McClarity v. State

506 S.E.2d 392, 234 Ga. App. 348
CourtCourt of Appeals of Georgia
DecidedAugust 24, 1998
DocketA98A0875
StatusPublished
Cited by55 cases

This text of 506 S.E.2d 392 (McClarity 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
McClarity v. State, 506 S.E.2d 392, 234 Ga. App. 348 (Ga. Ct. App. 1998).

Opinions

Beasley, Judge.

Based on a transaction recorded on videotape in the presence of a confidential informant, Mallory Dion McClarity was convicted of violating the Georgia Controlled Substances Act (OCGA § 16-13-30 (b)) for selling cocaine to an undercover police officer. He enumerates as error (i) the court’s refusal to appoint new counsel or allow him to proceed pro se, (ii) ineffective assistance of trial counsel (related to the first enumeration), (iii) the admission of a 1988 transaction as similar, and (iv) the denial of his right to be present at the pretrial “similar transaction” hearing.

1. “Both the federal and state constitutions guarantee a criminal defendant the right to self-representation. An unequivocal assertion of the right to represent oneself, made prior to trial, should be followed by a hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.”1 If the request is equivocal2 or comes after the jury is impaneled,3 there is no reversible error in requiring the defendant to proceed with counsel.4

McClarity asserts he twice requested to proceed pro se. The first instance was some months prior to trial when he personally submitted five pretrial motions to the court and requested the opportunity to pursue these motions pro se because of a lack of funds to finance his attorney doing so. He emphasized that he also wished to continue to be represented by counsel due to the complexity of the legal issues. The court responded by forwarding the motions to McClarity’s attorney and stating it would not entertain motions from McClarity personally unless it ruled he could proceed pro se. If McClarity wanted to proceed pro se, he would have to ask that counsel be dismissed. [349]*349The court directed the attorney to communicate with McClarity and directed both to write to the court about the status of the legal representation. Neither did so, leaving counsel in the case.

The second instance occurred after the jury had been impaneled. McClarity asked that the jury be dismissed because he wanted to select new counsel. He indicated he was having problems communicating with present counsel. The court found no reason to dismiss the jury and directed McClarity to discuss the communication problem with his attorney over lunch. Following lunch, McClarity identified a minor problem with his attorney but did not ask that he be dismissed. Throughout the trial, the court repeatedly asked McClarity whether he was satisfied with his attorney’s representation. He responded affirmatively and did not request to proceed pro se. No error is indicated.

2. Although two similar transactions were introduced, McClarity identifies only one as erroneously admitted. In a pretrial hearing held pursuant to Uniform Superior Court Rule 31.3 (B), the prosecuting attorney stated a witness would testify that in 1988 police found a large amount of cocaine and related drug trafficking paraphernalia in McClarity’s vehicle. McClarity’s counsel argued the transaction was remote and dissimilar. The court found there was sufficient similarity and held it could be admitted to show scheme, bent of mind, intent, and course of conduct. No objection was raised when the State introduced the evidence at trial.

Even though a defendant challenges similarity at the pretrial hearing, he waives this ground by failing to assert it when the evidence is introduced at trial.5 But if a pretrial motion in limine is denied, the losing party need not renew his objection when the evidence is introduced at trial in order to preserve the issue.6

Cases requiring the renewal of the objection at trial rely on Hunter v. State7 which held only that a lack of similarity argument was not preserved by other objections at the pretrial similar transaction hearing, which objections were simply renewed at trial.8 Never[350]*350theless, the rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.9 Consequently, McClarity’s failure to object to the similar transaction evidence at trial waived further review of the issue.

3. Citing nine errors by trial counsel, McClarity contends he was denied effective assistance in violation of the Sixth Amendment. “In analyzing a claim of ineffective assistance of counsel, ... a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. A defendant must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.”10

Particularly important in this case is that the burden for proving ineffective assistance rests on the defendant, for McClarity and post-trial counsel chose not to subpoena trial counsel to testify at the motion for new trial hearing. In arguing that the trial court erred in rejecting his claim, McClarity ironically emphasizes in his appellate brief: “What is absent from the record is an explanation by trial counsel as to how such failure to consult was strategic and why trial counsel did not file the same motions defendant filed pro se or why he did not just have defendant’s pro se motions set for hearing. Further, since there is no testimony by trial counsel in the record explaining how his actions or inactions were calculated to be tactical or strategic there is no legal basis for any finding that the numerous deficiencies were trial tactics or strategy. The state has, in effect, conceded that it cannot defend its conviction by not offering the testimony of trial counsel. . . .”

McClarity misapprehends the burden of proof. “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.”11 As in [351]*351Foreman v. State,12 “[d]efendant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, defendant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. . . . The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.” “In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy.”13

In some cases, Georgia appellate courts declined to even address the merits of an ineffective assistance claim where trial counsel did not testify at the motion for new trial hearing.14

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Bluebook (online)
506 S.E.2d 392, 234 Ga. App. 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclarity-v-state-gactapp-1998.