NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: October 15, 2025
S25A0877. COPNEY v. THE STATE.
LAND, Justice.
Leroy Starr Copney, Jr., was convicted of malice murder and
other crimes in connection with the shooting death of Andrew
Spencer and the non-fatal shooting of Quintin Heard.1 On appeal,
1 The crimes occurred in the early morning of December 29, 2016. On September 26, 2019, a DeKalb County grand jury indicted Copney for malice murder, felony murder, two counts of participation in criminal gang activity, two counts of aggravated assault with a deadly weapon, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. At a trial from November 29 to December 2, 2021, the jury acquitted Copney of one count of participation in criminal gang activity but found him guilty of all other charges. The trial court sentenced Copney to serve life in prison without the possibility of parole for malice murder, a consecutive term of 20 years in prison for one count of participation in criminal gang activity, a consecutive term of 10 years in prison for possession of a firearm by a convicted felon, a consecutive term of 20 years in prison for one count of aggravated assault, and a consecutive term of 5 years in prison for possession of a firearm during the commission of a felony. The felony murder verdict was vacated by operation of law, and the remaining aggravated assault count merged into the malice murder count. On December 8, 2021, Copney filed a motion for new trial, which he amended with new counsel on May 31, 2023. After an evidentiary hearing on October 11, 2024, the trial court entered an order he argues that his trial counsel was ineffective in several respects
and that the cumulative effect of trial counsel’s errors warrants a
new trial. For the reasons that follow, we affirm.
1. The evidence presented at trial showed the following. During
the early morning hours of December 29, 2016, Jilani Bakhari drove
Copney to a gas station in Chamblee. Shortly after, Spencer and
Heard stopped at that gas station and parked at a pump next to
Bakhari’s car. Inside the store, Spencer and Copney, who had never
met before, had a “misunderstanding” that upset Copney. According
to Bakhari, “somebody stepped on somebody or something like that.”
After the brief confrontation, Copney walked to Bakhari’s car
to retrieve a jacket and then returned to the entrance of the store,
but he did not go inside. Shortly after, Bakhari exited the store and
then got into his car. Spencer and Heard exited moments after
Bakhari. According to Heard, when they left the store, Copney said
denying the motion on November 12, 2024. Copney filed a timely notice of appeal, and the case was docketed in this Court for the April 2025 term and submitted for a decision on the briefs. 2 aggressively, “what’s poppin’2 . . . yeah, I saw you n**gas looking at
me in the store, y’all got me f**ked up.” Spencer and Heard, who
were both unarmed, tried de-escalating the situation and began
walking to their car.
As Spencer and Heard walked away from Copney, Copney
moved ahead of the two men, positioning himself between them and
their car. Surveillance footage showed that as Spencer continued to
walk towards his car, Copney walked around a pole near a pump,
pulled out a gun, and fired six shots at Spencer and Heard.
Immediately after, Copney got into the front passenger side of
Bakhari’s car, and Bakhari sped off. 3 Heard ran back inside the gas
station.
When the police responded, they found Spencer dead in the
2 At trial, Heard testified that he believed “what’s poppin” meant that
Copney wanted to know who Spencer and Heard were. A gang expert testified that the phrase “what’s poppin” could mean “be prepared” for an altercation or an inquiry into what street gang one belongs to. 3 Bakhari was initially indicted for murdering Spencer. However, after
agreeing to participate in the State’s case against Copney, his charges were reduced to hindering apprehension or punishment of a criminal. He ultimately accepted a plea under North Carolina v. Alford. See North Carolina v. Alford, 400 US 25 (1970). 3 parking lot of the gas station. The police also recovered five shell
casings at the scene. Around the time the police arrived, Bakhari
dropped Copney off at an apartment complex, and Copney fled to
Myrtle Beach, South Carolina, where he was later arrested.
At trial, the medical examiner who conducted Spencer’s
autopsy testified that Spencer’s death was a homicide caused by one
gunshot wound to the chest. During the autopsy, the medical
examiner found one bullet in Spencer’s body. A firearms examiner
testified that the bullet found inside of Spencer’s body and the five
shell casings found at the scene were .45-caliber. The examiner also
stated that those shell casings shared characteristics that were
consistent with being fired from the same gun.
A street gang expert testified that based on Copney’s social
media posts and tattoos, he concluded that Copney was a member of
the “Bloods” criminal street gang. The expert explained that in
street gang culture, gang members may respond with violence to
perceived disrespect and that looking at a gang member for too long
may be considered disrespectful. There was also evidence presented
4 at trial that Copney obtained more gang-related tattoos while in
custody. The gang expert opined that if a gang member received
more gang-related tattoos he likely received an increase in gang
status and that handling perceived disrespect by, for example,
murder, may result in increased status.
Copney, who was a convicted felon, elected to testify in his own
defense. He admitted that he shot Spencer but claimed that he did
so in self-defense. Copney claimed that Spencer or Heard had
bumped into him when they entered the store. According to Copney,
he never said “what’s poppin,” and that when the two men exited the
gas station, Heard walked past Copney and said something to the
effect of “you waitin’ for us” or “why you still here.” Copney
contended that he was the one who attempted to de-escalate the
situation and that he could see a gun on Heard’s right hip. 4 Copney
testified that as he was walking to Bakhari’s car, he thought Spencer
4 Copney initially testified that he saw the barrel of Heard’s gun, but later said that he saw the handle of the gun. He also stated that the gun was under Heard’s shirt. Footage of Heard from the cameras inside the gas station immediately before the shooting do not show a visible gun on Heard’s hip or under his shirt. ; 5 and Heard were following him and that Heard purportedly told
Copney that he “could get it right here. Right now.” Copney claimed
that he shot at Spencer and Heard because he feared for his life.
2. Copney argues that his trial counsel rendered
constitutionally ineffective assistance in several respects. To
establish a claim of ineffective assistance of counsel, a defendant
must prove both deficient performance by his counsel and resulting
prejudice. See Strickland v. Washington, 466 US 668, 687 (1984).
To prove deficient performance, a defendant must show that
his attorney performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of prevailing
professional norms. See Strickland, 466 US at 687–88. The law
recognizes a “strong presumption” that counsel performed
reasonably, which the defendant bears the burden of overcoming. Id.
at 689.
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
6 unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time ... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
Id. (citations omitted). Accord Wells v. State, 295 Ga. 161, 163–64
(2014). See also Harrington v. Richter, 562 US 86, 105 (2011) (“[T]he
standard for judging counsel’s representation is a most deferential
one. Unlike a later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the
judge.”).
To overcome the strong presumption of competence, a
defendant must show that no reasonable attorney would have done
what his attorney did or would have failed to do what his attorney
did not do. See Wells, 295 Ga. at 164. “[I]n the absence of testimony
to the contrary, counsel’s actions are presumed strategic[,] [a]nd
7 decisions regarding trial tactics and strategy may form the basis for
an ineffectiveness claim only if they were so patently unreasonable
that no competent attorney would have followed such a
course.” Pierce v. State, 319 Ga. 846, 866 (2024) (cleaned up).
Even when a defendant has proved that his counsel’s
performance was constitutionally deficient, the defendant also must
prove resulting prejudice to prevail on a claim of ineffective
assistance of counsel. To do so, the defendant must establish that
but for his counsel’s unprofessional errors, there is a “reasonable
probability” that the outcome of the proceeding would have been
different. Strickland, 466 US at 694. “It is not enough ‘to show that
the errors had some conceivable effect on the outcome of the
proceeding.’” Harrington, 562 US at 104 (quoting Strickland, 466 US
at 693). Rather, the defendant must demonstrate a “reasonable
probability” of a different result, which is “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 US at 694.
“If either Strickland prong is not met, this Court need not examine
the other prong.” Palmer v. State, 303 Ga. 810, 816 (2018).
8 In all, the burden of proving a claim of ineffective assistance of
counsel is a heavy one. See Harrington, 562 US at 105. We conclude
that Copney’s trial counsel did not render ineffective assistance for
the reasons stated below.
(a) Copney argues that his trial counsel rendered ineffective
assistance when he did not object to the admission of four of
Copney’s prior convictions on the grounds that they were
inadmissible under OCGA § 24-6-609.
Before trial, the State filed a notice of intent to introduce six of
Copney’s prior convictions for impeachment purposes. Copney’s
trial counsel did not file a response to the State’s notice. During its
case-in-chief, the State presented State’s Exhibit 99, a certified copy
of conviction in Dekalb Superior Court showing that Copney pled
guilty to second-degree forgery in January 2006, as evidence of
Copney’s convicted-felon status. State’s Exhibit 99 was admitted
without objection and published to the jury.
At the very end of Copney’s direct examination, his trial
counsel asked him, “[H]ave you ever been in trouble before,” and
9 Copney responded, “Yes.” Copney’s trial counsel then stated “[t]he
State’s going to go into that.” On cross-examination, the State
moved to admit State’s Exhibits 101–103. 5 Trial counsel did not
object to the admission of the three exhibits. The State then began
to question Copney about each of his prior convictions. State’s
Exhibit 101 was a certificate of disposition in the Supreme Court of
New York showing that Copney, under the alias Troy Smith, was
convicted of two counts of first-degree robbery and one count of
second-degree robbery in October 1990. State’s Exhibit 102 was a
certification of disposition in the Supreme Court of New York
showing that Copney pleaded guilty to second-degree attempted
criminal possession of a weapon in February 1998. State’s Exhibit
103 included an indictment and sentence for first-degree promoting
prison contraband in Washington County Court in New York in
5 The State also moved to admit State’s Exhibits 104, 105, and 107. On appeal, Copney does not challenge the admission of State’s Exhibit 105, which included a certified copy of his 2011 conviction for assault with a deadly weapon causing serious injury and felon in possession of firearm in North Carolina, or State’s Exhibit 107, his 2018 conviction for felon in possession of a firearm in South Carolina federal court. Copney’s challenge to the admission of State’s Exhibit 104 is discussed below in Division 2 (b). 10 January 1999. On redirect, trial counsel asked Copney whether he
“den[ied] [his] convictions,” and he responded, “no.”
During its charge to the jury, the trial court provided the jury
with limiting instructions regarding Copney’s prior convictions,
stating that they could only be used for attacking the credibility of a
defendant or as a required element of the felon-in-possession count.
At the motion for new trial hearing, Copney’s trial counsel was
asked whether she considered objecting to Copney’s prior
convictions on the grounds that they were “too old.” Trial counsel
answered, “no.” She also testified that she could not recall whether
Copney had more recent convictions.
OCGA § 24-6-609(a)(1) provides, in relevant part, that evidence
that a defendant was convicted of a felony shall be admissible to
attack the defendant’s credibility “if the court determines that the
probative value of admitting the evidence outweighs its prejudicial
effect to the accused.” However, under OCGA § 24-6-609(b),
Evidence of a conviction under [OCGA § 24-6-609] shall not be admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of
11 the witness from the confinement imposed for such conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old, as calculated in this subsection, shall not be admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Here, it is undisputed that more than ten years had elapsed
since the convictions at issue and the release of Copney from
confinement. However, Copney has not shown that his trial
counsel’s failure to object to State’s Exhibits 99 and 101–103 on the
grounds that they were inadmissible under OCGA § 24-6-609(b) was
deficient performance.
State’s Exhibit 99 was admitted without objection during the
State’s case in chief for establishing an essential element of
possession of a firearm by a convicted felon, not for impeaching
Copney’s credibility under Rule 609. Any objection based on Rule
609 would have been meritless and trial counsel therefore was not
deficient. As for the other prior convictions, the only testimony
12 regarding trial counsel’s decision not to object was her statement
that she did not consider objecting based on the age of the
convictions; she was not asked why she did not consider an objection.
See Vivian v. State, 312 Ga. 268, 273 (2021) (no ineffective
assistance for failing to object to purportedly inadmissible evidence
where trial counsel was not asked why she did not object and
defendant provided no other evidence that her decision was not
strategic). And under the circumstances, a reasonable lawyer may
very well have had a strategic reason for not objecting to these old
convictions, such as a desire to establish Copney’s credibility by
having him admit to his prior crimes while denying the charges at
issue. In addition, counsel may have wanted to not draw attention
to the older convictions that were similar in nature to Copney’s more
recent convictions that were admitted in State’s Exhibits 105 and
107. See Rashad v. State, 318 Ga. 199, 212–13 (2024) (holding that
it was not objectively unreasonable for counsel to not object to bad
character evidence that was mentioned in passing and largely
cumulative of other, admissible evidence). Because a reasonable
13 attorney in trial counsel’s position could have made a strategic
decision not to object to these older convictions, Copney has not met
his burden of demonstrating that his trial counsel was deficient.
Accordingly, this enumeration fails.
(b) Copney argues that his trial counsel rendered ineffective
assistance when she did not object to the use of an out-of-state arrest
warrant for impeachment and by not objecting to specific portions of
the warrant that misstated his prior conviction. Although we agree
that trial counsel’s performance was deficient, Copney has failed to
carry his burden of showing prejudice.
During its cross-examination of Copney, the State admitted,
without objection, State’s Exhibit 104. State’s Exhibit 104 included
an arrest warrant and indictment for Copney for possession of a
firearm by a felon in North Carolina, dated November 2010 and
March 2011, respectively. On cross-examination, the State asked
Copney whether he was “convicted of possession of a firearm by a
felon in North Carolina in 2010?” and Copney answered “yes.” The
State then asked Copney to read the arrest warrant portion of
14 State’s Exhibit 104 aloud to the jury, which stated, in relevant part,
that Copney had “previously been convicted of the felony of
MURDER:DEPRAVED INDIFFERENCE which was punishable
[by] 5 YEARS. This felony was committed on 04/05/1997 and the
defendant plead guilty to the felony on 03/31/1998 in ... NEW YORK
and was sentenced to 5 YEARS.” 6 When asked whether “this
certified copy of the conviction … reflect[s] that having been
previously been [sic] convicted of murder in New York, you
subsequently had a firearm in your possession in North Carolina,”
Copney repeatedly denied that he had been convicted of murder and
stated that “[t]here’s nothing that you could produce to show that I
was … convicted of murder in New York.” When asked whether he
pleaded guilty in 2011 to aggravated assault with a deadly weapon
causing serious injury and possession of a firearm by a felon in
North Carolina, Copney stated that he “pleaded to possession of
firearm by felon.” On redirect, Copney stated that he did not deny
6 The date of Copney’s alleged commission and conviction for murder in
State’s Exhibit 104 matched the date of his arrest and conviction for weapons charges in State’s Exhibit 102. 15 his prior convictions.
During closing arguments, Copney’s counsel stated that,
regarding his alleged prior murder conviction, “[i]f the State had it,
if that was true, you would have seen it” and contended that it was
not true. In its closing, the State stated that this was Copney’s
“third case of shooting someone [and] [h]is second murder.”
Copney’s trial counsel objected, her objection was sustained, and the
trial court directed the State to argue only the “language that is
contained in that certified copy” of State’s Exhibit 104. The State
then stated that Copney “has previously been convicted of the felony
of murder, depraved indifference,” and later in closing, that he had
previously been convicted of murder. Copney’s counsel objected
again, and the trial court sustained the objection, stating that
although “in one of the documents there may be language pertaining
to a charge in a different jurisdiction … to my understanding there’s
no certified copy of the murder conviction” in the record.
At the motion for new trial hearing, trial counsel was asked
whether she “consider[ed] objecting” to the warrant and indictment
16 in State’s Exhibit 104 “on the grounds that they were not proper
impeachment evidence.” Trial counsel answered, “no.” She stated
that she noticed the allegation of murder on the warrant in State’s
Exhibit 104 but understood it to refer to a “gun charge, not related
to a homicide.” When asked whether an objection to that exhibit “as
a mere warrant” would have helped Copney’s case, trial counsel
answered, “yes.” Trial counsel also testified that she did not notice
that the date of the prior alleged murder was the same date as the
attempted possession of a weapon charge at issue in State’s Exhibit
102 and agreed that it would not have harmed her case to
rehabilitate Copney’s credibility on this charge or to correct the
record.
For the purposes of attacking credibility, OCGA § 24-6-
609(a)(1) allows admission of “evidence that an accused has been
convicted of … a crime[.]” (emphasis added). This evidence includes
“the fact of the conviction, the nature of the conviction, and the
punishment,” while “the specific facts and circumstances of the prior
convictions generally are not admissible.” Sinkfield v. State, 318 Ga.
17 531, 544 (2024) (emphasis added). Accordingly, OCGA § 24-6-
609(a)(1) does not permit the impeachment of witnesses, including
a defendant, through evidence of arrest warrants or indictments.
This is consistent with persuasive federal authority interpreting
Federal Rule of Evidence 609.7 See, e.g., United States v. Wilson, 244
F.3d 1208, 1217 (10th Cir. 2001), as corrected on reh’g (May 10,
2001) (“[Q]uestions based upon past arrests are not properly within
the scope of [Federal Rule of Evidence 609]. Rule 609 refers
specifically to convictions, and one may not extrapolate from
convictions to other situations such as arrests.”); Medrano v. City of
Los Angeles, 973 F.2d 1499, 1507 (9th Cir. 1992) (“[Federal Rule of
Evidence] 609 does not allow the use of prior arrests for purposes of
impeachment.”); Am. Env’t Enters., Inc. v. Health Env’t Loss
7 Because OCGA § 24-6-609(a)(1) is identical in all relevant respects to
the corresponding federal rule, we look for guidance to federal case law, especially case law from the United States Supreme Court and federal appellate courts, particularly the Eleventh Circuit Court of Appeals. See State v. Almanza, 304 Ga. 553, 556–58 (2018) (when Georgia courts consider the meaning of the current Evidence Code, they should be guided by federal case law, particularly the decisions of the Eleventh Circuit, prior to its adoption, until a Georgia appellate court decides the issue under the new Code). 18 Prevention, Inc., 921 F.2d 276, *7 (6th Cir. 1990) (“[E]vidence of an
indictment is not admissible at trial to impeach a witness.”) (citing
Federal Rule of Evidence 609); United States v. Eubanks, 876 F2d
1514, 1517 (11th Cir. 1989) (stating that prosecutor’s question to
defendant-witness was improper “because it involved prior arrests
rather than convictions”); United States v. McBride, 862 F.2d 1316,
1320 (8th Cir. 1988) (“[A]n indictment does not amount to a
conviction of a crime, and only the latter is admissible for
impeachment purposes.”) (citing Federal Rule of Evidence 609);
United States v. Hodnett, 537 F2d 828, 829 (5th Cir. 1976)8 (“Of
course, a witness normally may be impeached by showing prior
conviction of a sufficient crime. However, under that doctrine, effort
to impeach on the basis of mere accusation or arrest is not
permissible.” (citations omitted.)).
Here, State’s Exhibit 104 contains only an arrest warrant and
an indictment, neither of which was admissible under OCGA § 24-
8 The Eleventh Circuit has adopted as binding precedent decisions made
by the Fifth Circuit handed down on or before September 30, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 19 6-609(a)(1). Despite this, Copney’s trial counsel failed to object both
on this ground and on the fact that the warrant was predicated on a
crime—felony murder: depraved indifference—that there was no
evidence that Copney committed. Thus, we conclude that Copney’s
trial counsel’s failure to object was patently unreasonable and thus
deficient performance under Strickland.
To prevail on his ineffective assistance claim, however, Copney
must also show that the harm from trial counsel’s inaction was
sufficient to undermine confidence in the trial’s outcome. See
Jennings v. State, 318 Ga. 579, 589 (2024). We determine that it was
not.
First, while the warrant portion of State’s Exhibit 104
improperly suggested that Copney had previously been convicted of
murder, the indictment portion of State’s Exhibit 104, which Copney
does not challenge, removed any reference to a prior murder and
stated that Copney’s prior felony was forgery. And Copney’s
subsequent conviction for the felon-in-possession charge, State’s
Exhibit 105, was admitted alongside State’s Exhibit 104, showing
20 that Copney was convicted of the offense for which he was indicted,
i.e., being a felon in possession of a firearm with the underlying
felony being forgery. This same exhibit showed that Copney was also
convicted of assault with a deadly weapon resulting in serious
injury, but there is no reference to any alleged murder.
And although the State had Copney read the warrant aloud to
the jury during cross-examination, Copney vehemently denied that
he had been previously convicted of murder and stated that
“[t]here’s nothing that [the State] could produce to show that I was
… convicted of murder in New York,” further undermining any
potential harmful effect of the warrant language.
Additionally, during closing arguments, trial counsel pointed
out that had Copney actually been convicted of murder, the State
would have presented the conviction, and when the State referred to
Copney’s alleged conviction for murder during its closing argument,
the trial court sustained trial counsel’s multiple objections and
stated that there was no certified copy of a prior murder conviction
in the record. In addition, the trial court instructed the jury that
21 Copney’s prior convictions could only be considered for the limited
purpose of attacking Copney’s credibility or as a required element of
the felon-in-possession count. Copney’s credibility was also
impeached by other, non-contested prior convictions, including his
subsequent conviction for the felon-in-possession charge mentioned
in State’s Exhibit 104 and the related assault with a deadly weapon
conviction arising from the same indictment. All of these things
reduced the harmful effect of the erroneous warrant language.
Moreover, there was overwhelming evidence of Copney’s guilt:
the video of the shooting, which belied Copney’s testimony that
Heard was armed or the aggressor; the evidence regarding Copney’s
gang activity; Copney’s evasive responses to certain questions about
his actions after the shooting ; the multiple prior convictions that
undermined his credibility; and Copney’s subsequent flight to South
Carolina. Based on this evidence, we conclude that Copney has
failed to carry his burden of showing Strickland prejudice, and this
enumeration fails. See Jennings, 318 Ga. at 592–93 (even assuming
several instances of deficient performance by trial counsel,
22 defendant failed to show prejudice given the strong evidence against
him).
(c) Copney argues that his trial counsel rendered ineffective
assistance when she did not object to the State’s mention of
inadmissible other-acts evidence on prosecutorial misconduct
grounds, which he contends would have led to the trial court’s
rebuke of the prosecutor and a curative instruction. While we do not
condone the prosecutor’s actions with respect to this issue, we
disagree that trial counsel’s failure to raise a prosecutorial
misconduct objection with a corresponding request for rebuke of
counsel and a curative instruction resulted in any prejudice under
Strickland. Accordingly, we reject the ineffective assistance of
counsel argument arising from this issue.
During the State’s cross-examination of Copney, the following
colloquy occurred:
STATE: How did you get all these scars on your face? TRIAL COUNSEL: Objection, Your Honor, relevance. COURT: Sustained. Next question. STATE: Did you get these scars on your face when you
23 were fighting with the -- TRIAL COUNSEL: Objection, your honor. COURT: Let him finish the question. STATE: -- when you were fighting with the ... correctional officer in Rikers when you slashed three of them with a razor blade? TRIAL COUNSEL: Objection COURT: Sustained. Copney now contends that trial counsel performed deficiently
by not objecting to the above questions under OCGA § 17-8-75,
which states that
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
While Copney’s trial counsel did object to these questions and those
objections were sustained, he argues that had trial counsel
specifically objected pursuant to OCGA § 17-8-75, the trial court
would have rebuked the prosecutor and instructed the jury to
24 disregard the objected-to statements. 9
While it is true that Copney’s trial counsel could have asked for
a rebuke of the prosecutor and a curative instruction, there has been
no showing that a rebuke of counsel and a curative instruction would
have affected the outcome of the trial. It is undisputed that trial
counsel objected to the State’s line of questioning and that the
objection was sustained. Although the State’s reference to an alleged
fight between Copney and correctional officers “[could] have been
unfairly prejudicial, any such comment had very little, if any, effect”
on Copney’s defense given the overwhelming evidence of his guilt,
his admission to shooting the victim, and the significant evidence
undercutting his justification defense. Jackson v. State, 317 Ga. 139,
146 (2023) (trial counsel not ineffective for failing to move for
mistrial based on prosecutor’s allegedly improper questioning). We
are not persuaded that either of these actions, had they been taken
by the trial court, would have changed the outcome of the trial. The
9 Copney does not argue that trial counsel was ineffective for failing to
move for a mistrial pursuant to OCGA § 17-8-75 or that the trial court would have granted a mistrial in response to trial counsel’s objection. 25 objection made by trial counsel was sustained and Copney did not
answer the State’s question. Thus, Copney has not carried his
burden on prejudice, and his ineffective assistance of counsel
argument fails. See Strickland, 466 US at 694.
(d) Copney argues that his trial counsel rendered ineffective
assistance when she did not object to the trial court’s jury
instructions regarding Count 3, which charged Copney with
participation in criminal gang activity in violation of OCGA § 16-15-
4(a).10 Specifically, Copney takes issue with the portion of the jury
instruction stating that “the State must prove that there is a nexus
between the crime committed and the gang and that the crime was
committed to further the interest of the gang, meaning proof that the
crime committed was the sort of crime that the gang does.” (emphasis
added).
10 Under OCGA § 16-15-4(a), “[i]t shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.” “[T]he necessary and required element ... is that there must be some nexus between the act and an intent to further street gang activity. That nexus is provided by the use of the preposition ‘through’ in OCGA § 16-15-4(a).” Rodriguez v. State, 284 Ga. 803, 807 (2009) (punctuation omitted). 26 Prior to trial, the State requested a non-pattern jury
instruction for Count 3. Copney also filed requests to charge the
jury, but he did not include a request for Count 3. During the charge
conference, trial counsel objected to the State’s non-pattern
instruction, asserting that she “would prefer the pattern.” The State
responded that “we’ve agreed,” and the trial court confirmed that it
would give the pattern instruction on that count. The State and the
trial court then discussed the phrasing of the instruction to confirm
that it tracked the language of the pattern instruction and was
tailored to the indictment. Trial counsel did not object to the
proposed language.
During its charge to the jury, the trial court gave the following
pattern jury instruction in full 11:
COURT: The defendant is charged with the offense of Violation a[sic] Street Gang Terrorism and Prevention Act. That offense is defined as follows: A person commits the offense of Violation of Georgie [sic] Street Gang Terrorism and Prevention Act when that person, while employed by or associated with a criminal street gang, participates in criminal gang activity through the
11 Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases,
§ 2.02.25 (4th ed. 2024). 27 commission of any criminal offense in the State of Georgia, any other state, or the United States that constitutes criminal gang activity under Official Code of Georgia 16-15-3. Criminal gang activity means, among other things not relevant to this case, the commission, attempted commission, conspiracy to commit, or solicitation, coercion or intimidation of another person to commit any criminal offense in the State of Georgia, any other state, or the United States that involves violence, possession of a weapon or use of a weapon. In order to prove a violation of the Georgia Street Gang Terrorism and Prevention Act, the State must prove beyond a reasonable doubt four elements. First, the State must prove that there is a criminal street gang. Second, the State must prove that the Defendant is associated with that criminal street gang. It is not necessary though that the State must prove that the defendant is a member of the gang. Third, the State must prove that the defendant conducted or participated in the alleged predicate act. Lastly, the State must prove that there is a nexus between the crime committed and the gang and that the crime was committed to further the interest of the gang, meaning proof that the crime committed was the sort of crime that the gang does. For purpose of the offense of Violation of Georgia Street Gang Terrorism and Prevention Act, the term participate can, but does not have to be, defined as to take part in something, and/or to share in something. Under Georgia law, a criminal street gang means
28 any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity. The term “criminal street gang” shall not include three or more persons, associated in fact, whether formal or informal, who are not engaged in criminal gang activity. As charged in this case, criminal gang activity is when a person, while employed by or associated with a criminal street gang, conducts or participates in criminal street gang activity through the commission of any offense involving violence or possession of a weapon. The indictment in this case alleges that the defendant committed Aggravated Assault and Possession of a Firearm by a Convicted Felon. (Emphasis added.)
At the hearing on Copney’s motion for new trial, when asked
about the now contested portion of the jury instruction, trial counsel
testified that she “didn’t think to object to the fact that it’s
contradictory statements of proving a nexus versus saying this is
just the type of crime that a gang would commit.”
On appeal, Copney argues that the portion of the jury
instruction stating “meaning proof that the crime committed was
the sort of crime that the gang does” is not found in OCGA § 16-15-
4(a) and that its inclusion provided the State with an alternative,
non-statutory means to satisfy its burden of proof. Copney further 29 argues that this contested language creates an unconstitutional
presumption that the intent requirement for gang activity can be
satisfied by an extraneous, non-statutory finding that the predicate
offense is the “sort of crime that the gang does.” See Isaacs v. State,
259 Ga. 717, 735 (1989) (noting that it is unconstitutional to instruct
a jury “that a finding of fact x legally follows from proof of fact y”).
However, given the state of the law at the time of the trial, Copney
has failed to show that trial counsel’s failure to object to the jury
instruction was objectively unreasonable.
“Decisions as to which jury charges will be requested and when
they will be requested fall within the realm of trial tactics and
strategy.” Walker v. State, 301 Ga. 482, 489 (2017) (citation omitted).
They provide no grounds for reversal “unless such tactical decisions
are so patently unreasonable that no competent attorney would have
chosen them.” Fuller v. State, 316 Ga. 127, 132 (2023) (citation and
punctuation omitted). Moreover, it is well settled that “[a] criminal
defense attorney does not perform deficiently when [s]he fails to
advance a legal theory that would require an extension of existing
30 precedents and the adoption of an unproven theory of law.” Esprit v.
State, 305 Ga. 429, 438 (2019) (citation and punctuation omitted).
Here, trial counsel requested and received the pattern jury
instruction for a gang activity charge. At the time of the trial, there
was no precedent holding that the contested language in the jury
charge was improper. As to Copney’s first argument, that the
contested language provides the State with an alternative, non-
statutory means to satisfy its burden of proof, this Court has
previously rejected a plain error challenge to this pattern jury
instruction. See Dixon v. State, 309 Ga. 28, 35–37 (2020) (stating
that Criminal Pattern § 2.02.25 was a “correct and complete
statement of the law applicable to the charges of participation in
criminal gang activity under OCGA § 16-15-4(a)”). We note that this
Court recently granted certiorari to determine whether, for purposes
of proving a violation of OCGA § 16-15-4, the State can “prove that
a defendant committed a crime with the intent to further the gang’s
interests by proving merely that the crime was of the ‘sort’ or ‘type’
that the gang commits.” See Lee v. State, Case No. S25G0768.
31 Nonetheless, “trial counsel’s failure to raise a novel legal argument
does not constitute ineffective assistance of counsel.” Griffin v. State,
309 Ga. 516, 520 (2020). See also Rhoden v. State, 303 Ga. 482, 486
(2018) (“[T]here is no requirement for an attorney to prognosticate
future law in order to render effective representation. Counsel is not
obligated to argue beyond existing precedent.” (citations and
punctuation omitted)). Accordingly, trial counsel’s failure to argue
the point that we have now granted certiorari on in Lee was not
deficient.
Copney’s second argument has already been expressly rejected
by this Court. In Jackson v. State, 321 Ga. 659, 662 (2025) , the
defendant argued that his trial counsel was constitutionally
ineffective because he failed to object to the pattern jury instruction
for a gang activity charge, which “purportedly contained language
creating a constitutionally impermissible mandatory presumption.”
This Court held that “the challenged language does not create a
mandatory presumption, nor does it shift the burden of proof to the
defendant …. Rather, the instruction, read as a whole, informed the
32 jury about the ‘meaning’ of the phrase ‘further the interests of the
gang.’” Id. at 664. Because Copney “has not shown that trial counsel
should have objected to the charge, he has not demonstrated that
counsel’s performance was deficient in this regard.” Id. at 665.
(e) Copney argues that trial counsel’s alleged errors caused him
prejudice when considered collectively. See Schofield v. Holsey, 281
Ga. 809, 811 n.1 (2007), overruled on other grounds by State v. Lane,
308 Ga. 10, 17 (2020). Even considering the effect of any deficient
performance in trial counsel’s failure to object to the admission of
Copney’s arrest warrant combined with the effect of counsel’s failure
to object to the State’s line of questioning under OCGA § 17-8-75, we
conclude that Copney has not shown prejudice sufficient to warrant
a new trial. See Troutman v. State, 320 Ga. 489, 501 (2024). The
evidence of Copney’s guilt was overwhelming, and any alleged
prejudice to Copney from these two matters is far outweighed by the
evidence of his guilt. Accordingly, he has failed to show that there is
a reasonable probability that the result of his trial would have been
33 different had counsel performed as he claims she should have. For
this reason, Copney has failed to establish that the combined
prejudicial effect of any deficient performance by trial counsel
requires a new trial. See id. at 501–02.
Judgment affirmed. All the Justices concur.