Mallery v. the State

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, 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

September 8, 2017

In the Court of Appeals of Georgia
A17A1048. MALLERY v. THE STATE.

ELLINGTON, Presiding Judge.

A Dekalb County jury found Clinton Mallery guilty of armed robbery, OCGA

§ 16-8-41 (a); and aggravated assault, OCGA § 16-5-21 (a) (2). Mallery appeals from

the order denying his motion for a new trial, contending that his trial counsel was

ineffective. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict,1 the record shows the

following. The victim, known by her neighbors as “the candy lady,” sold candy,

sodas, tobacco, and other sundry items from her DeKalb County apartment. The

victim knew Mallery by his street name, “Fly,” was familiar with him from the

1
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
neighborhood, and had sold him candy and tobacco on several occasions. She had

also driven him and his girlfriend to the store once. The victim’s husband also knew

Mallery and had tried to help him find a job. The victim’s husband testified that

Mallery was aware that he owned a handgun.

Around 6:30 p.m. on July 18, 2012, while the victim’s husband was at work,

Mallery knocked at the victim’s apartment door. When the victim opened the door,

Mallery asked her for a cigarette. As the victim turned away to get the cigarette,

Mallery and an accomplice forced their way inside the apartment. Mallery pointed a

handgun at the victim’s head and ordered her to lie down on the floor. The

accomplice asked the victim if she had a gun and, when the victim said no, the

accomplice said: “She’s lying. Murk that bitch.”

The robbery was briefly interrupted by a knock at the victim’s door. The victim

heard a child outside asking to buy something. The accomplice told the victim to say

that she was closed, and she complied. When the child left, Mallery struck the

victim’s head with his gun, causing her to momentarily lose consciousness. When she

awakened, she was lying on her bedroom floor. The accomplice was gone, but

Mallery stood in the doorway. He shot the victim in the head, causing her to lose

consciousness again. Then he shot her four more times, in the neck, chest, abdomen,

2
and hand. Mallery and his accomplice stole the victim’s cash, purse, laptop computer,

cell phone, and the victim’s husband’s handgun.

Shortly after Mallery left, the victim regained consciousness and stumbled from

her home to her next-door neighbor’s apartment. She knocked on his door and

collapsed into his arms when he opened the door. The victim told her neighbor that

she had been robbed. The neighbor called 911 and, shortly thereafter, emergency

personnel took the victim to the hospital. The neighbor testified that, about six or

seven minutes before the victim came over, he had heard two male voices outside the

victim’s apartment door and then he heard a loud disturbance.

While the victim was being prepared for surgery, she told the police that “Fly”

had shot her, that she knew him and his girlfriend from the neighborhood, and that

she had Fly’s girlfriend’s phone number at home. After she had recovered sufficiently

from her surgery, the victim gave the police a more detailed account of the robbery

and of Fly, describing his height, build, hairstyle, clothing, arm and facial tattoos, and

lip piercings. Later, after their investigation had led them to two possible suspects,

the police showed the victim two different photographic arrays, the second of which

contained Mallery’s photograph. The victim did not identify anyone from the first

array; but, when the police showed her the second array, she immediately pointed to

3
Mallery’s photograph. Mallery was later arrested in Mississippi on a fugitive warrant.

The victim also identified Mallery at trial as the man who had robbed and shot her.

Mallery testified in his own defense, contending that the victim had been

involved in a fraudulent scheme to sell iPhones purchased under stolen identities and

that she had intentionally misidentified him as the shooter to protect herself from the

more dangerous person who had actually shot her.

Mallery contends that the trial court erred in denying his motion for a new trial.

He argues that his trial counsel’s performance was deficient in four respects and that,

given the cumulative and prejudicial effect of those deficiencies, he is entitled to a

new trial on ineffective assistance of counsel grounds.

To establish ineffective assistance of counsel, a defendant must show 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. See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d

674) (1984).

When assessing prejudice, a court must consider the totality of the
evidence before the judge or jury. A verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors
than one with overwhelming record support. Moreover, in weighing

4
 prejudice, [a defendant] is entitled to relief if any one error of trial
counsel shows that there is a reasonable probability that the outcome of
the trial would have been more favorable to him or if the collective
prejudice from all of trial counsel’s deficiencies meets that standard.

(Citations and punctuation omitted.) Daughtry v. State, 296 Ga. 849, 853 (2) (770

SE2d 862) (2015).

“If the defendant fails to satisfy either prong of the Strickland test, this Court

is not required to examine the other.” (Citation omitted.) Propst v. State, 299 Ga. 557,

565 (3) (788 SE2d 484) (2016). “In reviewing the trial court’s decision, we accept the

trial court’s factual findings and credibility determinations unless clearly erroneous,

but we independently apply the legal principles to the facts.” (Citation and

punctuation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

With these principles in mind, we review Mallery’s claims of ineffective assistance

of counsel.

(a) Mallery contends that his trial counsel should have impeached the victim

with her criminal history. He argues that evidence of the victim’s crimes would have

bolstered his defense that, because the victim was a criminal who associated with

criminals, there were others beside him who would have been motivated to rob and

shoot her.

5
 It is undisputed that the victim had been convicted of several crimes in South

Carolina, including 2002, 2005, and 2011 misdemeanor convictions for writing

fraudulent checks and a 2004 felony conviction for financial transaction card theft.2

The victim also had a 2009 federal conviction for “aggravated ID fraud.” Defense

counsel did not obtain the victim’s out-of-state criminal history prior to trial as she

had mistakenly relied on the District Attorney’s office to provide it to her.

Pretermitting whether counsel’s performance was deficient in this respect, we

find no error in the trial court’s conclusion that counsel’s failure to impeach the

victim with her prior criminal record did not prejudiced the defense. Mallery’s initial

defense was that his nickname was not “Fly,” and that the victim had simply

misidentified him. However, after Mallery admitted that his nickname was Fly,

counsel had to revise the defense theory. Mallery then contended that the victim was

involved in criminal activity and that she had intentionally misidentified him as the

shooter to avoid the wrath of the people who actually shot her.

While impeaching the victim with evidence of her prior crimes may have

undermined her credibility, the prior crimes do not in and of themselves suggest a

2
The parties do not cite to, nor have we found in the record, copies of the
State’s NCIC or GCIC reports documenting the victim’s criminal history, nor does
the record contain certified copies of those convictions.

6
motive for why the victim would intentionally misidentify Mallery or anyone else as

her shooter. Mallery attempted to provide that motive through his testimony. He

testified that the victim had engaged him and others in a fraudulent scheme to

purchase iPhones using other people’s personal information – including Mallery’s

and his girlfriend’s – but that she did not follow through on the deal. In short, Mallery

said that she had “scammed” him and that he was upset about that. The problems with

Mallery’s defense are that it is highly speculative, it does not identify any other

person who may have wished the victim harm and, by painting the victim as a

criminal who scammed him, it gives Mallery an additional motive for shooting the

victim. Moreover, Mallery opened himself up to cross-examination on a prior

inconsistent statement that he had given the police when he was arrested, a statement

in which said that he had no quarrel with the victim. Given Mallery’s testimony

concerning the victim’s scams and the overwhelming evidence of Mallery’s guilt, the

trial court was authorized to find that their existed no reasonable probability that the

outcome of the trial would have been different had counsel obtained and used the

victim’s criminal history to impeach her. See Daughtry v. State, 296 Ga. at 861 (2)

(i) (counsel’s failure to investigate a witness’s criminal history and to impeach him

with it did not prejudice the defense given the overwhelming evidence of the

7
defendant’s guilt and the fact that others had testified as to the victim’s criminal

history.).

(b) Mallery contends that his trial counsel failed to properly limit the

introduction of evidence of his criminal history.

The record does not show that any witness testified about Mallery’s prior

criminal history. In fact, defense counsel successfully argued against the admission

of prior, similar crimes evidence. Rather, a few witnesses, including Mallery, testified

that Mallery had been arrested in Mississippi in connection with the instant crimes.

It is well-settled that there is no inherent prejudice associated with the fact that the

defendant has been in jail in connection with the case for which he is being tried. See

Bright v. State, 292 Ga. 273, 275 (2) (a) (736 SE2d 380) (2013) (“We have previously

held that evidence that an accused has been confined in jail in connection with the

case at issue does not place his character in evidence.”) (citations and punctuation

omitted.)

Trial counsel also briefly referenced a prior arrest while cross-examining a

detective concerning a photo that the detective had used in his photographic line-up.

That photo was taken following Mallery’s arrest in 2008. Counsel’s purpose in

identifying the 2008 booking photo was to contrast it with Mallery’s 2012 booking

8
photo, highlighting the differences in Mallery’s appearance and pointing out that the

victim’s description of the shooter coincided with Mallery’s 2008 appearance, not his

2012 appearance. Although this line of questioning revealed a prior arrest, it also had

the strategic purpose of creating doubt about the victim’s identification of Mallery.

“[D]ecisions about what questions to ask on cross-examination are

quintessential trial strategy and will rarely constitute ineffective assistance of counsel.

In particular, whether to impeach prosecution witnesses and how to do so are tactical

decisions.” (Citations and punctuation omitted). Henry v. State, 297 Ga. 74, 77 (2) (c)

(772 SE2d 678) (2015). Given that counsel was attempting to undermine the victim’s

identification of Mallery, we cannot say that the strategy of comparing booking

photographs was patently unreasonable. See McNair v. State, 296 Ga. 181, 184 (2)

(b) (766 SE2d 45) (2014) (“Trial tactics and strategy, no matter how mistaken in

hindsight, are almost never adequate grounds for finding trial counsel ineffective

unless they are so patently unreasonable that no competent attorney would have

chosen them.”) (citation and punctuation omitted).

(c) Mallery argues that his trial attorney was ineffective because she failed to

investigate and to call witnesses that advanced the theory that the victim intentionally

misidentified him.

9
 Contrary to Mallery’s assertion, the record shows that counsel employed an

investigator who searched for witnesses to support Mallery’s defense that some other

person shot the victim. A year-long effort to track down possible suspects proved

fruitless, however. Counsel testified that her investigator could not find the apartment

complex security guards who gave statements about having seen a car leaving the

complex shortly after the shooting. Even if, as Mallery asserts, counsel had been able

to locate the car and prove that it was not Mallery’s, that would not exclude the

possibility that the car was his accomplice’s. Moreover, Mallery’s alibi witness, his

girlfriend, had abandoned him and was not going to be a favorable witness. Even

Mallery’s mother had nothing of evidentiary value to offer.

Given the record before us, Mallery has not shown that counsel’s investigatory

efforts were deficient or that other witnesses would have provided helpful testimony.

“Without a proffer of evidence that would have been admissible and favorable to his

case, [Mallery] has failed to demonstrate a reasonable probability that the testimony

of these witnesses would have affected the outcome at trial.” Thomas v. State, 282

Ga. 894, 896 (2) (a) (655 SE2d 599) (2008).

10
 (d) Mallery argues that counsel’s performance was deficient in that she failed

to rehabilitate him with his prior consistent statement after the prosecution had

impeached him with his inconsistent statement.

During the State’s cross-examination, Mallery testified that he had been

“scammed” by the victim, and that he was “upset” about it. The State then impeached

Mallery with his statement that there was no “bad blood” between him and the victim.

Mallery argues that his counsel should have then rehabilitated him with his prior

consistent statement. Mallery, however, has not identified the prior consistent

statement or explained how it would have been helpful. Moreover, counsel testified

that she was reluctant to bring the statement (which had been previously excluded)

into evidence because Mallery’s story had changed over time and, therefore, “would

be more damaging. [She] did not want him to come across as a liar; that he was lying

to the police in his original statement.”

Defense counsel’s decision not to rehabilitate Mallery with evidence that might

further erode his credibility is certainly a reasonable trial strategy. “Trial tactics and

strategy, no matter how mistaken in hindsight, are almost never adequate grounds for

finding trial counsel ineffective unless they are so patently unreasonable that no

11
competent attorney would have chosen them.” (Citation and punctuation omitted.)

Brown v. State, 321 Ga. App. 765, 767 (1) (743 SE2d 452) (2013).

For these reasons, we conclude that Mallery has failed to carry his burden of

proving that the trial court erred in denying his motion for a new trial on ineffective

assistance of counsel grounds.

Judgment affirmed. Andrews and Rickman, JJ., concur.

12