Other-Acts Evidence: Affirmative Waiver and Harmless Error Limit Appellate Relief

1. Introduction

The Supreme Court of Georgia affirmed Roy Lee Brown Jr.’s convictions arising from the fatal shootings of Anthony and Catherine Costner during a proposed drug transaction. The shootings occurred in the presence of the Costners’ three-year-old child. Brown’s appeal concerned evidence of a 1994 armed robbery, the instructions governing the jury’s use of that evidence, and trial counsel’s handling of those matters.

The decision principally applies established appellate doctrines rather than announcing a new rule permitting admission of old convictions. The Court did not decide whether the armed-robbery evidence was admissible. Instead, it held that any admission error was harmless, that Brown affirmatively waived his principal instructional challenge by requesting the disputed language, and that he failed to establish constitutionally deficient representation.

The opinion is significant for the interaction of these doctrines: a potentially improper evidentiary ruling does not necessarily justify reversal, an instruction requested by the defense may foreclose plain-error review, and an unsuccessful evidentiary strategy does not automatically establish ineffective assistance.

2. Background and Procedural History

The shootings and the prosecution’s evidence

Early on August 6, 2015, a passerby found the Costners and their child in a Pontiac stopped in a ditch in Powder Springs. Anthony had been shot, and Catherine died after being transported to a hospital. Their child subsequently identified “Trey” as having hurt her father. Text messages connected Brown, who used that name, to a planned purchase of pills from the Costners shortly before the shootings.

Two prosecution witnesses, Raymond Webb and Demarco Thomas, described Brown’s plan to obtain the pills while paying less than the agreed price. Thomas testified that Brown carried a revolver and entered the sellers’ vehicle. Both witnesses described Brown returning wounded and making statements acknowledging that he had shot the occupants, while suggesting that they had first attacked or shot him.

Several independent sources corroborated important parts of their accounts:

• Text messages documented the proposed transaction and arrangements for Brown to enter the Costners’ vehicle.
• Cell-site records placed Brown’s telephone within an area covering the crime scene shortly before the emergency call.
• Surveillance recordings corroborated vehicle movements and Brown’s later arrival at a hospital.
• Recovered bullets were consistent with a revolver and were not fired from the 9mm handgun found in the Costners’ car.
• Evidence showed efforts to locate Brown’s missing gun and telephone, avoid police attention, and remove blood from his vehicle.

At the hospital, Brown gave accounts of being shot while walking outside and denied ever having been to Powder Springs. His trial position was different: counsel acknowledged his presence during the shootings and advanced what the Supreme Court understood as a justification defense. Brown did not testify, but the jury received a self-defense instruction.

The disputed prior act

Before trial, the State sought admission of other-acts evidence under OCGA § 24-4-404(b). Its principal proffer concerned Brown’s 1994 armed robbery, which the prosecutor characterized as another robbery undertaken under the guise of a drug transaction and involving a revolver.

The trial court rejected identity as a permissible purpose but admitted the evidence for intent, motive, plan, and absence of mistake, accident, or justification. At trial, the State introduced testimony from the robbery victim and a former police officer, together with Brown’s convictions arising from the incident. The anticipated drug-transaction context of that robbery, however, was not established by the trial evidence.

The jury also received separate, redacted evidence of other felony convictions relevant to the firearm-possession predicates. Those records were distinct from the detailed armed-robbery evidence at issue on appeal.

Convictions and appeal

A jury convicted Brown on all counts in May 2017. His sentences included two terms of life imprisonment without parole for malice murder, a concurrent three-year drug sentence, a consecutive 20-year child-cruelty sentence, and consecutive five-year sentences for the two firearm offenses. Other counts merged or were vacated by operation of law.

After amended new-trial proceedings and a hearing, the trial court denied relief in January 2026. Brown appealed, challenging admission of the armed-robbery evidence, the corresponding limiting instruction, and counsel’s failure to object to that instruction or request a mistrial.

3. Summary of the Opinion

1. Admission of the prior robbery: Assuming error without deciding admissibility, the Court found it highly probable that the evidence did not contribute to the verdict.
2. Limiting instruction: Brown could not obtain plain-error review of the failure to restrict the evidence to particular counts because counsel expressly requested and approved that feature of the instruction.
3. Ineffective assistance concerning the instruction: Brown identified no controlling authority requiring the count-specific instruction he argued counsel should have sought. Counsel was not deficient for failing to advance a novel legal argument.
4. Ineffective assistance concerning a mistrial: Brown failed to overcome the presumption of reasonable representation or demonstrate circumstances requiring a mistrial.

The judgment was affirmed unanimously.

4. Analysis

A. Legal Reasoning

Rule 404(b): The Court reserved the admissibility question

OCGA § 24-4-404(b) prohibits using another crime to establish that a defendant has a criminal character and therefore probably committed the charged offense. It permits other-acts evidence for qualifying noncharacter purposes, including intent, motive, plan, knowledge, identity, and absence of mistake or accident.

The opinion recited three requirements for admission:

1. The evidence must be relevant to an issue other than character.
2. Its probative value must not be substantially outweighed by unfair prejudice under OCGA § 24-4-403.
3. There must be sufficient evidence for a jury to find, by a preponderance of the evidence, that the defendant committed the other act.

Brown challenged the first two requirements. The State did not defend admissibility on appeal, relying instead on harmlessness. The Supreme Court therefore left unresolved whether this decades-old robbery properly established intent or another permissible issue.

That restraint matters. The decision is not authority that an earlier armed robbery is automatically admissible in a later drug-related shooting prosecution. Nor does it approve the original list of purposes. In denying a new trial, the trial court itself questioned motive and plan and recognized that absence of justification was not a proper purpose for admitting the evidence.

Harmless error required attention to the actual defense

For nonconstitutional evidentiary error, the governing question was whether it was highly probable that the error did not contribute to the verdict. The Court independently reviewed and weighed the record as reasonable jurors would, rather than simply viewing everything in the light most favorable to the prosecution.

The Court considered the evidence that Brown shot the Costners overwhelming. But it did not end there. Because Brown’s apparent defense was justification rather than mistaken identity, the Court also examined whether the disputed evidence might have influenced the jury’s rejection of self-defense.

That defense was weak for several reasons. Both victims had been shot, but there was no evidence that both had fired at Brown. Only one gun was recovered from their car. Brown’s concealment-related conduct and inconsistent hospital statements also undermined his account.

Most importantly, OCGA § 16-3-21(b)(2) bars justification where a person is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony. Strong and largely undisputed evidence placed Brown in an attempted felony drug transaction when the shootings occurred. The jury was instructed on that statutory restriction and on the felony character of the relevant controlled-substance offense. Its guilty verdicts on the drug charge and related felony-murder charge further reflected its finding of felony participation.

Thus, the harmlessness conclusion rested not merely on proof identifying the shooter, but on the weakness—and statutory obstacle—of the defense actually presented.

Limiting instructions mitigated harm but did not validate admission

The trial court instructed the jury twice that the robbery evidence could be used only for limited purposes and not to infer criminal character. The Supreme Court treated those warnings as reducing the risk of misuse.

At the same time, the Court rejected the State’s suggestion that its use of the evidence was minimal. The prosecution presented two witnesses and documentary evidence, and its closing argument came “close to a propensity argument” by emphasizing that the person charged with murder had previously committed armed robbery.

The Court nevertheless found harmlessness in the full record. The prior crimes, although serious, were also less inflammatory than the charged double murder committed in a young child’s presence. Neither the limiting instructions nor that comparison independently established harmlessness; they reinforced the conclusion drawn from the strong prosecution evidence and deficient justification theory.

Affirmative waiver differs from merely failing to object

Brown argued that the limiting instruction should have identified the particular counts to which the prior-act evidence applied. But counsel had expressly asked the trial court to refer to the charges “in the indictment” rather than to specific counts and approved the court’s agreement to do so.

Plain-error review ordinarily requires an appellant to establish:

1. No affirmative waiver of the alleged error;
2. An error obvious beyond reasonable dispute;
3. An effect on substantial rights, ordinarily meaning an effect on the outcome; and
4. A serious effect on the fairness, integrity, or public reputation of judicial proceedings before discretionary correction is warranted.

Brown failed at the first requirement. This was not simply an omitted objection: the defense requested the very feature challenged on appeal. The Court therefore did not decide whether a count-specific instruction was legally required.

To the extent Brown also challenged the instruction’s authorization of particular purposes, the Court explained that its harmless-error conclusion defeated a showing that those instructions affected the trial’s outcome. It also rejected the premise that the case involved several separately described other acts requiring differentiation: essentially one detailed other act was presented, while the other felony records were redacted.

Ineffective assistance: Both claims failed on deficient performance

Under the governing constitutional framework, Brown had to prove both objectively deficient representation and a reasonable probability of a different result absent counsel’s errors. The Court resolved both claims on the performance requirement.

The instruction claim: Brown quoted a pattern instruction but identified no controlling decision requiring the trial court to specify the counts for which other-acts evidence could be considered. The Court found none. Counsel was not constitutionally deficient for failing to assert an unsettled legal proposition.

This is a limited conclusion. The Court did not hold that count-specific instructions are unnecessary in every case, or that a carefully tailored instruction would never be preferable.

The mistrial claim: Brown argued that counsel should have sought a mistrial once the prior robbery evidence failed to establish the drug-deal context described in the State’s proffer. Although counsel was questioned at the new-trial hearing about that discrepancy, she was not specifically asked why she had not requested a mistrial. That incomplete record made it harder to rebut the presumption that her conduct could reflect reasonable trial strategy.

Additionally, given the evidence’s lack of effect on the outcome, denying a mistrial would not have been an abuse of discretion. Counsel was not deficient for failing to request relief that Brown had not shown was required to preserve a fair trial. The Court did not resolve whether the discrepancy independently made the evidence inadmissible.

B. Precedents Cited and Their Influence

Evidentiary admissibility and harmless-error review

Sinkfield v. State, 318 Ga. 531, 531 n.2 (2024)

This decision explained the Court’s method of presenting the record. Because the appeal required assessment of harm and potential prejudice, the Court described the evidence without applying the prosecution-favorable perspective ordinarily associated with review of evidentiary sufficiency.

Clark v. State, 323 Ga. 569, 574 (2026)

This supplied the three-part Rule 404(b) admissibility test: noncharacter relevance, Rule 403 balancing, and adequate proof that the defendant committed the other act. It framed Brown’s objections, although the Court ultimately declined to decide whether the evidence satisfied the test.

Tarver v. State, 319 Ga. 165, 169 (2024)

This established the central appellate principle that reversal requires harm as well as error. Together with OCGA § 24-1-103(a), it justified addressing harmlessness without first resolving admissibility.

Howell v. State, 307 Ga. 865, 875–76 (2020)

This provided both the “highly probable” harmless-error standard and the requirement of independent record review. Its treatment of strong evidence, limiting instructions, and the inflammatory potential of prior acts also supplied a practical model for evaluating the robbery evidence here.

Parker v. State, 309 Ga. 736, 745 (2020)

This supported the comparative assessment of prejudice: even violent, firearm-related, or drug crimes may be unlikely to inflame a jury beyond the charged murder evidence. The Court used that reasoning to assess the relative impact of the earlier armed robbery, not to declare such evidence harmless categorically.

Mosley v. State, S26A0741, slip op. at 6 (Ga. June 30, 2026), 2026 WL 1868349

This offered a closely related application: assumed error in admitting other-acts evidence was harmless where guilt was strongly established and self-defense was weak. It supported the Court’s ultimate harmlessness conclusion.

Self-defense and evidence inconsistent with justification

Bell v. State, S26A0188, S26A0483, slip op. at 5 (Ga. June 30, 2026), 2026 WL 1868935

This recognized flight as circumstantial evidence of guilt inconsistent with self-defense. It supported considering Brown’s avoidance and concealment conduct when evaluating his justification theory. Such conduct was corroborative, not independently conclusive.

Bannister v. State, 306 Ga. 289, 292 (2019)

This was particularly important because it applied the statutory felony restriction to participation in a felony drug deal. It supported the conclusion that Brown’s attempted drug offense presented a decisive legal obstacle to justification.

Plain error and affirmative waiver

Taylor v. State, 316 Ga. 17, 19–20 (2023)

This supplied the plain-error framework for unpreserved instructional objections under OCGA § 17-8-58(b). Its first requirement—absence of affirmative waiver—was dispositive of Brown’s principal instructional argument.

Pena v. State, 297 Ga. 418, 424 (2015)

This directly supported the waiver holding. A defendant who requests the challenged charge cannot subsequently obtain plain-error review of that requested instruction. Brown’s express request for indictment-wide language brought his claim within that rule.

Constitutional standards for counsel’s performance

Strickland v. Washington, 466 US 668, 687 (1984)

This supplied the governing two-part constitutional test: deficient performance and resulting prejudice. Brown had to establish both; failure on either defeated his claims.

Mims v. State, 304 Ga. 851, 855 (2019)

This articulated the strong presumption of reasonable professional conduct and the requirement of a reasonable probability of a different outcome. It reinforced Brown’s burden rather than allowing the Court to infer constitutional inadequacy from an unsuccessful defense.

Lane v. State, 312 Ga. 619, 623 (2021)

This established that performance is assessed objectively, not solely by counsel’s stated subjective reasons. Accordingly, the analysis did not depend exclusively on whether counsel offered a particular retrospective explanation.

Lawrence v. State, 286 Ga. 533, 534 (2010)

This supplied the standard of appellate review: factual and credibility findings receive clear-error review, while legal conclusions receive de novo review.

Griffin v. State, 309 Ga. 516, 520 (2020)

This established that failing to raise a novel legal argument is not deficient performance. It was the principal basis for rejecting the claim concerning count-specific limiting instructions.

Authorities concerning count-specific instructions

United States v. Beeman, 386 FApp’x 827, 833 n.1 (11th Cir. 2010)

This unpublished decision suggested that an instruction not confined to a particular count might be “technically imperfect.” The Georgia Supreme Court nevertheless found it insufficient to establish a controlling duty supporting Brown’s ineffective-assistance claim.

Rawls v. State, 310 Ga. 209, 218 (2020)

This qualified reliance on federal decisions. Although federal cases may guide interpretation of Georgia Evidence Code provisions modeled on federal rules, that approach does not necessarily extend to federal decisions about evidentiary jury instructions.

Stephens v. DeGiovanni, 852 F3d 1298, 1327 n.31 (11th Cir. 2017)

This confirmed that unpublished Eleventh Circuit opinions are not binding precedent under that court’s rules, further limiting the significance of United States v. Beeman.

United States v. Springer, 753 FApp’x 821, 829 (11th Cir. 2018)

This considered a count-specific limitation as one factor supporting an evidentiary ruling and harmlessness. It did not hold that every other-acts instruction must contain such a limitation.

Moore v. State, 307 Ga. 290, 293 (2019)

This likewise noted an instruction limiting evidence to intent on a particular charge, but did not establish a universal requirement. The distinction between describing an instruction and requiring it was central to the Court’s treatment of these authorities.

Mistrials and the presumption of reasonable representation

Shaw v. State, 292 Ga. 871, 876 (2013)

This supported the importance of developing counsel’s explanation at the new-trial hearing. The failure to ask specifically about the omitted mistrial motion made overcoming the presumption of sound strategy more difficult.

Edwards-Tuggle v. State, 320 Ga. 558, 566–67 (2024)

This supported the conclusion that denying a mistrial is not an abuse of discretion when the disputed evidence has negligible effect on the trial’s outcome.

Saffold v. State, 298 Ga. 643, 648 (2016)

This linked harmless evidence to the absence of a need for a mistrial, emphasizing that a mistrial is required only when essential to preserving a fair trial.

Jackson v. State, 317 Ga. 139, 145–46 (2023)

This connected the mistrial standard to deficient performance. Counsel is not constitutionally deficient for omitting a mistrial request when the circumstances do not establish that such relief was required.

C. Potential Impact and Limits

• Harmlessness must address the contested issue. When a defendant acknowledges participation but claims justification, strong identification evidence alone does not fully answer whether improper evidence mattered. This opinion also assessed the defense’s factual and legal viability.
• Requested language can foreclose appellate review. Defense counsel must distinguish preserving an objection to admission from preserving an objection to the instruction governing that evidence. The former does not automatically preserve the latter.
• Tailored instructions remain prudent. The absence of controlling authority requiring count-specific language defeated this ineffective-assistance claim; it did not establish that broader instructions are always correct.
• Prosecutorial overreach is not endorsed. The Court expressly questioned the State’s use of the prior robbery in closing. Affirmance should not be read as permission to invite propensity reasoning.
• New-trial records matter. Ineffective-assistance claims are strengthened by focused examination of counsel about the precise omission challenged, although the ultimate standard remains objective reasonableness.
• Admissibility remains unresolved. Future courts must still independently apply Rule 404(b), Rule 403, and the particular facts. This decision does not settle remoteness, similarity, intent, or the effect of a mismatch between an evidentiary proffer and trial proof.

5. Complex Concepts Simplified

Other-acts evidence

Evidence of conduct outside the charged incident. It cannot be used simply to argue, “He committed a crime before, so he probably committed this one.” A legitimate, case-specific purpose is required.

Probative value and unfair prejudice

Probative value is the evidence’s usefulness in proving a relevant issue. Unfair prejudice is the risk that jurors will decide for an improper reason, such as hostility toward a defendant’s past. Evidence is not unfairly prejudicial merely because it damages the defense.

Harmless error

A legal mistake that does not justify reversal because the applicable standard shows it did not meaningfully affect the verdict. Here, the Court assumed a mistake and found it highly probable that the verdict was unaffected.

Limiting instruction

A direction telling jurors the specific purposes for which evidence may—and may not—be considered. Such an instruction can reduce misuse without necessarily curing an improper admission.

Forfeiture and affirmative waiver

Forfeiture ordinarily means failing to object. Affirmative waiver involves accepting or requesting the challenged course. Plain-error review may remain available after forfeiture, but not for an affirmatively waived claim.

Justification

A defense that otherwise criminal force was legally permitted, such as necessary self-defense. Georgia’s statute restricts that defense when the person is engaged in specified felony-related conduct; the Court applied that restriction to Brown’s attempted drug offense.

Ineffective assistance of counsel

Representation that was objectively unreasonable and created a reasonable probability of a different result. A lost trial, imperfect tactic, or unraised novel argument does not alone satisfy this standard.

Mistrial

Termination of a trial before a final verdict because continuing cannot adequately protect a fair trial. It is not an automatic remedy for every evidentiary error.

6. Conclusion

BROWN v. State affirms the limits of appellate relief without approving the disputed other-acts evidence. Any admission error was harmless in light of the independent evidence and the weakness of justification; the requested instructional language foreclosed plain-error review; and neither ineffective-assistance claim established deficient performance.

The broader lesson is to keep admissibility, harm, preservation, and counsel’s constitutional performance analytically separate. Each presents a distinct question, and a potentially erroneous evidentiary ruling does not answer the others.