¶1 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.
¶2In the Supreme Court of Georgia
¶3 Decided: May 31, 2023
¶4 S23A0281. COPELAND v. THE STATE.
¶5 PINSON, Justice.
¶6 Matthew Copeland was convicted of felony murder and related
¶7crimes in connection with the shooting death of Carlos Glenn. 1 On
¶8 1The shooting occurred on December 11, 2012. In March 2013, Copeland was indicted by a Fulton County grand jury for malice murder (Count 1); two counts of felony murder (Counts 2 and 3), predicated respectively on the crimes charged in Count 4 (aggravated assault) and Count 5 (possession of a firearm by a convicted felon); and possession of a firearm during the commission of a felony (Count 6). At the conclusion of a jury trial held in September 2013, Copeland was acquitted of malice murder but found guilty on all remaining counts. On September 23, 2013, Copeland was sentenced to serve life in prison for Count 2, plus a consecutive five-year term for Count 6. The trial court merged Count 4 into Count 2 for sentencing purposes. Although the court also purported to merge Count 3 into Count 2 and then purported to merge the predicate felony charged in Count 5 into Count 3, Count 3 actually stood vacated by operation of law, see Noel v. State, 297 Ga. 698, 700 (2) (777 SE2d 449) (2015) (citing Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993)), and Copeland thus should have been sentenced on Count 5. See id. But “when a merger error benefits a defendant and the State fails to raise it by cross-appeal,” we “exercise our discretion to correct the error upon our own initiative only in exceptional circumstances.” Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017). Seeing no such circumstances here, we decline to disturb the sentence. On October 2, 2013, Copeland filed a timely motion for appeal, Copeland contends that the evidence was constitutionally
¶9insufficient to support his convictions and that his trial counsel
¶10rendered constitutionally ineffective assistance. But the evidence
¶11was sufficient: the only disputed question was whether the shooting
¶12was justified, and the jury was entitled to discredit Copeland’s
¶13testimony that he shot Glenn in self-defense. And, although trial
¶14counsel admitted he relied on outdated precedent in seeking the
¶15admission of evidence about Glenn’s criminal convictions, Copeland
¶16has failed to establish that such evidence would have been
¶17admissible even under the applicable standard, so he has not shown
¶18the prejudice necessary to prevail on his claim of ineffective
¶19assistance. We therefore affirm his convictions and sentence.
¶20 1. Viewed in the light most favorable to the verdicts, the
¶21evidence at trial showed as follows. On the day of the shooting,
¶22Copeland went to Underground Atlanta with $400 in cash and
¶23new trial, which he amended through new counsel on October 30, 2019. After a hearing, the trial court denied the motion on October 3, 2022. On that same day, Copeland filed a notice of appeal. The appeal was docketed to the term of this Court beginning in December 2022 and was thereafter submitted for a decision on the briefs. 2 bought $10 worth of marijuana from Jamontae Strozier. Strozier
¶24noticed that Copeland had a gun with a brown handle at his side,
¶25concealed under his shirt.
¶26 At some point later, Copeland met up with his friend Mario
¶27Clifton and another friend identified only as Pierre. As they were
¶28about to leave the mall, they ran into Glenn and Glenn’s friend
¶29Shatel Fowle. Copeland had known Glenn for about ten years, and
¶30the two had been on rocky terms since several years earlier when
¶31they were in jail together. Copeland and Glenn began arguing and
¶32tussling.
¶33 As the men left the mall, their altercation continued. Once
¶34outside, they walked ahead of the other men towards the nearby
¶35MARTA train station. Just after they rounded the corner and out of
¶36the other men’s sight, two gunshots rang out. Glenn was shot in the
¶37forearm and the torso, and the shot to the torso was fatal. Copeland
¶38ran from the scene.
¶39 Later that evening, Copeland called Clifton and said he had
¶40told Glenn to leave him alone and that he “didn’t want to fight.” A
¶41 3 few days after the shooting, Copeland ran into Strozier and told him
¶42that he “didn’t . . . mean to shoot anybody.”
¶43 Although security cameras captured video footage of the men
¶44walking inside the mall before the shooting, there was no footage of
¶45the shooting, and no one came forward as an eyewitness to the actual
¶46shooting.
¶47 Investigators identified Copeland as a suspect after speaking
¶48with witnesses and tipsters. Six days after the shooting, an Atlanta
¶49police officer spotted Copeland’s car and conducted a traffic stop.
¶50Copeland initially gave a false name, and he was ultimately arrested
¶51for driving without a valid license. Detectives later questioned
¶52Copeland about the murder, and he denied any involvement in or
¶53knowledge about the shooting, even after the detectives told him
¶54about the video footage of him with Glenn just before the shooting
¶55and noted that his name had “come up” in the investigation.
¶56 According to the GBI firearms examiner, the bullet removed
¶57from Glenn’s body was a .38-caliber lead bullet. The clothing
¶58removed from Glenn’s body was found to have “very few loose
¶59 4 particles” of gunpowder, indicating that the gun was fired from a
¶60distance of a few feet away.2 Clifton testified that Copeland owned a
¶61silver .38-caliber gun with a brown handle.
¶62 Copeland gave testimony in his own defense at trial that was
¶63consistent with the defense’s theory that Glenn was a bully who
¶64instigated the fatal altercation after Copeland refused to give him
¶65money. Copeland testified that, throughout their acquaintance, he
¶66and Glenn would often “get into it,” and he said he had seen Glenn
¶67fight “numerous” other people in the past. On the day of the
¶68shooting, Copeland testified, he encountered Glenn more than once
¶69while at Underground. The first time, Glenn asked him for money,
¶70and he refused and walked away. Later, after meeting up with
¶71Clifton and Pierre, Copeland again ran into Glenn, who began
¶72taunting and harassing him and then “grabbed my jacket and like
¶73pulled me up”; Copeland told Glenn to leave him alone and went
¶74outside to smoke a cigarette. When Copeland and his companions
¶75 2According to the firearms examiner, gunpowder particles typically “stop depositing” when the firearm is fired from “around three-and-a-half to five- and-a-half feet” from the target. 5 went back into the mall, Glenn resumed his insults and
¶76provocations, and Copeland continued trying to rebuff him. The men
¶77eventually left the mall, walking past the patio of a bar where
¶78associates of Glenn were gathered, and Glenn handed his coat and
¶79hat to Fowle and told him to “fall back, I got this.” As they headed
¶80toward the train station, Glenn hit Copeland twice; Copeland
¶81stumbled, and as Glenn raised his arm to swing again, Copeland
¶82fired his gun. Copeland testified that he shot Glenn “to get him off
¶83me,” that he had seen Glenn beat up “numerous folk” in the past,
¶84and that he feared for his life and fired his gun as a last resort. When
¶85asked why he had not given this account to the detectives, he said
¶86he had been scared and did not trust them. Copeland admitted to
¶87being a convicted felon.
¶88 Evidence was elicited from various witnesses about Glenn’s
¶89penchant for fighting and possible gang affiliation. Strozier
¶90described Glenn as a “good fighter” who was “nice with his hands”
¶91and admitted that he had told the lead detective that there were
¶92“nothing but Bloods” at Glenn’s funeral. A mall security officer
¶93 6 testified that people he believed were Glenn’s relatives, who
¶94frequented the mall, were members of a local gang and that Glenn
¶95“was not supposed to be on the [mall] property” at the time of the
¶96shooting. Copeland testified that several of Glenn’s associates at the
¶97bar patio that evening were members of the Bloods or a different
¶98local gang.
¶99 2. Copeland contends that the evidence was insufficient to
¶100support his convictions. When assessing a challenge to the
¶101sufficiency of the evidence as a matter of constitutional due process,
¶102the evidence presented at trial is viewed in the light most favorable
¶103to the verdicts to determine whether any rational trier of fact could
¶104have found the defendant guilty beyond a reasonable doubt of all the
¶105crimes of which he was convicted. See Jones v. State, 304 Ga. 594,
¶106598 (2) (820 SE2d 696) (2018) (citing Jackson v. Virginia, 443 U.S.
¶107307, 319 (III) (B) (99 SCt 2781, 61 LEd2d 560) (1979)). In making
¶108this determination, we do not evaluate witness credibility, resolve
¶109inconsistencies in the evidence, or assess the weight of the evidence;
¶110these tasks are left to the sole discretion of the jury. See Walker v.
¶111 7 State, 296 Ga. 161, 163 (1) (766 SE2d 28) (2014). The jury’s verdicts
¶112will be upheld as long as some competent evidence, even if
¶113contradicted, supports each fact necessary to make out the State’s
¶114case. See Jones, 304 Ga. at 598 (2).
¶115 Here, Copeland does not dispute that he shot and killed Glenn
¶116or that he was a convicted felon at the time he did so. Rather, he
¶117contends that the shooting was committed in self-defense. “[A]
¶118person is justified in using force which is intended or likely to cause
¶119death or great bodily harm only if he . . . reasonably believes that
¶120such force is necessary to prevent death or great bodily injury to
¶121himself . . . or to prevent the commission of a forcible felony.” OCGA
¶122§ 16-3-21 (a). Although the State bears the burden to disprove a
¶123defendant’s self-defense claim, the jury decides whether this burden
¶124has been met, and it is free to disbelieve the defendant’s testimony.
¶125See Huff v. State, 315 Ga. 558, 562-563 (1) (883 SE2d 773) (2023).
¶126 The evidence here authorized the jury to reject Copeland’s
¶127claim that he shot Glenn because he reasonably feared for his life.
¶128See Huff, 315 Ga. at 562-563 (1). Given Copeland’s admitted lies to
¶129 8 investigators and the inconsistency between the forensic evidence—
¶130indicating his gun was fired from more than three feet away—and
¶131Copeland’s claim that he fired as Glenn was about to strike him, the
¶132jury could have disbelieved his claim that he fired out of fear rather
¶133than anger. See id. Or the jury could have concluded that what fear
¶134Copeland did feel in the situation did not justify the use of a gun.
¶135See Nelson v. State, 283 Ga. 119, 120 (1) (657 SE2d 201) (2008) (jury
¶136was authorized to reject self-defense claim where it concluded that
¶137appellant had used excessive force by shooting the victim after being
¶138punched). And the evidence was otherwise sufficient to support
¶139Copeland’s convictions. See Walker v. State, 312 Ga. 232, 235-236 (1)
¶140(862 SE2d 285) (2021) (because the jury was authorized to disbelieve
¶141the defendant’s self-defense claim, the evidence was sufficient to
¶142support felony-murder and firearm-possession convictions). 3
¶143 3 It is not clear that Copeland would have been entitled to claim self-defense in the first place. Justification is generally not available as a defense to someone who commits a crime while otherwise engaged in the commission of a felony, see OCGA § 16-3-21 (b) (2), and here, there was undisputed evidence that Copeland was carrying a gun on the day of the shooting, which— because of his status as a convicted felon—was a felony. See OCGA § 16-11-
¶144 9 3. Copeland also contends that his trial counsel rendered
¶145ineffective assistance by failing to present evidence of Glenn’s
¶146criminal convictions to the jury. To succeed on a claim of ineffective
¶147assistance, a defendant must establish both that his counsel’s
¶148performance was deficient and that he was prejudiced as a result of
¶149that deficient performance. See Washington v. State, 313 Ga. 771,
¶150773 (3) (873 SE2d 132) (2022) (citing Strickland v. Washington, 466
¶151U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984)).
¶152 To prove deficient performance, a defendant must establish
¶153that counsel “performed his duties in an objectively unreasonable
¶154way, considering all the circumstances and in the light of prevailing
¶155131 (b). And although our precedent at the time recognized an exception to the statutory bar against claiming justification “[w]here, upon a sudden emergency, one suddenly acquires actual possession of a pistol for the purpose of defending himself,” Cauley v. State, 260 Ga. 324, 326 (2) (c) (393 SE2d 246) (1990), the evidence here seems not to support such an exception. This issue does not appear to have been raised or considered at trial so we do not decide it. But nothing in this opinion should be read to undermine existing law— which, we note, has changed since the trial in this case—governing the circumstances under which justification may be barred for those violating gun possession laws. See OCGA § 16-11-138 (“Defense of self or others . . . shall be an absolute defense to any violation under this part.”); Johnson v. State, 308 Ga. 141 (839 SE2d 521) (2020) (examining the effect of OCGA § 16-11-138 on OCGA § 16-3-21 (b) (2)). 10 professional norms.” Washington, 313 Ga. at 773 (3) (citation and
¶156punctuation omitted). To overcome the “strong presumption” that
¶157counsel performed reasonably, the defendant must show that “no
¶158reasonable lawyer would have done what his lawyer did, or would
¶159have failed to do what his lawyer did not.” Id. (citation and
¶160punctuation omitted). To prove prejudice, a defendant must
¶161establish that there is a “reasonable probability that, but for
¶162counsel’s deficiency, the result of the trial would have been
¶163different.” Id. A reasonable probability is a probability “sufficient to
¶164undermine confidence in the outcome” of the trial. Neal v. State, 313
¶165Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and punctuation
¶166omitted). If a defendant fails to make a sufficient showing on one
¶167part of the Strickland test, we need not address the other part.
¶168Washington, 313 Ga. at 773 (3).
¶169 In reviewing a trial court’s ruling on an ineffective-assistance
¶170claim, we accept the trial court’s factual findings and credibility
¶171determinations unless they are clearly erroneous, but we
¶172independently apply the relevant legal principles to the facts. See
¶173 11 Sullivan v. State, 301 Ga. 37, 40 (2) (799 SE2d 163) (2017).
¶174 (a) Before trial, Copeland’s trial counsel moved for leave to
¶175introduce evidence of Glenn’s prior criminal history, which included
¶176three separate judgments of conviction for robbery by intimidation;
¶177possession of a firearm by a convicted felon and obstruction of a law
¶178enforcement officer; and robbery and aggravated assault arising
¶179from a carjacking. At a pretrial hearing, counsel argued that the
¶180prior crimes were relevant to establishing Copeland’s claim of self-
¶181defense. The State argued that the first and second crimes were not
¶182crimes of violence and thus not relevant to the self-defense claim,
¶183and that there was no evidence that Copeland had knowledge of the
¶184carjacking incident, which would be required for the evidence of any
¶185of the crimes to be admissible under the newly enacted OCGA § 24-
¶1864-404 (a). Trial counsel responded that he “did not know the new
¶187[evidence] code in terms of that situation” and was given time to
¶188research the issue during a recess. After the recess, counsel stated
¶189that he “could not find that particular statute” in the court’s law
¶190library, but noted that he had found “the Hodges case that does
¶191 12 speak to Chandler . . . as the main authority” on this issue. 4 The
¶192State pointed out that the rule in Chandler was no longer good law,
¶193because “the whole Evidence Code changed on January 1, 2013,” and
¶194the trial court denied the motion, stating it would revisit the issue if
¶195counsel later offered additional authority or proffered evidence of
¶196Copeland’s knowledge of any of Glenn’s alleged prior bad acts.
¶197Counsel did not seek to revisit the issue, and thus the jury was never
¶198presented with any evidence of Glenn’s prior crimes.
¶199 At the motion-for-new-trial hearing, trial counsel testified that
¶200the defense strategy had been to show that “Mr. Copeland was
¶201confronted by a bully, and he defended himself against the bully.”
¶202He testified further that he believed his performance at trial had
¶203been deficient due to his lack of knowledge of the newly-enacted
¶204Evidence Code, and that this had prejudiced Copeland’s ability to
¶205 4 See State v. Hodges, 291 Ga. 413, 415 (728 SE2d 582) (2012) (citing, as the seminal case on victim-prior-acts evidence, Chandler v. State, 261 Ga. 402, 407-408 (3) (b), (c) (405 SE2d 669) (1991) (announcing rule that “evidence of specific acts of violence by a victim against third persons shall be admissible where the defendant claims justification” and imposing procedures governing the introduction of such evidence)). 13 prove Copeland’s claim of self-defense. In rejecting Copeland’s
¶206ineffectiveness claim, the trial court made no express factual
¶207findings and summarily concluded that Copeland had shown neither
¶208deficient performance nor prejudice.
¶209 (b) Even assuming trial counsel rendered deficient
¶210performance, Copeland has failed to establish prejudice because he
¶211cannot show that the evidence of Glenn’s past convictions could have
¶212been admitted.
¶213 Under the current Evidence Code, which governed Copeland’s
¶2142013 trial, 5 an accused may offer “evidence of a pertinent trait of
¶215character of the alleged victim,” “for the purpose of proving action in
¶216conformity therewith,” OCGA § 24-4-404 (a) (2), but that evidence is
¶217generally limited to “testimony as to reputation or by testimony in
¶218the form of an opinion,” OCGA § 24-4-405 (a). Evidence of “specific
¶219instances” of a victim’s conduct is admissible for this purpose only
¶220when the character trait “is an essential element of a charge, claim,
¶221 5 See Ga. L. 2011, p. 99, 214, § 101 (2013 Evidence Code made effective as to all trials “commenced on or after” January 1, 2013). 14 or defense.” OCGA § 24-4-405 (b). See Mohamud v. State, 297 Ga.
¶222532, 536 (3) (773 SE2d 755) (2015) (construing OCGA § 24-4-405 to
¶223mean that “as a general rule, character evidence of a victim is
¶224limited to reputation or opinion, not specific bad acts”) (emphasis in
¶225original); see also United States v. Gulley, 526 F3d 809, 818-819 (5th
¶226Cir. 2008) (recognizing that “the plain language of federal Rule 405
¶227(b) limits the use of specific instances of conduct to prove essential
¶228elements of a charge or defense” and thus that the victim’s prior
¶229violent acts were not admissible in support of the defendant’s self-
¶230defense claim); United States v. Gregg, 451 F3d 930, 933-935 (8th
¶231Cir. 2006) (same). 6
¶232 Specific instances of a victim’s past conduct may also be
¶233admitted, not to show the victim’s action in conformity therewith,
¶234but rather “to show the defendant’s state of mind and the
¶235reasonableness of the defendant’s use of force.” United States v.
¶236 6 “OCGA §§ 24-4-404 (a) and 405 closely track their counterparts in the Federal Rules of Evidence, so we look to federal appellate decisions applying these federal rules for guidance in interpreting the Georgia statutes.” Strong v. State, 309 Ga. 295, 314 (3) (845 SE2d 653) (2020). At the time of Copeland’s trial, no Georgia appellate decisions had construed these provisions. 15 Bordeaux, 570 F3d 1041, 1049 (8th Cir. 2009). Because such
¶237evidence is offered as proof of the defendant’s state of mind at the
¶238time of the charged crime, it is admissible only if there is proof that
¶239the defendant actually knew about the victim’s prior acts at that
¶240time. See id. at 1050-1051 (affirming exclusion of evidence of victim’s
¶241prior acts of which defendant had no knowledge); United States v.
¶242Saenz, 179 F3d 686, 688-689 (9th Cir. 1999) (explaining that
¶243prohibition on victim-prior-acts evidence “does not apply when a
¶244defendant seeks to introduce evidence that he knew of a victim’s
¶245other acts to show the defendant’s state of mind) (emphasis in
¶246original). 7
¶247 Thus, here, evidence of Glenn’s prior crimes would not have
¶248been admissible to prove that Glenn had a violent or non-law-
¶249abiding character. It would only have been admissible—and even
¶250then, only potentially—to show Copeland’s state of mind at the time
¶251 7See also Griffin v. State, 309 Ga. 860, 873 & n.14 (5) (b) (849 SE2d 191) (2020) (noting that admissibility of such evidence was still an open question under Georgia law but that in any event appellant had failed to show he had knowledge of victim’s prior crime). 16 of the shooting and the reasonableness of his use of force. And it
¶252could have been admissible for that purpose only upon a showing
¶253that Copeland actually knew about the past crimes at the time of
¶254the shooting.
¶255 But Copeland has offered no evidence—nor even any
¶256argument—that he knew of Glenn’s past crimes at the time of the
¶257shooting. Copeland asserts on appeal that “Not only was Mr.
¶258Copeland a victim of Mr. Glenn’s prior acts of violence and
¶259intimidation, he was also aware of Mr. Glenn’s previous acts of
¶260violence against others.” But in support of this assertion, he cites
¶261only his own testimony that “I seen [Glenn] beat numerous folk
¶262before,” and his affirmative response when asked on direct
¶263examination whether, “based on [his] personal experience with Mr.
¶264Glenn,” Glenn “could whip” him “if he wanted to.” Neither these
¶265assertions about unspecified prior acts nor anything else in the
¶266record shows that Copeland actually knew about Glenn’s prior
¶267convictions. Without such evidence, he cannot show that, even had
¶268his counsel been familiar with the controlling law at the time of trial,
¶269 17 he would have had any chance at persuading the court to admit the
¶270evidence of Glenn’s prior crimes. And short of such a showing,
¶271Copeland cannot establish a reasonable probability that, but for
¶272counsel’s deficiency, the result of the trial would have been different.
¶273See Washington, 313 Ga. at 773 (3). So Copeland’s claim of
¶274ineffective assistance fails.
¶275 Judgment affirmed. All the Justices concur.
¶276 18