Clark v. State , 299 Ga. 552 ( 2016 )

In the Supreme Court of Georgia
Decided: June 6, 2016
S16A0230. CLARK v. THE STATE.
MELTON, Justice.
Following a jury trial, Joshua Clark appeals his convictions for the felony
murder of Jermaine McNeil and possession of a firearm during the commission
of a felony.1 Clark contends that he received ineffective assistance of counsel
and that the trial court omitted a necessary jury instruction. For the reasons set
forth below, we affirm.
1. Viewed in the light most favorable to the verdict, the record shows that
McNeil and Clark knew each other for years and often fraternized with the
1
On April 24, 2009, Clark was indicted in Fulton County for the malice
murder, felony murder, and aggravated assault of McNeil, as well as possession
of a firearm during the commission of a felony. Following a jury trial ending on
July 14, 2011, Clark was found guilty of all charges except malice murder. The
trial court sentenced Clark to life imprisonment for felony murder with five
consecutive years for the firearm possession charge. The charge for aggravated
assault was merged for purposes of sentencing. On August 1, 2011, Clark filed
a motion for new trial and amended it on December 6, 2013. The trial court
denied the motion on October 20, 2014. Following a timely filed notice of
appeal and the payment of costs, Clark’s appeal was docketed to the January
2016 Term of this Court and submitted for decision on the briefs.
same group of friends. The two men had disagreements in the past, and, a few
months before the murder, they were involved in an altercation over a game of
dice. The day after this argument, Clark told Jermaine Quaynor that he was
going to kill McNeil. On January 24, 2009, McNeil, Clark, Quaynor, Dequavis
Booker, and J.V. Staples were socializing at an apartment complex. That
evening when Clark was leaving the apartment, McNeil followed him to the
parking lot. Clark maintained that McNeil was harassing him to loan or give
McNeil money. Clark further testified that McNeil attempted to rob him, and,
therefore, he shot McNeil in self-defense.
At trial, Quaynor testified that he witnessed the altercation in the parking
lot and that Clark and McNeil were circling around a car. Clark had a gun, but
McNeil was unarmed. Quaynor recounted that Clark raised his gun and pointed
it at McNeil, and, at that time, Quaynor pled with Clark not to shoot. Clark
pulled the trigger, but the gun jammed. Clark then pulled the trigger a second
time, and the gun fired. The bullet struck McNeil in the head, killing him.
Evidence showed that McNeil was standing at least a car length away from
Clark at the moment McNeil was shot. Clark then ran from the scene, throwing
his gun into some bushes as he did so.
2
Eddie Rainey, the apartment complex’s maintenance man, saw McNeil
and Clark conversing in the parking lot just before the murder. Rainey spoke
with them briefly, and he testified that they were not arguing at that time. After
Rainey walked away, he heard a gunshot. Rainey returned to the spot where the
men had been and saw McNeil lying on the ground. No one else was present.
Rainey then called 911. When police arrived, McNeil was unresponsive.
This evidence was sufficient to enable the jury to find Clark guilty of the
crimes for which he was convicted beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 570) (1979).
2. Clark contends that trial counsel rendered ineffective assistance of
counsel by (a) failing to object to alleged comments on Clark’s pre-arrest silence
made by the State during its closing argument; (b) failing to impeach Rainey
with evidence of two prior felony convictions; and (c) failing to present certain
evidence at trial.
In order to succeed on his claim of ineffective assistance, [Clark]
must prove both that his trial counsel's performance was deficient
and that there is a reasonable probability that the trial result would
have been different if not for the deficient performance. Strickland
v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
If an appellant fails to meet his or her burden of proving either
prong of the Strickland test, the reviewing court does not have to
3
examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga.
505 (3) (591 SE2d 782) (2004). In reviewing the trial court's
decision, "‘[w]e accept the trial court's factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.'[Cit.]"
Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).
(a) Clark contends that, pursuant to Mallory v. State, 261 Ga. 625, 629-30
(409 SE2d 839) (1991),2 his trial counsel rendered ineffective assistance by
failing to object to alleged comments on his pre-arrest silence made by the
prosecutor. The record shows that, in closing arguments, the prosecutor
remarked about Clark’s behavior immediately following the shooting and
Clark’s explanation for the shooting. First, the prosecutor argued about the
defendant’s contention that he had no duty to retreat, stating:
And they talk about this defendant [and argue] he don’t have to
retreat. He knew how to retreat when he put that bullet in [the
victim’s] head. The evidence wasn’t that he stood there with a gun
saying[, “]Oh my God[,] he tried to attack me. Officers[,] please.[”]
2
As we noted in State v. Sims, 296 Ga. 465, 469 (2) (a) (769 SE2d 62)
(2015):
Mallory was decided not on constitutional grounds but rather based
on former OCGA § 24–3–36. See Mallory, supra, 261 Ga. at 630.
. . . We express no opinion about the continuing validity of Mallory
under the new Evidence Code.
(Citation omitted.) Id. at 471 (3).
4
There was no evidence that he was even there so he knows how to
retreat. . . . He fled like a coward and came in [here] today, two
years later, with a story that centers around all the evidence.
Then, the prosecutor further questioned Clark’s testimony that McNeil was
trying to steal his money, stating that "the fact that [Clark] was being robbed,
that's the first we ever heard of that." The prosecutor contended that Clark
invented this story to cover his crime. As found by the trial court, the
prosecutor's comments, when viewed in their full context, were not comments
on Clark’s pre-arrest silence. Instead, the prosecutor emphasized that Clark
immediately fled the scene, which Clark, himself, testified to on direct
examination. In addition, the prosecutor appropriately questioned the veracity
of Clark’s testimony that he was forced to shoot McNeil in self-defense. As the
prosecutor’s comments were not objectionable for the reasons Clark now
contends, his trial counsel did not render ineffective assistance by failing to
make this meritless objection to the comments. See, e.g., Bradley v. State, 292
Ga. 607 (5) (740 SE2d 100) (2013).
(b) Clark argues that trial counsel rendered ineffective assistance by
failing to impeach Rainey with evidence of two prior armed robbery
convictions– one from 1980 and one from 1987. Under former OCGA §
5
24-9-84.1 (a) (1),3 which is applicable to this case, prior felony convictions
could be used to impeach a witness if the trial court determined that the
probative value of admitting the evidence outweighed its prejudicial effect to the
witness. Id. Subsection (a) (3) permitted the use of any conviction for a crime
involving dishonesty or making a false statement. Subsection (b) governed the
use of convictions that, like Rainey's, were more than ten years old, and required
the trial court to determine, “in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances substantially
outweigh[ed] its prejudicial effect.”4
At the motion for new trial hearing, Clark merely introduced copies of the
prior convictions. He did not make any argument or showing that the probative
Because this case was tried before January 1, 2013, our old Evidence
3
Code must be applied.
4
In Clay v. State, 290 Ga. 822, 834 (3) (B) (725 SE2d 260) (2012), which
involved the use of prior convictions to impeach a testifying defendant, we
espoused the use of the following five factors to perform this balancing: (1) the
nature, i.e., impeachment value of the crime; (2) the time of the conviction and
the defendant's subsequent history; (3) the similarity between the past crime and
the charged crime, so that admitting the prior conviction does not create an
unacceptable risk that the jury will consider it as evidence that the defendant
committed the crime for which he is on trial; (4) the importance of the
defendant's testimony; and (5) the centrality of the credibility issue.
6
value of the conviction supported by specific facts and circumstances
substantially outweighed its prejudicial effect , and, as a result, he has failed to
provide any basis for showing that the convictions would have been admissible
and that he was harmed by his attorney’s failure to introduce them. Mere
speculation regarding the admissibility of these convictions does not satisfy
Clark’s burden of showing prejudice under Strickland.
(c) Clark contends that trial counsel rendered ineffective assistance by not
presenting certain evidence at trial. See Chandler v. State, 261 Ga. 402 (405
SE2d 669) (1991). In Chandler, decided under the former Evidence Code of
Georgia,5 this Court created an evidentiary exception to the general rule that
evidence of a victim's character is not admissible at trial. Pursuant to this former
exception, evidence of specific acts of violence by a victim against third persons
could be admitted where a defendant claims a justification defense. At the
hearing on his motion for new trial, Clark presented three witnesses, Niquita
Hickey, Brandon Hickey, and Brian Malcolm, all of whom provided testimony
regarding McNeil’s bullying behavior towards third parties. Clark’s original trial
5
The Chandler exception is no longer viable under Georgia’s new
Evidence Code. See Hendrix v. State, 298 Ga. 60, 62 (2) (a) n. 2 (779 SE2d 322)
(2015).
7
counsel, who was subsequently replaced, had filed a notification with the trial
court that she intended to call these witnesses. Replacement trial counsel, who
Clark now claims was ineffective, informed the trial court, however, that he did
not believe that these witnesses would be necessary. Instead, trial counsel
focused on prior instances in which McNeil had bullied Clark, himself, rather
than unrelated instances involving third parties. This strategy was not
unreasonable. Therefore, the claim of ineffective assistance in this regard fails.
See, e.g., Jimmerson v. State, 289 Ga. 364, 368 (2) (a) (711 SE2d 660) (2011)
(“The fact that [defendant], in hindsight, now questions the efficacy of the
chosen defense strategy cannot establish ineffective assistance.”)
2. Clark contends that the trial court committed plain error when it did not
charge the jury that one who is claiming self-defense has no duty to retreat if he
was not the original aggressor. See Alvelo v. State, 290 Ga. 609 (5) (724 SE2d
337) (2012). We disagree.
Because Clark failed to reserve objections to the jury charges, his
contention is limited to a plain error analysis. There are four prongs in the test
for plain error.
First, there must be an error or defect—some sort of deviation from a
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legal rule—that has not been intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal error must be
clear or obvious, rather than subject to reasonable dispute. Third, the error
must have affected the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the outcome of the trial
court proceedings. Fourth and finally, if the above three prongs are
satisfied, the appellate court has the discretion to remedy the
error—discretion which ought to be exercised only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
(Citations, punctuation, and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33
(718 SE2d 232) (2011). "In a case of a review for ‘plain error,’ it is not
sufficient to find actual legal error, ‘as the jury instruction in question must have
an obvious defect rather than a merely arguable defect.'" Hoffler v. State, 292
Ga. 537, 542 (4) (739 SE2d 362) ( 2013), citing Terry v. State, 291 Ga. 508, 509
(2) (731 SE2d 669 (2012). In this case,
even assuming arguendo that there was evidence that [Clark] was
not the original aggressor and that retreat was indeed in issue, the
failure to charge on the lack of duty to retreat does not mandate
reversal because [Clark’s] defense of self-defense was fairly
presented to the jury, and the jury was fully instructed on the law of
justification and self-defense. Edmonds v. State, 275 Ga. 450, 453
(4) (569 SE2d 530) (2002).
Hoffler, supra, 292 Ga. at 542-543 (4).
Judgment affirmed. All the Justices concur.
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