McMillan v. State

• Decision Date: 16 November 1984
• Docket Number: No. 40869,40869
• Citation: 322 S.E.2d 278,253 Ga. 520
• Parties: McMILLAN v. The STATE.
• Court: Georgia Supreme Court

Page 278

322 S.E.2d 278

253 Ga. 520

McMILLAN v. The STATE.

No. 40869.

Supreme Court of Georgia.

Nov. 16, 1984.

Robert Simmons Lanier, Jr., Statesboro, for Tony McMillan.

J. Lane Johnston, Dist. Atty., Statesboro, Michael J. Bowers, Atty. Gen., J. Michael Davis, for the State.

CLARKE, Justice.

Tony McMillan was indicted in Jenkins County along with James McMillan, Kevin McMillan and Sharon McMillan Bassett for the murder of Curtis Bassett, Sharon's husband. He was tried separately before a jury, convicted of malice murder and sentenced to life in prison. He raises errors involving the sufficiency of the evidence, the conduct of the trial judge, the quashing of his subpoenaes and the charge. We find it necessary to reverse based upon language used when recharging the deadlocked jury.

Sharon and Curtis Bassett lived in Millen, Georgia. The state's evidence showed that a burglary occurred in June of 1982 at the residence of neighbors of the Bassetts; many identifiable household items were taken. In July of 1982 Sharon left her husband and went with appellant to Newnan, Georgia, where they lived with her father, James McMillan, and brother, Kevin McMillan. They drove to Newnan in a U-Haul truck loaded with their possessions. Although appellant's surname is also McMillan, he is not related to them.

Mr. Bassett wrote to his wife and telephoned to convince her to return home. He then drove to the Newnan residence to talk to his wife. While at the home he observed personal property matching that stolen from his neighbor in Millen. Mr. Bassett communicated this information to law enforcement officials which led to the arrest of James and Kevin McMillan, Sharon Bassett, and the appellant in September of 1982. All were released on bond. They then learned that Mr. Bassett had informed on them.

Witnesses for the state testified that appellant and James McMillan had made statements to the effect that they would get even with Bassett. Kevin McMillan was a state witness. The first week in October he accompanied appellant to two pawn shops looking for a .22 caliber rifle. James McMillan and the appellant went to a discount store in Newnan on October 7, 1982. Through expert handwriting evidence it was shown that James purchased a semi-automatic Martin Glenfield .22 caliber rifle using a stolen credit card and identification. He also purchased Federal brand .22 caliber ammunition.

Kevin testified that on the eighth of October James and the appellant were attempting to make a silencer for the gun using copper tubing. They took the tubing to a hardware store where an employee assisted them in straightening the tube. Metal washers were also purchased.

James worked at a restaurant in Newnan which was operated by a cousin. On Monday October 11th he borrowed his cousin's car stating that his car needed work and appellant was going to fix it. A restaurant employee testified that she last saw James between 6:00 and 6:30 that evening and that when he drove away he said he and appellant had something to do. The distance between Millen and Newnan is approximately 190 miles.

Mr. Bassett operated a convenience store in Millen. Store employee Frank Herrington testified that he relieved Bassett at the store at 11:00 p.m. on October 11th. Herrington attempted to call Bassett around 12:30 a.m. to inquire about a delivery of groceries but got no answer. When he got no answer at 6:30 a.m., he called Bassett's mother-in-law's residence and Sharon's sister, Sonya McMillan, agreed to go check on him. She discovered his body and the authorities were notified.

Bassett was fully clothed on the utility room floor. No money was found on his body although there was evidence he had around $700 in cash when he left the store. There was a partially eaten meal in the kitchen. Spent .22 Federal brand cartridges were found in the house as well as a small metal washer. Drawers had been pulled open and marijuana was scattered in the bottom of a wardrobe.

Bassett died from multiple gunshot wounds; nine bullets were removed from the body. The crime lab expert testified that all were .22 caliber bullets fired from the same weapon. The bullets were identified as being fired from a rifle manufactured by the Marlin Company.

The murder weapon was never found. Kevin testified that when he questioned appellant about the gun the appellant stated he had gotten "rid of it" and that they would "have to look through a bunch of water to find it."

Appellant was seen in Newnan at 8:00 a.m. on October 12. There was testimony about a farmhouse on property owned by the McMillan family on the Sylvania highway around Millen. A witness who lived near the farm testified that someone drove to the house and stayed for about 15 minutes on October 12 between the hours of 2:00 a.m. and 3:00 a.m.

Appellant made statements to the police in which he denied participation in the burglary and in the death of Mr. Bassett. He stated that he transported household goods from the Bassett home in Millen for Sharon but did not know any of the property was stolen. Initially he denied going to the hardware store with the copper tubing. He later admitted this trip but said he needed to straighten the tube to work on a washing machine.

1. The appellant contends the evidence is insufficient to support a judgment of guilt, and that the verdict is unsupported by the evidence and is contrary to principles of justice.

Under the test in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a conviction is authorized by the evidence if a rational trier of fact could have found guilt beyond a reasonable doubt. We hold that the evidence, though circumstantial is sufficient to sustain the verdict.

2. The appellant complains of the omission of an exculpatory statement and the admission of other statements. The exculpatory evidence is alleged to be statements made by appellant to GBI officers during a polygraph examination. It is argued that the state did not produce the statement pursuant to a pre-trial request under OCGA § 17-7-210. The statute provides that if the state does not comply with the statute, the statement cannot be admitted into evidence. The statement was the result of a polygraph exam whose admissibility at trial was not stipulated and, therefore, it was inadmissible under State v. Chambers, 240 Ga. 76, 239 S.E.2d...