Kennedy v. State, 304 Ga. 285

On May 24, 2012, Isiah Archible was fatally shot after meeting Quinntavish Kennedy to buy a car; Ronald Woods (with Archible) survived and testified about a struggle and robbery; Kennedy fled and later claimed he was in South Carolina and asserted self-defense.
Kennedy was indicted for malice murder, multiple felony-murder counts, attempted armed robbery, aggravated assaults, and firearm offenses; convicted at a May 2015 jury trial and sentenced to life plus consecutive terms.
The State introduced two prior armed-robbery incidents under OCGA § 24-4-404(b) (Rule 404(b)) to prove intent and identity: a December 2007 robbery (Williams) and an early-morning May 24, 2012 robbery (Buffington).
Kennedy testified he intended only to sell marijuana, claimed Woods tried to rob him, and denied intent to rob or participation in the other robbery; the jury credited the State’s version.
In closing, the prosecutor summarized the timeline including the other acts and said jurors had witnessed the "graduation"/"evolution" of a criminal; Kennedy contended this was an impermissible propensity argument.
Kennedy moved for a new trial asserting ineffective assistance for counsel’s failure to object to the prosecutor’s closing; the trial court denied relief and the Georgia Supreme Court affirmed.

Issue	Kennedy's Argument	State's Argument	Held
Whether counsel was ineffective for not objecting to prosecutor's closing that referenced other-acts evidence as a "graduation/evolution" of a criminal	Prosecutor's wording was an improper propensity argument; counsel was ineffective for failing to object	The prosecutor's statements reasonably could be read as arguing corroboration of intent (a permissible purpose) given the admitted 404(b) evidence	No ineffective assistance: counsel not deficient because a reasonable attorney could interpret remarks as arguing intent/corroboration rather than propensity
Whether the prosecutor's comments constituted improper use of other-acts evidence to show propensity	Comments showed a pattern indicating criminal propensity and thus were improper	Context shows comments tied to corroboration and intent, which were permissible purposes for admitted 404(b) evidence	Not a clear propensity argument when read in context; admissible argument as to intent permitted

Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
Pollock, 926 F.2d 1044 (11th Cir.) (noting difficulty distinguishing propensity from intent in argument)
Olds v. State, 299 Ga. 65 (other acts may show intent when acts are similar and close in time)
Booth v. State, 301 Ga. 678 (discussing limits on other-acts evidence and the propensity/intent distinction)
State v. Jones, 297 Ga. 156 (same)
Scott v. State, 290 Ga. 883 (burden for proving ineffective assistance)
Mohamud v. State, 297 Ga. 532 (trial counsel’s hindsight view does not establish deficiency)
Smith v. State, 296 Ga. 731 (deficiency must be patently unreasonable)
Lawrence v. State, 286 Ga. 533 (standard of review on ineffective-assistance claims)