“To prevail on an ineffectiveness claim, a defendant has the burden of establishing that his counsel's performance was deficient and that the deficiency prejudiced his defense.” Manriquez v. State, 285 Ga. 880, 881(2), 684 S.E.2d 650 (2009) (citations omitted). “The decision to call a defense witness is a matter of trial strategy and tactics within the province of the lawyer after consultation with the client.”
Id. at 656 (2) (b), 821 S.E.2d 346. See also Palmer v. State, 310 Ga. 668, 678-679 (4), 853 S.E.2d 650 (2021); Manriquez v. State, 285 Ga. 880, 881 (2), 684 S.E.2d 650 (2009) (noting that "an affidavit" is "a legally recognized substitute" for an uncalled witness’s testimony and that "copies of [witness’s] unsworn statements to police" are insufficient to carry burden of proving prejudice). As Tedder relies only on a transcript of Lewis’s unsworn statement to police, the trial court correctly concluded that Tedder cannot carry his burden of proving prejudice with respect to this claim.
Thus, he failed to show that the consent order had any prejudicial effect on his trial. See Manriquez v. State , 285 Ga. 880, 881 (2), 684 S.E.2d 650 (2009) (defendant cannot rely on speculation to prove prejudice prong of ineffective assistance of counsel claim). Further, the State presented overwhelming evidence against Appellant that implicated him in the murder of Jones: Abdullah testified that Appellant murdered Jones in Abdullah's presence; Detective Render testified and recounted Appellant's multiple confessions to Jones’ murder in several of their meetings; and the State presented the physical evidence of Appellant's disposal of Jones’ body, including the water bottle and the rag.
Rather, the defendant must introduce either *125 testimony from the uncalled witness or a legally recognized substitute for his testimony, such as an affidavit. (Citations and punctuation omitted.) Manriquez v. State, 285 Ga. 880 , 881 (2) (684 SE2d 650 ) (2009). Johnson testified that Fountain came into his house the morning of the murder or the day after and told him, “I got something you might want,” and showed him a gun.
Second, Appellant asserts that his trial counsel should have compelled Walker to testify, even though the record shows that she was incoherent, screaming, and refused to enter the courtroom when called, saying that she was in fear for her life. Appellant contends that Walker could have testified that she saw Southerland shoot Clarke, not Appellant. Trial counsel testified at the motion for new trial hearing that she thought that having the incoherent Walker dragged to the stand against her will would not be beneficial to the defense, as her testimony was unpredictable and might have harmed Appellant. That strategic decision was perfectly reasonable. Moreover, Appellant did not call Walker at the motion for new trial hearing to establish what her trial testimony would have been, and the investigative report that supposedly noted her statement implicating Southerland is not in the record on appeal. See Manriquez v. State, 285 Ga. 880, 881, 684 S.E.2d 650 (2009) (holding that a defendant who claims that his counsel performed deficiently by not calling a witness at trial may not rely on hearsay and speculation to establish prejudice and instead must present the witness's testimony at the motion for new trial hearing or introduce a legally recognized substitute for the witness's testimony, such as an affidavit). Thus, Appellant has again failed to show either deficient performance or resulting prejudice.
When a defendant bases his ineffective assistance of counsel claim on counsel's decision not to call a particular witness, he “must introduce either testimony from the uncalled witness or a legally recognized substitute for his testimony.” Manriquez v. State, 285 Ga. 880, 881(2), 684 S.E.2d 650 (2009). He may not rely on hearsay and speculation.
Although some of the witnesses spoke to Appellant's investigator, their unsworn oral statements to the investigator are hearsay and therefore are not sufficient to carry Appellant's burden of proving that he was prejudiced by counsel's failure to call them at trial. Manriquez v. State, 285 Ga. 880, 881(2), 684 S.E.2d 650 (2009); Dye v. State, supra. “(B)ecause [Appellant] neither called (these witnesses) to testify at the motion for new trial hearing nor presented a legally acceptable substitute for (their) direct testimony so as to substantiate (his) claim that (the witness [es]') testimony would have been relevant and favorable to (his) defense, it was impossible for [Appellant] to show there is a reasonable probability the results of the proceedings would have been different.”
Glass "did not call [any such] witnesses [besides Towns] to testify at the motion for new trial hearing, or present a legally acceptable substitute for their testimony. . . ." Manriquez v. State, 285 Ga. 880, 881 (2) ( 684 SE2d 650) (2009). Thus, Glass has failed to meet his burden of showing prejudice from his attorney's failure to call witnesses at trial.
See Goodwin v. Cruz-Padillo , 265 Ga. 614, 615, 458 S.E.2d 623 (1995) (appellant's failure "to make any proffer of the uncalled witnesses’ testimony [made] it ... impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different" if he had testified) (citation and punctuation omitted). Accord Manriquez v. State , 285 Ga. 880, 881 (2), 684 S.E.2d 650 (2009) (defendant bore the burden of demonstrating both Strickland prongs, and when a defendant claims that trial counsel performed deficiently by failing to interview or call a witness for trial, defendant "must introduce either testimony from the uncalled witness or a legally recognized substitute for his testimony, such as an affidavit").
These unsupported claims fail. See Manriquez v. State , 285 Ga. 880, 881 (2), 684 S.E.2d 650 (2009) (defendant has burden to demonstrate both Strickland prongs, and when a defendant claims that trial counsel performed deficiently by failing to call a witness for trial, the defendant "must introduce either testimony from the uncalled witness or a legally recognized substitute for his [or her] testimony, such as an affidavit"). (b) Watkins claims that his counsel should have asked the emergency room physician about the effects of methamphetamine on a person's brain and behavior.