McNeil v. State

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. In the Supreme Court of Georgia No. S26A1051 Prentice McNeil v. The State On Appeal from the Superior Court of Fulton County No. 09SC80528 Decided: August 18, 2026 BETHEL, Justice. Prentice McNeil was convicted of malice murder and other crimes in connection with the shooting death of Christopher Copeland. 1 On appeal, McNeil argues that the trial court erred in 1 The crimes occurred on September 20, 2007. On June 9, 2009, a Fulton County grand jury returned a 12-count indictment against McNeil, Matthew Mitchell, Marco Moses, and Moerise Williams. McNeil was indicted for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault (Count 3), three counts of possession of a firearm during the commission of a felony (Counts 4, 5, and 11), possession of cocaine (Count 6), possession of marijuana (Count 7), aggravated assault of Dontavious Walker (Count 8), aggravated assault of Gregory Hunt (Count 9), and aggravated assault of Willie Wilson (Count 10). The trial court severed Moses’s and Williams’s cases for trial. At a joint jury trial in November 2010, McNeil and Mitchell were found guilty of Counts 1–4. We affirmed Mitchell’s convictions in Mitchell v. State, 293 Ga. 1 (2013). The trial court sentenced McNeil to serve life in prison on Count 1 and five years consecutive on Count 4. The remaining counts merged or were vacated by operation of law. After trial, McNeil pleaded guilty to Counts 8–11. Counts 5–7 were dead docketed. three respects. McNeil also argues that he received constitutionally ineffective assistance of counsel at trial in a number of ways and that all of these errors resulted in cumulative prejudice. For the reasons explained below, his claims fail, so we affirm. 1. The evidence admitted at trial showed the following. On September 20, 2007, Copeland was shot 40 times as he stepped out of an Atlanta social club. At the scene of the shooting, police recovered around 70 shell casings, later determining that the casings had been fired from at least five different guns. Eyewitnesses observed a gray Pontiac sedan at the scene immediately before the shooting. Three eyewitnesses reported For reasons that are not apparent from the record, neither a motion for new trial nor a notice of appeal was timely filed following the entry of judgment of conviction against McNeil. See Owens v. State, 303 Ga. 254, 258 (2018) (reiterating “that it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay”). In 2017, McNeil’s trial counsel — who had not yet formally withdrawn from his representation — filed what was styled as an “out-of-time motion for new trial,” seeking leave to file a motion for new trial. The trial court granted McNeil an out-of-time appeal, and following protracted proceedings, denied McNeil’s motion for new trial. McNeil filed a timely notice of appeal to this Court, but his appeal was dismissed due to the unresolved Counts 5–7, which had been placed on the dead docket without any further action taken. See Seals v. State, 311 Ga. 739 (2021). On remand, Counts 5–7 were nolle prossed, and an amended sentence reflecting the nolle pross was entered on March 18, 2022. Following further litigation during which McNeil’s appeal was dismissed or vacated pursuant to Cook v. State, 313 Ga. 471 (2022), McNeil, with the State’s consent, was granted leave to file an out-of-time notice of appeal pursuant to OCGA § 5-6-39.1 (b). The trial court then re-issued its order denying the motion for new trial as of July 23, 2025. McNeil subsequently filed a timely notice of appeal, and the case was docketed to this Court’s April 2026 term and submitted for a decision on the briefs. 2 that one of the shooters had his hair styled in dreadlocks, and two of those eyewitnesses observed that same shooter wearing a red bandana. Less than a week after the shooting, Copeland’s brother Gregory Hunt and two friends, Dantevius Walker and Willie Wilson, were shot at by a group of men, including one whose hair was styled in dreadlocks and who was wearing a red bandana. A gray Pontiac sedan was observed at the scene of the second shooting. Both Walker and Wilson identified McNeil as one of the shooters, with Wilson reporting that McNeil had his hair styled in dreadlocks and that he was wearing a red bandana at the time of the shooting. Police later arrested McNeil, whose hair was styled in dreadlocks at the time of his arrest, and located several guns, ammunition, red bandanas, seats from a passenger van, and a silver Pontiac sedan at his residence. At least two of the guns found at McNeil’s residence were ballistically linked to Copeland’s shooting, and several were linked to the assault on Walker, Hunt, and Wilson. At trial, Walker identified McNeil as one of the shooters. Walker, who had previously identified a different person as the shooter, explained that he made that prior identification after being offered money by one of the other shooters not to testify and was afraid. Wilson also identified McNeil as one of the shooters and testified that McNeil had dreadlocks and was wearing a red bandana. Wilson testified that McNeil approached him after the shooting and offered him money not to testify about the shooting. The girlfriend of Matthew Mitchell, McNeil’s co-defendant, testified that, before the shootings, Mitchell and others met up at McNeil’s house to discuss getting “these guys off the streets,” referring to a group who had been committing crimes in the area. 3 Mitchell’s girlfriend also testified that Mitchell later told her that “they had just shot somebody 70 times and that we had to get out of town because it was going to be on the news.” Mitchell’s girlfriend later directed investigators to the place where Mitchell had hidden a gun used in the shooting of Copeland. Police recovered the weapon and matched it to shell casings recovered from the scene of that shooting. 2. McNeil first complains that the trial court erred by admitting testimony regarding the shooting of Walker, Wilson, and Hunt for the purpose of establishing McNeil’s identity, asserting that the evidence failed to satisfy the standard he argues was applicable for admitting evidence to show identity. But we cannot tell from the record whether McNeil raised this objection in the trial court or if he made some other argument entirely. And because McNeil was tried in 2010, before the current Evidence Code became effective, plain-error review is not available. See Durham v. State, 292 Ga. 239, 240 (2012). As such, this claim presents nothing for our review. Under our former Evidence Code, “[i]n order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” Sanchez v. State, 285 Ga. 749, 751 (2009) (quotation marks omitted). See also Bryant v. State, 288 Ga. 876, 887 (2011) (same). We note at the outset that McNeil asserts this claim of error in fact was preserved for appellate review by his filing of a motion in limine to exclude the evidence at issue. But, even though the notice of appeal indicated that nothing was to be omitted from the record, the motion in limine does not appear to be part of the record. And the record citations McNeil provides in support of his assertion that the issue was preserved for appellate 4 review by the filing of his motion in limine actually cite to portions of the trial transcript where the court’s previous ruling allowing the evidence was referenced. See Roberson v. State, 300 Ga 632, 636 (2017) (“It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.”). Moreover, our review of the record shows that the State filed a notice of intent to present evidence of multiple similar transactions, including the shooting involving Walker, Hunt, and Wilson. The record does not indicate that McNeil filed a response to the State’s notice. The trial court held a pretrial motions hearing over two days during which this notice was discussed, but the record contains a transcript for only a part of the second day of the hearing. As best we can tell, the admissibility of the similar- transaction evidence was discussed on the first day of the hearing, and the transcript that is part of the record before us does not contain the parties’ arguments as to the similar transaction evidence. Instead, the transcript reflects only that the trial court had ruled the evidence would be admitted at trial. The transcript contains a passing reference to a motion to exclude this evidence filed by McNeil, but the motion itself is not part of the appellate record. Further, when the trial court again brought up the motion before trial, McNeil expressly stated that he was withdrawing the motion, though this was immediately followed by subsequent discussion in which the court indicated that it had already ruled on the issue. And while McNeil objected at trial to the admission of some testimony concerning the second shooting, the basis for that objection was different than the one he raises on appeal. At trial, he objected to the testimony “coming in [as] similar transaction” evidence because the witness “did not identify the 5 shooter at all,” whereas on appeal, he argues that the second shooting was not sufficiently similar to the Copeland shooting to satisfy the standard for admitting the evidence for the purpose of proving his identity. See Sanchez, 285 Ga. at 751–52 (“The objection at trial that the question called for a conclusion does not preserve for appellate review a contention that the testimony went to the ultimate issue for the jury.”). In short, nothing in the record reflects that McNeil raised in the trial court the same objection to the admissibility of this evidence that he advances on appeal, and we cannot presume “from a non-existent transcript that an objection has been preserved for review on appeal.” Boles v. Lee, 270 Ga. 454, 456 (1999). Accordingly, we must conclude that McNeil has not preserved this issue for appeal. See Sanchez, 285 Ga. at 751; Bryant, 288 Ga. at 887. See also Ware v. State, 279 Ga. 17, 18 (2005) (“When a portion of the evidence bearing upon the issues raised by the enumerations of error is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.” (cleaned up)). 3. McNeil next argues that the trial court plainly erred by failing to charge the jury on the accomplice corroboration requirement with respect to the testimony of co-defendant Mitchell’s girlfriend about Mitchell’s out-of-court statements. McNeil failed to request an accomplice corroboration charge or object to its omission at trial, so we review his claim for plain error. See State v. Kelly, 290 Ga. 29, 33 (2011) (“Under OCGA § 17-8-58(b), appellate review for plain error is required whenever an appealing party properly asserts an error in jury instruction.”). To establish plain error, McNeil must show that the trial court committed a “clear or obvious legal error,” that he did not 6 affirmatively waive the error, and that the error affected his substantial rights, which means that it likely affected the outcome of his trial. Id. If that showing is made, then we have discretion to remedy the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (cleaned up). The failure to meet one element of this test dooms a plain error claim, and so it is here. See Sapp v. State, 290 Ga. 247, 251 (2011). Under former OCGA § 24-4-8, which was in effect at the time of McNeil’s 2010 trial, 2 “[t]he testimony of a single witness is generally sufficient to establish a fact,” but in “felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient.” Rather, the testimony of an accomplice must be corroborated by other evidence. “Sufficient corroborating evidence may be circumstantial, slight, and need not be of itself sufficient to warrant a conviction of the crime charged” so long as it tends “to show that the defendant himself was a participant in the crimes.” Head v. State, 316 Ga. 406, 411 2 Because this case was tried under Georgia’s former Evidence Code, we cite former OCGA § 24-4-8. But as we previously have noted: the provisions of former OCGA § 24-4-8 are still present in the current Evidence Code and can now be found at OCGA § 24-14- 8. … [B]ecause the language of this former Code section still exists under the current Evidence Code in OCGA § 24-14-8, cases decided under the current Code section may apply to cases tried under former OCGA § 24-4-8. Cf. Styles v. State, 309 Ga. 463, 466 (1) n.4 (2020) (noting that the inverse is true and cases decided under former OCGA § 24-4-8 may be applied to cases applying the current Evidence Code OCGA § 24-14-8). Head v. State, 316 Ga. 406, 411 n.10 (2023) (cleaned up). 7 (2023) (quotation marks omitted). The “corroboration requirement applies even when the accomplice does not testify in court, if his statements [were] admitted through another witness.” Finney v. State, 311 Ga. 1, 10 (2021). Pretermitting whether an accomplice-corroboration instruction was required under the facts of this case and whether the trial court erred by failing to give that instruction, McNeil has not shown that the failure to give the instruction likely affected the outcome of his trial. The evidence against McNeil did not rely entirely, or even significantly, on Mitchell’s out-of-court statements, and the evidence against him was quite strong. Witnesses identified a man with his hair styled in dreadlocks and a red bandana as one of Copeland’s shooters. And Walker and Wilson identified McNeil, whose hair was styled in dreadlocks and who wore a red bandana, as the shooter in a subsequent aggravated assault on them. Wilson also testified that McNeil later approached him and offered him money not to testify in the case. See Parkerson v. State, 265 Ga. 438, 439 (1995) (“evidence of the defendant’s conduct before and after the crime may give rise to an inference that he participated in the crime”). Additionally, police found two guns matching ballistic evidence recovered from the scene of Copeland’s shootings at McNeil’s residence, as well as a vehicle that matched the description as that observed at the scene. See Hamm v. State, 294 Ga. 791, 797– 98 (2014) (failure to give accomplice-corroboration instruction did not likely affect outcome of trial in light of significant evidence of guilt other than accomplice testimony). Compare State v. Johnson, 305 Ga. 237, 241 (2019) (“because virtually all of the incriminating evidence flowed from [an accomplice’s testimony], the outcome of the trial court proceedings was likely affected by the trial court’s failure to provide an accomplice corroboration charge” (emphasis supplied and quotation marks omitted)). 8 Moreover, Mitchell’s out-of-court statements indicated only that the meeting at which the group discussed getting “these guys off the streets” occurred at McNeil’s house but did not mention whether McNeil was present for or even involved in those discussions. Cf. Pindling v. State, 311 Ga. 232, 236 (2021) (accomplice corroboration is required “if there is evidence that could support a finding that a witness was an accomplice to the crime, and that witness provides testimony that directly links the defendant to the crime” (emphasis supplied)). Given the significant other evidence against McNeil, and the minimal degree to which Mitchell’s out-of-court statements implicated him, McNeil has not shown that the failure to give an accomplice- corroboration instruction likely affected the outcome of his trial. Without that showing, his plain-error claim fails. See Willis v. State, 315 Ga. 19, 26–27 (2022) (presumed error in not giving accomplice-corroboration charge likely did not affect trial outcome where ample other evidence demonstrated defendant’s guilt and accomplices’ statements did not mention defendant or connect him to the crime). 4. McNeil argues next that the trial court plainly erred in charging the jury on prior consistent statements. However, the record shows that McNeil appears to have requested the instruction on prior consistent statements about which he now complains. “A party cannot invite error by requesting a certain jury instruction, and then complain on appeal that the instruction, when given, is incorrect.” Mutazz v. State, 290 Ga. 389, 391 (2012) (quotation marks omitted). See also Parker v. State, 282 Ga. 897, 899 (2008) (defendant specifically requested the charge about which he complained on appeal, so even assuming the charge was incorrect, “such invited error is not grounds for reversal”). Accordingly, this claim fails. 9  5. Finally, McNeil argues that he received constitutionally ineffective assistance of counsel at trial when counsel failed to renew his hearsay objection to the testimony of Mitchell’s girlfriend regarding Mitchell’s out-of-court statements. McNeil further argues that counsel performed deficiently by failing to renew his motion to sever McNeil’s trial. These claims fail. To succeed on a claim of ineffective assistance, McNeil must prove both that his trial counsel’s performance was deficient and that he was prejudiced by that deficient performance. See Bell v. State, 294 Ga. 443, 445 (2014). To prove that the performance of his lawyer was deficient, McNeil “must show that his lawyer performed [his] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms[.]” Id. (cleaned up). And to prove that he was prejudiced by that deficient performance, McNeil “must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quotation marks omitted). If an appellant fails to meet his burden of proving either prong, the reviewing court does not have to examine the other prong. Strickland v. Washington, 466 US 668, 697 (1984). (a) We turn first to McNeil’s complaint about his counsel’s failure to renew the hearsay objection to the testimony of Mitchell’s girlfriend. Our review of the record shows that counsel made a strategic decision not to object. Specifically, trial counsel testified at the motion for new trial hearing that he chose not to renew his objection because the hearsay testimony did not directly inculpate McNeil in the planning or subsequent shooting of Copeland. “A defendant who contends a strategic decision constitutes deficient performance must show that no competent 10 attorney, under similar circumstances, would have made it.” Gittens v. State, 307 Ga. 841, 847 (2020) (quotation marks omitted). McNeil has failed to make such a showing and, thus, has failed to establish that counsel performed deficiently. See Durham, 292 Ga. at 242 (trial counsel’s choice not to object to hearsay testimony that was not harmful to his client “was a legitimate trial strategy that falls within the range of reasonable professional conduct”); Mitchell v. State, 290 Ga. 490, 492 (2012) (“The decision not to object to certain hearsay … is often the result of reasonable trial strategy. Because Appellant has not made a contrary showing, he has failed to show deficient performance.” (cleaned up)). (b) McNeil also argues that trial counsel was ineffective for failing to renew the motion to sever McNeil’s trial from Mitchell’s. This claim also fails. Whether to seek severance is a matter of trial strategy, and in the absence of evidence to the contrary, counsel’s decisions are presumed to be strategic and thus insufficient to support an ineffective assistance of counsel claim. In determining whether a severance should be granted, the trial court must consider whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses. Shells v. State, 323 Ga. 527, 543 (2026) (cleaned up). In advancing this enumeration of error, McNeil argues only that trial counsel should have renewed the motion to sever on the 11 basis that Mitchell’s out-of-court statements implicated McNeil in the crimes. But the fact that certain evidence inculpated McNeil is not a basis for granting a motion to sever McNeil’s trial from Mitchell’s. And McNeil makes no effort to show that Mitchell’s out-of-court statements would have been excluded if his case had been severed and he were tried alone. See id. (“we note further that [the appellant] points to no evidence that would have been excluded had his case been severed and he were tried alone”). Under these circumstances, McNeil “has not shown that a motion to sever would have succeeded, and thus he has failed to carry his burden of establishing deficiency” by showing that his trial counsel’s presumed strategic decision not to renew the motion to sever “was objectively unreasonable.” Id. See also Bradshaw v. State, 300 Ga. 1, 5 (2016) (“Because trial counsel cannot be found ineffective for failing to pursue a meritless motion, … [the defendant] has failed to show that his attorney’s decision not to file a motion to sever was deficient performance.”). 6. Finally, McNeil argues that the trial court’s alleged errors and counsel’s purported deficiencies cumulatively prejudiced him. But we assumed only one error, and we determined that McNeil was not harmed by that error. As such, there are no errors to consider cumulatively, and this claim fails. See Perrault v. State, 316 Ga. 241, 248 (2023) (no cumulative error where defendant fails to identify at least two errors). Judgment affirmed. All the Justices concur, except Warren, P.J., not participating. 12