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Clark v. State

Supreme Court of Georgia

June 10, 2019

CLARK
v.
STATE

          BOGGS, JUSTICE.

         Following a jury trial, Arthur Lawton Clark was convicted of felony murder predicated on possession of a firearm by a convicted felon and aggravated assault in connection with the shooting death of his brother-in-law, Sonny Barlow.[1] He raises the following enumerations of error: (1) the trial court erred in denying his motion for a new trial because the State failed to disprove his affirmative defense of justification based on self-defense; (2) the trial court erred in refusing to give his requested charges on sudden emergency and self-defense; (3) the trial court erred in admitting into evidence documentation of his prior conviction for aggravated cruelty to animals; and (4) the trial court erred in admitting testimony about a prior incident. After review, we affirm.

         1. Viewed in the light most favorable to the jury's verdict, the record shows as follows. Clark and the victim, Sonny Barlow, were brothers-in-law; Mr. Barlow was married to Clark's sister, Susan Barlow ("Ms. Barlow"). The Barlows lived with Clark's and Ms. Barlow's mother at a house on the mother's property in Dodge County.

         In 2012, Clark pushed Ms. Barlow against a door at the Barlow residence and hit her three times. Ms. Barlow obtained a family violence protective order that barred Clark from her house for 12 months. In 2013, Clark separately was convicted and sentenced after pleading guilty to aggravated cruelty to animals, making him a convicted felon. In 2014, Clark obtained a .22-caliber pistol that his mother had purchased some years earlier. He brought the pistol to the Barlow residence whenever he visited.

         Around lunchtime on May 12, 2015, Clark went to the Barlow residence to see his mother and to bring her some lunch. He did not bring his gun inside because he did not see Mr. Barlow's vehicle at the house. Clark returned to the Barlow residence later that evening, hoping to visit with his mother again. When he arrived, he saw that Mr. Barlow's vehicle was at the house, so he tucked his .22-caliber pistol under his shirt. Ms. Barlow and their mother were inside, and Mr. Barlow was outside at his dog pen.

         Ms. Barlow told her mother that Clark was there to visit, and her mother replied that she did not feel up to the visit, so Ms. Barlow told Clark that she and her husband each needed to take a shower and suggested that Clark leave. Mr. Barlow then came into the house and eventually told Clark that he needed to leave, but Clark did not leave. Instead, he and Mr. Barlow got into an argument with raised voices. Clark finally got up and moved toward the back door when Mr. Barlow pushed Clark, causing him to trip on the back door threshold and fall onto the porch deck, hurting his leg. When Clark got back on his feet, he and Mr. Barlow continued arguing, and Ms. Barlow again asked Clark to leave. Clark and Mr. Barlow eventually moved off the porch toward Clark's car. They were no longer arguing, and it appeared that Clark was going to leave peacefully, when Clark suddenly reached under his shirt, pulled out his pistol, and shot Mr. Barlow twice. Clark got in his car and drove away, throwing out the gun on the side of a road. Ms. Barlow rushed to dial 911. In the backyard of the Barlow residence, law enforcement officers found Mr. Barlow, who appeared to have been shot twice in the chest, and two .22-caliber shell casings.

         Clark testified at trial and admitted that he shot Mr. Barlow multiple times and that Mr. Barlow did not have a gun. No witness substantiated Clark's claim that Mr. Barlow was about to attack him. Forensic evidence was consistent with Ms. Barlow's testimony that Clark and Mr. Barlow were standing three or four feet apart when Clark fired. The two chest wounds, including the one fatal wound, showed no stippling or powder burns, and the medical examiner testified that they were inflicted at an indeterminate or distant range. Further, an agent of the Georgia Bureau of Investigation who responded to the crime scene testified that he saw no sign of a struggle. Another GBI agent who photographed Clark after his arrest testified that he did not notice or document any injuries to Clark's neck, chest, or rib area. He also testified that nothing on Clark's clothes at the time of arrest indicated any kind of a struggle or physical altercation.

         After receiving a "Be On the Look Out" notification for Clark's car, a Dodge County Sheriff's Deputy saw Clark's car, performed a traffic stop, searched Clark, and found no weapon. Officers later searched Clark's residence, pursuant to a search warrant, and recovered a label and price tag for a .22-caliber semi-automatic pistol and .22-caliber ammunition that appeared to match the shell casings recovered from the crime scene.

         We conclude that the evidence presented at trial and summarized above was sufficient to enable a rational trier of fact to find Clark guilty of the crimes of which he was convicted beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). The jury was free to reject Clark's testimony that he shot Mr. Barlow in self-defense, believing that Mr. Barlow was about to attack him. And Ms. Barlow testified that she saw Clark, without provocation, draw his weapon and shoot Mr. Barlow, who was unarmed. See OCGA § 24-14-8 ("The testimony of a single witness is generally sufficient to establish a fact."); Dean v. State, 273 Ga. 806, 807 (1) (546 S.E.2d 499) (2001) ("This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.").

         2. Clark contends that the trial court erred in refusing to give his requested instructions on sudden emergency and self-defense. Specifically, Clark requested that the trial court instruct the jury, "Where upon a sudden emergency, one suddenly acquires actual possession of a pistol for the purpose of self defense, if you find that to have been the purpose, then he would not be in violation of any law prohibiting a felon from being in possession of a firearm." Cauley v. State, 260 Ga. 324, 326 (2) (c) (393 S.E.2d 246) (1990). Clark also requested that the trial court instruct the jury: (1) that "[a] felon would not be in violation of the firearm possession statute if he was found to be in possession of a firearm for purpose of self-defense"; (2) that "where the Defendant acts in self-defense, the jury is not permitted to find him guilty of the underlying felony, and accordingly [he] cannot be found guilty of felony murder"; and (3) that "[a] convicted felon is justified in possessing a weapon if he reasonably believed it was the only way to prevent his own imminent death or bodily injury."

         Clark did not object to the charge as given, however, so we review only for plain error. See OCGA § 17-8-58 (b). In State v. Kelly, 290 Ga. 29 (718 S.E.2d 232) (2011), this Court adopted the federal plain error standard, which has four prongs:

First, there must be an error or defect-some sort of deviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted; emphasis in original.) Id. at 33 (2) (a).

         Here, there was no clear or obvious error. A charge on sudden emergency may be appropriate when a defendant, who is on trial for felony murder predicated on possession of a firearm by a convicted felon, otherwise could not successfully assert self-defense because he was engaged in the felony of possessing a firearm at the time that he was defending himself. Austin v. State, 300 Ga. 889, 891 (2) (799 S.E.2d 222) (2017). However, "[a] trial court does not err by failing to give a jury charge where the requested charge is not adjusted to the evidence presented at trial." (Citation and punctuation omitted.) Id. Thus, a sudden emergency charge is not required where the defendant "did not suddenly acquire actual possession of the gun that he used to shoot [the victim] while trying to ...


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