¶1NOTICE: 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: February 18, 2025
¶4 S25A0086. GRIFFIN v. THE STATE.
¶5 WARREN, Justice.
¶6 Terry Griffin was convicted of malice murder, among other
¶7crimes, in connection with the shooting death of her boyfriend,
¶8Wesley Hudson. She appeals her conviction, arguing that her trial
¶9counsel “unilaterally abandoned [her] innocence” after the close of
¶10evidence “in favor of pursuing a lesser charge of voluntary
¶11manslaughter.” Citing McCoy v. Louisiana, 584 U.S. 414 (138 SCt
¶121500, 200 LE2d 821) (2018), Griffin contends that trial counsel’s
¶13actions violated her Sixth Amendment rights and that she is entitled
¶14to a new trial because the error is structural in nature. For the
¶15reasons that follow, we conclude that Griffin’s claim fails, and we therefore affirm.1
¶16 1. (a) Hudson was shot and killed on December 13, 2017, in the
¶17apartment he shared with Griffin. Griffin was inside the apartment
¶18when police officers responded to the shooting; she was arrested at
¶19the scene. The record shows that, from the beginning of Griffin’s
¶20trial, her counsel advanced alternate defenses to the charges of
¶21malice and felony murder, and Griffin did not object to that strategy.
¶22Initially, counsel tried to lay the foundation for Griffin’s preferred
¶23theory of self-defense. In his opening statement, counsel told the
¶24jury that Griffin would testify that, on the night of the shooting,
¶25 1 The crimes occurred on December 13, 2017. In February 2018, a Fulton
¶26County grand jury indicted Griffin for malice murder, felony murder, aggravated assault with a deadly weapon, criminal damage to property in the first degree, and possession of a firearm during the commission of a felony. At a trial in December 2022, a jury found Griffin guilty of all counts. The court sentenced her to serve life in prison for malice murder and ten years to serve, consecutively, for criminal damage to property in the first degree. The court vacated the felony murder count, merged the aggravated assault with a deadly weapon count with the malice murder conviction, and suspended the sentence for possession of a firearm during the commission of a felony. «V7-323» Griffin filed a timely motion for new trial on September 20, 2022, which she later amended on March 8, 2024. After an evidentiary hearing, the trial court entered an order denying Griffin’s amended motion on May 23, 2024. Griffin filed a timely notice of appeal on June 5, 2024. The case was docketed to the term of this Court beginning in December 2024 and submitted for a decision on the briefs. 2 Hudson “tried to force sex on” Griffin, that he threatened her with a
¶27gun, and that the evidence would show that “there was a tussle,” “a
¶28discharge,” and afterwards Griffin “was in shock.” Continuing with
¶29his opening statement, counsel asked the jury to consider, in the
¶30alternative, convicting Griffin on the lesser charge of voluntary
¶31manslaughter, arguing that “something went wrong in that
¶32apartment on that night, but it was not malice aforethought.”
¶33 To support this alternative theory, counsel relied, in part, on
¶34the testimony of Hudson’s neighbor, who testified that, on the night
¶35of Hudson’s death, she heard “a woman . . . screaming . . . as if
¶36someone was being slammed against the wall, and then she heard a
¶37gun fired.” Counsel elicited testimony from a witness who testified
¶38that Hudson “liked the women” and that “cheating . . . on his part”
¶39led to conflict in his relationship with Griffin. And counsel elicited
¶40testimony that, based on the witness’s interactions with Griffin,
¶41“[Griffin] seemed like a nice person” and that conflict in Griffin and
¶42Hudson’s relationship “probably triggered them to have their
¶43differences . . . that night of [Hudson’s] death.”
¶44 3 Counsel initially requested jury instructions on both self-
¶45defense and voluntary manslaughter. But at the first charge
¶46conference, counsel conceded that “self-defense is a stretch,
¶47especially if [Griffin] doesn’t testify.” After the State finished
¶48presenting its case in chief, Griffin decided not to testify, and the
¶49trial court determined that there was not enough evidence to
¶50support giving the jury a self-defense instruction.
¶51 In his closing argument, counsel focused on Griffin’s voluntary
¶52manslaughter defense, telling the jury, “[W]hat happened in the
¶53apartment was tragic, but it wasn’t malice murder,” and argued that
¶54what transpired in Hudson’s apartment was in the “[h]eat of
¶55passion, not malice aforethought, not a malignant and angry mind.”
¶56Nevertheless, counsel also alluded to the self-defense theory,
¶57asserting during closing argument that “[Hudson] grabbed [Griffin]
¶58by the neck, and she is screaming and slammed against the wall,
¶59and she puts the gun and fires, then he keeps coming.” Counsel
¶60concluded by asking the jury to find Griffin not guilty on all five
¶61counts in the indictment. The trial court did give the jury an
¶62 4 instruction on voluntary manslaughter, and the jury convicted
¶63Griffin on all counts, including malice murder and felony murder.
¶64 (b) Represented by new counsel, Griffin filed a motion for new
¶65trial on September 20, 2022, which she later amended on March 8,
¶662024. In her motion, Griffin contended that, because counsel
¶67“abandoned” her self-defense claim at the end of the trial, Griffin
¶68“was denied her right to maintain her innocence and assert her
¶69chosen defense” under McCoy, in which the United States Supreme
¶70Court held that under the Sixth Amendment, “a defendant has the
¶71right to insist that counsel refrain from admitting guilt, even when
¶72counsel’s experienced-based view is that confessing guilt offers the
¶73defendant the best chance to avoid the death penalty,” and that
¶74“counsel may not admit [his] client’s guilt of a charged crime over
¶75the client’s intransigent objection to that admission.” See 584 U.S.
¶76at 417, 426. 2 At the motion for new trial hearing, counsel testified
¶77 2 In her amended motion for new trial, Griffin asserted a McCoy claim
¶78based on her “right to maintain her innocence and assert her chosen defense in accordance with the Sixth Amendment.” She also claimed that her trial counsel provided ineffective assistance under Strickland v. Washington, 466
¶79 5 that, despite his earlier efforts to develop a self-defense claim, he
¶80decided to “change strategy from self-defense to voluntary
¶81manslaughter” after Griffin decided not to testify at trial because
¶82without Griffin’s testimony, “there was no argument with regard to
¶83self-defense because only two people were in the apartment” and “no
¶84one else could testify as to the self-defense [claim].” Given that he
¶85“didn’t believe that based on the State’s evidence that there was
¶86[proof] of malice,” and believing that the evidence supported a lesser
¶87charge of voluntary manslaughter, counsel “moved forward with”
¶88that theory. He testified that the decision to “change strategy from
¶89self-defense to voluntary manslaughter” was his alone and that he
¶90had not discussed the decision with Griffin at any point in the trial.
¶91 In its May 23, 2024 order, the trial court concluded that Griffin
¶92had failed to show that she was entitled to a new trial under McCoy
¶93because counsel “did not concede [Griffin’s] guilt to the charges
¶94U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984), in a number of ways. The trial court denied both claims. Because Griffin has not raised the ineffective assistance of counsel claims in her brief to this Court, we deem them abandoned. See Bannister v. State, 306 Ga. 289, 297 n.7 (830 SE2d 79) (2019). 6 alleged” and because Griffin had failed to show that she had made
¶95an “intransigent and unambiguous objection” to counsel’s shift in
¶96strategy.
¶97 2. On appeal, Griffin’s sole enumeration of error is that her
¶98trial counsel made a “McCoy-style error” by “unilaterally
¶99abandon[ing]” her innocence “at the end of trial in favor of pursuing
¶100a lesser charge of voluntary manslaughter.” 3
¶101 (a) In McCoy, the defendant was charged with three counts of
¶102murder, and the State sought the death penalty. Throughout trial,
¶103the defendant “vociferously insisted that he did not engage in the
¶104charged acts and adamantly objected to any admission of guilt.” Id.
¶105at 417. At the guilt stage of trial, the defendant instructed his
¶106counsel not to make a concession that defendant “was the killer,” id.
¶107 3 We are aware of no case in which this Court has applied McCoy in a
¶108non-capital case, and Griffin has cited none. Because Griffin’s claim fails in any event, we assume (without deciding) for purposes of her appeal that McCoy applies to non-capital cases. But see McCoy, 584 U.S. at 433 (Alito, J., dissenting) (“[I]t is hard to see how the right could come into play in any case other than a capital case in which the jury must decide both guilt and punishment.”). See also Harris v. State, 358 Ga. App. 802, 809 n.7 (856 SE2d 378) (2021) (assuming without deciding that McCoy “is not limited to capital cases”); Pass v. State, 361 Ga. App. 350, 354 n.3 (864 SE2d 464) (2021) (same). 7 at 418; counsel was aware of the defendant’s “complete opposition
¶109to” counsel “telling the jury that [the defendant] was guilty of killing
¶110the three victims,” id. at 419 (cleaned up); and the defendant
¶111“pressed [counsel] to pursue acquittal,” id. When, during opening
¶112statements, counsel conceded the defendant’s guilt by telling the
¶113jury that the defendant “was the cause of [the victims’] death[s],” the
¶114defendant “protested,” telling the court “out of ear shot of the jury .
¶115. . that [counsel] was selling him out by maintaining that [the
¶116defendant] murdered his family.” Id. (cleaned up). Then, during
¶117trial, the defendant “testified in his own defense, maintaining his
¶118innocence,” even though the alibi he presented was “difficult to
¶119fathom.” Id. at 420. The jury “returned a unanimous verdict of guilty
¶120. . . on all three counts.” Id. During the penalty phase of trial, counsel
¶121“again conceded [defendant] committed these crimes but urged
¶122mercy in view of [his] serious mental and emotional issues,” and the
¶123jury nonetheless “returned three death verdicts.” Id. (cleaned up).
¶124 The United States Supreme Court concluded that, under the
¶125circumstances presented in that case, the defendant’s rights under
¶126 8 the Sixth Amendment had been violated.4 Specifically, it held that
¶127“[a]utonomy to decide that the objective of the defense is to assert
¶128innocence” is “reserved for the client” and “[w]hen a client expressly
¶129asserts that the objective of his defen[s]e is to maintain innocence of
¶130the charged criminal acts, his lawyer must abide by that objective
¶131and may not override it by conceding guilt.” See id. at 422-423
¶132(cleaned up). Noting that the defendant had opposed counsel’s
¶133“assertion of [] guilt at every opportunity, before and during trial,
¶134both in conference with his lawyer and in open court,” id. at 424, the
¶135Court concluded that the defendant’s Sixth Amendment rights had
¶136been violated and that because a “violation of a defendant’s Sixth
¶137Amendment-secured autonomy” constitutes “structural error,” the
¶138Court’s ineffective-assistance-of-counsel jurisprudence under
¶139Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674)
¶140(1984), did not apply. 584 U.S. at 427.
¶141 (b) We begin our analysis by assuming, without deciding, that
¶142 4 The Sixth Amendment to the United States Constitution provides, in
¶143relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S. Const. amend. VI. 9 trial counsel “conceded” Griffin’s guilt in the same manner that trial
¶144counsel did in McCoy. See id. at 423 (“When a client expressly
¶145asserts that the objective of his defen[s]e is to maintain innocence of
¶146the charged criminal acts, his lawyer must abide by that objective
¶147and may not override it by conceding guilt[.]”) (cleaned up). Even so,
¶148we conclude that Griffin’s claim fails because the record does not
¶149support her contention that she made an “intransigent and
¶150unambiguous objection” to counsel’s assumed concession like the
¶151defendant did in McCoy. See 584 U.S. at 426 (“[C]ounsel may not
¶152admit [his] client’s guilt of a charged crime over the client’s
¶153intransigent objection to that admission.”).
¶154 On appeal, Griffin does not argue that she made the type of
¶155“intransigent and unambiguous objection” the defendant in McCoy
¶156made. Instead, she contends that “an in-court interruption of
¶157proceedings in front of a jury cannot be a standard or procedural
¶158requirement for every defendant when asserting a McCoy claim,”
¶159and asserts that she “nonetheless left no ambiguity in her
¶160maintenance of innocence.” On that point, she contends that her
¶161 10 “maintenance of innocence and insistence on her chosen defense can
¶162be found in multiple parts of the record, including not only her plea
¶163of ‘not guilty,’ but also trial counsel’s opening statement at trial
¶164laying out [Griffin’s] claim of self-defense and maintenance of
¶165innocence, and the trial attorney’s testimony at the motion for new
¶166trial hearing,” during which counsel testified that he “alone chose to
¶167concede guilt and did not discuss this decision with [Griffin]
¶168beforehand.”
¶169 We disagree that the showing Griffin has made is sufficient to
¶170establish the Sixth Amendment violation the defendant suffered in
¶171McCoy. That is because the record does not show that Griffin made
¶172the type of “intransigent and unambiguous objection” the defendant
¶173made in McCoy. In reaching that conclusion, we need not (and do
¶174not) attempt to define the parameters of what types, or how much,
¶175record evidence is necessary for a defendant to satisfy whatever
¶176McCoy requires with respect to showing an “intransigent and
¶177unambiguous objection.” Instead, we conclude that whatever must
¶178be shown for a defendant to avail herself of a claim under McCoy
¶179 11 with respect to establishing an “intransigent and unambiguous
¶180objection” has not been shown here. Indeed, the record evidence
¶181Griffin points to—her plea of “not guilty,” trial counsel’s
¶182advancement of Griffin’s self-defense claim and her “maintenance of
¶183innocence,” and trial counsel’s testimony at the motion-for-new-trial
¶184hearing—is unlike the defendant’s “vociferous[] insiste[nce] that he
¶185did not engage in the charged acts,” and defendant’s “adamant[]
¶186object[ion] to any admission of guilt, 584 U.S. at 417, which he made
¶187“at every opportunity, before and during trial, both in conference
¶188with his lawyer and in open court.” Id. at 424.
¶189 Because Griffin has not shown that she made an “intransigent
¶190and unambiguous objection” to the concession of guilt we have
¶191presumed her counsel made, see id. at 420, her McCoy claim fails.
¶192 Judgment affirmed. All the Justices concur.
¶193 12