Larry Darnell Clark v. State , 348 Ga. App. 235 ( 2018 )

THIRD DIVISION
ELLINGTON, P. J.,
REESE and GOBEIL, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 26, 2018
In the Court of Appeals of Georgia
A18A1247. CLARK v. THE STATE.
GOBEIL, Judge.
Following a bifurcated jury trial, Larry Darnell Clark was convicted in
Charlton County Superior Court of four counts of aggravated assault and a single
count each of burglary, false imprisonment, possession of a firearm during the
commission of a felony, and use of a firearm by a convicted felon.1 Clark now appeals
from the denial of his motion for a new trial, asserting a claim of ineffective
assistance of counsel and citing six grounds to support that claim. . He further
contends that the trial court erred in failing to charge the jury sua sponte on the lesser
1
Clark was first tried on Counts 1 through 7 of the indictment, which charged
him with burglary, false imprisonment, aggravated assault, and possession of a
firearm during the commission of a felony. After the jury found Clark guilty of those
crimes, he was tried on Count 9 of the indictment, which charged him with use of a
firearm by a convicted felon.
offense of reckless conduct and in admitting certain evidence over the objection of
trial counsel. We find no error and affirm.
“On appeal from a criminal conviction, the defendant is no longer entitled to
a presumption of innocence and we therefore construe the evidence in the light most
favorable to the jury’s guilty verdict.” Maddox v. State, 346 Ga. App. 674, 675 (816
SE2d 796) (2018) (citation omitted). So viewed, the record shows that one or two
days before the incident in question, Clark’s estranged wife, Stephanie Tarpley,
obtained a temporary protective order against Clark based on his alleged stalking of
her. Late on the afternoon of July 1, 2010, Clark went to Tarpley’s apartment and
entered the apartment by kicking in the front door. He then moved the refrigerator to
block the apartment’s entrance and proceeded to hold Tarpley in the apartment at
gunpoint. After learning that Clark was at Tarpley’s apartment, the couple’s teenage
daughter, O. T., who had been at a neighbor’s home, immediately went to the family
apartment. O. T. knew that Clark had previously threatened to kill Tarpley, so when
she found the apartment door blocked, O. T. began screaming at her parents to let her
in. O. T. heard Clark tell her to get away from the door, and then heard some kind of
noise. When O. T. looked down, she saw that she was bleeding and she later
2
discovered that she had a gunshot wound to her arm, which required surgery. As O.
T. walked away from the apartment, she heard more gunshots.
Neighbors contacted police, and officers from both the Folkston Police
Department and the Homeland Police Department responded to the scene. Officer
Ricky Sikes with the Folkston Police Department testified that he pulled up in front
of Tarpley’s apartment, exited his marked patrol car, and walked to the car’s trunk to
retrieve his bullet proof vest. As he did so, four or five shots were fired from the
apartment’s front window. One bullet landed approximately 6 to 10 feet in front of
Sikes and another hit the nearby stair railing. Officer Charles Byerly with the
Homeland Police Department offered similar testimony, stating that as soon as the
two officers exited their respective vehicles, shots came from the front of the
apartment. Both officers testified that they believed they were the shooter’s target and
that they were afraid they might be killed. The State introduced into evidence a video
of the incident recorded by the dashboard camera in Sikes’s patrol car. The video
shows puffs of smoke coming from the apartment’s front window, and Sikes testified
that the puffs of smoke coincided with the shots being fired.
Clark remained in Tarpley’s apartment until 1:45 a. m. on July 2, and he forced
Tarpley to remain with him for most of that time. Tarpley testified that when she first
3
saw Clark in the apartment, he was pointing a gun at her and she was afraid he was
going to kill her. She remained in the apartment and did what Clark instructed her to
do because he was threatening her with the gun. Additionally, at one point Clark fired
a shot towards Tarpley, with the bullet landing in the living room wall.
During her testimony, Tarpley stated that several days after the incident, she
found items she believed were related to the crime in her apartment, and she took
those items to the Folkston Police Department. Tarpley then identified State’s Exhibit
20, which consisted of an empty .9 mm shell casing, a live .9 mm round, and a bullet,
as the items she gave to someone at the Folkston Police Department. Tarpley further
testified that in August 2010, she gave the Folkston Police Chief a magazine for a gun
and some cartridges. According to Tarpley, she could no longer remember where she
found any of these items, nor could she remember why she took the gun magazine
and cartridges to the police. The police chief testified that the gun magazine and
cartridges, which were introduced into evidence as State’s Exhibit 30, were given to
him by Tarpley in August 2010, and Tarpley told him that she had discovered the
items underneath her bed in her apartment.2
2
The chief further testified that on the night of the incident, the SWAT team
reported that during their initial sweep of the apartment, they saw bullets and a
magazine underneath the bed in the master bedroom. The chief sent an officer back
4
Special Agent Richard Dial of the GBI was in charge of the investigation into
the incident. Dial testified that at the crime scene, police found a bullet lodged in a
wall of the apartment, near the area where Tarpley claimed Clark had fired at her.
Law enforcement also found bullet holes in the kitchen window, which was the same
window shown on the dashboard video. Additionally, police found a .9 mm firearm
on top of the dresser in the master bedroom, together with a magazine containing six
rounds of live ammunition. Police also recovered six spent .9 mm shell casings inside
the apartment. A search of the parking lot revealed a .9 mm bullet hole in a vehicle
parked in front of the apartment. Based on their investigation, police found that the
trajectory of a bullet fired from the apartment’s kitchen window would have landed
where they found the bullet hole in the vehicle. Given the location of the vehicle,
police concluded that the shooter had been aiming at or towards the police officers.
Dial testified he met with Tarpley at the Folkston Police Department several
days after the incident because she had discovered some other items of evidence at
her apartment. Dial identified the items in State’s Exhibit 20 as the items given to him
by Tarpley. According to Dial, Tarpley told him that the shell casing had been
discovered beside a closet door in the hallway of her apartment; the unspent round
into the apartment to retrieve the items, but the officer was unable to locate them.
5
had been discovered in the master bedroom; and the spent projectile was found
outside the apartment, on the walkway in front of the kitchen window. Defense
counsel objected to the admission of this evidence, arguing that Tarpley had not
testified as to where she had found the items and the “fact that [she] brought them in
[to police] [several] days later . . . we don’t know if [the evidence] has anything to do
with this case[.]” The trial court overruled this objection.
Dial interviewed Clark at the Folkston Police Department at approximately
4:30 a. m. on July 2, 2010, several hours after the incident ended. During the
interview, a recording of which was introduced into evidence and played for the jury,
Clark admitted going to Tarpley’s apartment armed with a gun he had stolen from a
friend the day before. Clark acknowledged that he brought extra ammunition for the
gun with him, and explained that he had been planning to kill himself. Clark also
admitted that he had kicked in the apartment door, moved the refrigerator to block the
door, and fired the gun both towards the door and through the kitchen window. He
stated, however, that he did not mean to shoot his daughter and that when he fired out
the kitchen window he was not aiming at the police officers.
Clark testified in his own defense and stated that on the day in question, he
received a telephone call from one of his daughters, who told him that while she was
6
visiting Clark’s’s mother in Miami, she had been molested by Clark’s brother. The
daughter left Clark with the impression that Tarpley was aware of the molestation, but
that she had failed to report the incident to Clark. Following this phone call, Clark
went to Tarpley’s apartment carrying a .9 mm gun purchased for him by a friend
approximately two days earlier.3 Clark identified the .9 mm gun found at the scene
and introduced into evidence as the one he brought to the apartment. According to
Clark, after moving the refrigerator, he threw his jacket onto the living room sofa,
which caused the .9 mm gun he had been carrying in his pocket to fall onto the floor.
Rather than picking up the gun, Clark went into the master bedroom and retrieved a
.380 caliber gun he and Tarpley kept in the dresser. When Clark returned to the living
room, Tarpley was holding the .9 mm gun. . The couple began to argue and when
Clark attempted to wrestle the gun away from his wife, the gun discharged. The
couple continued to struggle over the gun, with the struggle making them travel
towards the kitchen at the front of the apartment and, as they did so, the gun
discharged “a couple more times.”
3
According to Clark, he had obtained the gun because he was planning to kill
himself.
7
Clark stated that no shots were fired after he discovered there were police
officers in front of the apartment and all of the gunshots were fired during the
struggle over the gun. Clark could not recall what had happened to the .380 caliber
weapon, but he thought he had returned it to the dresser drawer. Additionally, Clark
testified that Tarpley was free to leave the apartment at anytime, but that she never
attempted to do so.
When asked why parts of his trial testimony conflicted with or contained
details not included in the responses he gave Agent Dial in his post-arrest interview,
Clark responded that at the time of the interview, he was trying to tell Dial what Clark
assumed law enforcement wanted to hear in the hopes he would get bond. He further
explained that he wanted to get out of jail so that he could drive to Miami and kill the
brother who had allegedly molested his child.
During the State’s rebuttal case, Dial testified that during his interview with
Clark, Clark never stated that his brother had molested one of his children or that
there had been a second gun in the apartment. Nor did Clark mention a struggle over
the gun or indicate that Tarpley had caused the gun to discharge. Instead, Clark
indicated that he had fired all of the shots in question. Finally, Dial stated that police
8
did not recover a second gun from the apartment nor did they find any .380 caliber
shell casings in the apartment or the surrounding area.
After hearing the foregoing evidence, the jury found Clark guilty of the crimes
charged in Counts 1 through 7 of the indictment. Clark was then tried on Count 9 of
the indictment, which charged him with use of a firearm by a convicted felon.4 During
that trial, the State introduced into evidence a certified copy of Clark’s 1993 federal
conviction for carjacking and use of a firearm during the commission of a crime of
violence. This document included a copy of the indictment under which Clark had
pled guilty in 1993, and the indictment outlined the facts serving as the basis for the
two charges on which Clark was convicted.
During the State’s brief closing argument, the prosecutor told the jurors they
could review the certified copy of the 1993 conviction and that when they did so, they
would see that Clark had previously used a firearm to perpetrate a carjacking. The
prosecutor then stated:
I don’t like people using guns and assaulting [other] people with [them].
And I especially don’t like it when they’ve done it in the past. Mr. Clark
4
The State elected not to prosecute Clark on Count 8 of the indictment, which
charged him with possession of a firearm by a convicted felon, in violation of OCGA
§ 16-11-131.
9
didn’t learn his lesson the last time. We’re going to hold him
accountable this time [,] too [,] if y’all go ahead and convict him on this
count.”
The jury found Clark guilty of Count 9, and the trial court entered a judgment
of conviction on both verdicts. Clark then filed a motion for a new trial. Following
an evidentiary hearing, the trial court denied that motion. This appeal followed.
1. Although Clark does not contest the legal sufficiency of the evidence of his
guilt, in accordance with this Court’s general practice, we have reviewed the record
and conclude that the evidence presented at trial authorized the jury to find Clark
guilty beyond a reasonable doubt of the crimes of which he was convicted. See Wade
v. State, 305 Ga. App. 819, 821 (701 SE2d 214) (2010) (“[a]s long as there is some
competent evidence, even though contradicted, to support each fact necessary to make
out the State’s case, the jury’s verdict will be upheld) (citation and punctuation
omitted). See also OCGA § 16-5-20 (a) (defining assault); OCGA § 16-5-21 (a)
(defining aggravated assault); OCGA § 16-5-41 (a) (defining false imprisonment);
OCGA § 16-7-1 (b) (defining burglary); OCGA § 16-11-106 (b) (defining possession
10
of a firearm during the commission of a crime); OCGA § 16-11-133 (b) (defining use
of a firearm by a convicted felon).
2. Clark contends he received ineffective assistance of counsel, and he raises
six separate grounds in support of this claim. To prove that one or more of these
grounds resulted in ineffective assistance, Clark must prove both that his lawyer’s
performance was deficient and that he suffered prejudice as a result of this deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80
LE2d 674) (1984). If Clark cannot meet his burden of proving either prong of the
Strickland test, then we need not examine the other prong. Causey v. State, 319 Ga.
App. 841, 842 (738 SE2d 672) (2013).
With respect to the first prong of the Strickland test, deficient performance,
Clark must show that his attorney performed his duties at trial in an objectively
unreasonable way, considering all the circumstances, and in light of prevailing
professional norms. Strickland, 466 U. S. at 687-688 (III) (A). To demonstrate that
he suffered prejudice as a result of his attorney’s performance, Clark must prove “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694 (III) (B). “This burden,
11
though not impossible to carry, is a heavy one.” Arnold v. State, 292 Ga. 268, 270 (2)
(737 SE2d 98) (2013), citing Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C)
(106 SCt 2574, 91 LE2d 305) (1986).
(a) Clark asserts that trial counsel was ineffective for failing to object to the
admission of State’s Exhibit 30 (the magazine and cartridges Tarpley turned over to
police approximately one month after the incident in question). Clark claims that this
evidence was inadmissible because the State failed to show that the evidence was
relevant to the charged crimes and because its prejudicial effect far outweighed its
probative value. Assuming arguendo that any objection by trial counsel would have
been successful, however, Clark cannot show that he was prejudiced by the admission
of this evidence.
The evidence against Clark was overwhelming. It included the fact that Tarpley
had obtained a temporary protective order against Clark because of his threats against
her and that Clark had previously threatened to kill Tarpley. Additionally, the State
introduced the eyewitness testimony of the four victims, the video from the police car,
and Clark’s videotaped interview with Agent Dial, during which Clark admitted to
firing all of the shots in question. Moreover, Clark admitted at trial that he had
purchased or stolen the gun used in the assaults, had gone to Tarpley’s apartment
12
armed with the gun and extra ammunition, and had forced his way into the apartment
and blocked the door to prevent anyone else from entering. In light of this evidence,
Clark cannot show that in the absence of State’s Exhibit 30, there is a reasonable
probability that the jury would have acquitted him. See Paschal v. State, 335 Ga.
App. 411, 416 (3) (780 SE2d 681) (2015); Lakes v. State, 314 Ga. App. 10, 16 (5) (e)
(722 SE2d 859) (2012).
(b) Relying on the Supreme Court of Georgia’s decision in Ross v. State, 279
Ga. 365 (614 SE2d 31) (2005), Clark argues that trial counsel performed deficiently
by failing to stipulate to Clark’s’s status as a convicted felon, thereby allowing the
State to introduce Clark’s 1993 conviction to prove that status. Ross involved a
defendant tried in a single trial on multiple felony counts, including a count of
possession of a firearm by a convicted felon. Defense counsel offered to stipulate to
the defendant’s status as a convicted felon, but the trial court rejected the offer and
allowed the State to introduce a certified copy of the defendant’s conviction for
enticing a child for indecent purposes. Finding that “the nature of [defendant’s] prior
conviction . . . raise[d] the risk of a verdict tainted by improper considerations” and
“[b]ecause the evidence was unnecessary to prove anything other than [defendant’s]
status as a convicted felon,” the Supreme Court held that the trial court had abused
13
its discretion in rejecting the defendant’s offer to stipulate to his previous felony
conviction. 279 Ga. at 368 (2).
Despite Clark’s assertions to the contrary, the rationale of Ross does not apply
where, as here, the defendant is afforded a bifurcated trial – i.e., the defendant is not
tried on the charge of use or possession of a firearm by a convicted felon until after
the jury has decided his guilt or innocence on the other, unrelated felony charges in
the indictment. See Grimes v. State, 280 Ga. 363, 365-366 (4) (628 SE2d 580) (2006)
(“if the charge of possession of a firearm by a convicted felon is unrelated to any
other count for which the defendant is to be tried, the correct remedy is for the trial
court to bifurcate the proceedings on a proper motion”). Given this fact, Clark has
failed to show that the trial court would have been obligated to accept any proffered
stipulation that Clark was a convicted felon.5 Accordingly, we find that trial counsel
did not perform deficiently in failing to stipulate to Clark’s status as a convicted
felon.
(c) Clark further asserts that trial counsel should have objected to the closing
argument the State made during his trial for use of a firearm by a convicted felon.
5
Moreover, as trial counsel pointed out at the motion for new trial hearing, any
offer to stipulate to Clarke’s status as a convicted felon would have been, in essence,
an offer to plead guilty to Count 9.
14
Specifically, Clark asserts that the prosecutor’s closing argument improperly
encouraged the jury to view Clark’s prior felony conviction as a similar transaction,
as the prior felonies also involved the use of a firearm. Clark also contends that the
closing argument encouraged the jury to convict him on Count 9 simply because of
his prior convictions.
With respect to Count 9, the State had to prove: (1) that Clark had used a
firearm while committing one or more of the felonies charged in Counts 1 through 7
of the indictment; and (2) that at the time of the charged crimes, Clark was a
convicted felon. See OCGA § 16-11-133 (b) (1).6 At the time the prosecutor made the
closing argument at issue, the jury had already found that Clark had used a firearm
to commit aggravated assault against four individuals. And the evidence showing
Clark’s status as a convicted felon at the time of the charged crimes was unrefuted.
Thus, even assuming trial counsel should have objected to any part of the
prosecutor’s closing argument, Clark cannot show that “but for counsel’s failure to
object, there was a reasonable probability that he would not have been convicted” on
6
OCGA § 16-11-133 makes it illegal for “[a]ny person who has previously
been convicted of or who has previously entered a guilty plea to . . . any felony
involving the use or possession of a firearm” to “have on or within arm’s reach of his
or her person a firearm during the commission of . . . [a]ny crime against or involving
the person of another.” OCGA § 16-11-133 (b) (1).
15
Count 9. Sweet v. State, 278 Ga. 320, 326 (8) (602 SE2d 603) (2004). See also
Phillips v. State, 285 Ga. 213, 220 (5) (b) (675 SE2d 1) (2009).
(d) As noted above, during Clark’s trial on Count 9, the State introduced into
evidence a certified copy of Clark’s 1993 conviction (State’s Exhibit 34). Attached
to that conviction was the indictment under which Clark had been charged in the
1993 case. On appeal, Clark contends that trial counsel was ineffective for failing to
object to or seek the redaction of this document, which set forth the details of the
1993 crimes.7
We assume for the sake of argument that trial counsel’s failure to object to or
seek redaction of State’s Exhibit 34 constituted deficient performance. See Phillips,
285 Ga. at 219 (5) (a) (deficient performance assumed where trial counsel failed to
object to or seek the redaction of a certified copy of defendant’s conviction for
robbery, where that copy showed that defendant had initially been charged with
armed robbery). Given the strength of the evidence against Clark on Count 9,
7
In addition to the crimes of which Clark was convicted, the indictment
charged Clark with one count of robbery and two counts of possession of a firearm
by a convicted felon. The possession of a firearm by a convicted felon charges were
based on Clark’s December 1992 conviction for aggravated assault and obstructing
justice.
16
however, Clark cannot show that he suffered prejudice as a result of this assumed
deficient performance. Id.
(e) Clark further asserts that trial counsel was ineffective in several ways for
failing to object to the court’s jury instructions at the second part of his trial. In
instructing the jury with respect to Count 9 of the indictment, the trial court stated:
[T]he court’s instruction given to you previously applies with regard to
this count of the indictment. I won’t repeat that entire instruction. But
with regard to Count 9, I will instruct you [that] you, Ladies and
Gentlemen, have just this morning found that the defendant, Larry
Darnell Clark, committed . . . felony offenses against another person.
Now, if you find that Mr. Clark has previously been convicted . . . or
previously entered a guilty plea to any crime against or involving the
person of another and that [such a crime was] a felony, . . . you would
be authorized to find him guilty of the felony count of Count 9 in this
indictment.
If you find . . . some reasonable doubt or some doubt of the law in your
mind, then you should acquit him. But if you find that he had previously
been convicted of a felony as I just described to you and you found now
that he has committed a felony [in] the Charlton County cases, you
would be authorized to convict him.
17
(i) Clark first asserts that counsel should have objected to the trial court’s
failure to recharge the jury on both the burden and the standard of proof.8 We
disagree.
The record shows that the trial lasted two days. On the morning of the second
day, counsel made closing arguments, and the court then charged the jury. After the
jury returned its verdict on Counts 1 through 7, the parties immediately proceeded to
trial on Count 9. The jury was then charged on Count 9 no more than two hours after
being read the charge on counts 1 through 7, which included general charges on
concepts such as the burden and standard of proof. Under these circumstances, any
failure by counsel to request that the jury be charged a second time on the burden and
standard of proof was “harmless[,] considering the short period of time between the
two charges.” Ballard v. State, 268 Ga. App. 55, 59 (4) (601 SE2d 434) (2004)
(failure to recharge the general instructions constituted harmless error where, during
the second part of a bifurcated trial, the court asked the jury “to recall the court’s
8
Clark also contends that trial counsel should have asked the trial court to re-
charge the jury on its obligation to consider each count of the indictment separately
when determining Clark’s guilt or innocence on each charge. During the second
phase of the trial, however, the jury was only determining Clark’s guilt or innocence
as to a single count of the indictment. Accordingly, this assertion is entirely without
merit.
18
previous preliminary instructions and its other instructions at the close of the first part
of the bifurcated trial,” and less than 24 hours had elapsed between the two charges)
(citation and punctuation omitted).
(ii) Clark next asserts that trial counsel should have objected to the trial court’s
statement that the jury had “just this morning found that . . . Clark . . . committed a
felony offense or offenses against another person.” Clark contends that this statement
constituted an improper comment on the evidence, in violation of OCGA § 17-8-57.9
Specifically, Clark argues that the court’s statement essentially instructed the jury that
the State did not have to prove an essential element of OCGA § 16-11-133 (b) (1) –
that Clark had used a firearm while committing “[a]ny crime against or involving the
person of another.” This argument is unpersuasive.
During the first part of the trial, the jury was instructed that it could convict
Clark of the charges of aggravated assault only if it found that Clark had assaulted
another person with a deadly weapon. The court further instructed the jury that it
could convict Clark of Count 7 (possession of a firearm during the commission of a
9
That statute provides, in relevant part, that “[i]t is error for any judge, during
any phase of any criminal case, to express or intimate to the jury the judge’s opinion
as to whether a fact at issue has or has not been proved or as to the guilt of the
accused.” OCGA § 17-8-57 (a) (1).
19
felony) only if it found that Clark had used a firearm against another person during
the commission of a felony. Thus, the statement which Clark now claims was an
improper comment on the evidence was simply an accurate statement of fact by the
trial court. Trial counsel, therefore, did not perform deficiently in failing to object to
the statement. See Trigger v. State, 275 Ga. 512, 515 (4) (570 SE2d 323) (2002),
overruled on other grounds, Wilson v. State, 277 Ga. 195 (586 SE2d 669) (2003) (in
trial for possession of a firearm by a convicted felon, the court’s “simply stating [in
its charge to the jury] the legal proposition that a certain crime is a felony did not
constitute an improper comment on the evidence”).
(iii) Clark further argues that trial counsel should have objected to the trial
court’s failure to define the term “felony” for the jury, as without that instruction, the
jury could not determine whether the 1993 crimes to which Clark pled guilty were
felonies. Again, we disagree. State’s Exhibit 34 (the certified copy of Clark’s 1993
conviction), included the indictment under which Clark pled guilty as well as the
certification of Clark’s lawyer with respect to scheduling of the 1993 case. And the
scheduling document makes clear that the crimes charged in the 1993 indictment were
felonies. Given that State’s Exhibit 34 was provided to the jury during their
20
deliberations, the jury had evidence from which it could determine that the 1993
crimes constituted felonies.
(iv) Finally, Clark contends that trial counsel was ineffective for failing to
request a charge limiting the use of State’s Exhibit 34. Put another way, Clark asserts
that trial counsel should have requested that the jury be instructed that they could
consider the exhibit only for the purpose of determining whether Clark was a
convicted felon. Given that this was a bifurcated trial, however, there was no other
purpose for which the jury could use State’s Exhibit 34. Accordingly, a limiting
instruction was not necessary and trial counsel did not perform deficiently in failing
to request such an instruction.
(f) Finally, Clark argues that trial counsel performed deficiently when he failed
to request a jury charge on the lesser included offense of reckless conduct. To support
this claim, Clark relies on the legal rule that “[a] written request to charge a lesser
included offense must always be given if there is any evidence that the defendant is
guilty of the lesser [crime].” Allaben v. State, 299 Ga. 253, 257 (3) (a) (787 SE2d
711) (2016) (citation and punctuation omitted). At the hearing on Clark’s motion for
a new trial, however, trial counsel testified he made a strategic decision not to request
to charge on reckless conduct, as such a charge would not have worked with the
21
theory of defense. Counsel explained that Clark’s own testimony, and therefore the
theory of defense, was that it was Tarpley, rather than Clark, who was responsible for
firing the .9 mm gun. Although Clark acknowledged that he struggled with Tarpley
for the gun in an effort to defend himself, counsel believed that such conduct “really
would not even have arisen to reckless conduct. . . . [Under the theory of defense,
Clark] would have been . . . not guilty . . . of either [crime.]”10
Given the strategic nature of trial counsel’s decision, it “can provide no
grounds for [an ineffective assistance claim] unless it was so patently unreasonable
that no competent attorney would have chosen it.” Mantooth v. State, 303 Ga. App.
330, 336 (1) (b) (693 SE2d 587) (2010) (citation and punctuation omitted). And it is
Clark who bears the burden of rebutting the strong presumption that this strategy was
a reasonable one, made in the exercise of reasonable professional judgment. Thornton
v. State, 301 Ga. App. 784, 793 (4) (689 SE2d 361) (2009). In light of trial counsel’s
testimony regarding the reasons underlying his decision not to request to charge on
10
Under Georgia law, a person is guilty of reckless conduct where he “causes
bodily harm to or endangers the bodily safety of another person by consciously
disregarding a substantial and unjustifiable risk that his act or omission will cause
harm or endanger the safety of the other person and the disregard constitutes a gross
deviation from the standard of care which a reasonable person would exercise in the
situation.” OCGA § 16-5-60 (b).
22
reckless conduct, Clark cannot carry this burden. See Wells v. State, 295 Ga. 161, 166
(2) (b) (758 SE2d 598) (2014) (“the decision not to request a jury charge on a lesser
included offense in order to pursue an ‘all-or-nothing’ defense is a matter of trial
strategy, and reasonable trial strategy, whether wise or unwise, generally does not
amount to ineffective assistance of counsel”) (citation and punctuation omitted); Taul
v. State, 290 Ga. App. 288, 293 (4) (b) (659 SE2d 646) (2008) (trial counsel’s
decision to forgo requesting a charge on reckless conduct and present an “‘all or
nothing’ defense for the aggravated assault charge” was a matter of reasonable trial
strategy).
3. Under Georgia law, a “trial court must charge the jury on the defendant’s
sole defense, even without a written request, if there is some evidence to support the
charge.” Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). Relying on
Tarvestad, Clark asserts that the trial court erred in failing to charge the jury sua
sponte on the lesser included offense of reckless conduct, as that represented his sole
defense. We find no error.
Tarvestad involved a defendant’s assertion of the affirmative defense of
justification, pursuant to OCGA §16-3-20. We therefore view Tarvestad as standing
for the proposition that a trial court must charge the jury on a defendant’s legal
23
affirmative defense, such as those found in OCGA §16-3-20, et seq. See OCGA § 16-
3-28 (“[a] defense based upon any of the provisions of this article is an affirmative
defense”).
With a legal affirmative defense, the accused admits the elements of the
crime, but seeks to justify, excuse, or mitigate by showing no criminal
intent; all elements of the parts of the crime are admitted with the
exception of the intent all defenses which have been held to be statutory
affirmative defenses meet these criteria, i.e., justification, self-defense
or defense of others, rendering assistance to law enforcement officers,
defense of habitation, defense of property other than habitation,
entrapment, and coercion.
McClure v. State, ___ Ga. App. ___ (2) (815 SE2d 313) (2018) (citation and
punctuation omitted).
A claim that the State has proved only a lesser included offense of the charged
crime, however, does not constitute a legal affirmative defense. Accordingly,
Tarvestad does not support the proposition that a trial court is required to charge on
a lesser included offense, even in the absence of a request for such a charge.11 See
11
Compare Strozier v. State, 254 Ga. App. 528, 530 (3) (562 SE2d 832) (2002)
(assuming without deciding that a lesser included offense can constitute a “sole
defense” under Tarvestad); Rogers v. State, 247 Ga. App. 219, 222 (4) (543 SE2d 81)
(2000) (same).
24
Seay v. State, 276 Ga. 139, 140 (2) (576 SE2d 839) (2003) (“[a]bsent a written
request for a charge on a lesser included offense, made at or before the close of the
evidence, the failure to so charge is not error”). Here, Clark neither requested a jury
charge on reckless conduct as a lesser included offense nor objected to the charge as
given. We therefore review the failure to charge on reckless conduct for plain error.
See Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013).
“A failure to charge amounts to plain error only to the extent that the failure to
charge was erroneous, the error was obvious, the failure to charge likely affected the
outcome of the proceedings, and the error seriously affected the fairness, integrity,
or public reputation of judicial proceedings.” Burke v. State, 302 Ga. 786, 789 (2)
(809 SE2d 765) (2018) (citation and punctuation omitted). “[P]lain-error analysis,
which must be distinguished from harmless-error analysis, requires the appellant to
make and affirmative showing that the error probably did affect the outcome below.”
Shaw, 292 Ga. at 873 (2) (citations and punctuation omitted). In this case, there was
no evidence showing that Clark’s firing a gun at any of the assault victims was
negligent, rather than intentional. Moreover, Clark’s own testimony, and therefore the
theory of defense, was that Clark was not responsible for the firing of the gun. Given
that a charge of reckless conduct was inconsistent with Clark’s theory of defense and
25
was otherwise unsupported by the evidence, we find no obvious error in the trial
court’s failure to charge on that lesser included offense. See Grant v. State, 257 Ga.
App. 678, 681 (1) (c) (572 SE2d 38) (2002) (charge on reckless conduct as a lesser
included offense of aggravated assault was not warranted in the absence of any
evidence showing that the charged conduct was “anything other than intentional”).
4. In his final enumeration of error, Clark asserts that the trial court erred in
admitting, over Clark’s objection, State’s Exhibit 20 (consisting of an empty .9 mm
shell casing, a live .9 mm round, and a bullet). Any error in the admission of this
evidence, however, provides no basis for reversal if the error was harmless. Johnson
v. State, 307 Ga. App. 791, 793 (706 SE2d 150) (2011). “The test for harmful error
is whether it is ‘highly probable’ that the error contributed to the judgment.” Martinez
v. State, 306 Ga. App. 512, 525 (5) (702 SE2d 747) (2010) (citation and punctuation
omitted).
As noted supra in Division (2) (a), the evidence against Clark was
overwhelming. Given the significant evidence of Clark’s guilt, even if the admission
of State’s Exhibit 20 was erroneous,”it cannot be said that any error in the admission
of [that] evidence likely affected the outcome below.” Gates v. State, 298 Ga. 324,
328 (3) (781 SE2d 772) (2016). See also Lunsford v. State, 260 Ga. App. 818, 823 (4)
26
(581 SE2d 638) (2003) (erroneous admission of evidence constituted harmless error
“in light of the overwhelming evidence” of the defendant’s guilt).
For the reasons set forth above, we affirm the trial court’s denial of Clark’s
motion for a new trial.
Judgment affirmed. Ellington, P. J., and Reese, J., concur.
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