Clark appeals his malice murder conviction for killing
Antonio Ellison. Clark did not dispute at trial that he
intentionally shot Ellison, but claimed that his actions were
justified because he was defending himself and his vehicle.
On appeal, Clark argues that the State failed to disprove
defense of habitation beyond a reasonable doubt. Clark also
argues that his trial counsel was ineffective for failing to
impeach a key witness with prior felony convictions, failing
to object to the State's comments on Clark's
pre-arrest silence, and failing to object to the State's
misstatements on the presumption of innocence. We affirm
because (1) the jury was authorized to conclude that the use
of deadly force was unreasonable under the circumstances
⸺ an element of the defense of habitation statute
relied on here ⸺ and (2) trial counsel was not
deficient or, if he was, any deficiency did not prejudice
in the light most favorable to the jury's verdicts, the
trial evidence showed the following. Clark shot and killed
Ellison on November 14, 2015. Ellison had been in a
relationship with Kira McClure for about nine years, they
dated "on and off" in the year before the shooting,
and the couple had three children together. Although Ellison
and McClure were not dating at the time of Ellison's
death, they and their children continued to live together in
Douglas County, along with members of Ellison's family,
including Ellison's brother, Sydrick Lindley.
evening before the shooting, Clark, a former police officer,
went to pick up McClure at Ellison's house because they
had planned to go on a date. Ellison became upset that
McClure was dating another man and argued with McClure before
McClure was out with Clark, Ellison sent her text messages
indicating that he was upset and that he put her personal
items outside of the house because she was no longer welcome.
McClure spent the night with Clark, and Clark gave her a ride
back to Ellison's house the next day. While riding in
Clark's SUV, McClure noticed a gun in the cup holder
between the two front seats; the gun had not been there the
McClure and Clark arrived, Ellison and Lindley were talking
at the top of the driveway. Upon seeing McClure and Clark,
Ellison walked down the driveway and approached the
driver's side of Clark's vehicle. Clark opened the
door, and he and Ellison exchanged words as Clark remained
seated. McClure, who was sitting in the passenger seat, said
that the exchange was not loud or aggressive. Lindley could
not hear what Ellison or Clark said to each other from the
top of the driveway.
exchanging words with Clark, Ellison slapped Clark in the
face, grabbed Clark by his shirt, and tried to pull Clark out
of the SUV. Clark resisted Ellison's efforts to remove
him from the vehicle; during their struggle, Clark was able
to fend Ellison off with one hand while reaching for his gun
with the other. Lindley described the fighting as
"child's play." McClure testified at trial that
the men were engaged in a "tug-of-war"; she did not
see any injuries to Ellison or Clark or see anything during
the struggle (other than Clark's gun) that caused her to
believe that either Ellison or Clark could be seriously hurt.
eventually removed the gun out of its holster and fired a
shot at Ellison, striking him in the torso. Ellison had his
head down into Clark's chest at the time and could not
have seen the gun. Ellison stepped back or fell away from
Clark after the first shot, screamed out in surprise about
being shot, and put his hands up. Ellison was falling when
Clark in quick succession fired two more shots at Ellison,
one of which struck Ellison in the head. Ellison died from
his gunshot wounds.
began to drive away and ran over Ellison in the process.
Before leaving the neighborhood, Clark let McClure out of the
vehicle. McClure later asked Clark why he killed Ellison.
Clark responded that he was in fear for his life because
"they were going to come and get him" and claimed
that Ellison had been punching and kicking him. McClure
challenged Clark, stating that Ellison had hit Clark only
claimed self-defense and defense of habitation during a
police interview and at trial. Clark testified that he was
scared when Ellison approached the vehicle, hit him
repeatedly, and tried to remove him from the vehicle. Clark
claimed that he shot at Ellison because Ellison threatened to
kill him. Clark also testified that Ellison continued to
attack him after the first shot so he fired one or two
additional shots at Ellison. Despite Clark's claims to a
detective during a police interview that Ellison repeatedly
hit him, the detective testified at trial that, several hours
after the shooting, there were no visible marks, redness, or
bruising on Clark's body or any signs that Clark was in
Clark argues that the evidence was insufficient to convict
him of malice murder because the State failed to disprove
defense of habitation beyond a reasonable doubt. We disagree.
consider the sufficiency of the evidence, our review is
limited to whether the trial evidence, when viewed in the
light most favorable to the verdicts, is sufficient to
authorize a rational trier of fact to find the defendant
guilty beyond a reasonable doubt of the crimes of which he
was convicted. See Jackson v. Virginia, 443 U.S.
307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Mims v.
State, 304 Ga. 851, 853 (1) (a) (823 S.E.2d 325) (2019).
"Under this review, we must put aside any questions
about conflicting evidence, the credibility of witnesses, or
the weight of the evidence, leaving the resolution of such
things to the discretion of the trier of fact."
Mims, 304 Ga. at 853 (1) (a) (citation and
defendant raises an affirmative defense that is supported by
some evidence, the State has the burden of disproving that
defense beyond a reasonable doubt. See Bishop v.
State, 271 Ga. 291, 291 (2) (519 S.E.2d 206) (1999). It
is for the jury to determine whether the State has met its
burden in this respect. See Crayton v. State, 298
Ga. 792, 793 (1) (784 S.E.2d 343) (2016); see also Mosley
v. State, 300 Ga. 521, 524 (1) (796 S.E.2d 684) (2017)
("The question of [the defendant's] justification
was for the jury to determine[.]"). Our role in cases
raising colorable justification defenses is to determine
whether the evidence, viewed in the light most favorable to
the verdicts, was sufficient to disprove those defenses. See
Joachim v. State, 263 Ga. 816, 817 (440 S.E.2d 15)
of habitation is governed by OCGA § 16-3-23,
which outlines generally when a person is authorized to use
any force in the defense of habitation and also sets forth
three specific contexts in which deadly force is authorized.
See Fair v. State, 288 Ga. 244, 257 (2) (A) (3) (702
S.E.2d 420) (2010). On appeal, Clark argues that his use of
deadly force was authorized under two of the ...