Cooper v. State

903 S.E.2d 770

COOPER

v.The STATE.

A24A0484

Court of Appeals of Georgia.

June 24, 2024

Albert Aldrich Myers III, Conyers, for Appellant.

Alisha Adams Johnson, Alicia C. Gant, for Appellee.

Watkins, Judge.

Travon Cooper appeals from an order denying his amended motion for new trial after a jury found him guilty of possession of a firearm by a first offender probationer.¹ Cooper argues that the trial court abused its discretion in denying his motion for a mistrial and that he was denied effective assistance of counsel at trial. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict,² the evidence shows that around 5:00 a.m. on the morning of October 12, 2019, Cooper drove to a Waffle House in Rockdale County and parked in a lot on the "back side" of the restaurant at an adjacent business and not where Waffle House customers normally parked. For approximately an hour, Cooper walked around the building multiple times, entered and exited the restaurant repeatedly, and went in and out of the restroom, all without ordering anything.

Cooper was wearing tight pants or "skinny" jeans, and Waffle House employees could see the outline of what appeared to be a gun in his front pocket and the tip of the gun sticking out of the pocket. An employee called 911, and law enforcement officers arrived shortly thereafter while Cooper was in the restroom. When Cooper came out of the restroom, officers could see a "bulge" in his right pocket. Upon seeing the officers, Cooper immediately ordered "three burgers" at the counter and went back into the restroom.

One of the officers knocked on the restroom door, announced the police presence, and asked Cooper to come out. The officers heard a toilet flush, and after a few moments Cooper came out. The bulge was no longer visible in Cooper’s pocket, but the officers found a firearm in the restroom trash can.

According to Waffle House employees, the trash can in the single-stall, windowless restroom had been recently emptied in anticipation of the 7:00 a.m. shift change. The serial number on the firearm had been obscured with white paint or Wite-Out, but the officers ultimately determined that the firearm had been reported stolen.

Cooper was charged with theft by receiving stolen property,³ tampering with evidence,⁴ and possession of a firearm by a first offender probationer. At the conclusion of the first part of the bifurcated trial, the jury found Cooper not guilty of the first two charges. Following the reading of the firearm charge and opening statements, the State tendered a certified copy of Cooper’s prior adjudication. The jury found him guilty on the firearm charge, and the trial court later denied Cooper’s amended motion for new trial. This appeal followed.

1. Cooper argues that the trial court abused its discretion when it denied his motion for a mistrial after the State improperly placed his character into evidence by suggesting that he was engaging in a robbery at the Waffle House.⁵

[1] "The refusal to grant a mistrial based on a prejudicial comment lies within the discretion of the trial court, and we will not interfere with that discretion on appeal in the absence of manifest abuse."⁶

During cross-examination, trial counsel questioned one of the responding officers about his investigation and why the officer had not confirmed whether Cooper was on a telephone call for a significant amount of time while he was in Waffle House. After the officer responded that it was not relevant to the stolen firearm, trial counsel continued the line of questioning, asking several times whether Cooper being on a 35-minute phone call would have explained Cooper’s "pacing around." On redirect, the State inquired whether, "at the conclusion of this investigation [Cooper was] charged with robbery[,]" and the officer responded, "No."

Counsel objected, and the court instructed the jury to disregard entirely "the mention of whether [Cooper] was charged with robbery[.] That is not relevant in this case and should not have been brought up." The State followed up with, "So you were only investigating the firearm charge?" The officer responded, "We — I don’t know if I can say it. We were investigating, but from my experience, it could have been a bigger crime."

[2–4] The defense again objected, and the trial court admonished the State for going "right back into" what the court had "just told them" not to. The trial court instructed the jury "to ignore the last question and answer. Do not consider that in reaching your verdict in this case. I am going to instruct the District Attorney’s Office to cease this line of questioning." Trial counsel then requested to take up a matter outside of the jury’s presence. After the jury was excused, the defense moved for a mistrial. The trial court denied the motion, finding that "the curative instructions were adequate."

In reviewing a trial court’s exercise of discretion in denying a motion for mistrial based on the improper admission of bad character evidence, we consider the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety. We also consider additional facts like whether the reference to the improper character evidence is isolated and brief, whether thejury’s exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the state. We will not disturb a trial court’s exercise of discretion in denying a motion for mistrial unless a mistrial is essential to preserve the defendant’s right to a fair trial.⁷

[5] Here, the references to whether Cooper had been charged with robbery and the investigation of what "could have been a bigger crime" were brief and isolated. The trial court instructed the jury that whether Cooper was charged with robbery was not relevant, to ignore the latter question and answer, and not to consider them in reaching a verdict. As Cooper has made no showing that the grant of a mistrial was necessary to preserve his right to a fair trial,⁸ we conclude that the trial court properly exercised its discretion by giving an appropriate curative instruction rather than granting a mistrial.⁹

2. Cooper contends that he was denied effective assistance of counsel in several respects in that his trial counsel failed to timely stipulate to his first offender status, failed to request a jury instruction regarding the use of his first offender probationary sentence, failed to challenge the constitutionality of OCGA § 16-11-131 as applied, and failed to investigate and prepare for trial.

[6] To prevail on a claim of ineffective assistance of counsel, "a defendant must establish, pursuant to Strickland v. Washington, ¹⁰ that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense."¹¹

To show deficient performance, the defendant must demonstrate that counsel performed counsel’s duties in an objectively unreasonable way, considering all of the circumstances and in the light of prevailing professional norms. To establish prejudice, [the defendant] must show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.¹²

"In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo."¹³

[7] (a) Cooper argues that trial counsel was ineffective in failing to stipulate to his first offender status and that, as a result, the jury saw that the prior charge was robbery. Cooper contends that the nature of the prior charge was particularly prejudicial because of testimony suggesting that he was planning to rob the Waffle House.

[8] "A defendant may be prejudiced by the admission of a prior conviction into evidence when the prior conviction is of the nature likely to inflame the jury’s passions and raise the risk of a conviction based on improper considerations."¹⁴ The Supreme Court of Georgia has held, however, that "even violent crimes, crimes involving firearms, and drug offenses were not likely to inflame the jury’s passions in murder cases. [Thus,] the absence of a stipulation does not always have prejudicial impact."¹⁵

Here, the prior robbery offense was identified when the prosecutor introduced, and published without objection, a certified copy of the prior adjudication, and during closing arguments when the prosecutor said "as you see in the charge[,] the defendant was previously charged and convicted in 2014 of robbery by force." Because the mentions of the prior felony were minimal and appropriate for proof of the charged crime,¹⁶ Cooper has failed to show that there was a reasonable probability that the outcome of the trial would have been different if trial counsel had stipulated to Cooper’s felony status.¹⁷ Having determined that Cooper has failed to show prejudice, we need not examine the deficient performance prong of his claim of ineffective assistance of counsel.¹⁸

[9] (b) In a related argument, Cooper contends that counsel was ineffective in failing to request an instruction that the jury should not use his first offender probationary sentence to prove his character to commit the charged crime.

During its deliberations on the firearm possession charge, the jury asked the trial judge whether it was to consider the first conviction from 2014. Trial counsel requested that the court instruct the jury that the prior conviction could only be used for the limited purpose of proving that Cooper was a first offender probationer and not whether Cooper had committed another offense. The trial court granted the request and recharged the jury that the "prior conviction may be used only for the limited purpose of proving that [Cooper] is a [f]irst [offender probationer."

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