McKinney v. State

• Decision Date: 21 October 2019
• Docket Number: S19A0908
• Citation: 307 Ga. 129,834 S.E.2d 741
• Court: Georgia Supreme Court
• Parties: MCKINNEY v. The STATE.

307 Ga. 129

834 S.E.2d 741

MCKINNEY

v.The STATE.

S19A0908

Supreme Court of Georgia.

Decided: October 21, 2019

Conger & Smith, Gregory D. Smith, for appellant. Bradfield M. Shealy, District Attorney, James L. PrineII, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorn Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.

Nahmias, Presiding Justice.

Appellant Sidney McKinney was convicted of malice murder for killing his former girlfriend Deborah Thigpen by beating and strangling her. On appeal, he argues that the trial court erred by admitting his conviction for a battery against Thigpen committed three months before the murder as well as evidence of his attack on another former girlfriend 15 years earlier. Appellant also argues that his trial counsel provided ineffective assistance by failing to object to the prosecutor's statements in closing argument that Appellant had previously raped Thigpen. We affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. Thigpen met Appellant in September 2013, and they began dating. In January 2014, Thigpen's friend Phillip Bradley saw her and Appellant walking down the street arguing. Appellant grabbed her a few times and pushed her. After the fight, Thigpen told Bradley that she wanted to get away from Appellant, and Bradley let her stay with him for a while. During that time, when Bradley and Thigpen would sit on his porch, Appellant would call her and say things like, "I can see what you're doing" and "I'm watching you." About three days after Thigpen started staying with Bradley, Appellant showed up at Bradley's house wanting to talk to Thigpen. She spoke with him briefly, but after Bradley told Appellant to leave and shut the door, Appellant became angry and kicked the door until it fell off its hinges. He left when Bradley threatened to call the police. In February 2014, Thigpen reported to the police that Appellant had assaulted her, but he ultimately was not charged.

After Appellant and Thigpen's relationship ended in early 2014, Thigpen resumed a romantic relationship with Johnny Johnson. Thigpen told Johnson that Appellant had been "abusive and beat her all the time." On March 1, 2014, Thigpen was staying with Johnson. According to Thigpen's statements to Johnson and the police, after Johnson left for work that morning, Appellant broke into the house through a window and raped her. A responding police officer found the screen off the window and a flower pot placed as if somebody had used it to climb to the window. In an evolving story, Appellant eventually admitted to being in the house but claimed that he had consensual sex with Thigpen. Appellant was arrested for rape and burglary and held in jail from March until September 2014, when the grand jury declined to indict him.

On September 18, shortly after Appellant was released, he grabbed Thigpen on the street and tried to choke and sexually assault her. The responding police officer noted that Thigpen had scratches on her back and arm, a cut over her lip, and swelling to her right eye. She also had some dirt on her back, and her clothing was disheveled. Appellant was charged with misdemeanor family violence battery; representing himself, he pled guilty in October 2014 and was sentenced to 12 months on probation.

Appellant knew that Thigpen, who was a habitual drug user and may have supported that habit with prostitution, frequently sat on a set of steps on Stevens Street in Thomasville. On more than one occasion, Johnson saw Appellant following Thigpen, and her aunt said that Appellant would "jump out of the bushes" at Thigpen. Another neighbor saw Appellant watching Thigpen "from the trees, bushes, anywhere he could stand to watch her." Thigpen was so scared of Appellant that she told at least six of her confidants, including relatives and close friends, that if anything ever happened to her, Appellant did it. And Johnson overheard a call Appellant made to Thigpen, in which Appellant said, "I'll kill you bi**h. If I can't have you, [Johnson] can't have you."

On the morning of December 27, 2014, Thigpen left Johnson to walk with her friend John Cain across town. Johnson gave her a box cutter to protect herself from Appellant. Later in the day, Thigpen and Cain walked along the railroad tracks and used drugs. While on the tracks, Thigpen kept looking back and saying that someone was following them. Cain saw the "shadow of a man" behind them. Thigpen said she was scared, and they left quickly. They went to a house about a block away from the steps where Thigpen frequently sat. At around 7:30 p.m., they started walking away from the house in search of a drug dealer. A man Thigpen knew drove up, and she got in the car. Cain walked to a nearby store; as he was leaving at about 8:00 p.m., he saw Appellant walking on Stevens Street. At 8:34 p.m., a Thomasville police officer who knew Thigpen saw her sitting on her usual steps.

Around noon the next day, two men found Thigpen's body in the bushes along a path behind an abandoned house across from the steps on Stevens Street. She was naked from the waist down. In a nearby trash can, a detective found a pair of panties and two pairs of tights rolled on top of each other with leaves and other debris on them. Johnson and Cain identified the tights as the ones Thigpen was wearing when they last saw her. The injuries on Thigpen's body indicated that she had been hit multiple times on the head and in the face and that a hand and a ligature of some kind, such as tights pulled taut, had been wrapped and squeezed around her neck. She also had scrapes along her buttocks area, indicating that she had been dragged or was trying to scoot away while on the ground. The cause of Thigpen's death was asphyxia

and blunt force trauma. It would have taken at least five minutes for her to be killed in this way. A sexual assault kit revealed no injuries in her genital area, and swabs of the area did not show any male DNA. Under Thigpen's fingernails, however, there was DNA from Appellant.

Around 7:30 p.m. on the day Thigpen's body was found, a GBI special agent picked up Appellant from his mother's house and interviewed him at the police station. Appellant had small cuts and a bite on his hands and a scratch on the left side of his neck. He also had recently chewed off all of his fingernails. Appellant first told this story: He had not seen Thigpen since December 17, when they had sex along the path behind the abandoned house on Stevens Street. He had been walking from his parents’ house to buy a cigarette on the evening of December 27 when he encountered a drunk man in the street in front of a housing project. Appellant tried to pull the man out of the road, but the man fought back with a box cutter and bit Appellant's hand. Eventually, Appellant wrested the box cutter away and left. (Investigators later spoke to people who lived in the housing project, but could not find anyone who corroborated Appellant's story.)

When the agent told Appellant that someone saw him on Stevens Street on December 27, he changed his story, first saying that he was on a parallel street and then admitting that he had been on Stevens Street. When the agent told Appellant that they would be examining Thigpen's body for DNA that can be transferred by touch, Appellant again changed his story, claiming that he had seen Thigpen between 12:00 and 2:00 p.m. on December 27; she was on the path behind the abandoned house and asked Appellant to make sure nobody came by so she could urinate; he did so and then rubbed his hand on her clothed chest before he left. When he was asked if there was any reason his DNA would be on Appellant's thighs, he again amended his account, claiming that in addition to touching Thigpen's chest, he stuck his hand down her pants and rubbed between her thighs. Appellant claimed that he had been wearing a black or dark brown sweatshirt and that he had not washed his clothes.

Phone records, surveillance videos, and witness accounts showed that on December 27, Appellant called his friend Craig Staten to ask for a ride first at 8:32 p.m. from a liquor store close to where Thigpen's body was found and again at 9:14 p.m. from a house about 100 yards away from the body's location. When Staten picked Appellant up at around 9:22 p.m., he noticed that Appellant had deep scratches and a bite mark on his hands. Appellant claimed that he had fought a man with a bat. Appellant stayed overnight with Staten. Appellant showered but put the same clothes back on. The next day, Staten took Appellant to Appellant's mother's house. When investigators searched his mother's house, she told them that Appellant had been doing laundry right before he left for his interview. In the dryer, there was a single outfit, which included a grey sweatshirt. A fiber found on Thigpen's body matched the fibers found in that type of sweatshirt. In December 2014, while Appellant was being held in jail, a guard heard him say, "I don't have any remorse about what I did."

Appellant did not testify at trial. His main defense was that the law enforcement officers failed to fully investigate other potential suspects because they rushed to judgment against him based on his history with the victim.

Appellant does not dispute the legal sufficiency of the evidence supporting his conviction. Nevertheless, as is this Court's usual 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 jury to find Appellant guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State , 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was...