Clark v. State, 299 Ga. 552

Background

On January 24, 2009, Joshua Clark shot and killed Jermaine McNeil in an apartment-complex parking lot; Clark fled the scene and discarded the gun. Clark testified he shot in self-defense after being harassed and allegedly robbed. Eyewitness Quaynor testified McNeil was unarmed, stood about a car length away, and Clark pointed and fired after a jammed first trigger pull. Maintenance worker Rainey heard the shot, found McNeil incapacitated, and called 911.
Clark was indicted for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony; a jury convicted him of felony murder and firearm possession but acquitted on malice murder. He received life for felony murder plus five consecutive years on the firearm count.
On appeal Clark argued (1) ineffective assistance of trial counsel (failure to object to alleged comments on pre-arrest silence, failure to impeach witness Rainey with old felonies, failure to present certain character/third-party-violence witnesses) and (2) plain error for the trial court’s failure to instruct the jury that a non-original aggressor has no duty to retreat.
The trial court and this Court reviewed ineffective-assistance claims under Strickland and applied the former Georgia Evidence Code (case tried before 2013) for impeachment issues and Chandler-related character evidence.
The Court found the evidence sufficient for conviction and rejected Clark’s claims: prosecutor’s comments were not comments on pre-arrest silence; Clark failed to show admissibility or prejudice from not impeaching Rainey with decades-old convictions; counsel’s decision to pursue evidence of prior bullying by McNeil against Clark rather than third-party incidents was a reasonable strategic choice; and any omission of a retreat instruction did not constitute plain error because self-defense was fairly presented and jury received full justification/self-defense instructions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance — failure to object to prosecutor’s alleged comments on pre-arrest silence	Clark: prosecutor’s closing argued that Clark’s delayed explanation and flight showed fabrication and relied on silence; counsel should have objected under Mallory	State: comments targeted flight and the veracity of trial testimony, and Clark himself testified about fleeing; remarks were not improper comments on pre-arrest silence	Court: No deficient performance — comments were not impermissible remarks on pre-arrest silence; objection would have been meritless
Ineffective assistance — failure to impeach Rainey with prior convictions	Clark: counsel should have impeached Rainey with two armed robbery convictions (1980, 1987) to attack credibility	State: convictions were over ten years old; Clark made no showing at new-trial hearing that admissibility balancing would favor admitting them	Court: No prejudice shown — Clark failed to demonstrate those convictions would have been admissible under the old Evidence Code balancing test
Ineffective assistance — failure to present third-party bullying witnesses (Chandler evidence)	Clark: counsel abandoned planned witnesses who would show McNeil’s violent character toward others, relevant to justification	State: replacement counsel reasonably focused on evidence of McNeil’s prior bullying toward Clark rather than third-party incidents; strategic choice	Court: No ineffective assistance — counsel’s strategy was reasonable; hindsight disagreement insufficient
Jury instruction — duty to retreat for non-original aggressor (plain error)	Clark: trial court should have charged that a non-original aggressor claiming self-defense has no duty to retreat	State: self-defense and justification were fully instructed; any omission was not obvious error and did not affect substantial rights	Court: No plain error — self-defense fairly presented and jury received adequate justification instruction; reversal not warranted

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (sufficiency of evidence standard)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
Mallory v. State, 261 Ga. 625 (prosecutor comments on defendant silence doctrine under prior law)
State v. Kelly, 290 Ga. 29 (plain error framework)
Hoffler v. State, 292 Ga. 537 (plain-error jury charge review)
Edmonds v. State, 275 Ga. 450 (self-defense instructions can render omission of specific retreat instruction harmless)
Chandler v. State, 261 Ga. 402 (former exception for victim's character by specific acts when justification asserted)