Hernandez v. State

• Court: Supreme Court of Georgia
• Decided: March 17, 2026
• Docket: S26A0053
• Status: Published

Opinion

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: March 17, 2026

S26A0053. HERNANDEZ v. THE STATE.

PINSON, Justice.

Gustavo Hernandez was convicted of malice murder and other

crimes related to the shooting of Daniel Perez.1 On appeal, Hernan-

1 Perez was shot on March 23, 2018, and died a few days later. A Cobb

County grand jury returned a joint indictment charging Hernandez and four others with several crimes related to the shooting. As relevant here, Hernan- dez was charged with malice murder, three counts of felony murder, aggra- vated assault, criminal attempt to commit a felony (armed robbery), conspiracy to commit armed robbery, and possession of a firearm during the commission of a felony. He was tried alone by a jury on August 23 to 27, 2021. The jury found him guilty of all counts. On September 1, 2021, the trial court sentenced him to life in prison for malice murder, a consecutive sentence of 10 years in prison for conspiracy to commit armed robbery, and a consecutive five years in prison for possession of a firearm during the commission of a felony; the felony murder charges were vacated by operation of law, the aggravated assault charge merged with the charge of malice murder, and the charge of criminal attempt to commit a felony merged with the charge of conspiracy to commit armed robbery. Hernandez timely filed a motion for new trial through his trial counsel on the same day he was sentenced. Hernandez later changed counsel, and on February 7, 2025, he filed an amended motion for new trial, which raised claims that trial counsel was ineffective. After a hearing on March 26, 2025, the trial court denied the motion for new trial on April 10, 2025, and dez contends that his trial counsel rendered constitutionally ineffec-

tive assistance by failing to object to several arguments made by the

State in closing. For the reasons that follow, Hernandez has not es-

tablished that counsel’s performance was deficient, so his claims fail

and his convictions and sentences are therefore affirmed.

1. The evidence at trial showed the following. On March 23,

2018, Hernandez, Charlton Kariuki, and Devin Thomas discussed

robbing someone. Thomas then sent a message to Perez on social

media about an opportunity to sell a “good amount” of marijuana.

Perez showed the message to his girlfriend, who thought this pro-

posal was “fishy” because Thomas had once set up Perez with a pur-

ported buyer who stole five- or six-hundred-dollars’ worth of mariju-

ana from Perez.

Dismissing his girlfriend’s concerns, Perez asked his brother,

Ricky Perez, to give him a ride and put a location into his GPS. Ricky

drove, following the GPS directions until Perez told him to take a

Hernandez timely filed a notice of appeal on the next day. His appeal was dock- eted to the term of this Court beginning in December 2025 and submitted for a decision on the briefs. 2 right into a parking lot across from North Cobb High School instead.

Ricky turned into the lot and parked. Someone approached their

truck and spoke to Perez through the open passenger-side window.

Someone else then came toward the truck and shot Perez through

the open window. Ricky had been looking at his phone and “barely”

saw the shooter, but he testified that it looked like the shooter was

trying to take something from Perez and then ran away.

Ricky called 911, and Perez was taken to the hospital. He died

three days later from complications related to a gunshot wound to

his head.

After the shooting, Perez’s girlfriend told the police about the

social media messages Perez had exchanged with Thomas that day

and identified Thomas in a photo. Someone else also contacted the

police and told them that Thomas may have been involved in the

shooting.

Thomas was taken into custody, and Maria Mungai, who lived

with Thomas and was with him at the time of his arrest, was

3 brought in for questioning. Investigators read Mungai her Miranda2

rights, and she agreed to speak with them. At first Mungai said the

incident with Perez was a “drug transaction,” but then “she changed

her story and said that it was basically a robbery that had gone

wrong.” She identified Hernandez, Brittani Driver (Hernandez’s sis-

ter), Thomas, and Kariuki as the people involved.

Thomas, Kariuki, Driver, and Mungai were all jointly indicted

with Hernandez. Driver, Kariuki, and Mungai testified at Hernan-

dez’s trial pursuant to plea agreements with the State.

Kariuki testified that Thomas told him that he wanted to rob

three people in different places, and that “it should be quick ... get it

and go.” Kariuki then drove Hernandez, Thomas, Driver, and

Mungai to a spot near North Cobb High School. According to Kari-

uki, Thomas got out of the car, and Driver, Hernandez, and Mungai

remained with Kariuki, who drove around the area until he found a

parking spot and parked. Kariuki testified that “a couple seconds,

minutes [went] by” and then Hernandez said he wanted to get out of

2 Miranda v. Arizona, 384 US 436 (1966).

4 the car to urinate. Hernandez then got out of the car and said he

would “be right back.” But according to Driver, Thomas and Hernan-

dez got out of the car together and walked away. And according to

Mungai, Driver told Kariuki where to park and told Thomas to go in

one direction and Hernandez to go in another direction when they

got out of the car together.

Kariuki testified that, soon after Hernandez got out of the car,

he heard a “loud boom” that sounded like a gunshot and everyone in

the car started “panicking.” Kariuki said that Driver wanted to get

out of the car and see what had happened, but he stopped her. They

waited “a couple minutes,” and then Kariuki saw Thomas and Her-

nandez “running down the street,” “put the car in gear,” and drove

to them. Driver testified that Thomas and Hernandez had been

“gone for a couple minutes” when she heard what sounded like a

gunshot, and then Thomas and Hernandez “came running back to

the car.” Mungai testified that she heard a gunshot less than a mi-

nute after Hernandez and Thomas got out of the car. Soon after that,

she saw Thomas and Hernandez “running back towards the car.”

5 Kariuki testified that, after Hernandez and Thomas got back

inside the car, Hernandez said, “I shot him, I shot him. Bro, I shot

him in the head. I shot him. I didn’t mean to. I shot him.” And

Thomas said, “He shot him, he shot him. I didn’t even get the weed

yet.” Driver testified that Hernandez said, “I think I just shot him

in the head.” She also said that Hernandez was “panicking” and

“couldn’t believe what he had done.” Mungai testified that Hernan-

dez said, “I just shot that ‘N word’ in the head.”

After the shooting, Kariuki drove Hernandez and Driver to

their home. Kariuki and Driver both testified that Hernandez had a

gun with him on the day of the shooting. Kariuki testified that he

had recently bought a gun for himself, and then he sold it to Her-

nandez. The day after the shooting, Kariuki drove Hernandez,

Thomas, and Mungai to a park near the Chattahoochee River, and

Hernandez threw the gun he had bought from Kariuki into the river.

When the police arrested Hernandez, they also executed a

search warrant at his home. During the search, investigators found

a store receipt for ammunition that matched the caliber of the bullet

6 collected at the crime scene. Surveillance footage from that store

showed Kariuki, Thomas, Mungai, and Hernandez shopping. Kari-

uki testified that he bought ammunition that day (because he was

the only one old enough to do so) and gave it to Hernandez.

2. Hernandez claims on appeal that his trial counsel was inef-

fective for not objecting to several points in the State’s closing argu-

ment. To prevail on a claim of ineffective assistance of counsel, a

defendant must show that his trial counsel performed deficiently

and that he was prejudiced by counsel’s deficient performance. See

Strickland v. Washington, 466 US 668, 687 (1984). To show defi-

ciency, he must establish that counsel performed “in an objectively

unreasonable way, considering all of the circumstances and in the

light of prevailing professional norms.” Robinson v. State, 323 Ga. 7,

14 (2025) (quotation marks omitted). And to establish prejudice, he

“must show that there is a reasonable probability that, but for coun-

sel’s deficiency, the result of the trial would have been different.” Id.

(quotation marks omitted).

With respect to closing arguments, “[p]rosecutors are generally

7 given wide latitude to rebut closing arguments made by the de-

fense.” Id. at 19. Moreover, such arguments must be evaluated in

context, not in isolation. See Thompson v. State, 318 Ga. 760, 767

(2024). Defense counsel’s decision about whether to object to any

specific point made in closing is a tactical one, so the decision to not

object is not deficient performance unless it is “patently unreasona-

ble.” Id. at 767–68 (quotation marks omitted).

Hernandez points to several specific statements the prosecutor

made in closing and contends that his trial counsel was ineffective

for not objecting to each of them. We address the challenged state-

ments in turn.

(a) Hernandez contends that trial counsel should have objected

to the prosecutor’s argument that Hernandez’s co-defendants “told

the truth” because they were improper comments on the veracity of

these witnesses. As discussed above, three of Hernandez’s co-defend-

ants testified at his trial pursuant to plea deals with the State, and

each testified that the plea deal required him or her to tell the truth.

8 Hernandez has not shown that his trial counsel rendered defi-

cient performance by not objecting to these statements because they

were not improper comments on the veracity of witnesses. Although

it is improper for a prosecutor to express a personal opinion about

the credibility of a witness, see Washington v. State, 320 Ga. 839,

858 (2025), that did not happen here. Instead, when read in context,

the record shows that the prosecutor’s statements in closing sum-

marized the evidence that, as part of the plea deals entered into with

the State, the three co-defendants agreed to “tell the truth,” and the

prosecutor’s argument that there “wasn’t any evidence presented

that the co-defendants were lying” responded directly to defense

counsel’s own argument that they had lied. Both are permissible

subjects in closing argument. See Robinson, 323 Ga. at 19–20. And

at no point did the prosecutor offer his personal opinion about the

truthfulness of the co-defendants’ testimony. Cf. Washington, 320

Ga. at 858–59 (defense counsel was not deficient for failing to object

to the prosecutor’s comments about witnesses’ credibility to the ex-

tent they were arguments about “reasonable inferences” that the

9 jury could draw from the evidence and the witnesses’ demeanor,

whereas defense counsel had “reasonable grounds for objecting”

when the prosecutor expressed a personal opinion about their truth-

fulness, “namely, the prosecutor’s comment that ‘I think’ [certain

witnesses] were credible”). So any objection to the statements would

have failed, and trial counsel is not deficient for failing to raise a

meritless objection. See Summerville v. State, 320 Ga. 60, 62 (2024).

(b) Hernandez contends that trial counsel should have objected

to “facts not in evidence” when the prosecutor referred to the Sep-

tember 11, 2001, terrorist attacks during closing argument. The rec-

ord shows that the references to September 11th were part of an

extended analogy, apparently prompted by the upcoming 20-year

anniversary of the attacks. (Closing arguments occurred in late Au-

gust 2021). The prosecutor referred to how “there’s a lot that [he]

can’t remember” about September 11, 2001, but “what matters is

that the towers got hit” and “[t]hat’s the important part.” And he

compared this concept to the co-defendants’ testimony at trial, argu-

ing that their testimony that Hernandez “jumps back in the car and

10 says: I shot that guy in the head” was “the important part ... that

sticks out to all of [the co-defendants],” which was “why they all can

remember it consistently,” notwithstanding other differences in

their accounts.

Hernandez has not established that counsel rendered deficient

performance by failing to object to the prosecutor’s analogy. See Ar-

nold v. State, 309 Ga. 573, 577 (2020). Trial counsel’s decision not to

object was not objectively unreasonable because, in context, the

analogy was a permissible one made to explain how differences in

the co-defendants’ memories of the shooting fit within the concept of

reasonable doubt. See id. (prosecutors in closing argument can make

illustrations and draw analogies that have some basis in the evi-

dence). See also Thompson, 318 Ga. at 767–68. Because this argu-

ment was not improper, an objection to it would have failed, and it

is not unreasonable for counsel to fail to make a meritless objection.

See Summerville, 320 Ga. at 62.

(c) Hernandez claims that trial counsel should have objected

when the prosecutor, in explaining reasonable doubt, referred to

11 how another judge had explained reasonable doubt as “your walk-

ing-around common sense” and urged the jurors not to “leave your

common sense at the door” when evaluating the evidence. Hernan-

dez now contends that this statement argued facts not in evidence

and was a misstatement of the law. The trial court later instructed

the jury, in relevant part, that “[a] reasonable doubt is a doubt based

upon common sense and reason.”

Hernandez has not established that counsel rendered deficient

performance. The prosecutor did not refer to any evidence outside of

the record, so any objection to “facts not in evidence” would have

been overruled, and failing to make a meritless objection is not defi-

cient performance. Compare Adams v. State, 283 Ga. 298, 303 (2008)

(prosecutor’s argument about his method of preparing witnesses for

trial “did not put forth any facts not in evidence, or inform the jury

that facts existed in this case outside the record”) with High v. Zant,

250 Ga. 693, 700–01 (1983) (prosecutor’s reference to portions of de-

fendant’s incriminating statement that was not admitted into evi-

dence was “an impermissible introduction of facts not in evidence,

12 as distinguished from false logic or rhetoric”). And Hernandez has

not established that counsel’s failure to object to this argument as a

misstatement of the reasonable doubt standard was “patently un-

reasonable.” Thompson, 318 Ga. at 767–68. The prosecutor’s brief

mention of “common sense” in relation to that standard was not an

obvious misstatement of the law, and it in fact highlighted part of

the trial court’s instructions to the jury, which explained that rea-

sonable doubt “is a doubt based upon common[ ] sense and reason.”3

Moreover, even if such an objection would have had merit, a reason-

able lawyer could have decided to rely on his own closing argument

3 In full, the trial court instructed the jury that reasonable doubt is:

just what it says. A reasonable doubt is a doubt of a fair-minded, impartial juror honestly seeking the truth. A reasonable doubt is a doubt based upon common[ ] sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of ev- idence, or a conflict in the evidence. After giving consideration to all of the facts and circumstances of this case, if your minds are wavering, unsettled, or unsatisfied, then that is a doubt of the law and you must acquit the defendant. But if that doubt does not exist in your minds as to the guilt of the accused, then you would be authorized to convict the defendant. If the State fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant. 13 and the trial court’s thorough charge on reasonable doubt “rather

than make an objection of questionable merit,” particularly given

the broad latitude afforded to counsel in closing arguments. Faulk-

ner v. State, 295 Ga. 321, 326–27 (2014) (rejecting ineffective assis-

tance claim and concluding trial counsel’s performance was not de-

ficient because even if an objection to the prosecutor’s argument as

“an implicit misstatement of the law” may have had “some merit,”

defendant did not ask trial counsel about the decision not to object

at the motion for new trial hearing and “[a] reasonable lawyer might

well have decided that, rather than make an objection of questiona-

ble merit, she would rely on her own closing argument … and on the

trial court’s thorough charge” on the relevant law); Moulder v. State,

317 Ga. 43, 54–55 (2023) (rejecting ineffective assistance claim that

defense counsel’s argument that the jury should find the defendant

guilty “if your heart of hearts says he did it” was a misstatement of

the law on reasonable doubt because “counsel used the phrases at

issue to emphasize the lack of evidence presented by the State,

14 knowing that the trial court would instruct the jury on the legal def-

inition of reasonable doubt” and thus counsel’s performance was not

deficient (emphasis omitted)).

(d) Hernandez contends that trial counsel should have objected

to the prosecutor’s closing arguments encouraging the jury to “send

a message” and “render a verdict for [Perez’s] family” because that

is not the jury’s responsibility as factfinder.

Hernandez has not established that counsel rendered deficient

performance by failing to object to these statements. “It is not im-

proper for a prosecutor to argue that a jury should send a message

to the community by convicting a defendant” so long as the prosecu-

tor does not “invite the jury to decide the case on anything except

whether the evidence adduced at trial shows the defendant’s guilt

beyond a reasonable doubt.” Arnold, 309 Ga. at 580–81. Read in con-

text, the prosecutor was responding to defense counsel’s own argu-

ment — that “[s]ometimes people will hear from lawyers in closing

arguments that you need to send a message,” but it was not the

jury’s job to “send messages” — when the prosecutor asked the jury

15 to “send a message” and “render a verdict for [Perez’s] family.” Be-

cause this argument was in direct response to defense counsel, and

it came after the prosecutor had already explained the reasonable

doubt standard, as discussed above, it was not improper. See id.;

Robinson, 323 Ga. at 19–20. So it was not unreasonable for counsel

not to make this meritless objection. See Summerville, 320 Ga. at

62.

*

In sum, Hernandez has failed to establish that his trial counsel

performed deficiently by not objecting to any of the challenged clos-

ing arguments by the prosecutor, so his claims of ineffective assis-

tance of counsel fail. See Strickland, 466 US at 687; Robinson, 323

Ga. at 14.

3. Finally, Hernandez contends that he suffered cumulative

prejudice from trial counsel’s failure to object to each of the state-

ments discussed above. But because we conclude that counsel did

not perform deficiently in any respect raised by Hernandez, there

are no errors to assess cumulatively, and this claim fails. See Moss

16 v. State, 322 Ga. 757, 769 (2025).

Judgment affirmed. All the Justices concur.