McClure v. State
| Decision Date | 13 October 2021 |
| Docket Number | A21A0942 |
| Citation | 864 S.E.2d 601,361 Ga.App. 399 |
| Parties | MCCLURE v. The STATE. |
| Court | Georgia Court of Appeals |
Lynn M. Kleinrock, Tucker, for Appellant.
Patsy A. Austin-Gatson, Christopher Mark DeNeve, for Appellee.
Phipps, Senior Appellate Judge.
A jury found Thomas McClure guilty of three counts of child molestation, two counts each of incest and aggravated child molestation, and one count of aggravated sexual battery. He appeals from the denial of his motion for a new trial, contending that his trial counsel rendered ineffective assistance by failing to (i) file a motion to suppress evidence recovered from his cell phone during a search conducted pursuant to a search warrant he claims was defective and (ii) request a limiting instruction regarding several text-message exchanges that originated from his cell phone and his oldest daughter's cell phone. For the reasons that follow, we disagree and affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Krauss v. State , 263 Ga. App. 488, 488 (1), 588 S.E.2d 239 (2003). So viewed, the evidence shows that, when McClure's daughter M. M. was 13 years old, McClure began touching her breasts, inserting his fingers into her vagina, and "French"-kissing her. The abuse escalated quickly over the course of a few days, and McClure engaged in intercourse with M. M. numerous times over the next few months, sometimes using sex toys.
Around that same time, when McClure's younger daughter V. M. was approximately ten or eleven years old, McClure began showing her pornography and subsequently did so "[o]ver a hundred times." In the weeks that followed, McClure began to touch V. M.’s breasts and vagina, at first over her clothes and later under her clothes and undergarments. The abuse continued to escalate, with McClure putting his fingers inside V. M.’s vagina and, eventually, engaging in intercourse and oral sex with her more than one hundred times, sometimes using sex toys, and often while watching pornographic videos.
At some point during this time period, McClure showed V. M. photographs on his computer of V. M.’s older sister M. M. In one such photograph, M. M. was unclothed, and McClure had his penis inside of her vagina. The abuse of V. M. continued until she was approximately 15 years old. V. M. first told M. M. that V. M. knew of M. M.’s prior abuse around that time. The two then disclosed the abuse to their older sister A. M., who relayed that disclosure to their mother. A report was made to law enforcement some months after that, at which point McClure was arrested. During McClure's trial, all three sisters testified as to the above occurrences, and an audiovisual recording of V. M.’s interview with law enforcement detailing the abuse also was played for the jury.
McClure testified in his own defense, denying the allegations against him. The jury found him guilty of three counts of child molestation, two counts each of incest and aggravated child molestation, and one count of aggravated sexual battery. The trial court denied his motion for a new trial, and this appeal followed.
1. McClure first argues that his trial counsel rendered ineffective assistance by failing to file a motion to suppress evidence recovered from his cell phone during a search conducted pursuant to a search warrant that he claims was defective. He contends that the search warrant did not authorize the contents of the phone to be searched because the warrant did not provide for a forensic copy to be made of the phone, specify with particularity the evidence sought to be obtained, or limit what data could be examined from the forensic copy that was made. McClure has not met his burden of establishing ineffective assistance in this regard.
To establish ineffective assistance of counsel, one must show that counsel rendered deficient performance that prejudiced the defense. Strickland v. Washington , 466 U. S. 668, 687 (III),104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Seabolt v. Norris , 298 Ga. 583, 584, 783 S.E.2d 913 (2016). Counsel's performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Strickland , 466 U. S. at 687-689 (III) (A), 104 S.Ct. 2052. This requires a showing of errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 687 (III), 104 S.Ct. 2052. Prejudice is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694 (III) (B), 104 S.Ct. 2052 ; Seabolt , 298 Ga. at 584-585, 783 S.E.2d 913. An ineffective-assistance claim is a mixed question of law and fact, and we accept the trial court's factual findings unless clearly erroneous but independently apply the law to those facts.
Hulett v. State , 296 Ga. 49, 60 (5), 766 S.E.2d 1 (2014) ; see also Strickland , 466 U. S. at 698 (IV), 104 S.Ct. 2052. The defendant bears the burden of proof on both prongs of an ineffective-assistance claim, and if he fails to establish either prong, a reviewing court need not examine the other. See Robinson v. State , 298 Ga. 455, 463 (6), 782 S.E.2d 657 (2016).
While the search here was conducted pursuant to a warrant, on the facts of this case, McClure's claim that the warrant was defective is analogous to a claim that no warrant issued, and we therefore address this claim under the rubric of a warrantless search. See Bryant v. State , 301 Ga. 617, 620 (2), 800 S.E.2d 537 (2017) () (citations and punctuation omitted). A warrantless search is per se unreasonable, "subject only to a few specifically established and well-delineated exceptions." Williams v. State , 296 Ga. 817, 819, 771 S.E.2d 373 (2015). One such exception – the inevitable discovery doctrine – "allows the admission of evidence discovered as a result of police error or misconduct if the State can prove by a preponderance of the evidence that such information would have ultimately or inevitably been discovered by lawful means, without any connection to" the error or misconduct. State v. Colvard , 296 Ga. 381, 384 (2), n. 6, 768 S.E.2d 473 (2015). It applies where "exclusion of the evidence puts the police in a worse position than they would have been absent any error or misconduct because the evidence would have been discovered as a matter of course if independent investigations were allowed to proceed." Kennebrew v. State , 304 Ga. 406, 412 (2), 819 S.E.2d 37 (2018) (citation and punctuation omitted). For evidence to be admitted under this exception, the State must establish: (i) "a reasonable probability that the evidence in question would have been discovered by lawful means"; and (ii) that the lawful means rendering discovery inevitable "were being actively pursued" before the illegal conduct occurred. Id. (citations and punctuation omitted). Notably, when a trial court is faced with addressing the merits of a motion to suppress, the State has the burden of establishing that the inevitable discovery doctrine applies only by a preponderance of the evidence. See Colvard , 296 Ga. at 384 (2), n. 6, 768 S.E.2d 473. In the context of this appeal, however, it is McClure who bears the burden of establishing a reasonable probability that, had his trial counsel moved to suppress the contents of his cell phone, the motion would have been granted and changed the outcome of his trial. See Strickland , 466 U. S. at 694 (III) (B), 104 S.Ct. 2052 ; Seabolt , 298 Ga. at 584-585, 783 S.E.2d 913 ; Robinson , 298 Ga. at 463 (6), 782 S.E.2d 657. McClure has not shown prejudice for two reasons.
(a) First, it is undisputed that the State was in possession of McClure's cell phone, had actively pursued discovering its contents, and had obtained a search warrant to that effect. Consequently, even assuming that a pre-trial motion to suppress the contents of the cell phone would have been granted on the ground that the search warrant was defective, there is a reasonable probability that the State would have (a) obtained a new warrant in which the deficiencies alleged by McClure were cured and (b) as a result, inevitably discovered the phone's contents. And importantly for our analysis on McClure's ineffective-assistance claim, he has elaborated no arguments to the contrary – i.e., that a new, properly limited warrant would not have been obtained had a motion to suppress been filed.1 As a result, he has not satisfied the prejudice prong of his ineffective-assistance claim on this issue.2 See Strickland , 466 U. S. at 694 (III) (B), 104 S.Ct. 2052 ; Seabolt , 298 Ga. at 584-585, 783 S.E.2d 913 ; see also Kennebrew , 304 Ga. at 412 (2), 819 S.E.2d 37 ; Colvard , 296 Ga. at 384 (2), n. 6, 768 S.E.2d 473.
(b) McClure also has not shown prejudice for a second, independent reason. On appeal, he identifies only three exhibits obtained from his cell phone and admitted at trial that he claims were prejudicial to him – State's Exhibits 8, 9, and 14.3 Of these three exhibits, State's Exhibit 9 is by far the most prejudicial to McClure. In that exhibit, text messages sent from his cell phone contain numerous statements corroborating the victims’ testimony as to his abuse.4
The prejudicial aspects of State's Exhibit 9, however, are largely cumulative of State's Exhibit 5, which is a printout of screen shots from McClure's wife's cell phone showing many of the same incriminating text messages depicted in State's Exhibit 9. And while it appears that State's Exhibit 5 was not published to the jury, it was admitted into the trial record, and McClure elaborates no arguments explaining why it could not have been published, had State's Exhibit 9 not been admitted and published to the jury.5 Consequently, he has not met his burden...
To continue reading
Request your trial