¶1NOTICE: 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
¶2 Decided: October 25, 2022
¶3 S22A0630. CLARK v. THE STATE.
¶4 PINSON, Justice.
¶5 Anthony James Clark was found guilty of felony murder and
¶6associated crimes in connection with the February 2019 death of
¶7Stasha Baggett.1 On appeal, Clark claims that, during his trial, a
¶8juror improperly communicated with a member of the victim’s
¶9 The crimes occurred on February 13, 2019. In April 2019, Clark 1
¶10was 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
¶11counsel rendered ineffective assistance by failing to investigate
¶12properly or otherwise address the incident and that the trial court
¶13also failed to investigate the incident properly, depriving him of his
¶14right to a fair trial. But the record shows that counsel made
¶15reasonable efforts to address the juror issue, and any error on the
¶16part of the trial court has not been preserved for our review. So we
¶17affirm.
¶18 1. Facts
¶19 (a) Late one evening in February 2019, Clark drove with a
¶20companion, Jami Johnson, to a home in Murray County to meet
¶21Baggett. Clark and Johnson regularly used methamphetamine
¶22together. According to Clark, the pair were planning to meet Baggett
¶23to buy some of the drug. According to Johnson, she did not know
¶24whom she and Clark were driving to meet but believed Clark
¶25intended to “rip off”—i.e., steal drugs or money from—whoever it
¶26was.
¶27 2 According to Johnson, after they arrived at the home, Clark
¶28went inside while she remained in the car. Ten to fifteen minutes
¶29later, Clark emerged. He got in the driver’s seat of the car and told
¶30Johnson that he had told Baggett that Johnson “had the money for
¶31the dope.” Baggett followed Clark and, reaching the car, handed
¶32Clark a bag of meth through the driver’s side window. Clark handed
¶33the bag to Johnson and asked if she wanted it. Johnson, having no
¶34money, “just stare[d] at him.” In Johnson’s words, “Clark looks at
¶35me and says f**k it and puts the car in reverse.” Baggett “jumped
¶36onto the car trying to get her dope back.” Clark sprayed Baggett with
¶37pepper spray and backed the car into a wooded area, slamming
¶38Baggett—who was still holding onto the driver’s side mirror—into a
¶39tree.
¶40 Clark jumped out of the car and fled. A resident of the home,
¶41who had heard the commotion, came outside and called 911. Baggett
¶42died at the scene.
¶43 Testimony and crime-scene photos established that Clark’s car
¶44had backed up with such force that it uprooted a small tree and
¶45 3 “sheared off” another in two places. The driver’s side mirror was
¶46dangling from the car by a wire, and the tree that the victim collided
¶47with had her hair embedded in it. The victim’s body had abrasions
¶48consistent with being dragged along the ground. The medical
¶49examiner testified that the cause of death was blunt-force trauma to
¶50the torso.
¶51 Clark and Johnson were both arrested. Johnson told police that
¶52she had hidden the meth they had taken from Baggett under a tarp
¶53near Clark’s car, and she later retrieved the bag for a GBI agent
¶54whom she accompanied back to the scene. The bag contained 6.499
¶55grams of meth.
¶56 Clark testified at trial. He said that when Baggett followed him
¶57to the car, she became “irate” after she saw that he was with
¶58Johnson and so, “to keep from a physical altercation happening,” he
¶59“put the car in reverse and pulled pepper spray.” He said that he
¶60“panicked” and “jumped out and ran.”
¶61 (b) At trial, Clark told his trial counsel that, during Johnson’s
¶62testimony, he had noticed a juror “mouthing” something to one or
¶63 4 more of the victim’s family members, who were seated in the gallery
¶64of the courtroom. Clark reported this to counsel as soon as Johnson’s
¶65testimony concluded, just before a recess, and counsel notified the
¶66court that he “may have something to discuss with the Court” after
¶67the break. After a 23-minute break, at a bench conference before the
¶68jury reentered the courtroom, counsel told the trial judge about
¶69Clark’s allegation. He said he had investigated during the recess and
¶70believed it was “just a glance by a jury member out into the
¶71audience.” Still, counsel asked the trial court to give the jury a
¶72cautionary instruction. The court agreed and, when the jury
¶73reentered the courtroom, the judge reminded the jurors to avoid
¶74communications and contact with anyone outside the jury,
¶75instructing them to “be abundantly cautious about where you glance
¶76or whether you hold a glance or who you talk to . . . in the hall.”
¶77 In his motion for new trial, Clark raised the alleged juror
¶78incident as the basis for claims of ineffective assistance of counsel
¶79and violation of his right to a fair trial. At the hearing, Clark
¶80testified that he had seen a female juror in the front row of the jury
¶81 5 box “mouthing words to the victim’s family” and that one of these
¶82family members “was shaking her head” in response. He also
¶83testified that his mother had seen the incident.
¶84 For his part, trial counsel testified that, during the recess
¶85following Clark’s reporting of the incident, he had spoken with the
¶86bailiffs and other court personnel, as well as some of Clark’s family
¶87members. According to counsel, “no one indicated that they had seen
¶88anything other than just routine glancing and so forth, as jurors do
¶89during the course of a trial.” While admitting that “in hindsight,” he
¶90“probably should have” asked the court to question the juror, counsel
¶91testified that at the time, based on his significant trial experience,
¶92his own observations, and the investigation he undertook, he “was
¶93satisfied” that he had taken the appropriate steps. He also testified
¶94that, during his representation of Clark, Clark had a tendency to
¶95“exaggerate” and make statements that were “outlandish.”
¶96 In denying Clark’s motion for new trial, the trial court found
¶97that Clark’s testimony was “not credible,” that there was “no
¶98evidence of juror misconduct,” and that trial counsel’s actions “were
¶99 6 appropriate and reasonable.”
¶100 2. Analysis
¶101 (a) Clark contends that his trial counsel rendered
¶102constitutionally ineffective assistance by failing to adequately
¶103investigate his report of juror misconduct. To succeed on a claim of
¶104ineffective assistance, a defendant must establish both that his
¶105counsel’s performance was deficient and that he was prejudiced as a
¶106result of that deficient performance. See Washington v. State, 313
¶107Ga. 771, 773 (3) (873 SE2d 132) (2022) (citing Strickland v.
¶108Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LEd2d 674)
¶109(1984)).
¶110 To prove deficient performance, a defendant must establish
¶111that counsel “performed his duties in an objectively unreasonable
¶112way, considering all the circumstances and in the light of prevailing
¶113professional norms.” Id. (citation omitted). To overcome the “strong
¶114presumption” that counsel performed reasonably, the defendant
¶115must show that “no reasonable lawyer would have done what his
¶116lawyer did, or would have failed to do what his lawyer did not.” Id.
¶117 7 (citation omitted). To prove prejudice, a defendant must establish
¶118that there is a “reasonable probability that, but for counsel’s
¶119deficiency, the result of the trial would have been different.” Id. A
¶120reasonable probability is a probability “sufficient to undermine
¶121confidence in the outcome” of the trial. Neal v. State, 313 Ga. 746,
¶122751 (3) (873 SE2d 209) (2022) (citation omitted). An ineffective-
¶123assistance claim fails if the defendant fails to establish either
¶124deficient performance or prejudice. See Washington, 313 Ga. at 773
¶125(3).
¶126 In reviewing a trial court’s determination on an ineffective-
¶127assistance claim, we accept the trial court’s factual findings and
¶128credibility determinations unless they are clearly erroneous, but we
¶129independently apply the relevant legal principles to the facts. See
¶130Sullivan v. State, 301 Ga. 37, 40 (2) (799 SE2d 163) (2017).
¶131 Here, Clark contends that trial counsel should have insisted
¶132that the trial court question the juror under oath about whether she
¶133had communicated with the victim’s family member or had
¶134predetermined Clark’s guilt, and that his failure to do so amounts to
¶135 8 deficient performance.
¶136 But we cannot agree that trial counsel’s actions in addressing
¶137Clark’s allegation about the juror were “so patently unreasonable
¶138that no competent attorney would have followed such a course.”
¶139Washington, 313 Ga. at 773 (3) (citation omitted). To the contrary,
¶140the record shows that counsel made reasonable efforts to address the
¶141juror issue. The trial transcript makes clear that trial counsel
¶142investigated Clark’s claim immediately and brought the issue to the
¶143attention of the prosecutor and the court. At the motion-for-new-
¶144trial hearing, trial counsel explained that he investigated by asking
¶145courtroom officers and Clark’s family about the issue, and none of
¶146them reported anything unusual. Trial counsel also testified that
¶147perhaps he should have asked the trial court to question the juror,
¶148but “hindsight has no place in an assessment of the performance of
¶149trial counsel.” Keener v. State, 301 Ga. 848, 850 (2) (804 SE2d 383)
¶150(2017) (cleaned up). Trial counsel’s decision to timely and diligently
¶151investigate as he did falls well within the bounds of reasonable and
¶152competent performance. Further, the trial court was authorized to
¶153 9 credit trial counsel’s testimony about his investigation and to
¶154discredit Clark’s testimony about the incident, see Sullivan, 301 Ga.
¶155at 40 (2), and did not clearly err in doing so. Clark failed to establish
¶156that counsel’s performance was deficient, so his claim of ineffective
¶157assistance fails. See Bozzie v. State, 302 Ga. 704, 711 (4) (c) (808
¶158SE2d 671) (2017) (trial counsel did not render deficient performance
¶159by failing to pursue an incident of juror misconduct that he
¶160reasonably believed was harmless based on an investigator’s
¶161account of the incident).
¶162 (b) Clark also contends that the trial court should have sua
¶163sponte conducted its own investigation into the juror’s alleged
¶164communication with the victim’s family. This alleged error is not
¶165preserved for our review because Clark did not raise any objection
¶166below to the trial court’s handling of the juror issue. See Grier v.
¶167State, 305 Ga. 882, 887 (3) (828 SE2d 304) (2019) (failure to object
¶168at trial to alleged error results in waiver of appellate review). And
¶169this is not the kind of alleged error for which plain-error review is
¶170available. See Keller v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d 22)
¶171 10 (2020) (listing limited categories of alleged errors for which plain-
¶172error review is available). So this claim is not subject to our review.
¶173 Judgment affirmed. All the Justices concur.
¶174 11