Clay v. State

847 S.E.2d 530, 309 Ga. 593

• Court: Supreme Court of Georgia
• Decided: August 24, 2020
• Docket: S20A0727
• Status: Published

Opinion

FINAL COPY 309 Ga. 593

S20A0727. CLAY v. THE STATE.

MELTON, Chief Justice.

Following a jury trial, James Rashad Clay, acting pro se,

appeals his convictions for malice murder and related offenses in

connection with crimes committed against Rashonda Patterson and

Joseph Emener.1 On appeal, Clay enumerates numerous errors,

1 On September 5, 2012, a Gwinnett County grand jury indicted Clay for

the malice murder of Patterson (Count 1), the felony murder of Patterson predicated on aggravated assault (Count 2), the aggravated assault of Patterson (Count 3), the aggravated assault of Emener (Count 4), and possessing a firearm during the commission of a crime (Count 5). Clay was tried from May 20 to 22, 2014, and was convicted of all charges. On June 3, 2014, the trial court sentenced Clay to life in prison without parole for malice murder (Count 1), 20 years consecutive for the aggravated assault of Emener (Count 4), and five years consecutive for the weapon charge (Count 5). The remaining counts were either merged or vacated by operation of law for sentencing purposes. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). Clay filed a motion for new trial through counsel on June 6, 2014. A few days later, Clay filed a pro se notice of appeal. The trial court dismissed the pro se notice because it was filed by Clay and not by his counsel. In August 2015, Clay filed a pro se motion requesting new appellate counsel, which the trial court subsequently denied. Later, in February 2017, new counsel was appointed to represent Clay on appeal. Thereafter, on March 27, 2017, Clay filed another motion to proceed pro se. The trial court held a hearing on Clay’s motion and, after ensuring that Clay understood his rights, the trial court and, for the reasons set forth below, we affirm.

1. As an initial matter, Clay enumerates many alleged

errors that are not preserved for appellate review. Specifically, Clay

asserts: that the State violated Brady v. Maryland, 373 U. S. 83 (83

SCt 1194, 10 LE2d 215) (1963), when it failed to produce a gunshot

residue test;2 that his indictment was void because it was not

returned in open court, because it contained numerous substantive

and non-amendable defects, and because he is “actually innocent” of

the charges;3 that there were issues concerning the composition of

his jury pool and the qualification of a member of the petit jury; that

granted Clay’s motion and allowed appellate counsel to withdraw from the case. A hearing on Clay’s motion for new trial was held in November 2018. Clay filed a notice of appeal to this Court, which was subsequently dismissed as there was no ruling on Clay’s motion by the trial court. See Case No. S20A0151 (dismissed October 7, 2019). After the remittitur issued, the trial court denied Clay’s motion for new trial on November 6, 2019. Clay then timely filed a notice of appeal to this Court. The appeal was docketed to the April 2020 term of this Court and was submitted for a decision on the briefs. 2 Notably, nothing in the record indicates that the State withheld a

gunshot residue test. Clay also appears to allege that the trial court erred by excluding evidence of the gunshot residue test from trial. However, there is nothing in the record to indicate that the trial court made such a ruling. 3 Clay does not make a freestanding actual innocence claim. Instead, he

argues that, because he is innocent, the indictment is void. the State violated Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712,

90 LE2d 69) (1986); that the State committed prosecutorial

misconduct by allegedly violating his attorney-client privilege prior

to trial;4 and that the judge who presided over his case did so in

violation of Uniform Superior Court Rule 3.1 (discussing method of

assignment of cases). Because Clay failed to raise these issues in

the trial court below and to obtain a ruling on them, and because

none of these claims assert an evidentiary or instructional error

reviewable for plain error, see Gates v. State, 298 Ga. 324, 327 (3)

(781 SE2d 772) (2016) (holding that the plain error test for alleged

jury instruction errors also applies to evidentiary errors), they are

not preserved for appellate review by this Court, see Harris v. State,

304 Ga. 276, 279 (2) (818 SE2d 530) (2018).

2. Turning to the enumerations preserved for appellate

4 In a related enumeration, Clay contends that his trial counsel created

a conflict of interest because, he alleges, counsel divulged privileged information to the prosecutor. In support of this claim, Clay cites a letter the prosecutor sent to trial counsel concerning a court-ordered competency evaluation. The letter, however, is not in the record, and there is no record evidence that trial counsel disclosed any privileged information to the prosecutor in relation to the court-ordered competency evaluation. review, Clay first asserts that the evidence presented at trial was

insufficient to support his convictions. In support of this claim, Clay

attacks the evidence presented against him at trial. However, “[t]his

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.” (Citation and punctuation omitted.) Hayes v. State,

292 Ga. 506, 506 (739 SE2d 313) (2013).

Viewing the evidence presented at trial in this light, the record

shows that Clay had been a resident at the Suburban Lodge, an

extended-stay motel located in Gwinnett County. However, prior to

the day of the crimes, Clay was banned from the premises. Despite

this, Raymond Robertson, a resident at the motel, saw Clay on the

property the day before the crimes. Then, on July 5, 2012, Clay

entered the motel and rode the elevator to the third floor with

Ronald Collins, another resident at the motel who had known Clay

for years. During their elevator ride, Clay took out a 9-millimeter

pistol and cocked it. Collins asked “who you got that for,” to which Clay responded, “it ain’t for you.” The men exited the elevator

together and walked in opposite directions; when Collins reached his

room, he called the front desk to inform them that Clay was on the

property.

Meanwhile, Patterson was in her motel room with her

daughter Miyah, her mother Denise, and her fiancé Emener. The

group was getting ready to watch a movie when they heard a knock

on the door. Both Emener and Patterson approached the door.

Patterson looked through the peephole and asked the person

standing on the other side of the door to identify himself. Just then,

two shots were fired through the closed door. One bullet struck

Patterson in the head, killing her immediately, and the second bullet

struck Emener in his leg.

Law enforcement officers arrived at the scene and found

Patterson unresponsive. Officers located two bullet holes in the

door, two cartridge casings outside the door, and one bullet inside

the room. During Patterson’s autopsy, the medical examiner

retrieved a single bullet from Patterson’s head and noted the presence of wood splintering around her face; the medical examiner

concluded that Patterson died as a result of the gunshot.

Witnesses provided a description of Clay to officers, and, after

a short canvass of the vicinity, Clay was found at a nearby

apartment complex. He was carrying a 9-millimeter pistol that the

State’s firearm examiner later matched to the shell casings and

bullets collected from the scene and from Patterson’s autopsy.

Clay testified at trial and denied being at the motel on the date

of the murder and denied committing the shooting. However, he

admitted holding a grudge against Emener’s identical twin brother

based upon allegations that Emener’s brother had abused Clay’s

mother.

Based on the foregoing, the evidence presented at trial was

sufficient to enable a rational trier of fact to find Clay guilty beyond

a reasonable doubt of the crimes for which he was convicted. 5 See

5 Clay also contends that the trial court abused its discretion when it

declined to grant a new trial pursuant to the general grounds set forth in OCGA §§ 5-5-20 and 5-5-21. However, it is well settled that our review of a trial court’s denial on the general grounds is limited to sufficiency of the evidence. See Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014). Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

3. Clay argues that he is entitled to a new trial because his

convictions were obtained based upon the perjured testimony of lay

witnesses Collins and Robertson. See OCGA § 17-1-4. However,

Clay has produced no evidence that either witness has been

convicted of perjury or that their prior testimony was “the purest

fabrication.” (Citation and punctuation omitted.) Glover v. State, 296

Ga. 13, 15 (2) (764 SE2d 826) (2014). To the extent Clay argues that

the witnesses’ statements at trial qualify as perjury, that argument

fails because such statements relate only to the witnesses’

credibility and are “merely impeaching.” Id.6

4. Clay alleges that the trial court erred by: (a) allowing the

introduction of “tainted” gun evidence at trial; (b) admitting Clay’s

custodial statement into evidence because he did not make that

6 Clay also argues that his trial counsel was constitutionally ineffective

for failing to impeach Robertson and Collins with their prior inconsistent statements. However, the record shows that counsel thoroughly cross- examined these witnesses concerning their prior statements to law enforcement officers. Accordingly, Clay has failed to show deficient performance under Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). statement freely and voluntarily; and (c) failing to suppress the pre-

trial identifications by Collins and Robertson. We address each of

these claims in turn.

(a) Gun evidence.

At trial, the court admitted the 9-millimeter pistol recovered

from Clay into evidence. The State also called its lead detective as

a witness. During his testimony, the detective explained that, in

order to determine the cartridge capacity of the confiscated weapon,

he removed unfired rounds from his duty weapon and placed them

into the magazine of Clay’s 9-millimeter until it was full. The

detective testified that the magazine could only hold two additional

rounds before the magazine was at full capacity. On appeal, Clay

alleges that the trial court erred by admitting the 9-millimeter into

evidence because, he alleges, the lead detective’s actions amounted

to “evidence tampering.” However, because Clay did not object to

this testimony or the admission of the gun as evidence at trial, we can review this claim only for plain error.7 See Gates, 298 Ga. at 327

(3).

Other than providing a conclusory citation of OCGA § 16-10-

94,8 the statute criminalizing evidence tampering, Clay cites no legal

authority or record evidence to support his claim that the detective’s

actions amounted to tampering. Nor have we found any such

authority to support his proposition. Because “[a]n error cannot be

plain where there is no controlling authority on point,” (Citation and

7 As this Court has previously explained,

The standard for a plain error review of rulings on evidence is that there must be an error or defect that has not been affirmatively waived by the appellant, the legal error is clear or obvious, the error must have affected the appellant’s substantial rights, and if the aforementioned three requirements are satisfied, the appellate court has the discretion to remedy the found error but should do so only if the error seriously affected the fairness, integrity or public reputation of the judicial proceedings; consequently, beyond showing a clear or obvious error, the appellant must affirmatively show that the error probably did affect the outcome below. Davis v. State, 302 Ga. 576, 581 (2), n.5 (805 SE2d 859) (2017). 8 A person commits the offense of tampering with evidence when, with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person, he knowingly destroys, alters, conceals, or disguises physical evidence or makes, devises, prepares, or plants false evidence. OCGA § 16-10-94. punctuation omitted.) Simmons v. State, 299 Ga. 370, 374 (2) (788

SE2d 494) (2016), Clay has failed to show that the trial court’s ruling

amounted to clear or obvious error, let alone plain error.

(b) Clay’s statement.

Next, Clay argues that the trial court erred by admitting his

custodial statement to law enforcement into evidence at trial

because officers made “inappropriate statements” during the

interview.9 Prior to trial, Clay filed a motion to suppress his

statement to officers, arguing that detectives offered him a hope of

benefit in violation of OCGA § 24-8-824 by stating that Clay could

face different potential charges depending on what had occurred,

that those charges carried different sentences, and that Clay had an

opportunity to help himself out by telling the truth. To the extent

that Clay is arguing this same issue on appeal, it fails because we

9 Clay also makes a blanket claim that his statement was inadmissible

because it was obtained after an alleged illegal arrest. However, because he offers no argument or evidence as to why his arrest was illegal, this claim is deemed abandoned. See Supreme Court Rule 22. See also Burrell v. State, 301 Ga. 21, 26 (3) (799 SE2d 181) (2017) (“It is not this Court’s job to cull the record on behalf of [the] Appellant to find alleged errors.”) (citation and punctuation omitted). have repeatedly held that these types of statements by law

enforcement officers do not amount to a hope of benefit under OCGA

§ 24-8-824. See Dawson v. State, 308 Ga. 613, 620 (3) (842 SE2d

875) (2020) (listing cases where similar statements by law

enforcement did not constitute a hope of benefit). Accordingly, the

trial court did not err by admitting Clay’s statement at trial.

(c) Witness identifications.

Next, Clay challenges the witness identifications of him by

Collins and Robertson. We see no error. Concerning Collins’s out-

of-court identification, Clay argues that it resulted from an

impermissibly suggestive identification procedure because Collins

saw Clay being transported from the scene in handcuffs prior to his

identification. This, Clay argues, tainted Collins’s subsequent in-

court identification.

As an initial matter, while Clay did seek to suppress Collins’s

photo lineup identification, that evidence was not introduced at

trial. And, because Clay did not object to Collins’ in-court

identification, we can review this claim only for plain error. See Gates, 298 Ga. at 327 (3). Once again, Clay has failed to show that

the trial court committed clear or obvious error. It is well settled

that “even if an out-of-court identification is impermissibly

suggestive, a subsequent in-court identification is admissible if it did

not depend upon the prior identification but had an independent

origin.” (Citation and punctuation omitted.) Sharp v. State, 286 Ga.

799, 803 (4) (692 SE2d 325) (2010). Assuming arguendo that the

pre-trial identification procedure was impermissibly suggestive, the

record shows that Collins’s in-court identification stemmed from an

independent origin. See Humphrey v. State, 281 Ga. 596, 597 (1)

(642 SE2d 23) (2007). Collins testified that he had known Clay for

years, that he had worked with Clay’s mother, and that, because of

that relationship, Collins tried to be a father figure to Clay.

Accordingly, Clay has failed to show plain error concerning Collins’s

in-court identification.

Regarding Robertson’s photo lineup identification, Clay argues

that the identification should have been suppressed because the

evidence at trial showed that Robertson identified Clay from a photo lineup over a month after the crime after seeing news reports of

Clay’s arrest. However, a challenge such as this goes to the weight

of the evidence, not the admissibility. In other words, Clay is not

challenging the identification procedure used by law enforcement,

but, instead, is challenging the weight and credibility of Robertson’s

identification. And, such a question is specifically reserved for the

jury. See Franklin v. State, 306 Ga. 872, 874 (1) (834 SE2d 53)

(2019) (“[I]t is for the jury to resolve conflicts in the evidence and

questions of witness credibility, not this Court.”) (citation and

punctuation omitted).

5. Next, Clay alleges that the Superior Court Clerk of Court

and the court reporter falsified all of Clay’s transcripts. However,

because Clay presents no evidence to support this assertion, this

claim fails.

6. Finally, Clay argues that the four-year delay between the

filing of his motion for new trial and the trial court rendering a

decision on the same violated his right to due process. See Chatman

v. Mancill, 280 Ga. 253 (626 SE2d 102) (2006). “In assessing a due process claim premised on a post-conviction delay, we generally look

at four factors: ‘the length of the delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.’”

(Citations omitted.) Norman v. State, 303 Ga. 635, 642 (5) (814 SE2d

401) (2018). “But where prejudice is clearly lacking, we will not

reverse a conviction, even if the other factors favor the defendant.”

Id. This requires a showing that the post-conviction direct appeal

delay prejudiced “the ability of the defendant to assert his

arguments on appeal,” leading to “a reasonable probability that, but

for the delay, the result of the appeal would have been different.”

(Citations and punctuation omitted.) Id. Here, Clay has failed to

argue, let alone show, that a reasonable probability exists that he

would have prevailed on appeal but for the post-conviction delay.

Consequently, he cannot establish a due process violation.

Judgment affirmed. All the Justices concur. DECIDED AUGUST 24, 2020.

Murder. Gwinnett Superior Court. Before Judge Turner.

James Rashad Clay, pro se.

Daniel J. Porter, District Attorney, Lee F. Tittsworth, Samuel

R. d’Entremont, Daniel Sanmiguel, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Matthew B. Crowder, Assistant Attorney General,

for appellee.