to kill Owens, Gregory, and Mungin. 3 When Debra saw
McKelvey again the next day, he confirmed he would not go to
2 Debra testified that earlier the same night, McKelvey kicked in the door
of an apartment in Adair where the brothers hung out and sold drugs, but no
one was in the apartment at the time.
3 After Elexis spoke to McKelvey, she contacted the police to report his
threats against the brothers. A day or two later, Elexis also contacted
McKelvey’s probation officer to report the threats.
4
Elexis’s house. For the next couple of days, Owens, Mungin, and
Gregory stayed away from Adair and their apartment because,
according to Mungin and Gregory, they continued receiving threats
that McKelvey was going kill them.
On April 24, Mungin spoke to Owens on the phone between
1:00 and 2:00 p.m. Owens indicated that he was going to Adair to
pick up his children and would call Mungin when he returned to his
house. At 1:28 p.m., McKelvey picked up his paycheck from the
construction company where he worked. Debra McNeil, the owner
of the company, gave McKelvey his paycheck and observed that he
was dressed in all black. McKelvey was accompanied by Kazarita
Piatt, his sister’s boyfriend. From McNeil’s position in the front
office, she had a view of the parking area, and she noted McKelvey
was traveling in a black car with tinted windows. McNeil’s husband,
David, was in his truck in the parking lot at the same time and also
noticed that McKelvey was traveling in a compact, black car with
tinted windows. After getting his paycheck, McKelvey and Piatt left
in the black car.
5
The same afternoon, Martin DeJesus and Nigel Staples were
walking in Adair near the intersection of Wynnton Road and Adair
Avenue when they saw a black car pull up. A man with dark skin
and shoulder-length dreadlocks jumped out of the car and hid
behind some nearby poles. About ten minutes later, DeJesus saw a
white SUV travelling towards the intersection where the man was
hiding, and at that point, the man came out from behind the poles
and “went to shooting.” The man fired towards the SUV a couple
times and then approached the car, continuing to shoot. Staples
yelled out, and the man looked at them, ran to a church around the
corner, and disappeared. DeJesus went up to the SUV and saw a
man – later identified as Owens – seated in the driver’s seat,
bleeding from gunshot wounds and struggling to breathe. DeJesus
was interviewed at the scene and then taken to police headquarters,
where he identified McKelvey from a photographic line-up as the
shooter. Prior to that day, DeJesus had never seen McKelvey or
Owens.
6
Adair resident Gwendolyn Woodson also witnessed the
shooting. She was walking down Adair Avenue towards Wynnton
Road that afternoon when she saw Owens driving a white SUV. She
then saw a man, whom she recognized as McKelvey, run alongside
Owens’s SUV, shooting at Owens. McKelvey ran across the street
in front of Woodson towards a nearby church, and as he passed her,
he turned around to shoot at the SUV again. Police later showed
Woodson a photographic line-up and she identified McKelvey as the
shooter. In the picture, McKelvey wore dreadlocks. Woodson was
familiar with Owens and McKelvey, having known Owens for a long
time and recognizing McKelvey “from the streets.”
Another witness, Betty McMiller, was in a nearby apartment
in Adair at the time of the shooting. McMiller testified that she
heard multiple gunshots and then saw a man with dreadlocks,
dressed in black, running away from the scene around the back of
the church.
Dominic Cobb was also in the area at the time. Cobb, his wife,
and some friends were driving through the Adair neighborhood
7
when they observed “a black male in all black” with dreadlocks
standing in front of the Adair Apartments. Cobb saw the man pull
out a handgun, heard gunshots, and turned to see a white SUV
driven by Owens, a childhood friend, slam on its brakes as it was hit
by gunfire. Cobb saw the shooter “empty his gun out” on Owens’s
vehicle. Cobb then saw the shooter run up to the intersection of
Wynnton Road and Adair Avenue and jump into a black Pontiac
“Trans Am.” Cobb told his friend to follow the car and asked his wife
to call 911. During the 911 call, which was placed at 1:50 p.m.,
Cobb’s wife provided a partial license plate number for the vehicle,
a description of the vehicle, and a description of the shooter. Later
that afternoon, Cobb was interviewed by the police and confirmed
that prior to April 24, he did not know and had never encountered
McKelvey.
Police officers and emergency personnel responded to the scene
of the shooting, where they found a white SUV in the middle of the
roadway near the intersection of Adair Avenue and Wynnton Road.
Owens was still seated in the driver’s seat of the SUV and was non-
8
responsive. Emergency personnel transported Owens to the
hospital, where he later died from a gunshot wound to the head.
Investigators at the scene noted that there were multiple bullet
holes through the driver’s-side windows and doors. Officers
searched the area, but did not recover a weapon. 4
At trial, an officer with the Columbus Police Department
testified that she checked the partial tag number provided by 911
dispatch and received a hit for Georgia license plate number
PRW6200; associated with a 2003 black Pontiac Grand Am
registered to Okevia McKelvey, McKelvey’s sister.
Police were immediately dispatched to Okevia’s address, where
they located the Grand Am. The hood of the car and brake rotors
were hot, as if the car had just been running. Okevia gave consent
to a search of her apartment and said the Grand Am had not been
moved since that morning. Officers did not find anyone matching
the description of the shooter inside the residence. Inside the Grand
4 Law enforcement never located the gun used to shoot Owens.
9
Am, officers found McKelvey’s April 24 paycheck on the center
console.
Billy Moss, who dated McKelvey’s mother, Michelle, spoke to
McKelvey on the afternoon of April 24 when McKelvey was picking
up his paycheck. Moss testified that later the same afternoon,
between 2:00 and 4:00 p.m., Michelle received a phone call, became
very upset, and fainted. Moss later learned about the shooting in
Adair and that McKelvey had left Columbus to avoid the police.
Shortly thereafter, Moss saw McKelvey with Michelle in Phenix
City, Alabama.
On April 25, warrants were taken out for McKelvey’s arrest,
and officers began searching for him. In early June, based upon
information Moss provided, law enforcement located McKelvey at a
Columbus residence. McKelvey fit the description the eyewitnesses
had provided, including wearing his hair in long dreadlocks. When
officers first apprehended McKelvey, he gave them a false name, but
he soon admitted his true identity.
10
On the night of his arrest, McKelvey agreed to waive his
Miranda 5 rights and give a statement to the police. During the
interview, McKelvey admitted that a couple days before the murder,
he was in a fight with Owens, Gregory, and Mungin and had his gun
taken away from him. He told the police that he never liked the
brothers because “they sent me to jail on some bulls***.” He claimed
that during the meeting, the brothers “surrounded” him, “jumped
on” him, and “grabbed [his] strap.” McKelvey stated that he
returned on the same day of the altercation “ready to fight,” but the
brothers “were nowhere to be found.” He acknowledged that he
spoke to Debra that night and asked her to tell the brothers to bring
his “strap” and “come on back.” McKelvey was angry that his only
gun was taken because it was “hard as s*** to come up on,” and “it
was a blessing” that he had it. McKelvey said he wanted his gun
back, so he decided when the brothers came back to Adair he would
“catch them one by one” and “whoop their motherf****** a**.”
5 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
11
McKelvey stated that at the time of the murder on April 24, he
was at his employer’s office and then at Okevia’s apartment,
admitting that when the police arrived, he “ran out the back door”
and “took off.” Following the interview, McKelvey was charged with
Owens’s murder and taken into custody.
On June 7, 2014, while incarcerated at the Muscogee County
Jail, McKelvey sent a written message to the deputies at the jail,
stating, “i scary for life i kill his cuz and he in here i scary for life
[sic].” When a deputy spoke with McKelvey about the message to
better understand what it meant, McKelvey explained that there
was a person in the cell with him that was a cousin of the person
McKelvey killed, and he wanted to be relocated from that cell. The
next day, deputies received another written message from
McKelvey, stating, “I scary for my cause i kill his homie boy [sic].”
2. McKelvey contends that the evidence presented at trial
was insufficient to support his convictions based upon the following:
(a) there was not enough time for McKelvey to travel from his
employer’s office at 1:28 p.m. and arrive at the crime scene by 1:50
12
p.m. because of the distance between these locations; (b) there was
no evidence to show how McKelvey knew or could have known
Owens’s whereabouts at the time of the murder; (c) the eyewitness
identifications of McKelvey as the shooter were unreliable; (d)
Owens could have been shot by another person in relation to
Owens’s drug-dealing activities; and (e) the evidence was
inadequate to establish that McKelvey sent the written
communications to deputies at the jail. We disagree and conclude
that the evidence presented at trial was sufficient to support
McKelvey’s convictions.
When evaluating challenges to the sufficiency of the evidence
to support criminal convictions as a matter of constitutional due
process, “we view the evidence presented at trial in the light most
favorable to the verdicts and ask whether any rational trier of fact
could have found the defendant guilty beyond a reasonable doubt of
the crimes of which he was convicted.” Boyd v. State, 306 Ga. 204,
207 (1) (830 SE2d 160) (2019) (citing Jackson v. Virginia, 443 U.S.
307, 319 (99 SCt 2781, 61 LE2d 560) (1979) and Jones v. State, 304
13
Ga. 594, 598 (820 SE2d 696) (2018)). Here, the evidence presented
at trial included the testimony of multiple eyewitnesses who
positively identified McKelvey as the shooter. Other witnesses
testified about McKelvey’s motive for shooting Owens, which
included blaming Owens and his brothers for his 2009 incarceration,
as well as the physical altercation that occurred on April 22,
resulting in the loss of McKelvey’s gun. Witnesses also testified that
after this altercation, McKelvey made multiple threats to kill Owens
and his brothers. McKelvey admitted that he was angry and wanted
to fight with Owens, Gregory, and Mungin after what happened on
April 22, and McKelvey also admitted to the deputies at the jail that
he killed someone.
Additionally, evidence was presented at trial to show that the
drive from McKelvey’s workplace to the crime scene could be
completed in about 15 minutes – within the roughly 20-minute
period between the time McKelvey left his employer’s office and the
time Owens was shot in Adair. 6 McKelvey’s arguments to the
6 One of the officers who testified for the State confirmed that the
14
contrary, like his other arguments concerning the reliability of the
evidence and the possibility of another shooter, were matters within
the province of the jury to consider and decide. See Lowery v. State,
___ Ga. ___ (1) (a) (851 SE2d 538) (2020).
This evidence of McKelvey’s guilt was not only sufficient for a
reasonable jury to find him guilty beyond a reasonable doubt; it was
overwhelming. See Brown v. State, 300 Ga. 446, 447-448 (1) (796
SE2d 283) (2017) (evidence, including testimony of multiple
eyewitnesses who identified defendant as the shooter, not only
sufficient to support convictions, but overwhelming). As such, this
enumeration of error fails.
3. McKelvey contends that the trial court abused its
discretion by admitting into evidence his 2009 convictions for
terroristic threats because they were not admissible as intrinsic
evidence or to prove prior difficulties with the Owens brothers or
motive under OCGA § 24-4-404 (b). We disagree and conclude that
distance between McKelvey’s workplace and Adair is approximately nine miles
– a 15-minute drive.
15
the trial court did not abuse its discretion in admitting the evidence
on this basis.
Evidence is admissible as intrinsic evidence, rather than
extrinsic evidence subject to Rule 404 (b), when it is (1) an
uncharged offense arising from the same transaction or
series of transactions as the charged offense; (2) necessary
to complete the story of the crime; or (3) inextricably
intertwined with the evidence regarding the charged
offense. Even when evidence is intrinsic, however, it
must also satisfy Rule 403. It is within the trial court’s
sound discretion to determine whether to admit such
evidence, so we review a trial court’s ruling admitting
evidence as intrinsic for an abuse of that discretion.
Evidence pertaining to the chain of events explaining the
context, motive, and set-up of the crime is properly
admitted as intrinsic evidence if it is linked in time and
circumstances with the charged crime, or forms an
integral and natural part of an account of the crime, or is
necessary to complete the story of the crime for the jury.
Moreover, intrinsic evidence remains admissible even if it
incidentally places the defendant’s character at issue.
Harris v. State, ___ Ga. ___ (2) (b) (850 SE2d 77, 83) (2020) (citation
and punctuation omitted). See Williams v. State, 302 Ga. 474, 485-
486 (IV) (d) (807 SE2d 350) (2017).
Evidence relating to McKelvey’s 2009 convictions pertained to
the chain of events explaining the “context, motive, and set-up of the
16
crime” and was reasonably necessary for the State to “complete the
story of the crime” to the jury. This evidence helped to explain why
the April 22 altercation between McKelvey and the Owens brothers
occurred and how the altercation established a motive for
McKelvey’s shooting of Owens on April 24. See Harris, 850 SE2d at
83; see McCammon v. State, 306 Ga. 516, 522 (2) (832 SE2d 396)
(2019) (concluding that the backstory explaining why one person
would decide to rob another person was intrinsic to the charged
crimes). Moreover, by McKelvey’s own admission in his statement
to police following his arrest, the April 22 altercation was, at least
in part, motivated by the fact that he blamed the brothers for his
2009 convictions. The testimony of Mungin and Gregory also
supported this notion.
McKelvey also argues that the 2009 incident was not intrinsic
to the charged crimes because it was too remote in time and did not
specifically involve the brothers; however, we have previously
recognized:
17
It is true that whether evidence is linked in time and
circumstances with the charged crime is pertinent to the
intrinsic-evidence analysis, but there is no bright-line
rule regarding how close in time evidence must be to the
charged offenses, or requiring evidence to pertain directly
to the victims of the charged offenses, for that evidence to
be admitted properly as intrinsic evidence.
Harris, 850 SE2d at 86 (citations and punctuation omitted). We
thus conclude that the 2009 convictions were sufficiently linked to
Owens’s shooting and that the trial court did not abuse its discretion
in admitting this intrinsic evidence in this case. See Clark v. State,
306 Ga. 367, 373-374 (4) (829 SE2d 306) (2019) (three-year-old
incident between defendant and victim’s wife was intrinsic to
charged crimes).
4. McKelvey contends that the trial court erred by granting
the State’s motion to strike Jurors 31 and 48 for cause over his
objection. See OCGA § 15-12-164 (requiring court to excuse for
cause any jurors determined to be “incompetent” or “substantially
impaired in [their] ability to be fair and impartial”). We disagree.
“Whether to strike a juror for cause is a matter committed to
the sound discretion of the trial court, and we will not find error in
18
an exercise of that discretion absent a showing that the discretion
was manifestly abused.” Carter v. State, 302 Ga. 685, 686 (2) (808
SE2d 704) (2017). Such discretion includes the “‘broad discretion to
determine a potential juror’s impartiality and to strike for cause
jurors who may not be fair and impartial.’” Lanier v. State, ___ Ga.
___ (4) (852 SE2d 509) (2020) (quoting DeVaughn v. State, 296 Ga.
475, 477 (2) (769 SE2d 70) (2015)). “‘A conclusion on an issue of juror
bias is based on findings of demeanor and credibility which are
peculiarly in the trial court’s province, and those findings are to be
given deference.’” Id. (quoting Peterson v. State, 282 Ga. 286, 288 (2)
(647 SE2d 592) (2007)).
During voir dire, when the prosecutor asked if any of the panel
members knew McKelvey, Juror 31 stated that he was friends with
McKelvey in middle school. When asked whether he would “be able
to set that relationship aside and decide this case based on the
evidence that’s presented,” Juror 31 answered, “No.”
Similarly, Juror 48 stated that she had gone to middle school
with McKelvey. When asked if she would “be able to set that
19
relationship aside,” Juror 48 said, “I don’t want to do it.” When the
prosecutor asked Juror 48 a second time whether she thought she
would be able to set the relationship aside, Juror 48 replied, “No sir.
Oh, no, sir.” Neither the prosecutor nor defense counsel asked any
further questions in an attempt to rehabilitate the jurors.
Following voir dire, the State moved to strike both jurors for
cause, and McKelvey objected. After hearing argument from both
sides, the trial court noted that Juror 31 “could not decide the case
fairly” and that Juror 48 “could not set aside [her] prior relationship”
with McKelvey, and the court struck both jurors for cause.
The trial court did not abuse its discretion by striking Juror 31
based on his statement that he would not be able to set aside his
relationship with McKelvey and decide the case based on the
evidence presented. Likewise, the trial court did not abuse its
discretion by striking Juror 48 based on her statement indicating
that she would not be able to set aside her relationship with
McKelvey. See Lanier, ___Ga. at ___ (no abuse of discretion where
trial court struck for cause juror who expressed bias towards
20
defendant based on their relationship); Hillman v. State, 296 Ga.
App. 310, 313 (2) (674 SE2d 370) (2009) (no abuse of discretion
where trial court struck jurors for cause based on their personal
relationship with defendant). Thus, this enumeration also fails.7
5. McKelvey contends that his trial counsel rendered
constitutionally ineffective assistance by failing to call two alibi
witnesses: his sister, Okevia, and her boyfriend, Piatt. According to
McKelvey, these witnesses could have provided information about
his whereabouts at the time of the shooting, and he asked his trial
counsel to call both as witnesses.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
7 Within this enumeration of error, McKelvey also contends that while
his trial counsel objected to Jurors 31 and 48 being struck for cause, to the
extent she did not seek to voir dire these jurors further, she rendered
constitutionally ineffective assistance. Even were we to assume that counsel
performed deficiently by not questioning these jurors further, McKelvey
presented no evidence demonstrating that either juror could have been
rehabilitated. Thus, McKelvey failed to meet his burden of demonstrating that
counsel’s alleged deficiency prejudiced McKelvey under the standard of
Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674)
(1984). See Anderson v. State, __ Ga. __ (5) (b) (847 SE2d 572) (2020).
21
the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); see also Wesley v. State, 286 Ga.
355, 356 (3) (689 SE2d 280) (2010). To satisfy the deficiency prong,
a defendant must demonstrate that his attorney “performed at trial
in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013); see also
Strickland, 466 U.S. at 687-688. To satisfy the prejudice prong, a
defendant must establish a reasonable probability that in the
absence of counsel’s deficient performance, the result of the trial
would have been different. See Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “In reviewing the trial court’s
decision, we accept the trial court’s factual findings and credibility
determinations unless clearly erroneous, but we independently
apply the legal principles to the facts.” Andrews v. State, 293 Ga.
701, 703 (2) (749 SE2d 734) (2013) (citation and punctuation
omitted). “If an appellant fails to meet his or her burden of proving
22
either prong of the Strickland test, the reviewing court does not have
to examine the other prong.” Lawrence v. State, 286 Ga. 533, 533-
534 (2) (690 SE2d 801) (2010).
At the motion for new trial hearing, McKelvey’s trial counsel
testified that she could not remember exactly why she elected not to
call Okevia and Piatt as witnesses, but she did “recall there was a
significant reason why.” Trial counsel also testified that it was in
McKelvey’s best interest not to call Piatt, as his testimony could
have been detrimental. She further stated that she was aware of
Okevia and Piatt prior to trial, but neither had any information or
knowledge about what happened on the day of the murder to assist
in McKelvey’s case. While McKelvey testified that he believed
Okevia and Piatt would have given “helpful” testimony, he provided
no further information or details about what information they would
have provided. Moreover, neither Okevia nor Piatt testified at
McKelvey’s motion for new trial hearing. 8 In the trial court’s order
8In his appellate brief, McKelvey contends that he presented an affidavit
from Okevia at his motion for new trial hearing, in which she averred that she
“would have come to court if subpoenaed for trial, she would have testified that
23
denying McKelvey’s motion for new trial, the trial court found that
he failed to show that “either person could have provided a
believable alibi.”
“A decision as to which defense witnesses to call is a matter of
counsel’s trial strategy and tactics and will not support a claim of
ineffective assistance of counsel unless it is so unreasonable that no
competent attorney would have made the decision under the
circumstances.” Smith, 308 Ga. at 92 (citation and punctuation
omitted). We conclude that trial counsel’s decision to forgo seeking
Okevia’s or Piatt’s testimony was a strategic decision because their
testimony would not have been helpful – and may even have been
harmful – to McKelvey’s defense, and because the trial court found
no value to their testimony as alibi witnesses based on a lack of
evidence of what they would have said. Therefore, McKelvey has
failed to overcome the “strong presumption” that his trial counsel’s
her brother was with [Piatt] and that they had just come from picking up their
paychecks.” That affidavit, however, is not included in the record on appeal,
and thus, we cannot consider it. See Ware v. State, 279 Ga. 17, 18 (2) (608
SE2d 643) (2005) (appellant has burden to show counsel’s ineffectiveness and
to “compile a complete record of what transpired in the trial court”).
24
decision to not call Okevia or Piatt to testify at trial fell “within the
broad range of professional conduct.” Reid v. State, 286 Ga. 484, 486
(3) (a) (690 SE2d 177) (2010) (trial counsel’s decision not to call
potential alibi witness because counsel thought witness’s testimony
“would be detrimental to the defense” was not deficient); see also
Andrews, 293 Ga. at 703 (trial counsel’s decision not to call
defendant’s girlfriend as potential alibi witness because counsel
“believed that doing so would not have been helpful to [defendant’s]
case” was not deficient).
McKelvey has also failed to demonstrate any prejudice as he
has not shown that either witness would have given him “a solid and
complete alibi for the time of the murder.” Moss v. State, 298 Ga.
613, 619 (5) (d) (783 SE2d 652) (2016). As such, this enumeration of
error also fails.
Judgment affirmed. All the Justices concur.
25