Clark v. State
| Decision Date | 26 October 2018 |
| Docket Number | A18A1247 |
| Citation | 820 S.E.2d 274,348 Ga.App. 235 |
| Parties | CLARK v. The STATE. |
| Court | Georgia Court of Appeals |
John Clayton Culp, for Appellant.
George E. Barnhill, Alexander John Markowich, Waycross, for Appellee.
Following a bifurcated jury trial, Larry Darnell Clark was convicted in Charlton County Superior Court of four counts of aggravated assault and a single count each of burglary, false imprisonment, possession of a firearm during the commission of a felony, and use of a firearm by a convicted felon.1 Clark now appeals from the denial of his motion for a new trial, asserting a claim of ineffective assistance of counsel and citing six grounds to support that claim. He further contends that the trial court erred in failing to charge the jury sua sponte on the lesser offense of reckless conduct and in admitting certain evidence over the objection of trial counsel. We find no error and affirm.
"On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict." Maddox v. State , 346 Ga. App. 674, 675, 816 S.E.2d 796 (2018) (citation omitted). So viewed, the record shows that one or two days before the incident in question, Clark’s estranged wife, Stephanie Tarpley, obtained a temporary protective order against Clark based on his alleged stalking of her. Late on the afternoon of July 1, 2010, Clark went to Tarpley’s apartment and entered the apartment by kicking in the front door. He then moved the refrigerator to block the apartment’s entrance and proceeded to hold Tarpley in the apartment at gunpoint. After learning that Clark was at Tarpley’s apartment, the couple’s teenage daughter, O. T., who had been at a neighbor’s home, immediately went to the family apartment. O. T. knew that Clark had previously threatened to kill Tarpley, so when she found the apartment door blocked, O. T. began screaming at her parents to let her in. O. T. heard Clark tell her to get away from the door, and then heard some kind of noise. When O. T. looked down, she saw that she was bleeding and she later discovered that she had a gunshot wound
to her arm, which required surgery. As O. T. walked away from the apartment, she heard more gunshots.
Neighbors contacted police, and officers from both the Folkston Police Department and the Homeland Police Department responded to the scene. Officer Ricky Sikes with the Folkston Police Department testified that he pulled up in front of Tarpley’s apartment, exited his marked patrol car, and walked to the car’s trunk to retrieve his bullet proof vest. As he did so, four or five shots were fired from the apartment’s front window. One bullet landed approximately 6 to 10 feet in front of Sikes and another hit the nearby stair railing. Officer Charles Byerly with the Homeland Police Department offered similar testimony, stating that as soon as the two officers exited their respective vehicles, shots came from the front of the apartment. Both officers testified that they believed they were the shooter’s target and that they were afraid they might be killed. The State introduced into evidence a video of the incident recorded by the dashboard camera in Sikes’s patrol car. The video shows puffs of smoke coming from the apartment’s front window, and Sikes testified that the puffs of smoke coincided with the shots being fired.
Clark remained in Tarpley’s apartment until 1:45 a. m. on July 2, and he forced Tarpley to remain with him for most of that time. Tarpley testified that when she first saw Clark in the apartment, he was pointing a gun at her and she was afraid he was going to kill her. She remained in the apartment and did what Clark instructed her to do because he was threatening her with the gun. Additionally, at one point Clark fired a shot towards Tarpley, with the bullet landing in the living room wall.
During her testimony, Tarpley stated that several days after the incident, she found items she believed were related to the crime in her apartment, and she took those items to the Folkston Police Department. Tarpley then identified State’s Exhibit 20, which consisted of an empty .9 mm shell casing, a live .9 mm round, and a bullet, as the items she gave to someone at the Folkston Police Department. Tarpley further testified that in August 2010, she gave the Folkston Police Chief a magazine for a gun and some cartridges. According to Tarpley, she could no longer remember where she found any of these items, nor could she remember why she took the gun magazine and cartridges to the police. The police chief testified that the gun magazine and cartridges, which were introduced into evidence as State’s Exhibit 30, were given to him by Tarpley in August 2010, and Tarpley told him that she had discovered the items underneath her bed in her apartment.2
Special Agent Richard Dial of the GBI was in charge of the investigation into the incident. Dial testified that at the crime scene, police found a bullet lodged in a wall of the apartment, near the area where Tarpley claimed Clark had fired at her. Law enforcement also found bullet holes in the kitchen window, which was the same window shown on the dashboard video. Additionally, police found a .9 mm firearm on top of the dresser in the master bedroom, together with a magazine containing six rounds of live ammunition. Police also recovered six spent .9 mm shell casings inside the apartment. A search of the parking lot revealed a .9 mm bullet hole in a vehicle parked in front of the apartment. Based on their investigation, police found that the trajectory of a bullet fired from the apartment’s kitchen window would have landed where they found the bullet hole in the vehicle. Given the location of the vehicle, police concluded that the shooter had been aiming at or towards the police officers.
Dial testified he met with Tarpley at the Folkston Police Department several days after the incident because she had discovered some other items of evidence at her apartment. Dial identified the items in State’s Exhibit 20 as the items given to him by Tarpley. According to Dial, Tarpley told him that the shell casing had been discovered beside a closet door in the hallway of her apartment; the unspent round had been discovered in the master bedroom; and the spent projectile was found outside the apartment, on the walkway in front of the kitchen window. Defense counsel objected to the admission of this evidence, arguing that Tarpley had not testified as to where she had found the items and the "fact that [she] brought them in [to police] [several] days later ... we don’t know if [the evidence] has anything to do with this case[.]" The trial court overruled this objection.
Dial interviewed Clark at the Folkston Police Department at approximately 4:30 a. m. on July 2, 2010, several hours after the incident ended. During the interview, a recording of which was introduced into evidence and played for the jury, Clark admitted going to Tarpley’s apartment armed with a gun he had stolen from a friend the day before. Clark acknowledged that he brought extra ammunition for the gun with him, and explained that he had been planning to kill himself. Clark also admitted that he had kicked in the apartment door, moved the refrigerator to block the door, and fired the gun both towards the door and through the kitchen window. He stated, however, that he did not mean to shoot his daughter and that when he fired out the kitchen window he was not aiming at the police officers.
Clark testified in his own defense and stated that on the day in question, he received a telephone call from one of his daughters, who told him that while she was visiting Clark’s mother in Miami, she had been molested by Clark’s brother. The daughter left Clark with the impression that Tarpley was aware of the molestation, but that she had failed to report the incident to Clark. Following this phone call, Clark went to Tarpley’s apartment carrying a .9 mm gun purchased for him by a friend approximately two days earlier.3 Clark identified the .9 mm gun found at the scene and introduced into evidence as the one he brought to the apartment. According to Clark, after moving the refrigerator, he threw his jacket onto the living room sofa, which caused the .9 mm gun he had been carrying in his pocket to fall onto the floor. Rather than picking up the gun, Clark went into the master bedroom and retrieved a .380 caliber gun he and Tarpley kept in the dresser. When Clark returned to the living room, Tarpley was holding the .9 mm gun. The couple began to argue and when Clark attempted to wrestle the gun away from his wife, the gun discharged. The couple continued to struggle over the gun, with the struggle making them travel towards the kitchen at the front of the apartment and, as they did so, the gun discharged "a couple more times."
Clark stated that no shots were fired after he discovered there were police officers in front of the apartment and all of the gunshots were fired during the struggle over the gun. Clark could not recall what had happened to the .380 caliber weapon, but he thought he had returned it to the dresser drawer. Additionally, Clark testified that Tarpley was free to leave the apartment at anytime, but that she never attempted to do so.
When asked why parts of his trial testimony conflicted with or contained details not included in the responses he gave Agent Dial in his post-arrest interview, Clark responded that at the time of the interview, he was trying to tell Dial what Clark assumed law enforcement wanted to hear in the hopes he would get bond. He further explained that he wanted to get out of jail so that he could drive to Miami and kill the brother who had allegedly molested his child.
During the State’s rebuttal case, Dial testified that during his interview with Clark, Clark never stated that his brother had molested one...
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