McClain v. State

• Decision Date: 12 November 1996
• Docket Number: No. S96P1266,S96P1266
• Parties: , 96 FCDR 3982 McCLAIN v. The STATE.
• Court: Georgia Supreme Court

Page 814

477 S.E.2d 814

267 Ga. 378, 96 FCDR 3982

McCLAIN v. The STATE.

No. S96P1266.

Supreme Court of Georgia.

Nov. 12, 1996.

Reconsideration Denied Dec. 6, 1996.

Michael C. Garrett, Melissa Suzanne Padgett, Garrett & Gilliard, P.C., Augusta, for McClain.

Daniel J. Craig, Dist. Atty., Michael J. Bowers, Atty. Gen., Paige Reese Whitaker, Asst. Atty. Gen., Atlanta, for State.

Joseph L. Chambers, Sr., Prosecuting Attorneys Counsel, Smyrna, Patsy Morris, Atlanta, Michael Mears, MultiCounty Public Defender, Atlanta, for other interested parties.

SEARS, Justice.

The appellant, Mark Howard McClain, shot and killed Kevin Scott Brown during an armed robbery of a Domino's Pizza store in Augusta. ¹ The jury sentenced McClain to death for murder, finding the following statutory aggravating circumstances: The murder was committed while the offender was engaged in the commission of a burglary; the murder was committed while the offender was engaged in the commission of an armed robbery; and the murder was committed for The state presented evidence that McClain picked up his girl friend, Tina Butler, around midnight on November 19, 1994, and drove to her apartment. They discussed their relationship over a few drinks, and Butler told McClain she needed money. An hour later, McClain left Butler's apartment, drove to the Domino's Pizza store on Washington Road and parked his blue Buick beside the building. Shortly before 2:00 a.m., Domino's delivery man, Phillip Weeks, returned from making his pizza deliveries. McClain approached Weeks as he was walking toward the store and asked to buy a pizza. Weeks told him the store was closed, but McClain became insistent and refused to leave. In an attempt to placate McClain, Weeks agreed to ask the manager, Kevin Brown, who was inside the store, to make an exception. Weeks began yelling to Brown from outside the store. Brown looked at Weeks, whose hand was on the door, and released the security lock. As the door opened, McClain attempted to force his way inside behind Weeks. Weeks sought to bar him from entering, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown, who weighed four hundred and fifty pounds and could not move quickly, remained standing behind the counter. As Weeks reached the door, he heard McClain order Brown to give him the money.

the purpose of receiving money or things of monetary value. ²

Weeks fled to a service center on Washington Road to call police, but the pay telephone was broken. Before crossing the road, Weeks looked around and saw a blue car pull out of the driveway leading to Domino's at high speed. Believing the driver of the car to be the perpetrator, Weeks ran back to the sidewalk. McClain saw Weeks and made an obscene gesture towards him with his middle finger as he drove by. Weeks ran into the road behind the car and memorized the car's tag number. Weeks flagged down a passing driver, who drove him back to the store. Brown, who had been shot, was lying behind the counter, barely alive. Brown's keys to the store's till, which he normally kept in his pocket, were in the till where the store's money was kept. There was evidence that just over one hundred dollars was missing from the store. By the time paramedics arrived, Brown had bled to death from a single gunshot wound to the chest.

McClain returned to Butler's house and gave her one hundred dollars without revealing its source. When McClain left Butler's residence the next afternoon, he drove Butler's car, leaving the Buick, the army jacket and boots he had worn during the robbery, and the gun he had used to shoot the victim at her house. Police traced the tag number of the Buick to McClain's father, whose description of his son matched Weeks' description of the perpetrator. The assistant manager at the Washington Road Domino's store identified McClain as having bought a pizza in the store two days before the shooting under the name of Johnson. The box with the receipt for that pizza was found in the trash during a search of McClain's residence.

The day after the shooting, McClain picked up the Buick at Butler's house. He was arrested when he arrived at work in the car the following morning. That evening, McClain called Butler from the jail and told her to dispose of the clothes and gun he had left at her house. He demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate her if she refused. Butler hid the jacket in a neighbor's shed and gave the gun to her nephew. The police questioned Butler on two occasions, and during the second interview, she told police about McClain's telephone call and gave police the jacket and boots. The gun was recovered a month later, when Butler's nephew was involved in a shooting. Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, where he testified that he intended only to rob the store, but heard a noise as he was leaving, and believing that Brown was pursuing him, McClain shot him.

The evidence is sufficient to enable a rational juror to find McClain guilty of the crimes charged beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. McClain's first four enumerations of error challenge the trial court's rulings with regard to the qualifications of four jurors during voir dire.

a. McClain argues that the trial court erred in relying on prospective juror William L. Platte's assurances that he could be impartial in denying McClain's motion to excuse this juror for cause because Platte's voir dire responses indicated that he was biased in favor of the state. Before a juror can be disqualified for cause, it must be shown that the juror has formed an opinion on the guilt or innocence of the accused which is "so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence." Garland v. State, 263 Ga. 495, 496, 435 S.E.2d 431 (1993); Johnson v. State, 262 Ga. 652, 653, 424 S.E.2d 271 (1993). However, a trial court may not rely solely on a prospective juror's assurances of his impartiality where the record shows on its face that the juror has a compelling bias or interest in the outcome of the case. Lively v. State, 262 Ga. 510, 511, 421 S.E.2d 528 (1992); Walker v. State, 262 Ga. 694, 696, 424 S.E.2d 782 (1993).

The record does not support McClain's assertion that Platte's responses revealed he was obviously biased. Unlike the prospective jurors in Lively and Walker, Platte did not have a close relationship with either of the parties or the victim. ³ Moreover, even though factual circumstances strongly in favor of disqualification were absent in Platte's case, the trial court did not rely solely on Platte's own opinion of his ability to be impartial in finding Platte qualified to serve as a juror. After questioning Platte, the trial court articulated reasons for its ruling, specifically addressing the relationship between Platte and the prosecutor, Platte's voir dire responses, and his demeanor. The trial court did not abuse its discretion in denying McClain's motion to disqualify Platte. Garland, 263 Ga. at 496, 435 S.E.2d 431.

b. McClain contends that the trial court erred in failing to remove prospective jurors Charles Penn and Robert Snyder for cause. Since Penn and Snyder qualified forty-third or later in the panel, the issue of whether they were qualified to serve as jurors is moot. Crowe v. State, 265 Ga. 582, 588-589, 458 S.E.2d 799 (1995); Hittson v. State, 264 Ga. 682, 449 S.E.2d 586 (1994); Pope v. State, 256 Ga. 195, 202, 345 S.E.2d 831 (1986).

c. McClain argues that the trial court erred in excusing prospective juror Louise Head, sua sponte, because her voir dire responses failed to meet the standard for dismissal under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The holding in Witt is irrelevant to the issue of whether Head's excusal was proper, since Head was excused for good cause under OCGA § 15-12-1 and not for her views on the death penalty. We reject McClain's implicit argument that OCGA § 15-12-1 does not apply in a death penalty case, and the court may only excuse a juror for a "legal reason."

Head testified that her responsibilities as publicity chairman for an upcoming fiftieth anniversary reunion of a worldwide organization might distract her from her duties as a juror and interfere with sequestration. The trial court did not abuse its broad discretion in excusing Head because of her age and responsibilities in preparing for what was "a one time only event." Blankenship v. State, 258 Ga. 43, 44, 365 S.E.2d 265 (1988). McClain's argument that the court acted in a discriminatory manner in excusing Head but failing to sua sponte excuse prospective juror Platte, because Platte was similarly situated, has no basis in fact or law.

2. McClain contends that the trial court erred in admitting testimony by a Richmond County deputy that McClain stated if he was convicted of Brown's murder he would rather be executed than return to jail. During the guilt phase of trial, Deputy Sheriff Ronnie Strength testified that in a follow-up interview several days after McClain was arrested, Strength informed McClain that police were aware of his incriminating telephone conversation with his girl friend, Tina Butler, in which McClain instructed Butler to dispose of the jacket and boots he wore on the night of the crime and the gun, which he had also left at Butler's house. Although McClain had previously denied any involvement in Brown's murder, after Strength showed him the jacket and boots, McClain stated that if he were found guilty of Brown's murder, he would rather die in the electric chair that day than return to prison. The trial court found McClain's statement to be voluntary and admissible following a Jackson v....