S20A0258. CLARKE v. THE STATE.
S20A0258
Supreme Court of Georgia
May 4, 2020
308 Ga. 630
ELLINGTON, Justice.
FINAL COPY
308 Ga. 630
FINAL COPY
S20A0258. CLARKE v. THE STATE.
Following a jury trial, Rupert Clarke was convicted of the malice murder of his wife, Rosemarie Lebert-Clarke, and possession of a firearm during the commission of a felony.1 He appeals, contending that he received ineffective assistance of counsel and that the trial court erred in admitting an out-of-court statement over his hearsay objection, violated the continuing witness rule by sending out with the deliberating jury printouts of text messages, and committed plain error by failing to instruct the jury that a defendant‘s uncorroborated confession is not alone sufficient to warrant a conviction. For the reasons set forth below, we affirm Clarke‘s convictions.
Viewed in the light most favorable to the verdicts,2 the evidence showed the following. On the day Clarke shot and killed Lebert-Clarke, his wife of over 30 years, he was sitting at the dining room table paying bills when she came home from work. Lebert-Clarke had a conversation with the couple‘s adult son, Alex, in his bedroom upstairs and then went downstairs, planning to leave to get her hair done. Alex, who was still upstairs, heard Clarke say, “I‘m done with this,” and then heard gunshots. Alex ran downstairs and saw his mother lying on the floor in the living room, with Clarke standing near her with a handgun.
Alex ran upstairs and called 911. Responding officers arrived about five minutes later, and the 911 operator instructed Alex to go
During an autopsy, a medical examiner found six bullets in Lebert-Clarke‘s body. She had been shot in the back four times, once in the left arm, and once in the left leg and had fatal wounds to multiple internal organs. The firearms examiner determined that the bullets removed from Lebert-Clarke‘s body were fired by Clarke‘s gun.
Four law enforcement officers testified regarding statements Clarke made spontaneously
Evidence regarding the nature of the relationship between Clarke and Lebert-Clarke was elicited during the testimony of two of the couple‘s adult children, Alex and Ashley, Lebert-Clarke‘s friend, Yoonmi Hampton, and Clarke‘s sister, Claudette Clarke, and during Clarke‘s own testimony. The testimony showed that Clarke and Lebert-Clarke, who were both originally from Jamaica, married in 1984 and had three children. For approximately 20 years, both husband and wife worked and contributed their incomes to the family‘s finances. In 2005, the family moved to Lilburn. A few months later, Clarke observed an apparent bullet hole in the molding above the front door of the home, which caused him to fear that they were not welcome in the neighborhood. Clarke reported the incident to the police, bought a handgun, and obtained a license to carry the gun. He nearly constantly carried the gun at his waist in a fanny pack.
In 2006, Lebert-Clarke lost her job. Instead of seeking another job, she founded a non-profit company to offer tutoring services for children. She did not draw a salary from the tutoring company, and she stopped contributing to the family‘s finances, which Clarke resented more and more over time. In 2008, Clarke‘s mother died, and he became emotionally withdrawn from family members. He developed insomnia and finally sought medical treatment in 2011, but he opted not to take the recommended medication.
In 2012, Clarke lost his job and was out of work for about three months, which increased the stress he experienced in providing for the family. Clarke and Lebert-Clarke largely stopped communicating, except through text messages, and stopped spending time together. Lebert-Clarke stopped sleeping in the marital bedroom and moved into Ashley‘s former bedroom. Clarke put a lock on the master bedroom door to keep his wife out. When Lebert-Clarke was home, Clarke would usually stay in the bedroom with the door locked. He testified that he did not like being around his wife because she would verbally “poke” him. Clarke wanted a divorce but wanted Lebert-Clarke to undertake getting papers drawn up, because she had more free time and “if [he] didn‘t work [he] didn‘t get paid.”
The shooting occurred on May 2, 2015. Clarke testified as follows: He had not been sleeping well for several days and had slept only three hours the night before. Lebert-Clarke came home that afternoon and went upstairs. A few minutes later, Clarke looked up from where he sat at the dining room table paying bills and saw Lebert-Clarke walking slowly down the stairs and looking at him. She asked if he wanted her to help him with the bills. He responded that he had been paying the bills without her help for ten years and what he really wanted was the divorce papers. His wife said, “You‘re not going to get these divorce papers until you‘re dead.” At that moment, Clarke was “exhausted,”
1. Clarke does not challenge the sufficiency of the evidence. Nevertheless, as is our customary practice in murder cases, we have independently reviewed the record and conclude that the evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Clarke contends that the trial court abused its discretion in overruling his hearsay objection to a law enforcement officer‘s testimony regarding Alex‘s out-of-court statement that Clarke had previously threatened to kill Lebert-Clarke “over bills.” However, it is not necessary to consider whether the admission of this evidence was error because, pretermitting whether the statement was inadmissible hearsay,3 we conclude that any error in admitting it was harmless.
The new Evidence Code continues Georgia‘s existing harmless error doctrine for erroneous evidentiary rulings. See
OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]“). In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so. The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.
Perez v. State, 303 Ga. 188, 191 (2) (811 SE2d 331) (2018) (citation and punctuation omitted).
We conclude that it is highly probable that admitting the evidence did not contribute to the verdict. During closing argument, Clarke‘s counsel stated that Clarke was “not asking [the jury] for a pass” on the homicide. Rather, she expressly asked the jury to find Clarke guilty only of the lesser offense of voluntary manslaughter. In the context of the defense theory that Clarke “snapped” after years of frustration and resentment, the alleged threat that Clarke claims was inadmissible hearsay was largely cumulative of the abundant evidence offered by the State and elicited by the defense regarding the contentious nature of the relationship between Clarke and his wife. The glancing reference to a verbal threat reflected in Alex‘s out-of-court statement did not include any contextual details, such as when the threat was made relative to the homicide or whether Alex or Lebert-Clarke viewed the statement as a serious threat. We would expect reasonable jurors in deciding whether Clarke‘s state of mind at the time of the shooting was consistent with malice, or was instead consistent with voluntary manslaughter,4 to have reached the same conclusion, even without the evidence of a single verbal threat on an unspecified date, based on the much stronger evidence of Clarke‘s
The weakness of the inculpatory value of the statement is indicated by the prosecutors’ decision not to ask any follow up questions and not to refer to Alex‘s statement during closing argument. And defense counsel highlighted the weakness of the evidence during closing argument, arguing that the prosecutors deliberately chose not to ask Alex about the statement because they had reason to believe Alex would retract it. Based on these considerations, and given the strength of the State‘s case, we conclude that it is highly probable that the admission of Alex‘s statement through the officer did not contribute to the verdict. See Tyner v. State, 305 Ga. 326, 330-331 (3) (825 SE2d 129) (2019); Anglin v. State, 302 Ga. 333, 341 (6) (806 SE2d 573) (2017).
3. In a related claim of error, Clarke contends that the admission of Alex‘s out-of-court statement that Clarke had previously threatened to kill Lebert-Clarke “over bills” violated his rights under the Confrontation Clause of the Sixth Amendment.5 He argues that his trial counsel rendered ineffective assistance by failing to object to the evidence on that basis.
To establish ineffective assistance of counsel, a defendant must show that his trial 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. See Strickland v. Washington, 466 U. S. 668, 695 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). If Clarke fails to show either deficiency or prejudice, this Court need not examine the other prong of the Strickland test. DeLoach v. State, 308 Ga. ___, ___ (2) (840 SE2d 396) (2020).
Pretermitting whether Alex‘s statement was testimonial and whether he was available for cross-examination,6 it is highly probable that the admission of Alex‘s statement through the officer did not contribute to the verdict, as we explained in Division 2, supra. Consequently, Clarke failed to satisfy the prejudice prong of the Strickland analysis, and his ineffective assistance of counsel claim fails. See Bradley v. State, 283 Ga. 45, 47 (2) (656 SE2d 842) (2008).
4. Clarke contends that the trial court erred in allowing, over his objection based on the continuing witness rule, State‘s Exhibits 5 and 154 to be included in the evidence sent out with the jury at the commencement of its deliberations. State‘s Exhibit 5 consisted of a printout of text messages and associated activity data from Lebert-Clarke‘s cell phone. The prosecutor had the couple‘s son, Alex, read two groups of messages during his testimony, about ten total, that he and Lebert-Clarke exchanged. State‘s Exhibit 154 consisted of a printout of text messages exchanged between Clarke and Lebert-Clarke over many months. The prosecutor had an investigator read during his testimony about 20 of Clarke‘s messages. Clarke argues that he was harmed by State‘s Exhibits 5 and 154 going out with the jury because the text messages painted him as “a bitter, unlikeable, angry, detached individual” and thereby reduced his chance of a conviction of the lesser offense of voluntary manslaughter.
In Georgia, the continuing witness objection is based on the idea that it is unfair and places undue emphasis on written testimony, which is heard by the jury when given from the witness stand, for the writing to go out with the jury to be read again during deliberations, given that oral testimony is received only once, when given from the witness stand. See Davis v. State, 285 Ga. 343, 348 (8) (676 SE2d 215) (2009). See also Rainwater v. State, 300 Ga. 800, 802 (2) n.3 (797 SE2d 889) (2017) (noting that the continuing witness rule was unaffected by the enactment of the current Evidence Code); Clark v. State, 296 Ga. 543, 548-549 (4) (769 SE2d 376) (2015) (noting that the continuing witness rule of Georgia law “regulates which documents or recordings go into the jury room with the jury during deliberations and which ones do not“); Paul S. Milich, Georgia Rules of Evidence § 19:8 (2019-2020 ed.).
Here, the text messages were not the reduction to writing of an oral statement, nor a written statement provided in lieu of testimony. Instead, they were original documentary evidence. The challenged exhibits were not written testimony and did not derive their evidentiary value solely from the credibility of their makers. Instead, they were original documentary evidence, and were properly allowed to go out with the jury. Keller v. State, 308 Ga. ___, ___ (9) (842 SE2d 22) (2020) (citations and punctuation omitted). Accordingly, the trial court did not err in overruling Clarke‘s continuing witness objection. See id.
5. Clarke contends that the trial court committed plain error by failing to instruct the jury on the law that his uncorroborated confession was not, by itself, sufficient to warrant a conviction.7
To show plain error, [the appellant] must demonstrate that the instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.
Judgment affirmed. All the Justices concur.
DECIDED MAY 4, 2020.
Murder. Gwinnett Superior Court. Before Judge Batchelor.
Brian Steel, for appellant.
Daniel J. Porter, District Attorney, Lee F. Tittsworth, Samuel R. d‘Entremont, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for appellee.