Clark v. State

MELTON, Justice.

Steven Eric Phillips, Office of The Public Defender, Atlanta Judicial Circuit, 100 Peachtree Street, Suite 1600, Atlanta, Georgia 30303, for Appellant.

Joshua Daniel Morrison, Senior A.D.A., Paige Reese Whitaker, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor St, N.W., 3rd Floor, Atlanta, Georgia 30318, Paul L. Howard, Jr., District Attorney, Fulton County District Attorney's Office, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Samuel S. Olens, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department Of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

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. 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. 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.

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 S.Ct. 2781, 61 L.Ed.2d 560 (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 S.Ct. 2052, 80 L.Ed.2d 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 examine the other prong. Id. at 697(IV) ; Fuller v. State , 277 Ga. 505, 591 S.E.2d 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 S.E.2d 313 (2003).

Wright v. State , 291 Ga. 869, 870, 734 S.E.2d 876 (2012).

(a) Clark contends that, pursuant to Mallory v. State , 261 Ga. 625, 629–30, 409 S.E.2d 839 (1991), 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.[”] 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.

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, 740 S.E.2d 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 § 24–9–84.1 (a) (1), 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.”

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 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 . 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 S.E.2d 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 S.E.2d 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 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 S.E.2d 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 S.E.2d 362 ( 2013), citing Terry v. State , 291 Ga. 508, 509(2), 731 S.E.2d 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 S.E.2d 530 (2002).

Hoffler , supra, 292 Ga. at 542–543(4), 739 S.E.2d 362.

Judgment affirmed.

All the Justices concur.