CourtListener 10679789

Full text

315 Ga. 1
FINAL COPY

S22A0630. CLARK v. THE STATE.

PINSON, Justice.

Anthony James Clark was found guilty of felony murder and

associated crimes in connection with the February 2019 death of

Stasha Baggett.1 On appeal, Clark claims that, during his trial, a

juror improperly communicated with a member of the victim’s

family who was sitting in the audience. Clark contends that his trial

counsel rendered ineffective assistance by failing to investigate

1 The crimes occurred on February 13, 2019. In April 2019, Clark
was indicted on two counts of felony murder and one count each of armed
robbery, robbery, and possession of methamphetamine. Clark was tried
before a jury in February 2020 and found guilty on all counts. On
February 19, 2020, he was sentenced as a recidivist to serve life in prison
without the possibility of parole on one felony murder count plus a
consecutive 15-year term for the drug possession count; the remaining
counts merged or were vacated by operation of law. Clark filed a timely
motion for new trial, which he amended through new counsel in May
2021. Following hearings conducted in July and October 2021, the trial
court denied the motion on December 6, 2021. Clark filed a timely notice
of appeal. The appeal was docketed to the April 2022 term of this Court
and was thereafter submitted for a decision on the briefs.
properly or otherwise address the incident and that the trial court

also failed to investigate the incident properly, depriving him of his

right to a fair trial. But the record shows that counsel made

reasonable efforts to address the juror issue, and any error on the

part of the trial court has not been preserved for our review. So we

affirm.

1. Facts

(a) Late one evening in February 2019, Clark drove with a

companion, Jami Johnson, to a home in Murray County to meet

Baggett. Clark and Johnson regularly used methamphetamine

together. According to Clark, the pair were planning to meet Baggett

to buy some of the drug. According to Johnson, she did not know

whom she and Clark were driving to meet but believed Clark

intended to “rip off”—i.e., steal drugs or money from—whomever it

was.

According to Johnson, after they arrived at the home, Clark

went inside while she remained in the car. Ten to fifteen minutes

2
later, Clark emerged. He got in the driver’s seat of the car and told

Johnson that he had told Baggett that Johnson “had the money for

the dope.” Baggett followed Clark and, reaching the car, handed

Clark a bag of meth through the driver’s side window. Clark handed

the bag to Johnson and asked if she wanted it. Johnson, having no

money, “just stare[d] at him.” In Johnson’s words, “Clark looks at

me and says f**k it and puts the car in reverse.” Baggett “jumped

onto the car trying to get her dope back.” Clark sprayed Baggett with

pepper spray and backed the car into a wooded area, slamming

Baggett—who was still holding onto the driver’s side mirror—into a

tree.

Clark jumped out of the car and fled. A resident of the home,

who had heard the commotion, came outside and called 911. Baggett

died at the scene.

Testimony and crime-scene photos established that Clark’s car

had backed up with such force that it uprooted a small tree and

“sheared off” another in two places. The driver’s side mirror was

dangling from the car by a wire, and the tree that the victim collided

3
with had her hair embedded in it. The victim’s body had abrasions

consistent with being dragged along the ground. The medical

examiner testified that the cause of death was blunt-force trauma to

the torso.

Clark and Johnson were both arrested. Johnson told police that

she had hidden the meth they had taken from Baggett under a tarp

near Clark’s car, and she later retrieved the bag for a GBI agent

whom she accompanied back to the scene. The bag contained 6.499

grams of meth.

Clark testified at trial. He said that when Baggett followed him

to the car, she became “irate” after she saw that he was with

Johnson and so, “to keep from a physical altercation happening,” he

“put the car in reverse and pulled pepper spray.” He said that he

“panicked” and “jumped out and ran.”

(b) At trial, Clark told his trial counsel that, during Johnson’s

testimony, he had noticed a juror “mouthing” something to one or

more of the victim’s family members, who were seated in the gallery

of the courtroom. Clark reported this to counsel as soon as Johnson’s

4
testimony concluded, just before a recess, and counsel notified the

court that he “may have something to discuss with the Court” after

the break. After a 23-minute break, at a bench conference before the

jury reentered the courtroom, counsel told the trial judge about

Clark’s allegation. He said he had investigated during the recess and

believed it was “just a glance by a jury member out into the

audience.” Still, counsel asked the trial court to give the jury a

cautionary instruction. The court agreed and, when the jury

reentered the courtroom, the judge reminded the jurors to avoid

communications and contact with anyone outside the jury,

instructing them to “be abundantly cautious about where you glance

or whether you hold a glance or who you talk to . . . in the hall.”

In his motion for new trial, Clark raised the alleged juror

incident as the basis for claims of ineffective assistance of counsel

and violation of his right to a fair trial. At the hearing, Clark

testified that he had seen a female juror in the front row of the jury

box “mouthing words to the victim’s family” and that one of these

family members “was shaking her head” in response. He also

5
testified that his mother had seen the incident.

For his part, trial counsel testified that, during the recess

following Clark’s reporting of the incident, he had spoken with the

bailiffs and other court personnel, as well as some of Clark’s family

members. According to counsel, “no one had indicated that they had

seen anything other than just routine glancing and so forth, as

jurors do during the course of a trial.” While admitting that “in

hindsight,” he “probably should have” asked the court to question

the juror, counsel testified that at the time, based on his significant

trial experience, his own observations, and the investigation he

undertook, he “was satisfied” that he had taken the appropriate

steps. He also testified that, during his representation of Clark,

Clark had a tendency to “exaggerate” and make statements that

were “outlandish.”

In denying Clark’s motion for new trial, the trial court found

that Clark’s testimony was “not credible,” that there was “no

evidence of juror misconduct,” and that trial counsel’s actions “were

appropriate and reasonable.”

6
2. Analysis

(a) Clark contends that his trial counsel rendered

constitutionally ineffective assistance by failing to adequately

investigate his report of juror misconduct. To succeed on a claim of

ineffective assistance, a defendant must establish both that his

counsel’s performance was deficient and that he was prejudiced as a

result of that deficient performance. See Washington v. State, 313

Ga. 771, 773 (3) (873 SE2d 132) (2022) (citing Strickland v.

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984)).

To prove deficient performance, a defendant must establish

that counsel “performed his duties in an objectively unreasonable

way, considering all the circumstances and in the light of prevailing

professional norms.” Washington, 313 Ga. at 773 (3) (citation and

punctuation omitted). To overcome the “strong presumption” that

counsel performed reasonably, the defendant must show that “no

reasonable lawyer would have done what his lawyer did, or would

have failed to do what his lawyer did not.” Id. (citation and

7
punctuation omitted). To prove prejudice, a defendant must

establish that there is a “reasonable probability that, but for

counsel’s deficiency, the result of the trial would have been

different.” Id. A reasonable probability is a probability “sufficient to

undermine confidence in the outcome” of the trial. Neal v. State, 313

Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and punctuation

omitted). An ineffective-assistance claim fails if the defendant fails

to establish either deficient performance or prejudice. See

Washington, 313 Ga. at 773 (3).

In reviewing a trial court’s determination on an ineffective-

assistance claim, we accept the trial court’s factual findings and

credibility determinations unless they are clearly erroneous, but we

independently apply the relevant legal principles to the facts. See

Sullivan v. State, 301 Ga. 37, 40 (2) (799 SE2d 163) (2017).

Here, Clark contends that trial counsel should have insisted

that the trial court question the juror under oath about whether she

had communicated with the victim’s family member or had

predetermined Clark’s guilt, and that his failure to do so amounts to

8
deficient performance.

But we cannot agree that trial counsel’s actions in addressing

Clark’s allegation about the juror were “so patently unreasonable

that no competent attorney would have followed such a course.”

Washington, 313 Ga. at 773 (3) (citation and punctuation omitted).

To the contrary, the record shows that counsel made reasonable

efforts to address the juror issue. The trial transcript makes clear

that trial counsel investigated Clark’s claim immediately and

brought the issue to the attention of the prosecutor and the court.

At the motion-for-new-trial hearing, trial counsel explained that he

investigated by asking courtroom officers and Clark’s family about

the issue, and none of them reported anything unusual. Trial

counsel also testified that perhaps he should have asked the trial

court to question the juror, but “hindsight has no place in an

assessment of the performance of trial counsel.” Keener v. State, 301

Ga. 848, 850 (2) (804 SE2d 383) (2017) (cleaned up). Trial counsel’s

decision to timely and diligently investigate as he did falls well

within the bounds of reasonable and competent performance.

9
Further, the trial court was authorized to credit trial counsel’s

testimony about his investigation and to discredit Clark’s testimony

about the incident, see Sullivan, 301 Ga. at 40 (2), and did not

clearly err in doing so. Clark failed to establish that counsel’s

performance was deficient, so his claim of ineffective assistance

fails. See Bozzie v. State, 302 Ga. 704, 711 (4) (c) (808 SE2d 671)

(2017) (trial counsel did not render deficient performance by failing

to pursue an incident of juror misconduct that he reasonably

believed was harmless based on an investigator’s account of the

incident).

(b) Clark also contends that the trial court should have sua

sponte conducted its own investigation into the juror’s alleged

communication with the victim’s family. This alleged error is not

preserved for our review because Clark did not raise any objection

below to the trial court’s handling of the juror issue. See Grier v.

State, 305 Ga. 882, 887 (3) (828 SE2d 304) (2019) (failure to object

at trial to alleged error results in waiver of appellate review). And

this is not the kind of alleged error for which plain-error review is

10
available. See Keller v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d 22)

(2020) (listing limited categories of alleged errors for which plain-

error review is available). So this claim is not subject to our review.

Judgment affirmed. All the Justices concur.

Decided October 25, 2022.

Murder. Murray Superior Court. Before Judge Wilbanks.

Brouse Law, Karen H. Brouse, for appellant.

Herbert M. Poston, Jr., District Attorney, V. Keely Parker,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Emily R. Polk, Assistant

Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia

Decided: October 25, 2022

S22A0630. CLARK v. THE STATE.

PINSON, Justice.

Anthony James Clark was found guilty of felony murder and

associated crimes in connection with the February 2019 death of

Stasha Baggett.1 On appeal, Clark claims that, during his trial, a

juror improperly communicated with a member of the victim’s

The crimes occurred on February 13, 2019. In April 2019, Clark
1

was indicted on two counts of felony murder and one count each of armed
robbery, robbery, and possession of methamphetamine. Clark was tried
before a jury in February 2020 and found guilty on all counts. On
February 19, 2020, he was sentenced as a recidivist to serve life in prison
without the possibility of parole on one felony murder count plus a
consecutive 15-year term for the drug possession count; the remaining
counts merged or were vacated by operation of law. Clark filed a timely
motion for new trial, which he amended through new counsel in May
2021. Following hearings conducted in July and October 2021, the trial
court denied the motion on December 6, 2021. Clark filed a timely notice
of appeal. The appeal was docketed to the April 2022 term of this Court
and was thereafter submitted for a decision on the briefs.
family who was sitting in the audience. Clark contends that his trial

counsel rendered ineffective assistance by failing to investigate

properly or otherwise address the incident and that the trial court

also failed to investigate the incident properly, depriving him of his

right to a fair trial. But the record shows that counsel made

reasonable efforts to address the juror issue, and any error on the

part of the trial court has not been preserved for our review. So we

affirm.

1. Facts

(a) Late one evening in February 2019, Clark drove with a

companion, Jami Johnson, to a home in Murray County to meet

Baggett. Clark and Johnson regularly used methamphetamine

together. According to Clark, the pair were planning to meet Baggett

to buy some of the drug. According to Johnson, she did not know

whom she and Clark were driving to meet but believed Clark

intended to “rip off”—i.e., steal drugs or money from—whoever it

was.

2
According to Johnson, after they arrived at the home, Clark

went inside while she remained in the car. Ten to fifteen minutes

later, Clark emerged. He got in the driver’s seat of the car and told