Cooper v. the State
342 Ga. App. 351
| Ga. Ct. App. | 2017Background
- On Oct. 7, 2014 at ~1:30 a.m. a homeless victim was struck with a 9mm pistol, ordered to the ground, and had his backpack taken; he later identified two assailants.
- Police located two men shortly after the 911 call; Cooper was sweating, wearing the victim’s backpack, and possessed a 9mm pistol; Cooper said he found both on the road.
- The victim identified Cooper at the scene and at trial as one of the robbers and as the man who struck him; Cooper did not testify; co-defendant Michael Odus testified and was acquitted.
- Cooper was convicted of armed robbery, aggravated assault, and possession of a firearm/knife during a felony; sentenced to concurrent and consecutive terms including imprisonment and probation.
- Cooper appealed raising: (1) insufficiency of the evidence, (2) constitutional and related challenges to the jury instruction on inference from recent possession of stolen property, (3) trial judge impermissibly commenting on guilt, (4) ineffective assistance for failing to object to that charge, and (5) erroneous accomplice charge.
Issues
| Issue | Cooper's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence | Victim misidentified him; evidence circumstantial | Victim ID plus possession of backpack and gun soon after supports conviction | Affirmed — evidence sufficient under Jackson v. Virginia |
| Inference from recent possession (self-incrimination) | Instruction required Cooper to explain possession, violating Fifth Amendment | Charge permissibly allowed jury to infer guilt but left burden on State and allowed reasonable explanation | Affirmed — instruction constitutional as given |
| Judicial comment on guilt (OCGA §17-8-57) | Charge/comment improperly intimated judge’s opinion of guilt | Court’s instruction did not state facts as judge’s belief and included curative statements | Affirmed — no improper comment when read as whole |
| Ineffective assistance for not objecting to possession instruction | Counsel should have objected to preserve Fifth Amendment claim | The instruction was proper; failing to make meritless objection is not ineffective | Affirmed — no deficient performance or prejudice |
| Accomplice-charge error | No evidence Cooper was accomplice because he did not testify and co-defendant denied guilt | Slight evidence (presence, conduct, possession of stolen property, testimony) justified accomplice instruction | Affirmed — slight evidence suffices; charge proper |
Key Cases Cited
- Harris v. State, 307 Ga. App. 847 (general standard for appellate review of criminal evidence)
- Krauss v. State, 263 Ga. App. 488 (appellate standard: view evidence in light most favorable to verdict)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence in criminal cases)
- Byrd v. Hopper, 234 Ga. 248 (permissible inference from recent unexplained possession; presumption of fact)
- Babbage v. State, 296 Ga. 364 (presence, conduct before/after, and motive can support accomplice liability)
- Strickland v. Washington, 466 U.S. 668 (two-prong ineffective assistance test)