Mallard v. State

531 S.E.2d 196, 242 Ga. App. 774, 2000 Fulton County D. Rep. 1487, 2000 Ga. App. LEXIS 338
CourtCourt of Appeals of Georgia
DecidedMarch 14, 2000
DocketA00A0682
StatusPublished
Cited by1 cases

This text of 531 S.E.2d 196 (Mallard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mallard v. State, 531 S.E.2d 196, 242 Ga. App. 774, 2000 Fulton County D. Rep. 1487, 2000 Ga. App. LEXIS 338 (Ga. Ct. App. 2000).

Opinion

Eldridge, Judge.

A Taylor County jury found Alvin Mallard guilty of burglary committed with the intent to commit a theft; a second, separate burglary committed with the intent to commit a rape; aggravated assault; and rape. On appeal, Mallard raises two claims of error that, upon review, we find to be without merit. Accordingly, we affirm [775]*775Mallard’s convictions.

1. Mallard first challenges the sufficiency of the evidence regarding his conviction for burglary with intent to commit a theft.

Here, the victim of the burglary with intent to commit a theft is the daughter of the 80-year-old victim of the other, previously committed burglary with intent to commit a rape (for which offense Mallard was also convicted but does not challenge herein). The evidence shows that during the earlier burglary, aggravated assault, and rape of the mother, Mallard asked the mother where her daughter was. The next day, entry was made into the daughter’s apartment in the same fashion as the entry into the mother’s apartment, i.e., through the window over the kitchen sink. The back screen doors in both the mother’s and the daughter’s apartments were cut in the same place, i.e., near the latch, as if someone had attempted to open the inside latch from outside the screen. Further, although nothing was taken, the daughter had money hidden in a closet, and it appeared to the daughter that items in her home might have been “rearranged.” Pursuant to investigation, officers removed the glass from the broken kitchen window in the daughter’s apartment and had it tested for fingerprints; Mallard’s prints were found on the outside and the inside of the glass. When questioned about the burglary of the daughter’s home, Mallard claimed that on June 18, 1997 — at approximately 9:00 p.m. — he may have been near the daughter’s apartment and may have touched the broken window. However, the glass with Mallard’s prints had been removed by the police at noon on June 18, 1997. The daughter testified that Mallard did not have permission to enter her apartment.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and Mallard no longer enjoys a presumption of innocence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

[MJoreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [supra], ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847) (1996). With regard to the offense of burglary,

[w]hether appellant entered the [daughter’s apartment] [776]*776with intent to commit theft was a matter for the factfinder to decide based on the facts and circumstances proven at trial. The presence of valuables inside the premises can support an inference of intent to steal, particularly when no other motive is apparent.

(Citations omitted.) Harris v. State, 222 Ga. App. 56, 58 (473 SE2d 229) (1996). See also Knight v. State, 237 Ga. App. 669, 670 (516 SE2d 532) (1999); Vinson v. State, 190 Ga. App. 676 (1) (379 SE2d 792) (1989); Carroll v. State, 185 Ga. App. 857, 859 (2) (366 SE2d 232) (1988).

In this case, Mallard’s prints were on the outside and the inside of the victim’s kitchen window pane. This evidence supports the inference that Mallard “ ‘broke the plane of the structure’ ” and demonstrates an “entry.” Mullinnix v. State, 177 Ga. App. 168, 169 (338 SE2d 752) (1985); Hayes v. State, 193 Ga. App. 33, 35 (4) (387 SE2d 139) (1989). Further, Mallard’s point of entry in the earlier, completed, uncontested burglary of the mother’s home was consistent with the point of entry into the daughter’s home; the evidence showed that the residence contained items of value, including money hidden in a closet; the daughter’s home appeared “rearranged”; and when confronted about the burglary of the daughter’s home, Mallard fabricated a story about his touching a broken window pane that had, in fact, been removed some nine hours earlier. Accordingly, the evidence was sufficient for a rational trier of fact to have found Mallard guilty beyond a reasonable doubt of burglary with intent to commit a theft. Jackson v. Virginia, supra; Mullinnix v. State, supra; Turner v. State, 151 Ga. App. 169, 170 (259 SE2d 171) (1979).

2. Mallard also contends that his trial counsel was constitutionally deficient for failing to request and receive expert assistance with the State’s DNA evidence, failing to move to independently test the DNA evidence, and failing to object to the admissibility of the DNA evidence.

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be [777]*777considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

(Citations and punctuation omitted.) Gomillion v. State, 236 Ga. App. 14, 16 (3) (512 SE2d 640) (1999).

In this case, the 80-year-old victim of the earlier burglary, aggravated assault, and rape could not see. Both prior to and during trial, she did not identify Mallard as the perpetrator of the offenses against her. The State’s primary evidence of identity consisted of (1) Mallard’s admission that he was near the victim’s apartment at the time the victim was raped, and (2) the clothes Mallard admitted he was wearing during the same time period that the victim was raped. The clothes had bloodstains on them, and DNA testing at the Georgia Bureau of Investigation Crime Laboratory (“GBI Crime Lab”) showed the blood on Mallard’s clothes matched the victim’s blood.1

At the motion for new trial hearing, Mallard’s trial attorney testified that he immediately recognized the importance of the DNA evidence and, thus, pursuant to motions filed, he obtained funds for expert assistance in preparing to challenge the DNA evidence at trial. In that regard, defense counsel employed Cellmark Diagnostics to review the State’s DNA evidence, and he relied upon their expertise to determine if further testing and analysis would prove helpful to the defense:

[Defense counsel:] On October 28th, I talked with a Ms. Cotton with Cellmark. ...

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Related

Villegas v. State
584 S.E.2d 666 (Court of Appeals of Georgia, 2003)

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Bluebook (online)
531 S.E.2d 196, 242 Ga. App. 774, 2000 Fulton County D. Rep. 1487, 2000 Ga. App. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallard-v-state-gactapp-2000.