Clark v. State

FINAL COPY

                   S19A1344. CLARK v. THE STATE.


      PETERSON, Justice.

      Shawn Clark appeals his malice murder conviction for killing

Antonio Ellison.1 Clark did not dispute at trial that he intentionally

shot Ellison, but claimed that his actions were justified because he

was defending himself and his vehicle. On appeal, Clark argues that

the State failed to disprove defense of habitation beyond a

reasonable doubt. Clark also argues that his trial counsel was

ineffective for failing to impeach a key witness with prior felony

convictions, failing to object to the State’s comments on Clark’s pre-

arrest silence, and failing to object to the State’s misstatements on


      1 Ellison was killed on November 14, 2015. In February 2016, a Douglas

County grand jury indicted Clark for malice murder, felony murder, and
aggravated assault. Following a trial held from January 29 to February 5,
2018, the jury found Clark guilty on all counts. The trial court sentenced Clark
to life for malice murder, and the remaining charges were merged or vacated
by operation of law. Clark filed a timely motion for new trial on February 12,
2018, which he later amended with new counsel on January 4, 2019. On April
16, 2019, the trial court denied Clark’s motion for new trial following a hearing.
Clark timely appealed, and his case was docketed to this Court’s August 2019
term and orally argued on October 23, 2019.
the presumption of innocence. We affirm because (1) the jury was

authorized to conclude that the use of deadly force was unreasonable

under the circumstances ⸺ an element of the defense of habitation

statute relied on here ⸺ and (2) trial counsel was not deficient or, if

he was, any deficiency did not prejudice Clark.

     Viewed in the light most favorable to the jury’s verdicts, the

trial evidence showed the following. Clark shot and killed Ellison on

November 14, 2015. Ellison had been in a relationship with Kira

McClure for about nine years, they dated “on and off” in the year

before the shooting, and the couple had three children together.

Although Ellison and McClure were not dating at the time of

Ellison’s death, they and their children continued to live together in

Douglas County, along with members of Ellison’s family, including

Ellison’s brother, Sydrick Lindley.

     The evening before the shooting, Clark, a former police officer,

went to pick up McClure at Ellison’s house because they had

planned to go on a date. Ellison became upset that McClure was

dating another man and argued with McClure before she left.

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     While McClure was out with Clark, Ellison sent her text

messages indicating that he was upset and that he put her personal

items outside of the house because she was no longer welcome.

McClure spent the night with Clark, and Clark gave her a ride back

to Ellison’s house the next day. While riding in Clark’s SUV,

McClure noticed a gun in the cup holder between the two front seats;

the gun had not been there the night before.

     When McClure and Clark arrived, Ellison and Lindley were

talking at the top of the driveway. Upon seeing McClure and Clark,

Ellison walked down the driveway and approached the driver’s side

of Clark’s vehicle. Clark opened the door, and he and Ellison

exchanged words as Clark remained seated. McClure, who was

sitting in the passenger seat, said that the exchange was not loud or

aggressive. Lindley could not hear what Ellison or Clark said to each

other from the top of the driveway.

     After exchanging words with Clark, Ellison slapped Clark in

the face, grabbed Clark by his shirt, and tried to pull Clark out of

the SUV. Clark resisted Ellison’s efforts to remove him from the

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vehicle; during their struggle, Clark was able to fend Ellison off with

one hand while reaching for his gun with the other. Lindley

described the fighting as “child’s play.” McClure testified at trial

that the men were engaged in a “tug-of-war”; she did not see any

injuries to Ellison or Clark or see anything during the struggle

(other than Clark’s gun) that caused her to believe that either

Ellison or Clark could be seriously hurt.

     Clark eventually removed the gun out of its holster and fired a

shot at Ellison, striking him in the torso. Ellison had his head down

into Clark’s chest at the time and could not have seen the gun.

Ellison stepped back or fell away from Clark after the first shot,

screamed out in surprise about being shot, and put his hands up.

Ellison was falling when Clark in quick succession fired two more

shots at Ellison, one of which struck Ellison in the head. Ellison died

from his gunshot wounds.

     Clark began to drive away and ran over Ellison in the process.

Before leaving the neighborhood, Clark let McClure out of the

vehicle. McClure later asked Clark why he killed Ellison. Clark

                                  4
responded that he was in fear for his life because “they were going

to come and get him” and claimed that Ellison had been punching

and kicking him. McClure challenged Clark, stating that Ellison had

hit Clark only once.

     Clark claimed self-defense and defense of habitation during a

police interview and at trial. Clark testified that he was scared when

Ellison approached the vehicle, hit him repeatedly, and tried to

remove him from the vehicle. Clark claimed that he shot at Ellison

because Ellison threatened to kill him. Clark also testified that

Ellison continued to attack him after the first shot so he fired one or

two additional shots at Ellison. Despite Clark’s claims to a detective

during a police interview that Ellison repeatedly hit him, the

detective testified at trial that, several hours after the shooting,

there were no visible marks, redness, or bruising on Clark’s body or

any signs that Clark was in pain.

     1. Clark argues that the evidence was insufficient to convict

him of malice murder because the State failed to disprove defense of

habitation beyond a reasonable doubt. We disagree.

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     When we consider the sufficiency of the evidence, our review is

limited to whether the trial evidence, when viewed in the light most

favorable to the verdicts, is sufficient to authorize a rational trier of

fact to find the defendant guilty beyond a reasonable doubt of the

crimes of which he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979); Mims v. State, 

 (1) (a) (

) (2019). “Under this review, we must

put aside any questions about conflicting evidence, the credibility of

witnesses, or the weight of the evidence, leaving the resolution of

such things to the discretion of the trier of fact.” Mims, 

 (1) (a) (citation and punctuation omitted).

     When a defendant raises an affirmative defense that is

supported by some evidence, the State has the burden of disproving

that defense beyond a reasonable doubt. See Bishop v. State, 

 (2) (

) (1999). It is for the jury to determine

whether the State has met its burden in this respect. See Crayton v.

State, 

 (1) (

) (2016); see also Mosley v.

State, 

 (1) (

) (2017) (“The question of

                                   6
[the defendant’s] justification was for the jury to determine[.]”). Our

role in cases raising colorable justification defenses is to determine

whether the evidence, viewed in the light most favorable to the

verdicts, was sufficient to disprove those defenses. See Joachim v.

State, 

 (1) (

) (1994).

      Defense of habitation is governed by OCGA § 16-3-23,2 which

outlines generally when a person is authorized to use any force in

the defense of habitation and also sets forth three specific contexts

in which deadly force is authorized. See Fair v. State, 

 (2) (A) (3) (

) (2010). On appeal, Clark argues that

his use of deadly force was authorized under two of the

circumstances provided by OCGA § 16-3-23, that a person is justified

in using deadly force if:

           (1) The entry [into a habitation] is made or
      attempted in a violent and tumultuous manner and he or
      she reasonably believes that the entry is attempted or
      made for the purpose of assaulting or offering personal
      violence to any person dwelling or being therein and that
      such force is necessary to prevent the assault or offer of
      personal violence; . . . or

      2 For purposes of OCGA § 16-3-23, the term “habitation” means “any

dwelling, motor vehicle, or place of business.” OCGA § 16-3-24.1.
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           (3) The person using such force reasonably
     believes that the entry is made or attempted for the
     purpose of committing a felony therein and that such
     force is necessary to prevent the commission of the felony.

OCGA § 16-3-23.3

     Here, the jury was authorized to conclude that the use of

deadly force was unreasonable. Clark correctly notes that we have

said that the defense of habitation “allows the use of deadly force in

certain situations even if the occupant does not fear death or great

bodily injury.” Coleman v. State, 

 (6) (

)

(2009) (citation and punctuation omitted). But the defense of

habitation statute places a condition on the use of deadly force in

situations like Clark’s that do not involve unlawful and forcible

entry of a residence. Here, the evidence must establish that the

defendant had “an objective reasonable belief that the [assailant] is



     3 The third circumstance in which deadly force is authorized ⸺ not at

issue here ⸺ occurs when “[t]hat force is used against another person who is
not a member of the family or household and who unlawfully and forcibly
enters or has unlawfully and forcibly entered the residence and the person
using such force knew or had reason to believe that an unlawful and forcible
entry occurred[.]” OCGA § 16-3-23 (2) (emphasis added).

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entering to assault, to offer personal violence, or to commit a . . .

felony and that deadly force is necessary to prevent one of those

acts.” Fair, 

 (2) (A) (3) (emphasis added; also noting

that OCGA § 16-3-23 (2) omits the reasonable belief standard

present in the other paragraphs). The statute makes plain that, in

the circumstances relied on by Clark here, the defendant must have

reasonably believed that the use of deadly force was necessary. See

id. It is for the jury to determine whether the use of deadly force was

reasonable under the circumstances. See, e.g., Darden v. State, 

 (3) (

) (1999); Anderson v. State, 

 (

) (1980).

     The evidence authorized a jury to find that deadly force was

not reasonable. Although Ellison slapped Clark, McClure testified

that it was only once, with an open hand, and was not preceded by

any aggressive or loud words. After the slap, the men were in a

struggle, but Lindley testified that the encounter was like “child’s




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play,”4 while McClure described it as a “tug-of-war” in which neither

Ellison nor Clark appeared to be in any danger of serious harm. The

detective who interviewed Clark after the encounter testified that

he did not see any injury to Clark or signs that Clark was in pain.

Given this evidence, the jury was authorized to reject Clark’s

testimony that Ellison threatened to kill him and that Ellison

repeatedly hit him, even after Clark fired the first shot. See Kemp v.

State, 

 (1) (a) (

) (2018) (the trier of fact

is authorized to accept or reject any portion of the testimony

presented to it). Moreover, given that the evidence also supported a

finding that Ellison only slapped Clark once and caused him no

visible harm, the jury was authorized to conclude that Clark’s belief

that deadly force was necessary to end the encounter was not

reasonable under the circumstances.




      4 Lindley also testified that Ellison kept hitting Clark after the initial

slap. But the jury was not required to credit Lindley’s testimony in this respect.
See Kemp v. State, 

 (1) (a) (

) (2018) (“The trier of
fact is not obligated to believe a witness . . . and may accept or reject any portion
of the testimony.” (citation and punctuation omitted)).

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     2. Clark next argues that his trial counsel was ineffective in

several ways. To prevail on any of his claims, Clark must show both

“that trial counsel’s performance fell below a reasonable standard of

conduct and that there existed a reasonable probability that the

outcome of the case would have been different had it not been for

counsel’s deficient performance.” Scott v. State, 

 (7)

(

) (2012) (citing Strickland v. Washington, 

 (

, 80 LE2d 674) (1984)). Failure to meet one prong

of the Strickland test is fatal to an ineffectiveness claim. Leanos v.

State, 

 (2) (

) (2018).

     To establish deficient performance, Clark must “overcome the

strong presumption that counsel’s performance fell within a wide

range of reasonable professional conduct, and that counsel’s

decisions were made in the exercise of reasonable professional

judgment.” Mims, 

 (2) (citation and punctuation

omitted). To demonstrate prejudice, Clark must establish “a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable

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probability is a probability sufficient to undermine confidence in the

outcome.” 

 (citation and punctuation omitted).

     (a)   Clark asserts that trial counsel was ineffective for failing

to impeach Lindley with two felony convictions for possession of

marijuana with intent to distribute, arguing that discrediting

Lindley was crucial to his defense. We disagree.

     Although trial counsel testified at the motion for new trial

hearing that he had no reason for failing to investigate Lindley’s

criminal history for impeachment material, Clark cannot establish

that he was prejudiced by any deficiency. Trial counsel impeached

Lindley by pointing out that Lindley did not have a clear view of the

encounter between Clark and Ellison and repeatedly referencing

Lindley’s familial relationship with Ellison, suggesting his bias in

favor of Ellison. Additionally, Lindley’s testimony regarding the

deadly encounter was similar to that of McClure, and any

differences in Lindley’s testimony may have been beneficial to




                                  12
Clark.5 For these reasons, there is no reasonable probability that

any additional impeachment of Lindley with his prior convictions

would have made any difference to the outcome of Clark’s trial. See

McCoy v. State, 

 (2) (

) (2018) (no

prejudice from trial counsel’s failure to impeach witness with prior

testimony because the inconsistencies at issue were explored in

detail during cross-examination and other witnesses testified

similarly regarding the manner in which the defendant shot the

victim); Barrett v. State, 

 (3) (c) (4) (

) (2012) (given trial counsel’s cross-examination of witness

regarding the inconsistencies between her testimony and prior

statement to police, appellant failed to show a reasonable

probability that result of trial would have been different with

additional impeachment of witness).

     (b) Clark next argues that trial counsel was ineffective for

failing to object or move for a mistrial when the prosecutor


     5   For example, contrary to McClure’s testimony that Ellison slapped
Clark only once, Lindley testified that Ellison punched Clark several times
after slapping him.
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commented during opening and closing arguments on Clark’s failure

to call 911 or turn himself in after the shooting. We disagree.

     Clark argues that trial counsel was deficient based on the

bright-line rule this Court established in Mallory v. State, 

 (5) (

) (1991), in which we concluded that

the State may not comment on a criminal defendant’s pre-arrest

silence or failure to come forward to law enforcement. But Mallory

was an evidentiary holding decided under our old Evidence Code. At

the time of Clark’s trial, which was conducted under the current

Evidence Code, the continued viability of Mallory was unsettled.

See, e.g., Eller v. State, 

 (IV) (E) (

)

(2018). After Clark’s trial, and after the trial court considered

Clark’s motion for new trial in which he raised the ineffectiveness

claim, we decided State v. Orr, 

 (

) (2019),

and concluded that Mallory had been abrogated by the new Evidence

Code and that pre-arrest silence might be admissible under certain

circumstances.



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        Since deciding Orr, we have rejected ineffectiveness claims

based on trial counsel’s failure to make Mallory objections in trials

conducted under the current Evidence Code, because Mallory did

not apply to those trials. See, e.g., Scott v. State, 

(2) (

) (2019); Jackson v. State, 

 (5) (a)

(

) (2019). Clark’s ineffectiveness claim similarly must

fail.

        Recognizing that his Mallory argument was not likely to

prevail, Clark alternatively asks that we remand the case for the

trial court to determine the admissibility of the State’s comments

under the Orr standard and then evaluate whether trial counsel was

ineffective for failing to object to any impermissible comments. We

decline to do so. The trial court rejected Clark’s claim primarily

because it found that trial counsel’s attempts to use the State’s

comments to help the defense’s theory was not patently

unreasonable.6 Specifically, the trial court found that trial counsel


        6 The trial court’s order, issued prior to our decision in Orr, noted in a

footnote that trial counsel could not be deficient for failing to object based on
the unsettled nature of Mallory at the time of the trial.
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acted reasonably by attempting to show that Clark left the scene and

did not immediately come forward because Clark felt that he had

been set up, he feared Ellison’s family would retaliate against him,

and he needed time to collect himself and ensure his safety.

Regardless of whether the State’s comments would be permissible

under Orr, Clark makes no argument, much less a sufficient

showing, that the trial court erred in concluding that trial counsel’s

decision not to object was objectively unreasonable.

     Whether to object to a particular part of a prosecutor’s

argument is a tactical decision, and trial counsel’s decision not to

object must be objectively unreasonable to constitute deficient

performance. See Peoples v. State, 

 (6) (

)

(2014); see also Young v. State, 

 (5) (

)

(2019) (“Whether the potential upside of arguably objectionable

testimony exceeds its downside is a question of trial strategy, and

[appellant] has failed to show that his lawyer’s strategy was

patently unreasonable.”). Because Clark has failed to establish that



                                 16
trial counsel’s decision not to object was unreasonable, he cannot

prevail, and there is no reason to remand.

     (c) Clark next argues that trial counsel was ineffective for

failing to object to the following statements by the prosecutor during

closing arguments:

           So you heard earlier, or at least during voir dire,
     possibly during opening, about the presumption of
     innocence. And the defendant did enter into this case with
     the presumption of innocence, and he was presumed
     innocent until proven guilty. But the presumption doesn’t
     stay during the entirety of the case. You don’t get to hide
     under the cloak of the presumption of innocence. It’s there
     until it’s overcome with evidence. And so at which point
     ⸺ and it could be anywhere in the trial. It could be after
     witness number one said my name is whatever. If you
     believe that he’s guilty at that point, then at that point the
     presumption of innocence is gone and then he’s guilty.
     Once you believe a person is guilty, they are.

Clark argues that the italicized language was an improper

statement of the law, because it gave the jury the mistaken belief

that the State could satisfy its burden of proving his guilt simply by

having a witness say his or her name.

     The prosecutor’s statements on the presumption of innocence

plainly misstated the law. A single witness merely stating his or her

                                  17
name is not sufficient evidence to overcome the presumption of

innocence. Although trial counsel should have objected to the

prosecutor’s statements, Clark cannot establish that he was

prejudiced by any deficiency. The trial court correctly charged the

jury on the presumption of innocence, burden of proof, and

reasonable doubt at the beginning of the trial and in its final

instruction to the jury. The jury was presumed to follow the trial

court’s instructions, and Clark has presented nothing to overcome

this presumption. See Blount v. State, 

 (2) (e) (

) (2018) (rejecting ineffectiveness claim based on failure to

object to misstatement of law because the jury was presumed to

follow the correct instructions of the law provided by the trial court);

Allen v. State, 

 (3) (c) (

) (2004) (same).

Therefore, Clark’s ineffectiveness claim on this ground fails.

     Judgment affirmed. All the Justices concur.




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                   DECIDED DECEMBER 23, 2019.
    Murder. Douglas Superior Court. Before Judge Emerson.
    Arora & Lascala, Manubir S. Arora, for appellant.
    Ryan R. Leonard, District Attorney, Sean A. Garrett, Aimee F.
Sobhani, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Ashleigh D.
Headrick, Assistant Attorney General, for appellee.




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