McCord v. State

• Decision Date: 04 March 2019
• Docket Number: S18A1045
• Court: Georgia Supreme Court
• Parties: MCCORD v. The STATE.

305 Ga. 318

825 S.E.2d 122

MCCORD

v.The STATE.

S18A1045

Supreme Court of Georgia.

Decided: March 4, 2019

Adam S. Levin, for Appellant.

Kenneth W. Mauldin, District Attorney, James V. Chafin, Danielle M. Fargione, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for Appellee.

ELLINGTON, Justice.

Following a bench trial, Clarence McCord was convicted of malice murder, feticide, and tampering with evidence in connection with the stabbing death of KeJuan Hall and her unborn child.¹ On appeal, he contends that his convictions should be reversed because the trial court erred in admitting into evidence witness statements in violation of the Confrontation Clause of the Sixth Amendment to the Constitution of the United States and Georgia's evidentiary rules concerning the admission of hearsay testimony. Finding no reversible error, we affirm.

Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On December 30, 2010, Hall was working at the Golden Pantry convenience store on Atlanta Highway in Athens. Shortly before 11:00 p.m., while she was in the back office of the store, Hall was stabbed 31 times—29 times with a bladed instrument and twice with a thin, cylindrical object, like an ice-pick—and died within minutes from blood loss. The attack also resulted in the death of Hall's unborn child. About 15 minutes after the attack, two store customers, Doni Carnes and Jeffrey Collins, discovered Hall's body and called the police.

When the police arrived at 11:15 p.m., Carnes and Collins were standing outside the store, waiting for them. Carnes told the police that he was the 911 caller. Carnes said that, when he arrived at the store, the lights at the gas pumps were off, but the store was open. He went inside, but he saw no employee. He used the restroom and then walked outside, where he met Collins. Carnes told the police that Collins told him that he had been to the store earlier, had seen a man and a woman in the store, had heard a "ruckus" in the back office, and that he thought something was wrong. Carnes said Collins walked to the back office of the store, where he found Hall's body. Collins ran back to Carnes, hysterical and shouting, "She's dead!"

Collins, who was upset and crying when the police arrived, told responding Officer Michael Poole that he had been in the store earlier that night, panhandling for money, cigarettes, and alcohol, and that Hall had been nice to him. He said that, during his previous visit to the store, he saw a man and woman with Hall and that the man was arguing with Hall. Collins said that the man gave him a pack of cigarettes and told him to go elsewhere for alcohol. Collins said that he saw Hall and the man go into the back office; moments later, he heard a loud banging. The woman told Collins that "they are either fighting or having sex." After the scene had been secured, Officer Gene Davis also spoke with Collins, who by this time had been seated in the back of a patrol car. Collins repeated his account of what he had seen and gave the officer the pack of cigarettes that the man had given him.

The State also presented three witnesses who each testified about what they observed at the Golden Pantry near the time of the murder. Around 11:00 p.m., a woman stopped at the store to buy a bottle of water. She spoke briefly with Hall and, on her way out, she saw a man and a woman "hanging out" by the soda fountain area of the store. They did not appear to be shopping. She described the couple to the police and identified McCord in court as the man she had seen. Another woman stopped by the store around the same time, but did not see the clerk. She noticed that the lights at the gas pumps were off. As she walked up to the store, a man stopped her, saying that the store was closed. He stood outside the store, watching her until she drove away. She later described the man to a police sketch artist, and that drawing was admitted in evidence. Finally, a man stopped by the store shortly before 11:00 p.m. and found that the gas pump lights had been turned off. He saw a man locking the store doors from the inside and a woman standing toward the back of the store near the office. The witness identified McCord in court as the man that he had seen.

The officers processing the crime scene collected blood-spatter evidence from several locations inside and outside the store. They recovered shoe prints from the office where the body was found and from behind the store's front counter. They also gathered fingerprints, a bloody vinyl glove, bloody wipes, a container of wipes, cigarette packs, a trash can liner, the victim's empty purse, and other items that they suspected had been touched by the killer. Police determined that the shoe print was made by a Reebok Rbk Flash Hexalite sole. The police were not able to recover any video surveillance from the store because the store's video recorder had been taken. Surveillance video from a nearby business was too low-resolution to show who had entered the store, but it did reveal that the store's gas pump lights were turned off at 10:52 p.m.

The day after Hall's murder, a detective formally interviewed Collins. The video-recorded statement was admitted for the court's consideration. During the interview, Collins contradicted many of the statements that he had made the night before, prompting the detective to comment sarcastically to a fellow officer during the interview that Collins "was going to be a great witness" and that he had "some issues."

On February 2, 2011, the police received a tip that led them to McCord and Shameeka Watson. McCord told the police that he had never been in the Golden Pantry where the murder occurred. As the police spoke with McCord, they noticed that he had cuts on his hands and was wearing Reebok shoes that appeared to have been painted black with a marker. Contending that they knew nothing about the murder, McCord and Watson allowed the police to take cheek swabs from them for DNA analysis.

A GBI forensic biologist, who analyzed McCord's DNA profile and compared it with DNA evidence extracted from blood recovered from the scene, testified as follows. Blood samples taken from the wipes container, the floor behind the counter, the rim of the trash can, and from the parking lot showed the DNA profile of two individuals: McCord, primarily, and to a lesser extent, Hall. Although the blood on the vinyl glove was mostly the victim's, a small amount of McCord's blood was also present. McCord's blood was also on a pack of cigarettes. McCord's fingerprints were found on the front door of the store and on cigarette packs left at the scene.

McCord testified at trial, admitting that he was present during the murder, that several people tried to come inside the store while he was there, that he gave Collins a pack of cigarettes, that he stole the store's surveillance video recorder, that he disposed of the murder weapon, and that he had tried to clean up or conceal blood evidence. He contended, however, that Watson killed the victim in a fit of jealous rage because he had been chatting with Hall. He claimed that his hands had gotten cut when he tried to stop Watson's attack. He also testified that the bloody glove found at the scene was his, and that he had taken it into the store with him.

1. McCord does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational factfinder to find McCord guilty beyond a reasonable doubt of malice murder, feticide, and tampering with evidence. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State , 285 Ga. 32, 33 (1), 673 S.E.2d 223 (2009) ("It was for the [factfinder] to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence." (citation and punctuation omitted)).

2. McCord contends that the trial court erred in admitting, over objection, two groups of statements made by Collins at the crime scene: (a) he challenges statements Collins made to police officers on Confrontation Clause and hearsay grounds; and (b) he challenges statements Collins made to Carnes solely on hearsay grounds.² Both Carnes and Collins died prior to trial. Their statements were admitted through police witnesses and, in part, through recorded statements.

(a) The Confrontation Clause³ "imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant." (Citation and punctuation omitted.) Jackson v. State , 291 Ga. 22, 24 (2), 727 S.E.2d 106 (2012) ; see also Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). "A statement is testimonial if its primary purpose was to establish evidence that could be used in a future prosecution." (Citation and punctuation omitted.) Favors v. State , 296 Ga. 842, 845 (2), 770 S.E.2d 855 (2015). Further, although the admission of evidence in violation of the Confrontation Clause is error of constitutional magnitude, "it can be harmless error if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict, such as when the evidence at issue is cumulative of other properly-admitted evidence or when the evidence against the defendant is overwhelming." (Citation and punctuation omitted.) Davidson v. State , 304 Ga. 460, 470 (4), 819 S.E.2d 452 (2018). Once a determination is made that a statement is nontestimonial in nature, "normal rules...