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Mallery v. State

Court of Appeals of Georgia, Third Division

September 8, 2017




         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 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, 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 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 S.Ct. 2052, 80 L.Ed.2d 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 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 S.E.2d 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 S.E.2d 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 ...

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