McNair v. State

• Decision Date: 17 November 2014
• Docket Number: No. S14A0762.,S14A0762.
• Citation: 766 S.E.2d 45,296 Ga. 181
• Court: Georgia Supreme Court
• Parties: McNAIR v. The STATE.

296 Ga. 181

766 S.E.2d 45

McNAIR

v.The STATE.

No. S14A0762.

Supreme Court of Georgia.

Nov. 17, 2014.

Timothy Lee Eidson, Tifton, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Michael Alexander Oldham, Asst. Atty. Gen., Atlanta, Lauren C. Shurling Finley, Timothy Grady Vaughn, Dist. Atty., Eastman, for appellee.

Opinion

THOMPSON, Chief Justice.

Appellant Michael McNair was convicted of malice murder in connection with the death of his wife, Peggy.¹ He appeals, asserting that the evidence was insufficient to support the verdict and that his trial counsel provided ineffective assistance. Finding no error, we affirm.

The evidence construed in favor of the verdict shows that the McNairs had been married for 23 years, but appellant had only recently returned to the marital home in January 2009 after residing in another state for two years. Appellant claimed to have found evidence that the victim had become romantically involved with a man named Leroy Edwards while the couple was living apart.

On the morning of February 15, 2009, the victim was in her bedroom getting dressed when appellant approached her from behind and struck her numerous times in the head with a hammer. Appellant claimed that he believed the victim was getting dressed to go see Edwards and that he just “snapped.” Leaving the victim on the floor of the bedroom, appellant placed the hammer in a box above the washer and dryer and drove to his mother's house in Cochran, Georgia. En route, appellant called 911 and, explaining to the operator that “the emergency is murder,” confessed that he had attacked his wife with a hammer, striking her four or five times. Appellant subsequently admitted to the police officer responding to the 911 call, that he had hit his wife in the head with a hammer multiple times. Appellant also told the officer where the hammer could be found. Consequently, emergency personnel and deputies went to the marital residence where they found the victim bloodied, but alive, and transported her to the hospital where she later died. The cause of the victim's death was determined to be blunt force head trauma

consistent with being struck with a claw hammer.

1. Appellant challenges the sufficiency of the evidence with respect to his conviction for malice murder, arguing that the evidence only supports a verdict of voluntary manslaughter. Whether the evidence supports a verdict of malice murder or voluntary manslaughter resulting from sufficient provocation is a question for the jury. See Jones v. State, 282 Ga. 47, 48, 644 S.E.2d 853 (2007). Here, the jury was authorized to conclude the provocation claimed by appellant was insufficient to incite passion in a reasonable person. See Lewandowski v. State, 267 Ga. 831, 832(2), 483 S.E.2d 582 (1997). Moreover, the State was not required to show premeditation or a preconceived intention on appellant's part as malice aforethought can be formed instantly. See Wynn v. State, 272 Ga. 861, 535 S.E.2d 758 (2000). Construed most strongly in support of the verdict, we find the evidence in this case was sufficient to enable a rational trier of fact 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).

2. Appellant also contends that he received ineffective assistance of counsel at trial, asserting that his trial counsel's performance was deficient in a number of ways.

In order to prevail on these claims, appellant must show both that his counsel's performance was professionally deficient and that, but for counsel's unprofessional conduct, a reasonable probability exists that the outcome of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985). Moreover, a tactical or strategic decision made by counsel cannot form a basis for ineffective assistance of counsel unless it was “ ‘so patently unreasonable that no competent attorney would have chosen it.’ [Cit.].” Brown v. State, 288 Ga. 902, 909, 708 S.E.2d 294 (2011). We now review these claims.

(a) Appellant first asserts his trial counsel was ineffective for failing to ask that the jury be discharged or a mistrial granted after five members indicated they had been exposed to media coverage of the crime and pending trial after they had been chosen to serve. The record reveals that on the night before the trial was to begin, a local news station broadcast a story about the case and posted the story on the station's website. Concerned that jurors might have been exposed to this media coverage, appellant's trial counsel raised this issue with the trial court the next morning prior to the jury being sworn. Trial counsel requested that the jurors be polled in order to discover whether any jurors had seen the media coverage and, if they had, whether their ability to remain impartial had been compromised. Upon questioning by the trial court, several jurors admitted to seeing the coverage, but all those who had been exposed indicated upon further questioning by the court that they could remain impartial and would base their verdict entirely upon the evidence presented at trial. Trial counsel testified on motion for new trial that, based on the jurors' responses, he made a conscious, strategic decision not to move to excuse any of the jurors or to request a mistrial.

The decision whether to replace a juror who has been exposed to inadmissible material or to grant a mistrial is within the trial court's discretion. See Washington v. State, 279 Ga. 722, 723, 620 S.E.2d 809 (2005) ; Guess v. State, 264 Ga. 335, 338(6), 443 S.E.2d 477 (1994) (exposure to media coverage does not automatically disqualify jurors). Similar measures to those taken by the trial court in this case have been deemed adequate by this Court in determining whether any prejudice inured to a defendant as the result of the jurors' exposure to media coverage. See Guess, supra; Langston v. State, 162 Ga.App. 795, 796, 293 S.E.2d 54 (1982). Accordingly, we find that appellant has failed to meet his burden of showing that counsel's decision not to seek removal of the affected jurors in this case was deficient and prejudicial.

(b) Appellant next contends that counsel performed deficiently by failing to object when the State elicited hearsay testimony from Krista McNair, the couple's daughter, that the victim talked about routinely being drug tested at work. Appellant asserts that this hearsay testimony implied the victim did not use drugs and contradicted appellant's claim that he left the marital home years earlier in part to get away from the victim's drug use. Trial counsel, however, testified that he strategically chose not to object to this testimony because it provided support for counsel's theory that the drug paraphernalia appellant found in the marital home belonged to Edwards. “Trial tactics and...