McMichen v. State
| Decision Date | 14 July 1995 |
| Docket Number | No. S95P0209,S95P0209 |
| Citation | 458 S.E.2d 833,265 Ga. 598 |
| Parties | McMICHEN v. The STATE. |
| Court | Georgia Supreme Court |
David McDade, Dist. Atty. Douglasville, Michael J. Bowers, Susan V. Boleyn, Sr. Asst. Atty. Gen., Paige R. Whitaker, Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.
Kim Anthony McMichen was convicted on two counts of malice murder, of his estranged wife Luan McMichen and her boyfriend, Jeff Robinson. The jury recommended the death penalty for each of the two counts of murder, finding that each had been committed during the course of the other murder 1 and that each was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind. 2 The jury also The evidence presented at trial authorized the jury to find the following:
found that the murder of Luan McMichen was outrageously or wantonly vile, horrible or inhuman in that it involved torture. 3 The trial court imposed two death sentences for the murder convictions. 4 McMichen contends that the death sentences must be reversed, challenging each of the statutory aggravating circumstances. We affirm, finding that each death sentence is supported by an aggravating circumstance, in that the murder of Luan McMichen involved depravity of mind and the murder of Jeff Robinson was committed during the course of the murder of Luan McMichen. We find no reversible error in the various other enumerations of error
Kim and Luan McMichen were married in 1983 and had one child, Katie, in 1985. Throughout most of their turbulent marriage, the couple lived with McMichen's parents in a rural home in Douglas County. Luan worked steadily, primarily as an employee of her father-in-law in the basement of the McMichens' home. Kim McMichen worked sporadically, chronically abused alcohol and suffered recurring bouts of depression.
In or about January 1990, Luan resolved to end her marriage. She and McMichen were living in a trailer in Bremen, Georgia. Luan secured a job in Atlanta independent of her parents-in-law and asked McMichen to move out. McMichen returned to his parents' home, taking Katie with him.
Soon after the couple separated, McMichen began harassing Luan. Luan told her mother and co-workers that on one occasion, McMichen entered the trailer in Bremen, destroyed Luan's clothes, and raped her. Luan said that on another occasion, McMichen threw her purse and car keys on top of the trailer when she was attempting to leave for work, causing her to have to climb on top of the trailer to retrieve them. Luan eventually abandoned the trailer and attempted to conceal her whereabouts from McMichen. She began living with Jeff Robinson, a renewed acquaintance whom she had known in high school. Luan confided to her co-workers that she believed Robinson could offer her protection from McMichen.
Unable to find Luan at the trailer in Bremen, McMichen began harassing Luan at work. McMichen insisted that Luan return to him and refused to allow her to see Katie alone unless she complied with his demands. Co-workers testified that McMichen's harassment caused Luan severe distress, and that Luan frequently cried and spoke of her desire to have custody of Katie, of her fear that McMichen would kill Luan and of her fear that his harassment would cause her to lose her job.
In February or March 1990, Luan learned that she was pregnant. Although Luan was intimate with Robinson at the time of conception, the paternity of the child was and remains questionable because of the alleged rape. In March, Luan told McMichen that she was pregnant. McMichen began insisting that the unborn child was his.
In October 1990, shortly before the baby was due, McMichen happened upon a woman he had dated in high school. He confided to the woman about his marital problems and told her that if the new baby turned out not to be his he would kill Luan and her boyfriend.
When Luan left her employment for maternity leave, just before the birth of the new baby, McMichen began harassing Luan's co-workers by telephone, insisting that they tell him Luan's whereabouts. On instructions Nevertheless, after the baby's birth, McMichen learned that Luan and Robinson were living in a trailer park in Douglas County. Although McMichen would not permit Luan to visit Katie alone, he did agree to bring Katie to Luan's trailer for prearranged visits. McMichen also began making frequent visits to the trailer unaccompanied by Katie. During these visits, McMichen would stay outdoors, drinking beer and challenging Robinson to fight. McMichen was usually armed. On at least one occasion, a neighbor became concerned enough by the shouting to persuade her husband to go to the truck and coax a weapon away from McMichen. Neighbors testified that in each of these disputes, it was McMichen who threatened and challenged Robinson, and that the victims implored McMichen simply to leave.
from Luan, her co-workers refused to disclose any information to McMichen.
On the afternoon of November 16, 1990, McMichen loaded his truck with a .38 revolver, a .44 revolver, a bolt action rifle and his beer cooler, telling five-year-old Katie that they were going deer hunting. He drove to Luan and Robinson's trailer for a scheduled visit and waited in the truck while Katie played with her mother inside. When Robinson returned home, McMichen provoked an argument with him. The argument continued for a prolonged period, during which both men drank alcohol. At some point, the two men went to the liquor store. While they were away, Luan took McMichen's guns from his truck and placed them on a table inside the trailer. Upon returning, McMichen retrieved the guns and went back outdoors where he continued to harass the victims. A neighbor overheard McMichen yell, "I've got something for the both of you." Thereafter, McMichen fired two shots with the .38 revolver. The first shot entered Robinson's right ear from close range, killing him instantly. The second shot struck Luan in the heart, killing her within minutes. The bodies lay on the pavement near McMichen's truck, bleeding profusely, with blood pouring down an incline into the street.
After killing the victims, McMichen retrieved a beer from his truck. He then entered the trailer, took Katie by the hand, walked her past both bodies through the victims' blood, and left her in the truck in view of the murder scene. He then walked to a neighbor's trailer to call his mother, telling her, While at the neighbor's home, McMichen sat in a lounge chair, drank his beer and smoked a cigarette. When Katie was found a short time later, she was still in the truck with blood on her shoes, screaming for someone to call an ambulance for her mother.
When the police arrived at the scene, McMichen was mumbling, "I didn't mean to do it," and "it all happened so quick." He told one officer, "I fucked up, didn't I?"
For more than a year after killing the victims, McMichen claimed that he suffered almost total memory loss. He denied recognizing his parents, said he did not recall having a child and claimed not to know what it meant to kill someone. McMichen's own expert witness determined that McMichen was malingering, and a jury found McMichen competent to stand trial. At trial, McMichen testified in great detail, claiming that he killed Robinson in self-defense and Luan by accident.
1. Construing the evidence in the light most favorable to the verdict, a rational trier of fact could have found McMichen guilty of the crimes charged beyond a reasonable doubt. 5
2. McMichen contends that both death sentences must be reversed, because none of the requisite statutory aggravating circumstances can withstand scrutiny. First, he argues that the facts are insufficient to establish under OCGA § 17-10-30(b)(7) that either murder involved depravity of mind or that the murder of Luan involved torture. Therefore, he argues, all that remains are the mutually supporting aggravating circumstances under OCGA § 17-10-30(b)(2), that each murder was committed during the course of the other. Only one of the § 17-10-30(b)(2) aggravators can be upheld, and McMichen argues that this court has no basis for choosing which death sentence to uphold.
We disagree. Because the evidence supports the jury's finding of at least two statutory aggravating circumstances--double murder and depravity--we affirm both sentences.
First, we analyze the sufficiency of the evidence to support the finding of depravity of mind. In so doing, we are squarely confronted with the novel question whether McMichen's conduct toward Katie in the course of killing the victims, knowing but not intending that his actions would cause Katie severe mental distress, is alone sufficient to prove depravity. The prosecution urged the jury to find depravity as to each murder based upon McMichen's walking five-year old Katie through her mother's blood and leaving the child screaming in the truck overlooking the murder scene while McMichen drank beer at the neighbor's house. We hold that this evidence is sufficient.
Although we have never addressed the precise question with which we are now confronted, our holding today is the logical extension of our opinions in Strickland v. State, 247 Ga. 219, 275 S.E.2d 29 (1981) and Hall v. State, 261 Ga. 778, 415 S.E.2d 158 (1991). The defendant in Strickland, irate that his former girlfriend Carroll refused to reestablish a relationship with him, went to her home and fatally shot her father, brother and sister in her presence. 6 The defendant also shot Carroll repeatedly in a successful effort to leave her alive but disfigured. 7 The jury found that the death sentences for the murders of the father and brother were supported by the aggravating circumstances that they were each committed in the course...
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