NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: June 10, 2025
S25A0111. CLARK v. THE STATE.
BETHEL, Justice.
A jury found Dereckson Clark guilty of malice murder and
other crimes in connection with the shooting death of Alton Cotton.1
On appeal, Clark argues that the trial court erred in two respects
and that trial counsel rendered constitutionally ineffective
1 The crimes occurred on February 22, 2020. In November 2020, a Peach
County grand jury indicted Clark for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony. At a June 2021 jury trial, Clark was found guilty of all counts. The trial court sentenced Clark to serve life in prison with the possibility of parole for
malice murder and a consecutive term of five years for possession of a firearm
during the commission of a felony. The remaining counts merged or were
vacated by operation of law. Clark timely filed a motion for new trial, which he
amended through new counsel. Following a hearing, the trial court denied
Clark’s motion, as amended, on February 1, 2023. On February 28, 2023,
Clark, while represented by counsel, timely filed a pro se notice of appeal.
following further proceedings in the trial court, which we detail in Division 1
below, current appellate counsel filed a notice of substitution of counsel on May
16, 2024, and the record was transmitted to this Court in August 2024. The
case was docketed to this Court’s term beginning in December 2024 and
submitted for a decision on the briefs.
assistance. For the reasons that follow, we affirm.
The evidence at trial showed that, on the afternoon of the
crimes, Clark and Cotton became involved in a verbal altercation.
The altercation took place outdoors and was observed by numerous
witnesses. Several onlookers encouraged Clark to walk away from
the dispute and go about his business. Instead, Clark returned to his
car, retrieved a revolver, and walked back toward Cotton. When
Clark reached Cotton, he told Cotton, “I’m tired of you f**king with
me,” then aimed the revolver at Cotton’s head and shot him. Clark
then left the scene. Cotton died as a result of the gunshot wound to
his head, and the autopsy revealed that the gun was fired from
within one or two inches of his head. Responding officers did not
locate a weapon of any kind near Cotton, and none of the bystanders
reported that Cotton had a weapon. Testimony at trial established
that Cotton did not threaten Clark, nor did Cotton have anything in
his hands before Clark shot him.
Clark filed a motion for pretrial immunity based on selfdefense, which the trial court denied after an evidentiary hearing.
2
Clark testified in his own defense at trial, claiming that, after Cotton
threw a rock at him, he armed himself in self-defense and that the
gun accidentally fired. At trial, Clark acknowledged his prior
testimony at the pretrial immunity hearing that he thought, if he
showed Cotton his gun, “I knew he would leave me alone. I thought
maybe he would leave me alone permanently, you know, just leave
me alone. Just cut loose, period. Get – just get over it.” Clark also
admitted that he had testified that Cotton “wasn’t threatening me,
but he was just cursing at me.”
1. Before reaching Clark’s enumerations of error, we address
an issue with the notice of appeal in this case. See Kelly v. State, 311
Ga. 827, 828 (860 SE2d 740) (2021) (“It is the duty of this Court to
inquire into its jurisdiction in any case in which there may be a
doubt about the existence of such jurisdiction. The proper and timely
filing of the notice of appeal is an absolute requirement to confer
jurisdiction upon the appellate court.” (cleaned up)). As noted in
footnote 1, Clark was represented by counsel at the motion-for-newtrial stage. For reasons not apparent from the record, counsel
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neglected to file a notice of appeal following entry of the order
denying the motion for new trial on February 1, 2023, though there
is no indication that counsel formally withdrew from his
representation of Clark. On February 28, 2023, Clark filed in the
trial court a timely pro se notice of appeal in which he also asked
that appellate counsel be appointed to represent him. Following a
hearing, the trial court entered an order finding that Clark “was
diligent in acting on his own behalf to file his timely Notice of Appeal
when his counsel failed to do so” and that his pro se notice of appeal
should be recognized “as a cognizant filing for the limited purpose of
preserving [Clark’s] right to pursue” an appeal. The court further
found that Clark had neither waived his right to counsel nor
asserted his right to self-representation.
When a defendant makes a timely and otherwise procedurally
proper pro se filing while still formally represented by counsel, a
question arises whether the court should exercise its discretion to
recognize the validity of that filing. See Johnson v. State, 315 Ga.
876, 890 (4) (885 SE2d 725) (2023) (holding that a pro se filing by a
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counseled defendant is not per se a legal nullity and that “a court
has the discretion to recognize a timely and otherwise procedurally
proper pro se filing made by a defendant who is still formally
represented by counsel”). “[T]he decision whether to recognize a pro
se notice of appeal remains one for appellate courts to make.” Id. at
877, 891 (4) n.15 (instructing that “when a court chooses to recognize
such a filing . . . it should make that exercise of discretion clear on
the record”). And we are aided in that task here by the trial court’s
careful attention to preparing a record on this issue. On this record
and with the benefit of the trial court’s findings, we exercise our
discretion to recognize Clark’s timely notice of appeal and proceed
to address the merits of his appeal. See id. at 890-891 (4) (observing
that exercising discretion to recognize “a pro se filing [that] would
preserve a right of appeal that would otherwise be lost through no
fault of the defendant . . . seem[s] to us squarely in the furtherance
of justice” (citation and punctuation omitted)).
2. Turning to his first claim of error, Clark asserts that the trial
court erred by instructing the jury about the grand jury process.
5
Specifically, as part of the preliminary jury instructions, the trial
court noted that “[t]he State cannot bring a person accused of a
felony to trial unless the grand jury has first indicted that person.
Grand [j]urors do not try criminal cases. They ordinarily only hear
from witnesses for the State.” Clark did not object to this instruction
at trial, so this claim may be reviewed only for plain error. See State
v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011); OCGA § 17-8-57
(b). To show plain error, Clark “must demonstrate that the
instructional error was not affirmatively waived, was obvious
beyond reasonable dispute, likely affected the outcome of the
proceedings, and seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Hill v. State, 310 Ga. 180, 194
(11) (a) (850 SE2d 110) (2020) (citation and punctuation omitted).
“To constitute plain error, an error in a jury instruction must have
been obvious, among other things.” Harris v. State, 313 Ga. 872, 879
(3) (874 SE2d 73) (2022).
In Clark’s estimation, the challenged instruction was
erroneous because the jury might have misunderstood it to mean
6
that a different jury had already heard the evidence against Clark
and found him guilty of the charged crimes, and he asserts that the
trial court should have instructed the trial jury about the lower
standard of proof required for indictment. But Clark points to no
precedent holding that it is error to instruct the trial jury about the
grand jury process or detailing the level of specificity necessary for
such an instruction. Indeed, the only two cases Clark cites in support
of this claim held that no error existed where the trial court
instructed the trial jury about the grand jury process and, as the
court did in this case,2 also instructed the jury about the
2 The challenged instruction came in the context of the following
instructions:
[W]e sort of take things for granted that people understand
legal proceedings and they don’t necessarily. So I’d like to give you
just a little background information.
A crime is a violation of a statute of this State in which there
shall be a union of — or joint operation of an act and intention.
That is, a crime is committed when a person violates a statute of
this State, which is to say a law of this State, by acting as
prohibited, while at the same time he has a criminal intention, and
no other defense excuses the conduct. A person will not be
presumed to act with criminal intention. However, the jury may
find such intention upon consideration of the words, conduct,
demeanor, motive, and all other circumstances connected with the
act for which the accused is prosecuted.
7
presumption of innocence and the State’s burden of proof. See
Shadron v. State, 275 Ga. 767, 769-770 (3) (573 SE2d 73) (2002) (no
reversible error where instruction about grand jury process did not
mislead the jury about “the State’s burden of proof at any stage of
the proceeding and . . . did not diminish the presumption of
innocence” when viewed in context of entire jury charge); Bostic v.
State, 184 Ga. App. 509, 510 (3) (361 SE2d 872) (1987) (no reversible
error where trial court’s instruction, viewed as a whole, “was a
correct statement of the function of the grand jury, was not
misleading, and did not shift the burden of proof”). And because “[a]n
error cannot be plain where there is no controlling authority on
The State cannot bring a person accused of a felony to trial
unless the grand jury has first indicted that person. Grand Jurors
do not try criminal cases. They ordinarily only hear from witnesses
for the State.
When a criminal case is tried, the Defendant has pled not
guilty to the Indictment. This plea of not guilty denies every
essential allegation of the Indictment and forms the issue or
question that you, as a trial jury, will decide. The Indictment and
the plea of not guilty to it are not evidence and you should not
consider them as evidence. Every person is presumed innocent
until proved guilty. No person shall be convicted of a crime unless
each element of the crime is proved beyond a reasonable doubt.
The State has the burden to prove each essential element of each
crime charged beyond a reasonable doubt.
8
point,” Clark’s claim fails at the second step of plain-error review.
Hill, 310 Ga. at 194 (11) (a) (citation and punctuation omitted). See
also Payne v. State, 314 Ga. 322, 325 (1) (877 SE2d 202) (2022) (“[We
do] not have to analyze all elements of the plain-error test where an
appellant fails to establish one of them.”).
3. Clark next argues that the trial court erred by sustaining
the State’s hearsay objection to Clark’s reading into evidence his
testimony from the pretrial immunity hearing. Specifically, the
prosecutor cross-examined Clark about certain aspects of his
testimony at the immunity hearing and read portions of that prior
testimony into the record. On redirect, Clark’s counsel asked Clark
to read into the record additional portions of his prior testimony. The
State objected on hearsay grounds, and the trial court sustained the
objection, indicating that Clark could not simply read his prior
testimony into the record. On appeal, Clark asserts that this was
error because, he says, the prior testimony was admissible as a prior
consistent statement. The State argues that Clark did not preserve
this argument for ordinary appellate review because he made no
9
express argument at trial that the prior testimony was admissible
as a prior consistent statement.3 But even assuming that Clark did
preserve this claim and that the trial court erred, we conclude that
any such error was harmless and does not warrant reversal.
3 In determining the appropriate standard of review for a claim of
evidentiary error, we have explained that “[w]here an appellant challenges the
admission of evidence, we are concerned with the sufficiency of the appellant’s
objection,” but “where the appellant challenges the exclusion of evidence, we
are concerned with the sufficiency of the showing that the appellant, as
proponent of the evidence, made at trial.” Williams v. State, 302 Ga. 147, 151
(2) (805 SE2d 873) (2017). “[T]o preserve an objection to the exclusion of
evidence, the proponent must either make an offer of proof or otherwise ensure
that the reason for offering the evidence in question [is] apparent to the trial
court.” McGarity v. State, 311 Ga. 158, 162 (2) (856 SE2d 241) (2021) (citation
and punctuation omitted; emphasis in original). And where a defendant
advances on appeal a different theory of admissibility than he argued at trial,
the claim is not preserved for ordinary appellate review. See Smith v. State,
309 Ga. 240, 250 (3) (845 SE2d 598) (2020) (where trial court excluded
testimony as hearsay, claim that testimony was admissible as a prior
consistent statement under OCGA §§ 24-6-613 (c) and 24-8-801 (d) (1) (A) was
not preserved for ordinary appellate review because appellant argued in trial
court only that testimony was admissible under OCGA §§ 24-8-803 (4) and 24-7-703). See also Williams, 302 Ga. at 151 (2); Lupoe v. State, 300 Ga. 233, 247
(11) (794 SE2d 67) (2016).
Here, the State is correct that the record does not reflect that Clark
expressly argued at trial that his testimony from the immunity hearing was
admissible as a prior consistent statement. Rather, the extent of Clark’s
response to the State’s hearsay objection was a comment that the prosecutor
“used [the prior testimony] as a prior inconsistent statement, with only reading
half of Mr. Clark’s response.” It is not readily apparent that this argument was
sufficient to apprise the trial court that Clark sought to admit the testimony
as a prior consistent statement and thereby preserve this claim for ordinary
appellate review. And we express no opinion on that question. We do not
resolve that issue because Clark’s argument fails even under ordinary review.
10
“We review a trial court’s evidentiary rulings under an abuse
of discretion standard of review. And even where an abuse of
discretion is shown, there are no grounds for reversal if the error did
not affect a substantial right, and thus harm, the defendant.”
Neuman v. State, 311 Ga. 83, 91 (4) (a) (i) (856 SE2d 289) (2021)
(citation and punctuation omitted). Here, the record reflects that,
though Clark was prohibited from reading his prior testimony from
the transcript of the pretrial hearing, his trial counsel elicited the
same testimony from Clark without use of the transcript —
specifically, testimony that Clark retrieved his gun from his car
after Cotton threatened him with a rock — as well as testimony that
Clark previously testified to that effect at the pretrial hearing. As
such, Clark’s reading for the jury his prior testimony would have
been “essentially cumulative, and it is highly unlikely that such
additional evidence would have had any effect on the verdict.” Cook
v. State, 312 Ga. 299, 302 (2) (862 SE2d 510) (2021) (any error in
excluding testimony about acts of violence committed by victim
against third parties was harmless because other evidence
11
established that victim had reputation for violence, was known to
carry a gun, and previously assaulted appellant and, thus, excluded
testimony was “essentially cumulative”); Walker v. State, 306 Ga.
44, 47 (2) (829 SE2d 121) (2019) (any error in excluding testimony
that appellant said victim tried to kill him was cumulative and
harmless because appellant testified that he acted in self-defense
and responding officer testified that appellant claimed victim had
shot him). Moreover, the evidence of Clark’s guilt was
overwhelming, and eyewitness testimony established that Clark
shot the unarmed victim after a verbal dispute and then fled the
scene, not that he acted in self-defense. See id. (where evidence of
guilt is “overwhelming,” erroneous exclusion of evidence is
harmless). Accordingly, any error by the trial court in limiting
Clark’s testimony was harmless, and this claim fails.
4. Finally, Clark asserts that trial counsel rendered
constitutionally ineffective assistance by failing to request an
inquiry into whether a juror should have been replaced with an
alternate. Specifically, he points to a juror who, according to the trial
12
court, “had an issue with urinary urgency” and twice left the
courtroom during the presentation of evidence to relieve himself,
with the trial court pausing the presentation of evidence in the
juror’s absence on both occasions. To prevail on a claim of ineffective
assistance, an appellant bears the burden of showing both that trial
counsel’s performance was professionally deficient and that he was
prejudiced as a result of that deficient performance. See Strickland
v. Washington, 466 U. S. 668, 695 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To show deficient performance, an appellant “must overcome
the strong presumption that counsel’s performance fell within a
wide range of reasonable professional conduct and that counsel’s
decisions were made in the exercise of reasonable professional
judgment.” Lockhart v. State, 298 Ga. 384, 385 (2) (782 SE2d 245)
(2016) (citation and punctuation omitted). And to show prejudice, an
appellant “must show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Simpson v. State, 298 Ga. 314, 318 (4) (781 SE2d 762)
(2016) (citation and punctuation omitted). Clark has not met this
13
burden.
It is well settled that “juror selection is a matter of trial tactics
and strategy,” and “a decision implicating trial tactics and strategy
can serve as the basis for an ineffectiveness claim only if it is so
patently unreasonable that no competent attorney would have made
such a decision.” Capps v. State, 300 Ga. 6, 12-13 (2) (e) (792 SE2d
665) (2016) (citation omitted). Here, Clark rests his claim of
ineffectiveness on speculation that other jurors may have been
distracted by the interruption when the juror at issue exited the
courtroom and that the juror may have needed an opportunity to
rehear missed testimony, which, he says, could have served as
reasons for the juror’s removal such that trial counsel should have
inquired into the issue. But at the motion for new trial hearing, trial
counsel testified that she did not view the juror’s “bladder control
issues” and need for “more frequent breaks” “as a reason to ask for
an alternate to be sat.” She explained, “[the juror] had a medical
condition and we were accommodating that” by pausing the
presentation of evidence when the juror needed a break, as the trial
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transcript reflects. Counsel insisted that she “didn’t feel that it was
necessary” to seat an alternate juror and rejected the notion that the
juror’s bathroom breaks were disruptive to the other jurors. Counsel
also affirmed that she wanted this particular juror on the jury.
In the order denying Clark’s motion for new trial, the trial
court expressly credited counsel’s testimony — a determination that
Clark does not challenge as clearly erroneous. See Lockhart, 298 Ga.
at 385 (2) (“We accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.” (citation and
punctuation omitted)). Thus, the record shows that trial counsel
considered and rejected both reasons advanced by Clark as a basis
for the juror’s removal, and Clark makes no effort to demonstrate
that counsel’s strategic decision not to seek the juror’s removal was
otherwise unreasonable. See Parker v. State, 305 Ga. 136, 142-143
(4) (b) (823 SE2d 313) (2019) (rejecting claim of ineffective assistance
of counsel based on counsel’s failure to strike a prospective juror
where counsel articulated a strategic reason to include the
15
prospective juror on the jury and appellant failed to show that
counsel’s strategy was unreasonable). As such, Clark has failed to
meet his burden of showing that no reasonable counsel would have
made that strategic decision, and his ineffective assistance claim
fails. See Bradley v. State, 318 Ga. 142, 144 (2) (897 SE2d 428) (2024)
(“The failure to demonstrate either deficient performance or
resulting prejudice is fatal to a claim of ineffective assistance of
counsel and obviates the need even to consider the other.”).
Judgment affirmed. Peterson, CJ, Warren, PJ, and Ellington,
McMillian, LaGrua, Colvin, and Pinson, JJ, concur.
16