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 equivocal 2
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.
The 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. State, 7
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
Nevertheless, 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 Foreman 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
In other cases they scrutinized the particular errors of counsel alleged and ruled on those which could be decided without the testimony of trial counsel. 15
We will consider each of the nine allegations accordingly.
(a) Trial counsel did not request a preliminary hearing and McClarity was indicted without one:
"[A] preliminary hearing is not a required step in a felony prosecution. . . ." 16
"[O]nce an indictment is obtained there is no judicial oversight or review of the decision to prosecute. . . ." 17
A conviction on direct appeal or on collateral attack will not be overturned because a commitment hearing was denied. 18
McClarity argues that counsel could have discovered more about the State's case through a preliminary hearing. We cannot determine, without trial counsel's testimony, whether the waiver was a trial tactic. 19
Assuming that McClarity's trial counsel was somehow
SE2d 178) (1991); see Smith v. State, 224 Ga. App. 819
, 820-821 (2) (481 SE2d 896
) (1997) (same); Wheeler v. State, 212 Ga. App. 638
, 639 (2) (442 SE2d 906
) (1994) ("because trial counsel did not testify, there has been no affirmative showing that the alleged deficiencies in performance were not examples of a trial strategy").
ineffective in waiving the commitment hearing, McClarity has shown no harm or prejudice resulting. 20
"[T]he alleged loss of discovery occasioned by the failure to conduct a commitment hearing is not a legally recognizable basis for reversal." 21
(b) Trial counsel did not file any discovery motions:
Discovery motions require acceding to reciprocal discovery 22
and thus constitute a tactical decision. 23
Absent trial counsel testimony to the contrary, the choice to forgo discovery is presumed strategic. 24
(c) Trial counsel made no requests for informal discovery:
The record shows that, at the least, counsel asked the State's attorney several questions about the file and watched the videotape before trial. Absent counsel's testimony, we cannot evaluate informal discovery measures he may have pursued or omitted in investigation of the case. 25
(d) Trial counsel failed to file discovery motions to ascertain the identity of a confidential informant:
In addition to the reasons explained in subdivision (b), this assertion fails because such motions would likely have been unsuccessful. Whether to require the disclosure of the identity of a confidential informant depends on the results of a delicate test which balances the need for the State to preserve the flow of information from informants and the right of the defendant to a full and fair opportunity to defend himself. 26
Considering circumstances similar to those of this case, including the decision of defendant not to testify, Bannister v. State 27
held the scales tipped toward not requiring the disclosure of the informant's identity. Although the final factor tipping the scales in Bannister was an admission by the defendant as to
hearing may be a trial tactic).
the unavailability of the informant, here the key factor would be the objective videotape of the transaction, which diminishes a need for the informant to amplify or refute the testimony of the officer and the defendant.
Even if the informant had been identified, "defendant's argument concerning whether trial counsel would have called the witness to testify at trial is mere conjecture." 28
(e) Trial Counsel failed to object to McClarity's absence at the similar transaction hearing:
Defendant's failure to object to the similar transaction evidence at trial moots this complaint. See Division 4.
(f) Trial counsel failed to request a continuance after learning on the morning of trial that a videotape of the incident would be introduced:
Whether or not to seek a continuance is a classic example of a trial stratagem that, absent testimony to the contrary, cannot serve as the basis for an ineffective assistance claim. 29
(g) Trial counsel failed to submit jury charges regarding the limited scope of admission of similar transactions:
Trial counsel stated at trial that he had jury charges prepared but chose not to submit them because the pattern charges would cover the essential points. Before the State introduced each similar transaction, the court correctly charged the jury regarding its limited purpose. During the final jury charge, the court reinforced the instruction. At defendant's request the court brought the jury back and charged them yet again on this matter to rectify a mistake in the final charge. Defendant made no other objections to the charge and reserved no objections. 30
In sum, McClarity has not shown "that the failure to request specific charges prejudiced his defense." 31
(h) Trial counsel failed to object to testimony regarding identification of McClarity in a video shown to the jury; and
(i) Trial counsel failed to object to testimony offered by the witnesses to the two similar transactions:
Having carefully reviewed the record, we cannot say the trial court's effective assistance findings are clearly erroneous, particularly in light of trial counsel's strong arguments, pointed cross-examinations, and various objections. 33
"Moreover, considering the videotape evidence and the testimony of the officer, it is unlikely any of these alleged errors altered the outcome of this trial." 34
4. Next, McClarity contends he was denied the right to be present at the pretrial similar transaction hearing and is entitled to a new trial under McGinnis v. State. 35
McGinnis held that "it constitutes prejudicial error to conduct an evidentiary suppression hearing in the defendant's absence. . . . The defendant . . . can waive his right to be present at a suppression hearing and that right can be waived by the defendant's counsel if the waiver is made in defendant's presence, or with the defendant's express authority, or if the defendant subsequently acquiesces to the waiver made by counsel." 36
McClarity was not present at the similar transaction hearing, and nothing indicates a waiver. He testified he knew nothing of the hearing until the day of trial. At the hearing the prosecuting attorney stated in her place what the similar transaction evidence would be. Because no witnesses testified, the Court held this was not an evidentiary hearing and thus McClarity had no right to be there.
Per USCR 31.3 (B), "[t]he judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request" to present similar transaction evidence. "A hearing in which the State relies upon the statements of the prosecuting attorney to make the required showing for the admissibility of similar transaction evidence is sufficient to satisfy the requirements of [USCR] 31.3 (B). [Cit.]" 37
Some cases differentiate a hearing in which the prosecutor simply states the evidence in her place from an evidentiary hearing.
"[USCR] 31.3 clearly grants the trial court the discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to a hearing, nor any mandatory obligation to produce testimonial evidence. The statement in place as to what was expected to be shown revealed facts so as to constitute sufficient similarity . . . between the prior acts and the offenses on trial to permit the admission of such evidence." 38
Other cases imply that the prosecutor's "stating in her place" is evidence itself. 39
Harris v. State 40
reconciled these two concepts by referring to a testimonial hearing as a "full evidentiary hearing" compared to a hearing where the prosecutor is merely "stating in his place the nature of the evidence to be given regarding the similar transaction." 41
Conceding that the rules give no right to an " evidentiary hearing," Grogan v. State 42
observed: "It is difficult to contemplate what would ordinarily be heard at such a hearing, if not the similarity of the other 'transaction,' which is by nature an evidentiary matter."
Flowers v. State 43
concluded that "[b]ecause a similar transactions hearing may be evidentiary, [defendant's] presence will be required, unless [defendant] himself expressly waives his presence at the hearing. [Cit.]" McGinnis referred to defendant's required presence at "other proceedings involving evidentiary questions." 44
Because the similar transactions hearing is by nature an evidentiary matter or at least involves an evidentiary question, even if the prosecutor only states the evidence in her place, a defendant's presence is required unless he expressly waives this right.
We need not remand this case to the trial court for another hearing on the admissibility of the similar transactions. 45
McClarity did not object to the introduction of the two similar transactions at trial, and on appeal McClarity did not even enumerate as error the admission of one of the transactions. Because McClarity waived his right to object to the similar transaction evidence, a hearing would be futile.
POPE, Presiding Judge, concurring specially.
I agree with the opinion in full and with the majority's conclusion in Division 2 that McClarity waived his objection to the similar transaction evidence by failing to object to the evidence at trial. McClarity did not file a motion in limine regarding the prior transactions, but merely objected at the hearing on the State's motion to introduce evidence of similar transactions. Given these circumstances, the argument here was waived. See Sapeu v. State, 222 Ga. App. 509
, 510 (4) (474 SE2d 703
Despite my agreement that McClarity waived his objection, I concur specially with the opinion because of an important fact which is omitted from the majority's discussion in Division 2. That fact is that the December 1988 similar transaction evidence which McClarity claims was improperly admitted was properly before the jury. Thus, regardless of the lack of an objection, McClarity's argument that the evidence was erroneously admitted is meritless. McClarity was on trial for selling cocaine in 1996 to an undercover police officer in a certain area of Cedartown. Evidence regarding the prior act showed that eight years earlier McClarity was driving a vehicle in the same geographical area and that police searched his vehicle and found 30 grams of cocaine on the person of the passenger in McClarity's vehicle. The witness who had conducted the 1988 search testified that the search was conducted after the police received information that McClarity would be in the area after leaving a local motel. After a jury trial, McClarity was convicted of trafficking in cocaine. The court's finding that there was sufficient similarity between the crimes was proper. See Tate v. State, 230 Ga. App. 186
, 187 (2) (495 SE2d 658
) (1998); Collins v. State, 205 Ga. App. 341
, 343 (2) (422 SE2d 56
Gerry E. Holmes, for appellant.