concurring fully and specially.
I fully concur in the majority opinion. I write separately to make clear that the threat to prosecute defense counsel was unwarranted and gravely improper.
Although he had not subpoenaed Jason Blanpied, the prosecutor promised in his opening statement that the jury would hear from Blanpied. Defense counsel had listed Blanpied as a possible witness. See OCGA § 17-16-8. But during the course of the trial, she made the strategic determination that his testimony would most likely be a net detriment to the defense and told him not to come to court. Blanpied apparently returned to his home in Texas, and the prosecutor found himself unable to keep some of the promises he had made to the jury. Rather than recognize that his own omissions were the cause of this embarrassment, he threatened to prosecute defense counsel. Those threats began during the course of trial, apparently continued for a year and a half, and compelled her to retain counsel of her own.15
But although clothed in the power of the office of the district attorney, those threats were naked of legal justification. Defense counsel had not committed a criminal act.
The state has made no attempt to show that she had. Its appellate brief relies, correctly, on the Strickland standard and makes no effort to justify those threats. See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Although those threats were discussed several times during the course of trial, my *289review of the appellate record has identified no effort by the prosecutor to show a legal justification for them. And defense counsel testified without contradiction at the new trial hearing that she tried unsuccessfully to elicit a specific allegation from him.
It is not the responsibility of defense counsel to help the state present its case. The state had no right to rely on defense counsel’s list of possible witnesses. See Byron v. State, 229 Ga. App. 795, 799 (6) (495 SE2d 123) (1997) (it was defendant’s duty to ensure presence of his witnesses by issuance of subpoena). Defense counsel had the right not to call Blanpied to testify. See Johnson v. State, 232 Ga. App. 717, 719 (1) (b) (503 SE2d 603) (1998) (holding that state was not required to call witness whose name was on state’s witness list because obtaining witnesses to aid in his defense was defendant’s responsibility).
Contrary to the initial observation of the trial court16—who later correctly noted that the threatened prosecution of defense counsel was not before him — defense counsel had not committed a common law crime. “There are no common law crimes in this state; they are all statutory.” Gentry v. State, 129 Ga. App. 819, 822 (3) (201 SE2d 679) (1973) (citation and punctuation omitted).
The controlling statute is OCGA § 16-10-93, which prohibits improperly influencing a witness. The parts of that statute that specify the prohibited conduct provide:
(a) A person who, with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending in any court, in any administrative proceeding, or before a grand jury, communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness or to the person, property, or employment of any relative or associate of the witness or who offers or delivers any benefit, reward, or consideration to such witness or to a relative or associate of the witness shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.
(b) (1) It shall be unlawful for any person knowingly to use intimidation, physical force, or threats; to persuade another person by means of corruption or to attempt to do so; or to engage in misleading conduct toward another person
*290with intent to:
(A) Influence, delay, or prevent the testimony of any person in an official proceeding;
(B) Cause or induce any person to:
(i) Withhold testimony or a record, document, or other object from an official proceeding;
(ii) Alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(iii) Evade legal process summoning that person to appear as a witness or to produce a record, document, or other obj ect in an official proceeding; or
(iv) Be absent from an official proceeding to which such person has been summoned by legal process; or
(C) Hinder, delay, or prevent the communication to a law enforcement officer, prosecuting attorney, or judge of this state of information relating to the commission or possible commission of a crimi-. nal offense or a violation of conditions of probation, parole, or release pending judicial proceedings.
(Emphasis supplied.) Obviously — even if defense counsel instructed Blanpied to leave the state, which she denied — her conduct did not involve any threat of injury or damage; benefit, reward, or consideration; intimidation, physical force, or threats; means of corruption; or misleading conduct.
But as the majority correctly holds, Wiggins cannot point to any instance in which defense counsel rendered inadequate representation at trial. And so she cannot satisfy the first prong of the Strickland standard. We therefore do not decide about the second prong. But as to the second prong it should be noted that
[i]n Strickland, the Supreme Court identified three instances in which the defendant would be relieved of his burden to establish prejudice stemming from counsel’s errors: (1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel that labors under an actual conflict of interest that adversely affects his performance.
State v. Heath, 277 Ga. 337, 338 (588 SE2d 738) (2003).
*291Decided June 24, 2016 Reconsideration denied July 26, 2016 Gary W. Jones, for appellant. D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.Defense counsel has — as the state’s appellate brief asserts without contradiction — extensive experience as a prosecutor, as a criminal defense attorney, and in child molestation cases. And the record supports the state’s contention that its interference did not reduce her performance below — or anywhere close to — the Strickland standard.
But it does not follow from the inapplicability of Strickland that the prosecutor’s interference with defense counsel was without consequence. Defense counsel testified that she spent hours that ought to have been devoted to preparing her examinations and arguments listening to recordings of “garbage jail calls” and consulting colleagues about her own defense. We cannot know how defense counsel might have sharpened her arguments or what connections she might have drawn between seemingly unrelated facts if the state had not interfered with her preparation.
Nor does the inapplicability of Strickland in any way justify use of the power of the office of the district attorney to try to intimidate defense counsel. Nor does it justify subjecting defense counsel to the anxiety and expense of dealing with the prospect of a specious prosecution.
A district attorney “may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U. S. 78, 88 (55 SCt 629, 79 LE 1314) (1935); Medlock v. State, 263 Ga. 246, 252 (1) (430 SE2d 754) (1993) (Fletcher, J., dissenting),
The attorney she retained is now the sitting district attorney.
Different judges presided over the trial and the hearing on the motion for new trial.