Copney v. State

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.

Accordingly, this enumeration fails.

(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.

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