Clark v. State

• Decision Date: 23 December 2019
• Docket Number: S19A1344
• Citation: 307 Ga. 537,837 S.E.2d 265
• Parties: CLARK v. The STATE.
• Court: Georgia Supreme Court

307 Ga. 537

837 S.E.2d 265

CLARK

v.The STATE.

S19A1344

Supreme Court of Georgia.

Decided: December 23, 2019

Manubir Singh Arora, Arora & LaScala, LLC, 75 West Wieuca Road, N.E., Atlanta, Georgia 30342, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Ryan Reese Leonard, District Attorney, Sean Alexander Garrett, Deputy Chief A.D.A., Aimee F. Sobhani, A.D.A., Douglas County District Attorney's Office, 8700 Hospital Drive, Douglas County Courthouse, Douglasville, Georgia 30134, for Appellee.

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 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.

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 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 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.

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 , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.E.2d 560 (1979) ; Mims v. State , 304 Ga. 851, 853 (1) (a), 823 S.E.2d 325 (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 , 304 Ga. at 853 (1) (a), 823 S.E.2d 325 (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 , 271 Ga. 291, 291 (2), 519 S.E.2d 206 (1999). It is for the jury to determine whether the State has met its burden in this respect. See Crayton v. State , 298 Ga. 792, 793 (1), 784 S.E.2d 343 (2016) ; see also Mosley v. State, 300 Ga. 521, 524 (1), 796 S.E.2d 684 (2017) ("The question of [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 , 263 Ga. 816, 817, 440 S.E.2d 15 (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 , 288 Ga. 244, 257 (2) (A) (3), 702 S.E.2d 420 (2010). On appeal, Clark argues that his use of deadly force was authorized under two of the circumstances provided by OCGA § 16-3-23, which provide 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

(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 , 286 Ga. 291, 297 (6), 687 S.E.2d 427 (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 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 , 288 Ga. at 257 (2) (A) (3), 702 S.E.2d 420 (emphasis added; also noting that subsection (2) omits the reasonable belief standard present in the other subsections). 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 , 271 Ga. 449, 451 (3), 519 S.E.2d 921 (1999) ; Anderson v. State , 245 Ga. 619, 623 (1), 266 S.E.2d 221 (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...