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


                                        8
      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.




                                         9
