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witnesses. He failed to present the witnesses or submit any evidence in the new trial hearing demonstrating how any information possessed by [the alleged potential witnesses] would have helped his defense. Absent such a proffer, Walker cannot meet his burden of making an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. [Cits.] The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant. [Cit.] Because Walker failed to demonstrate any prejudice resulting from his counsel’s failure to interview the witnesses, the trial court properly denied his ineffectiveness claim.” Accord, many cases including Keith v. State , 279 Ga.App. 819, 632 S.E.2d 669 (May 18, 2006); Brown v. State , 285 Ga.App. 453, 646 S.E.2d 289 (April 26, 2007); Branan v. State , 285 Ga.App. 717, 647 S.E.2d 606 (June 6, 2007); Felder v. State , 286 Ga.App. 271, 648 S.E.2d 753 (July 3, 2007); Burnette v. State , 291 Ga.App. 504, 662 S.E.2d 272 (May 13, 2008) (physical precedent only); Smith v. State , 294 Ga.App. 692, 670 S.E.2d 191 (November 19, 2008); Smith v. State , 303 Ga.App. 831, 695 S.E.2d 86 (April 27, 2010); Roberts v. State , 317 Ga.App. 385, 730 S.E.2d 753 (August 2, 2012); Dunn v. State , 291 Ga. 551, 732 S.E.2d 524 (September 10, 2012); Grell v. State , 291 Ga. 615, 732 S.E.2d 741 (October 1, 2012); Taylor v. State , 318 Ga.App. 115, 733 S.E.2d 415 (October 19, 2012); Dennis v. State , 320 Ga.App. 70, 739 S.E.2d 78 (March 1, 2013); Brooks v. State , 323 Ga.App. 681, 747 S.E.2d 688 (August 8, 2013); Marshall v. State , 324 Ga.App. 348, 750 S.E.2d 418 (October 25, 2013); Curtis v. State , 330 Ga.App. 839, 769 S.E.2d 580 (March 2, 2015). Dickens v. State, 280 Ga. 320, 627 S.E.2d 587 (March 13, 2006). Physical precedent only ; three justices concur specially, one concurs in judgment only. At hearing on motion for new trial based on ineffective assistance of counsel, defense counsel may testify to what an uncalled witness would have said to establish whether counsel’s performance was deficient – that is, whether the decision to call the witness or not was reasonable. “However, a defendant cannot use defense counsel’s testimony about what an uncalled witness had been expected to say in order to establish the truth of that uncalled witness’s testimony . Defense counsel’s testimony in that regard is hearsay evidence, Dewberry v. State, 271 Ga. 624(2) (523 S.E.2d 26) (1999); Prather v. State, 259 Ga.App. 441(4) (576 S.E.2d 904) (2003); see also Fuller v. State, 278 Ga. 812(2)(d) (607 S.E.2d 581) (2005) (counsel’s testimony cannot be used to prove that witness had prior felony); and hearsay, of course, has no probative value. Bridges v. State, 279 Ga. 351 n. 12 (613 S.E.2d 621) (2005). Hearsay evidence cannot be used either under the first Strickland prong to rebut the reasonableness of trial counsel’s tactical decision or under the second Strickland prong to establish that the defense was prejudiced by counsel’s deficient performance. Either the uncalled witness must testify or the defendant must introduce a legally recognized substitute for the uncalled witness’s testimony.” Such a substitute may include an affidavit by the witness in question, pursuant to OCGA § 24-10-40. Benham, joined by Carley and Hines, concurs specially, advocating for proffers of witness testimony in this context. Majority disagrees: “Even in the context of an offer of proof, ..., hearsay is not admissible through the testimony of counsel. Thus, the trial court may properly refuse counsel’s offer of proof where there has been no showing that the excluded testimony was from a witness who had either been properly subpoenaed or else prevented by the State from being present at trial and where counsel could proffer only what counsel thought the witness would say. Castell v. State, 252 Ga. 418(2) (314 S.E.2d 210) (1984).” Accord, Brigman v. State , 282 Ga.App. 481, 639 S.E.2d 259 (November 16, 2006); In re: D.M. , 308 Ga.App. 589, 708 S.E.2d 550 (March 21, 2011); Green v. State , 291 Ga. 287, 728 S.E.2d 668 (June 25, 2012) (witnesses’ “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.”); Mingledolph (October 8, 2013), above (unsworn statements in police incident report not a substitute for sworn testimony). Joyner v. State, 278 Ga.App. 60, 628 S.E.2d 186 (March 7, 2006). Defendant failed to establish ineffective assistance of counsel based on failure to secure attendance of witnesses, inasmuch as defendant did not present the testimony of the witnesses at the motion hearing. “See Hunt v. State, 278 Ga. 479, 480-481(4) (604 S.E.2d 144) (2004); Woods v. State, 275 Ga. 844, 847(3)(a) (573 S.E.2d 394) (2002).” Accord, many cases including Ingram v. State , 280 Ga.App. 467, 634 S.E.2d 430 (June 26, 2006); Herrington v. State , 285 Ga.App. 4, 645 S.E.2d 29 (March 20, 2007); Peterson v. State , 282 Ga. 286, 647 S.E.2d 592 (July 13, 2007); Habersham v. State , 289 Ga.App. 718, 658 S.E.2d 253 (February 22, 2008); Holsey v. State , 291 Ga.App. 216, 661 S.E.2d 621 (April 17, 2008); Fitzpatrick v. State , 317 Ga.App. 873, 733 S.E.2d 46 (October 11, 2012); Clowers v. State , 324 Ga.App. 264, 750 S.E.2d 169 (October 16, 2013). Terry v. Jenkins, 280 Ga. 341, 627 S.E.2d 7 (February 27, 2006). Habeas court properly vacated defendant’s murder and related convictions and death sentence. Evidence supported habeas court’s finding that defense counsel failed to present certain witnesses, not out of strategic decision, but “inattention” and failure to investigate ; and further, that there existed a reasonable probability of a different outcome if the evidence had been presented to the jury. “‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable
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