Clark v. State

Docket NumberS22A0950
Decision Date18 January 2023
Citation315 Ga. 423,883 S.E.2d 317
Parties CLARK v. The STATE.
CourtGeorgia Supreme Court

Debra Kay Jefferson, Attorney At Law, P.O. Box 1473, Lawrenceville, Georgia 30046, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Alex Martin Bernick, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Gerald Lee Henderson, A.D.A., Office of the District Attorney Gwinnett Judical Circuit, 75 Langley Drive, Office of District Attorney, Lawrenceville, Georgia 30046, Jared Tolton Williams, District Attorney, Augusta Judicial Circuit District Attorney's Office, 735 James Brown Boulevard, Suite 2400, Augusta, Georgia 30901, Deborah Gonzalez, District Attorney Pro Tempore, Christopher Anders George, A.D.A., Prosecuting Attorneys Council of Georgia, 1590 Adamson Parkway, Morrow, Georgia 30260, for Appellee.

Warren, Justice.

William Clark was convicted of felony murder and other crimes in connection with the shooting death of Anthony King and the aggravated assault of Anthony Davis.1 In this appeal, Clark contends that the evidence presented at his trial was legally insufficient to support his convictions for the crimes against King; the trial court applied the wrong standard in admitting evidence of an audio recording of his interview with the lead investigator for his case; the trial court committed plain error by failing to instruct the jury on knowledge, grave suspicion, mere presence, and mere association; and his trial counsel provided constitutionally ineffective assistance by failing to request those instructions and by failing to file a demurrer to the indictment. Each of these claims is meritless, so we affirm.

1. The evidence presented at Clark's trial showed the following.2 On the evening of August 3, 2012, King, Davis, and Davis's brother, Travis Davis ("Travis"), hung out and drank alcohol. Around 11:00 p.m., Travis drove them to a convenience store in Augusta to buy beer. Travis stayed in his SUV while King and Davis walked toward the store.

According to Davis, he and King recognized two young men, whom he identified at trial as Clark and Jeremiah Kelly, outside the store.3 Davis told King that he believed that Clark and Kelly had fired shots at him about two weeks earlier. King stopped to talk to them while Davis went inside the store. A surveillance video recording from the convenience store showed King, Clark, and Kelly calmly talking in front of the store at 11:00 p.m. A few minutes later, King went inside the store and Clark and Kelly walked out of view of the cameras. Davis testified that King then said something like "them little f**kers outside." King and Davis purchased some beer and left the store.

Travis dropped off King and Davis on a nearby street so they could walk to a friend's house. Davis testified as follows. As he and King walked through a parking lot, they saw Clark and Kelly again. King said something to them; the four men started arguing; and Clark and Kelly pulled out guns. King and Davis were not carrying guns. An Oldsmobile pulled up, and two men, who were later identified as Curtis Washington and Treyvon Archie, told Clark and Kelly to put their guns away. Moments later, Travis pulled up in his SUV and tried to "defuse the situation." Clark then fired his gun into the air; Kelly started shooting; and Clark shot toward Davis. King got in the SUV and began to drive away as Davis and Travis ran, and Kelly told Clark to "chase after them." Davis fled to a nearby restaurant, where he called 911.

Travis recounted a similar story. According to Travis, moments after he dropped off King and Davis, he had "a bad feeling," so he drove back toward them. Two men, whom he identified at trial as Clark and Kelly, were pointing guns at King and Davis. Travis was not carrying a gun. An Oldsmobile was parked in the middle of the street, but the men in it did not appear to be involved in the argument. Travis got out of his SUV and told Clark and Kelly to put their guns down. Clark then fired his gun, and Kelly started shooting. Davis ran away, and Kelly told Clark, "we've got one trying to get away, get him." Clark chased Davis, firing two more shots, as Kelly walked toward the SUV and said "uh-huh, pow." Travis ran, but soon saw King driving the SUV and jumped in the passenger seat. Travis then saw that King had been shot. The SUV crashed into a tree, and Travis got out and ran away.4

Investigators who responded to the scene found King, who had been shot once in the chest, in the driver's seat of the SUV. He was transported to a hospital, where he later died. A medical examiner recovered a bullet fragment from King's chest, and investigators found three .380 shell casings at the scene. A firearms examiner later concluded that all of the shell casings had been fired from the same .380 pistol and that the bullet fragment was fired from a .380 pistol. Investigators did not find any guns at the scene.

Investigators identified Clark and Kelly as suspects, and Clark and Kelly turned themselves in the day after the shooting. The lead investigator interviewed Clark that evening; the interview was audio-recorded and later played for the jury. Initially, Clark denied being present during the shooting, but he eventually told the following story. He and Kelly were outside the convenience store when two men approached and asked if they had been involved in a prior shooting. When they denied any involvement, the men left, but Clark and Kelly soon encountered them again in a nearby parking lot. The men "kept walking up on them" and again asked if they had been involved in the shooting. Clark said "no." Clark's friend Washington then pulled up in an Oldsmobile and asked what was happening. Clark responded that he did not know. An SUV then drove up, and "a big dude jumped out." Kelly fired his gun as Clark fled.5

The lead investigator testified that his investigation indicated that Kelly fired the shot that killed King, and it appears that the State's theory of the case was that Kelly was the shooter and Clark was a party to the crimes. Clark did not testify, and the trial's opening statements and closing arguments were not transcribed.

2. Clark contends that the evidence presented at his trial was insufficient as a matter of constitutional due process to support his convictions for felony murder (based on aggravated assault against King) and possession of a firearm during the commission of that crime.6 Specifically, Clark argues that the State failed to prove that he participated in killing King because the evidence showed that Kelly was the shooter. We reject that argument.7

In evaluating the sufficiency of the evidence as a matter of constitutional due process, we view all of the evidence presented at trial in the light most favorable to the verdicts and consider whether any rational juror could have found 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.Ed.2d 560 (1979) ; Perkins v. State , 313 Ga. 885, 891, 873 S.E.2d 185 (2022). "We leave to the jury ‘the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts.’ " Perkins , 313 Ga. at 891, 873 S.E.2d 185 (citation omitted).

To support Clark's conviction for felony murder, the evidence presented at trial had to show that he proximately caused King's death, either directly or as a party to the crime, while in the commission of an aggravated assault with a deadly weapon. See OCGA § 16-5-1 (c). See also Mathews v. State , 314 Ga. 360, 365, 877 S.E.2d 188 (2022) (" ‘[F]elony murder requires only that the defendant possessed the requisite criminal intent to commit the underlying felony—in this case, aggravated assault, which also does not require intent to kill.’ ") (citation omitted). The trial court instructed the jury on aggravated assault, which OCGA § 16-5-21 (a) (2) defines, in pertinent part, as an "assault[ ] ... [w]ith a deadly weapon." The court also instructed on parties to a crime under OCGA § 16-2-20. That statute says, among other things, that "[e]very person concerned in the commission of a crime[,]" including one who "[i]ntentionally aids or abets in the commission of the crime" or "[i]ntentionally advises [or] encourages ... another to commit the crime" is "a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20 (a), (b) (3)-(4).

It is well established that " [a] person who does not directly commit a crime may be convicted upon proof that the crime was committed and that person was a party to it.’ " Glenn v. State , 306 Ga. 550, 553, 832 S.E.2d 433 (2019) (citation omitted). See also Crawford v. State , 312 Ga. 452, 455-456, 863 S.E.2d 75 (2021) (" ‘Even where it is undisputed that the victim was shot by another person, every person concerned in the commission of the crime may be convicted of the crime.’ ") (citation omitted). Conviction as a party to a crime requires proof of a common criminal intent, which the jury may infer from the defendant's presence, companionship, and conduct with another perpetrator before, during, and after the crimes. See, e.g., Glenn , 306 Ga. at 553, 832 S.E.2d 433.

However, mere presence at the crime scene is insufficient to make someone a party to a crime. See, e.g., id.

Although the evidence presented at trial indicated, and the parties did not dispute, that Clark did not personally fire the shot that killed King, there was ample evidence from which the jury reasonably could infer that Clark and Kelly shared a common criminal intent with respect to the shooting. When properly viewed in the light most favorable to the verdicts, the evidence showed that Clark and Kelly encountered King and Davis outside the convenience...

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