Mallery v. the State
342 Ga. App. 742
| Ga. Ct. App. | 2017Background
- Defendant Clinton Mallery (aka “Fly”) was convicted by a DeKalb County jury of armed robbery and aggravated assault for breaking into a neighbor’s apartment, shooting the victim multiple times, and stealing property and a handgun.
- The victim (the seller of candy/sundries) knew Mallery by nickname from the neighborhood; she identified him at the hospital and later in a photographic array and at trial.
- Mallery testified and claimed the victim intentionally misidentified him to hide the identity of the more dangerous person who actually shot her and asserted she had scammed him in a scheme involving stolen iPhones.
- Mallery moved for a new trial arguing ineffective assistance of counsel on four grounds: (a) failure to impeach the victim with her out-of-state criminal history; (b) failure to limit introduction of Mallery’s criminal/arrest history; (c) failure to investigate and call defense witnesses; and (d) failure to rehabilitate Mallery with a prior consistent statement.
- The trial court denied the motion; the Court of Appeals reviewed under the Strickland standard, accepted trial-court factual findings unless clearly erroneous, and affirmed the denial.
Issues
| Issue | Plaintiff's Argument (Mallery) | Defendant's Argument (State) | Held |
|---|---|---|---|
| (a) Failure to impeach victim with her criminal history | Counsel should have used victim’s prior convictions to weaken her credibility and support misidentification theory | Even if admissible, prior convictions would not supply motive to misidentify; Mallery’s own testimony created problems for that theory and evidence of guilt was overwhelming | No prejudice shown; denial affirmed |
| (b) Failure to limit evidence of Mallery’s criminal history/arrests | Counsel erred by allowing evidence suggesting prior arrests/incarceration | Record shows counsel limited admission; arrest/incarceration evidence is not inherently character evidence and counsel used booking photos strategically | No deficient performance; strategy reasonable |
| (c) Failure to investigate/call witnesses to support misidentification | Counsel failed to locate and present witnesses (security guards, car owner, alibi) that would have supported alternate-perpetrator theory | Investigator searched for witnesses over a year; witnesses unavailable or not favorable; no proffer of admissible favorable testimony | No deficiency or prejudice shown |
| (d) Failure to rehabilitate with prior consistent statement | Counsel should have reinstated a prior consistent statement after impeachment to rebut charge of inconsistency | No identified prior consistent statement offered; counsel reasonably avoided introducing a statement that might further harm credibility | Strategic choice reasonable; no ineffective assistance shown |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance of counsel test)
- Jackson v. Virginia, 443 U.S. 307 (standard for viewing sufficiency of the evidence)
- Daughtry v. State, 296 Ga. 849 (prejudice analysis and cumulative-error considerations in ineffective-assistance review)
- Propst v. State, 299 Ga. 557 (failure to satisfy one Strickland prong obviates need to analyze the other)
- McNair v. State, 296 Ga. 181 (deference to trial counsel’s reasonable trial strategy)