Following the denial of his motion for new trial, as amended, Clarence Clark appeals his convictions for malice murder and possession of a firearm during the commission of a felony in connection with the fatal shooting of Marlon Brown. His sole challenge is that his trial counsel was ineffective in two respects: in failing to object to the use of the term “murder” during trial testimony and in not objecting to the introduction into evidence of his statement to police. Finding the challenge to be without merit, we affirm.
The evidence construed in favor of the verdicts showed the following. Clark intended to spend the night of February 5, 2008 with his sister, Xaviera Wood, and her children at her apartment because it was closer to the site of a job interview he had the following day Once there, Wood told him about an earlier altercation she had with Brown, who was her on-again, off-again boyfriend and the father of one of her children. Brown and Wood had an argument which became physical to the point that they were “exchanging licks.” Brown left, taking with him keys to Wood’s apartment; he threatened her as he was leaving. Subsequently, as Wood was packing Brown’s belongings, she came across his handgun; she gave the handgun to Clark who took possession of it. To
Brown was shot in the chest, back, head, and arm. The back and head injuries were consistent with Brown being shot from behind as he was attempting to run from his assailant. Ablood trail led from the parking lot to Brown’s body. One shell casing was found in the breezeway in front of Wood’s apartment while another was found “ninety-one steps” away next to Brown’s body.
Initially, Clark told the police he did not know anything about the incident. Approximately two months later, he voluntarily came to the police station to be interviewed. There Clark orally indicated that he understood his Miranda
1. Although Clark does not challenge the legal sufficiency of the evidence of his guilt, in keeping with this Court’s general practice in appeals of murder cases, this Court has reviewed the record and concludes that the evidence at trial was sufficient to enable a rational trier of fact to find Clark guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia,
2. Clark contends that his constitutional right to effective assistance of counsel was violated in two respects. However, in order to show that his trial counsel was ineffective Clark must demonstrate
that his counsel’s performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington,466 U. S. 668 , 695 (104 SCt 2052 , 80 LE2d 674) (1984). To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.
Capps v. State,
(a) Clark first claims that his trial counsel was ineffective for not attempting to exclude use of the term “murder” at trial and for not objecting to several references by the State to Brown’s death as “murder” during its examination of some witnesses, including Clark. But, the claim is without merit.
First as Clark concedes, the jury received instructions making it clear that it was its duty to determine whether he murdered Brown. Moreover, the jury was also instructed,
(b) Clark further claims that his trial counsel was ineffective for not challenging the admission into evidence of his videotaped statement to police.
As the superior court found in denying Clark a new trial, his claim that the failure to advise him that he was under arrest rendered the interview involuntary is unavailing. Even when a defendant is in custody for several days before being interviewed and obviously has knowledge of his confinement, the fact of custody, in and of itself, does not render the defendant’s subsequent statement involuntary See Harris v. State,
In addition, trial counsel made plain at the motion-for-new-trial hearing that the decision not to object to admission of the statement was strategic. Counsel reviewed the statement with Clark and felt that it was consistent with Clark’s testimony at an earlier immunity hearing in the case, that it would support his anticipated testimony at trial, and that there was nothing in the statement that would have been problematic for the jury to hear. Moreover, counsel explained that had Clark ultimately decided not to testify at trial, counsel believed that they still could have attempted to show self-defense by virtue of admission of the statement. A deliberate
Judgment affirmed.
Notes
The murder and related crimes occurred on February 5, 2008. On July 1, 2008, a Fulton County grand jury returned an indictment against Clark charging him with malice murder, felony murder while in the commission of aggravated assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. He was tried before a jury October 20-24, 2014, and found guilty of all charges. On October 27, 2014, Clark was sentenced to life in prison for malice murder and a consecutive five years to serve on probation for the firearm possession; the felony murder stood vacated by operation of law and the aggravated assault was found to merge for the purpose of sentencing. A motion for new trial was filed on October 30, 2014, and an amended motion for new trial was filed onApril 11, 2016. The motion for new trial, as amended, was denied on June 15, 2016. A notice of appeal was filed on July 5, 2016, and the case was docketed in this Court for the term beginning in December 2016. The appeal was submitted for decision on the briefs.
Miranda v. Arizona,
In his brief, Clark also intones that admission of his statement violated his constitutional right not to incriminate himself, but he does not pursue this claim outside the confines of his contention of ineffectiveness of trial counsel, and therefore, has abandoned it as an independent claim.
The basis of the claim of inconsistency is that in his statement, Clark says that he “chased” Brown, but in his testimony, he says that he “followed” Brown. Clark argues that unlike “following,” “chasing” your victim is inconsistent with a self-defense argument in that “chasing a person connotes a willful intent, while following is . . . much more subtle” and promotes the view that he intended only to ensure that Brown did not return to harm Wood.