McDade v. State
| Decision Date | 15 March 1999 |
| Docket Number | No. S98A1810.,S98A1810. |
| Citation | 513 S.E.2d 733,270 Ga. 654 |
| Parties | McDADE v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Albert B. Wallace, Stephen Bailey Wallace II, Jonesboro, for John M. McDade.
William T. McBroom III, Dist. Atty., Daniel A. Hiatt, Asst. Dist. Atty., Griffin, Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State. HINES, Justice.
John M. McDade appeals his convictions for malice murder, aggravated assault, and possession of a firearm during the commission of a crime.1 For the reasons that follow, we affirm in part and vacate in part.
Spalding County sheriff's deputies were called to the mobile home park residence of McDade and his girlfriend Ann Fuller to investigate a domestic disturbance. The first deputy to arrive observed McDade leaving the front entrance of the residence. Upon entering the home, the deputies found Fuller seated on a sofa, dead from a shotgun wound to the back of the head. McDade was arrested and transported to the Spalding County Jail.
McDade gave several different versions of how Fuller died. In a spontaneous statement to the first deputy to arrive at the scene, McDade said he had left the area, came back, and found Fuller as she was. He then stated that he was outside the home packing his car to move out when he heard a shot, came in, and found Fuller. He also told a neighbor who came to the mobile home shortly after the shooting that Fuller shot herself. Before leaving the scene, McDade told deputies that the shotgun discharged during a struggle after Fuller pointed the weapon at him. He also stated that it was not supposed to have happened, and that Fuller was shot when the gun inadvertently discharged during an argument.
McDade later told a deputy at the jail that he and Fuller argued, she took his shotgun, went down the street, and shot herself. He later told investigators that after an argument he decided to move out, Fuller convinced him to stay, but they again argued and McDade resolved to leave. Fuller then went into the bedroom and emerged with the shotgun, saying it was his and he should take it with him. When McDade reached for it, Fuller "jerked" the shotgun back and it discharged. When told that the location of Fuller's wound indicated that the shooting could not have happened in that manner, he stated she had shot herself in the mouth. McDade also told two variations of a struggle over the shotgun in which he was holding Fuller down on the couch with one hand and holding the shotgun to her head with the other when it discharged; he stated he did not pull the trigger.
Expert testimony showed that when the shotgun discharged it was loosely pressed against Fuller's head, above and behind her left ear. Additionally, bloodstains showed that she could not have been shot in the position in which she was found, but that she was lying down on the sofa when shot. Smeared blood also indicated her body had been moved.
1. The indictment charged McDade with malice murder "by placing a shotgun to the back of [Fuller's] head and pulling the trigger." It also alleged that McDade committed an aggravated assault "by placing a shotgun to the back of [Fuller's] head and pulling the trigger." McDade contends that the trial court erred by entering separate sentences on the malice murder and aggravated assault counts because the crimes merged.
Although there is no merger as a matter of law, the aggravated assault conviction can merge into the malice murder conviction as a matter of fact. Malcolm v. State, 263 Ga. 369, 372-374(5), 434 S.E.2d 479 (1993). The record shows the evidence used to prove that McDade committed the aggravated assault is the same as that used to prove he committed malice murder. Therefore, the aggravated assault merged into the malice murder as a matter of fact, and the separate judgment of conviction and sentence for the aggravated assault must be vacated. Fitzpatrick v. State, 268 Ga. 423, 424(1), 489 S.E.2d 840 (1997).
2. The evidence was sufficient to enable the jury to find beyond a reasonable doubt that McDade was guilty of malice murder and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
3. The court admitted into evidence statements McDade made to deputies after his arrest. McDade challenges the decision to admit the statements. A trial court's factual and credibility findings as to the voluntariness of a custodial statement are to be accepted unless clearly erroneous. Raulerson v. State, 268 Ga. 623, 626(2)(b), 491 S.E.2d 791 (1997); Berry v. State, 254 Ga. 101, 104(1), 326 S.E.2d 748 (1985).
At the hearing on the voluntariness of McDade's statements, both deputies at the scene testified McDade was advised of his rights before being placed in a patrol car. The form McDade signed before his in-jail interview waiving his rights indicated that McDade could not read or write, although it also indicated that he had a ninth grade education. The interviewing deputy testified that he read the form to McDade and ensured that he understood each separately listed right before proceeding to the next. The court made specific findings that, despite McDade's contrary testimony at the hearing, he was advised of his Miranda rights before he was placed under arrest, and before beginning custodial interviews after he was jailed, and that he understood those rights. The trial court found that McDade's statements were made freely and voluntarily, without threat of coercion and with no hope of benefit or reward, and the court stated its determinations were made in view of the totality of the circumstances.
McDade contends that in considering whether the statements were admissible, the trial court ignored two of the nine factors listed in Riley v. State, 237...
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