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Final Copy 286 Ga. 448 S09A2064. DEVEGA v. THE STATE. Carley, Presiding Justice.

A jury found Robert Bella Devega, III guilty of malice murder, two counts of felony murder, two counts of aggravated assault, possession of a firearm during the commission of a felony, and conspiracy to sell a controlled substance. The trial court entered judgments of conviction and sentenced Devega to life imprisonment for malice murder, and to consecutive prison sentences of ten years for the drug offense and five years for the weapons charge. The felony murder verdicts were vacated by operation of law, and the aggravated assault verdicts were merged into the malice murder conviction. See Malcolm v. State, 263 Ga. 369, 372 (4), (5) (434 SE2d 479) (1993). Devega appeals after the denial of a motion for new trial.* *The crimes occurred on March 16, 2007, and the grand jury returned the indictment on January 4, 2008. The jury found Devega guilty on April 25, 2008, and the trial court entered judgment on May 29, 2008. Devega filed a motion for new trial on May 30, 2008. An amended motion for new trial was filed on December 16, 2008, and was denied on February 25, 2009. The notice of appeal was filed on March 23, 2009. The case was docketed in this Court on August 26, 2009, and oral argument was held on November 9, 2009.

1. Construed most strongly in support of the verdicts, the evidence shows that Devega agreed to sell a quarter kilogram of cocaine to Saifullah Afzal for $5,000. When they met to complete the drug deal, Devega killed Afzal by intentionally shooting him nine times with two handguns. The evidence was sufficient for a rational trier of fact to find Devega guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Devega claims that his Fourth Amendment right against unreasonable searches and seizures was violated when the police requested, without a warrant, that his cellular telephone provider "ping" his phone in order to locate him. Because this issue was not raised at trial, Devega "has waived review of [it] on appeal. [Cit.]" Judkins v. State, 282 Ga. 580, 582 (2) (652 SE2d 537) (2007). 3. Devega contends that the trial court erred in ruling that hearsay testimony from State witness Kiona Fisher, concerning statements made by the victim about his drug deal with Devega, was admissible under the necessity exception. In order for hearsay to be admitted under the necessity exception, two requirements must be satisfied: "necessity" and "particularized guarantees of trustworthiness." [Cits.] "Necessity" is demonstrated
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when the declarant is deceased, when the statement is shown to be relevant to a material fact, and when the statement is more probative of the material fact than other evidence that may be produced and offered. [Cit.] The requirement of "particularized guarantees of trustworthiness" is satisfied when the declaration is coupled with "circumstances which attribute verity to (the declaration)." [Cit.] The determination of trustworthiness is "inescapably subjective" and the trial court's determination of the issue will not be disturbed absent an abuse of discretion. [Cit.] Watson v. State, 278 Ga. 763, 765 (2) (a) (604 SE2d 804) (2004). The necessity requirement is clearly satisfied in this case. The victim is deceased, his statements were relevant to the material facts of the arranged drug transaction and his meeting with Devega immediately before his death, and the admitted declarations "were more probative of these facts than evidence that could otherwise be produced and offered. [Cit.]" Watson v. State, supra. As for the particularized guarantees of trustworthiness, Ms. Fisher testified that the victim was her boyfriend, that they had a close relationship, that they told each other things, and that she trusted him. "[T]his Court has consistently held that hearsay testimony by close, personal friends of the unavailable declarant is admissible under the necessity exception. [Cits.]" Watson v. State, supra. Moreover, "`[t]here is nothing to show that the victim had any reason to lie to [Ms. Fisher], who was subject to cross-examination.
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(Cit.)' [Cit.]" Demons v. State, 277 Ga. 724, 727 (4) (595 SE2d 76) (2004). Under the circumstances, "we find no error in the decision to admit the hearsay testimony under the necessity exception." Campos v. State, 273 Ga. 119, 121 (2) (538 SE2d 447) (2000). Devega's additional argument that Ms. Fisher's testimony should not have been admitted because it contained double hearsay was not raised in the trial court. "By not raising the double-hearsay objection at the time the testimony was introduced, [Devega] waived that objection." Reaves v. State, 242 Ga. 542, 551 (6) (250 SE2d 376) (1978). 4. Devega claims that his trial counsel was ineffective. In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), Devega "`must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. (Cit.)' [Cit.]" Hill v. State, 284 Ga. 521, 522 (2) (668 SE2d 673) (2008). "`On appeal, this Court accepts the trial court's findings of fact, unless they are clearly erroneous. However, the trial court's legal conclusions are

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reviewed de novo. (Cit.)' [Cit.]" King v. State, 282 Ga. 505, 506 (2) (651 SE2d 711) (2007). The specific claims of ineffective assistance are as follows. (a) Devega contends that his attorney was ineffective in failing to investigate psychiatric records showing that he suffered from post-traumatic stress disorder. However, even if we assume that counsel was deficient, Devega has failed to show that this deficiency prejudiced his defense. "`[I]t is not enough to show merely that counsel unreasonably failed to inquire into his mental state -- he must show a [reasonable probability] that such an evaluation would have affected the outcome at trial.' [Cit.]" Haygood v. State, 289 Ga. App. 187, 193 (2) (a) (656 SE2d 541) (2008). At the motion for new trial hearing, Devega introduced copies of his psychiatric records. However, those documents were not tendered or admitted for the truth of the matters asserted therein or as proof of Devega's alleged disorder. Rather, they were admitted solely for the limited purpose of showing that Devega's stepmother tried to give the papers to trial counsel. Consequently, "the record does not contain any medical records, expert testimony, or other evidence of his diagnosis or treatment. [Cit.]" Jennings v. State, 282 Ga. 679, 680 (2) (653 SE2d 17) (2007). Absent such evidence, Devega has failed to show a reasonable probability "that
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further investigation would have established a valid psychiatric defense. Speculation is insufficient to satisfy the prejudice prong of Strickland, supra. [Cits.]" Cormier v. State, 277 Ga. 607, 609 (2) (a) (592 SE2d 841) (2004). See also Haygood v. State, supra (prejudice not shown in absence of expert testimony as to defendant's mental state). Compare Martin v. Barrett, 279 Ga. 593, 595-596 (619 SE2d 656) (2005) (expert testimony supported habeas court finding of reasonable probability that defendant might have been found incompetent to stand trial, legally insane or guilty but mentally ill if counsel had adequately investigated his mental illness). (b) Devega contends that his trial lawyer deficiently failed to challenge the legality of his warrantless arrest by City of Smyrna police officers on Dobbins Air Reserve Base, which is located in unincorporated Cobb County. "A `warrantless arrest' is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense. (Cits.) Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense. (Cit.)" [Cit.] Brown v. State, 262 Ga. 728, 729 (2) (a) (425 SE2d 856) (1993). Devega asserts that the arresting officers did not have probable cause to suspect him of
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murder when they arrested him without a warrant on the morning after the homicide. However, even if we assume that is true, the officers clearly had probable cause to suspect him of conspiring to commit an illegal drug transaction. Shortly after the murder, investigators obtained reasonably

trustworthy information from two independent witnesses which established that Devega had arranged to meet the victim at the site of the murder and sell cocaine to him. One of the witnesses knew Devega well and was present when he first met the victim to set up the drug deal, and the other witness was Ms. Fisher, who actually drove the victim to the site. "Because the police had probable cause to suspect that [Devega] had [conspired to sell cocaine], they lawfully arrested him without a warrant." State v. Bryant, 284 Ga. App. 867, 870 (644 SE2d 871) (2007). As for the claim that the arrest was unlawful because the Smyrna police were outside their jurisdiction in unincorporated Cobb County, we need not resolve that issue. "Where probable cause exists, even an illegal, warrantless arrest in a suspect's home does not render inadmissible subsequent statements made outside the premises. [Cits.]" Pittman v. State, 277 Ga. 475, 479 (4) (592 SE2d 72) (2004). Thus, even if we assume that the warrantless arrest in this
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case was illegal because the officers were outside their jurisdiction, suppression of the fruits of that arrest is not required because the arrest was made with sufficient probable cause and in an office, rather than in the sanctity of the home. See State v. Giangregorio, 181 Ga. App. 324, 325 (352 SE2d 193) (1986) (upholding arrest and subsequent search of defendant at airport in Clayton County by DeKalb County officer who was working on multi-agency drug task force, but had not been sworn as a Clayton County deputy). It follows that trial counsel was not ineffective in failing to raise a challenge to the validity of the arrest that would not have resulted in the suppression of any evidence. With regard to the arrest occurring on Dobbins Air Reserve Base, Devega cites OCGA

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