Executed October 20, 2009 07:24 p.m. by Lethal Injection in Georgia
41st murderer executed in U.S. in 2009
1177th murderer executed in U.S. since 1976
3rd murderer executed in Georgia in 2009
46th murderer executed in Georgia since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(41) |
Mark Howard McClain W / M / 27 - 42 |
Kevin Scott Brown W / M / 28 |
Citations:
McClain v. State, 267 Ga. 378, 379-380, 477 S.E.2d 814 (1996). (Direct Appeal)
McClainv. Hall, 552 F.3d 1245 (11th Cir. 2008). (Habeas)
Final Meal:
Declined.
Final Words:
When prison Warden Steve Upton asked him whether he would like a prayer to be said, McClain said "No, I'm fine."
Internet Sources:
Georgia Department of Corrections (Mark Howard McClain)
MCCLAIN, MARK HOWARDYOB: 1967
RACE: WHITE
GENDER: MALE
HEIGHT: 5'09''
WEIGHT: 160
EYE COLOR: BLUE
HAIR COLOR: RED&ABN
KNOWN ALIASES: A.K.A. MALACHI,MARK
STATE OF GEORGIA - CURRENT SENTENCES
CASE NO: 349678
OFFENSE: BURGLARY, ARMED ROBBERY, MURDER, POSS OF FIREARM DURING CRIME
CONVICTION COUNTY: RICHMOND COUNTY
CRIME COMMIT DATE: 11/20/1994
SENTENCE LENGTH: 20 YEARS, 20 YEARS, DEATH, 5 YEARS
CASE NO: 349678
DATE INCARCERATION BEGAN: 09-29-95
"McClain executed for Augusta murder; Protesters hold vigils," by Walter C. Jones and Adam Folk. (Wednesday, October 21, 2009)
JACKSON, Ga. --- Convicted murderer Mark McClain had remained tight-lipped leading up to execution Tuesday night. But as he lay strapped to a table inside the maximum security state penitentiary, he broke his silence, however briefly, when prison Warden Steve Upton asked him whether he would like a prayer to be said.
"No, I'm fine," said Mr. McClain, who looked up briefly. Seconds later a deadly series of drugs entered his body through two IVs in his arms. Mr. McClain, 42, was pronounced dead 15 minutes later.
Mr. McClain was put to death almost 15 years after he fatally shot an Augusta pizza store manager in a holdup that netted about $130. A spokeswoman for the Georgia Department of Corrections said he was pronounced dead at 7:24 p.m. at the Georgia Diagnostic and Classification State Prison.
Protesters held vigils outside the prison, at the state Capitol, the Augusta library and six other Georgia cities. In Jackson, seven women and five men from across the state came to sing hymns and stand in a circle reading the names of the men previously executed in Georgia since the death penalty was reinstated in the 1970s. "I think it's important to come to the prison to advocate against what is happening here," said Katey Brown, who has driven from Macon for four previous vigils. "We talk about the person who is going to be executed. We talk about ones that have happened in the past. We're basically bringing it to our front, to our conscience."
A Richmond County jury convicted Mr. McClain and sentenced him to death for the 1994 shooting of Kevin Brown during the robbery of a Domino's Pizza restaurant on Washington Road.
Mr. McClain struck out in every appeal filed on his behalf, including last-minute requests at the Georgia and U.S. Supreme Courts. On Friday, the Georgia Board of Pardons and Paroles also denied him clemency.
While death-penalty opponents acknowledged that Mr. McClain wasn't the most deserving of sympathy, they argued that the government shouldn't take a life, even from killers. "This case is a great illustrator of how arbitrary the death penalty is," said James Clark, a coordinator of Georgians for Alternatives to the Death Penalty.
There are 106 men and one woman remaining on the state's death row.
In Augusta, a vigil took place outside the library on Greene Street. One of the participants, Pat Seaborn, of Martinez, said her cousin Ronald Spivey was executed by lethal injection in 2002. According to Mrs. Seaborn, that execution was botched by an incorrect dosage of poison, and she had to watch him suffer for more than 20 minutes before he died.
Standing nearby, however, was Chris Ridings, who identified himself as a former deliveryman for Domino's Pizza in Thomson. He said he did not know Mr. McClain's victim, but he thought the execution was justified. "You can't do wrong and get away with it. If you do wrong, you've got to pay for what you've done," Mr. Ridings said.
To Richmond County sheriff's Sgt. Ken Rogers, who attended the execution, Mr. McClain was a "cold-hearted" killer who showed no remorse. Sgt. Rogers was just five months on the job as an investigator when he was assigned to Mr. Brown's death. It was his first murder case and the details are still clear in his mind, as are his memories of the victim. Sgt. Rogers said he had met Mr. Brown while working a special assignment at the Masters Tournament. Mr. Brown would bring pizza to the deputies at the course.
"State executes pizza store killer," by Christian Boone. (Wednesday, October 21, 2009)
Condemned inmate Mark McClain was killed by lethal injection at 7:24 p.m. Tuesday in Jackson. He had no visitors Tuesday, though a Department of Corrections spokeswoman said he talked to two relatives by phone. McClain, 42, declined to eat his final meal and refused a sedative offered one hour before his execution. At around 6:15 he learned from his attorneys that the U.S. Supreme Court had denied a motion to stay, just as the Georgia Supreme Court had ruled earlier in the day.
McClain did not issue a final statement. When asked if he wanted a prayer said for him, he replied, "No, I'm fine." He lay expressionless and made no eye contact with the attorneys, prison officials and members of the media who witnessed his execution. As his death drew near McClain's ruddy complexion turned pale. His body lunged forward slightly as the potassium chloride raced through his veins, but otherwise his passing was quiet.
His execution, unlike most, kept to schedule. There were no relatives present, which is not uncommon, according to Department of Corrections spokeswoman Joan Heath.
McClain was sentenced to death by a Richmond County jury for the 1994 murder of Kevin Brown, 28. The Domino's Pizza store manager was shot once in the chest for the $130 in his till. McClain was at peace with his fate, said attorney Brian Kammer. "Mark had become a person of deep religious faith, and he had a sense of equanimity through this whole process,"Kammer said. "He had hoped common sense would prevail."
McClain acknowledged shooting Brown, but claimed it was unintentional. Jurors sided with the prosecution, who labeled McClain an experienced criminal who "preferred to kill." About a dozen capital punishment opponents held vigil outside the prison. "We ask the state not to respond by taking another life and forcing another family to experience that same loss and grief," said James Clark, coordinator of Georgians for Alternatives to the Death Penalty.
McClain was the third person executed in Georgia this year and the 45th put to death since 1983, when the state resumed executions after the U.S. Supreme Court ruled them to be constitutional. Georgia juries convicted 55 people of committing a murder during an armed robbery in 1995, the year McClain was sentenced. Prosecutors sought the death penalty in 16 of those cases, but McClain was the only one condemned to die. "It's a crime that would not garner the death penalty these days," Kammer said.
"Friends remember Kevin Brown and his impact on Augusta music," by Ashley Campbell. (Oct 20, 2009 at 6:46 PM EDT)
AUGUSTA, Ga. - The Augusta man convicted of killing a Domino's Pizza manager 15 years ago will be put to death Tuesday night at 7 p.m. Mark McClain's last appeal was denied. A jury convicted McClain for killing Kevin Brown during a robbery in Augusta in 1994. McClain got away with $130 from the cash register.
Brown's friends say he was a simple man - someone who loved playing his bass guitar and an inspiration to the local music scene. "Nobody would shoot Kevin, nobody. Nobody would do that," said friend Scott Hudson.
But someone did shoot and kill Kevin Brown during an armed robbery while he was working at Domino's Pizza on November 20, 1994. A year later, a jury found Mark McClain guilty of murdering Brown.
Although, it's been 15 years since Brown's murder, his friends remember the good times like it was yesterday. "Kevin and friends would show up late nights at the radio station 20 years ago. I'd be on auto pilot, we'd be bored so we'd sit out in the main studio and just jam," said Hudson. "He really couldn't play and sing at the same time but he did sing one song that was, 'Simple Man' by Lynyrd Skynyrd and it described him to a T," said friend Stoney Cannon.
His friends say it was his love for the bass guitar that not only inspired them, but also others who were trying to start a local music scene in Augusta. "Kevin loved music, Kevin loved helping people and that had a lot to do with what I've become," said Cannon.
In December 2004, Cannon held the first annual Kevin Scott Brown Rocking the Stocking concert, featuring live music by Augusta bands. It's become an annual tradition.
Cannon visits Brown's resting place every Christmas. "Every year, usually after Rocking the Stocking we get a little Christmas tree and put it there and do a little decorating," said Cannon. Remembering a man they call a sweet, shy, simple kind of guy. "I know there's a ton of people and friends who loved him to death and wished he was still here," said Cannon.
Kevin Brown was an only child. His mother died when he was young. At McClain's trial Brown's father told jurors he was not only his son, he was also his friend. Brown's father has since passed away.
"Death sentence for killer ‘freakish’" by Bill Rankin. (Monday, October 19, 2009)
In 1994, Mark McClain shot and killed the manager of a Domino’s Pizza outlet in Augusta in a 2 a.m. robbery that yielded little more than $100. The next year, McClain was one of 55 people convicted in Georgia of committing a murder during an armed robbery.
Prosecutors sought the death penalty against 16 of those 55 killers and declined to seek it against the rest. McClain was the only one sentenced to die. Friday, the state Board of Pardons and Parole denied McClain clemency, and he is scheduled for execution at 7 p.m. Tuesday.
In their final appeals, McClain’s lawyers contend the condemned inmate’s sentence was out of line when compared with those in similar armed-robbery murders. “Since Mr. McClain’s death sentence was imposed, literally hundreds of defendants in similar cases — and for the most part cases involving far more horrendous facts — have escaped even the prospect of being sentenced to death because prosecutors don’t seek it,” said Brian Kammer, one of McClain’s lawyers. “His death sentence on the facts of this case, as tragic as they are, is unique and represents an arbitrary and freakish imposition of the ultimate punishment.”
Richmond County District Attorney Ashley Wright noted that McClain’s jury heard the evidence and recommended a death sentence, which has been upheld on appeal. “The case is following the proper progression,” she said.
The jury condemned McClain for killing Domino’s manager Kevin Brown, 28. As a delivery man returned to the store at closing time, McClain pulled out a revolver and forced his way in. The delivery man fled. McClain ordered Brown, who stood behind the counter, to hand over the money. He then fired a single shot that struck Brown in the chest, killing him.
At trial, McClain testified he never intended to shoot Brown, only to rob the store. But as he left, McClain testified, he heard a noise and thought the 5-foot-8, 450-pound manager was coming toward him. “I turned around like this right here, and the gun went off,” he said, demonstrating to the jury. Later McClain testified, “I didn’t even know if he got hit.”
Then-District Attorney Danny Craig called McClain’s story “hogwash.” McClain was a hardened criminal involved with prior armed robberies who could have left without firing a shot, Craig said. “The defendant had a choice, you see,” Craig, now a judge, told jurors during the November 1995 trial. “He preferred to kill.”
At sentencing, Craig asked jurors what kind of message they would send if they spared McClain’s life. Would they want an imaginary billboard at the county line that read, “Welcome to Richmond County, where if you kill our people, we find a way to give you a fifth, sixth or seventh chance”? he asked. Brown was an only child. His mother died in 1977 and he lived with his father, Albert Brown, who is now deceased.
At trial, Albert Brown told jurors his son’s murder left him devastated. “His death has caused me to be in a state of deep depression, and I still am waiting to come out of it,” he testified. “Kevin was not only my son, he was my friend. I can’t put into words how this loss has affected me.”
The Atlanta Journal-Constitution examined the facts and circumstances behind 2,328 murder convictions in Georgia from 1995 through 2004. In a series published in 2007, the AJC found Georgia law has fallen short of ensuring a predictable and even-handed application of the death penalty. Instead, death sentences were being arbitrarily imposed, the investigation found. The main reason was the way state prosecutors handled armed-robbery murder, one of Georgia’s most prevalent capital crimes.
In 1995, McClain’s case proved remarkable because it was the only one of its kind. Over the decade studied, seven other men were sentenced to Death Row for armed-robbery murder. Another 432 got life in prison. These armed-robbery murders, like McClain’s, did not involve torture, maiming, murder-for-hire or police killing.
Long before McClain’s case went before a jury, his lawyers sought to bar the death penalty on grounds it would be excessive and disproportionate. “If this case was being tried in any other judicial circuit in Georgia, or prosecuted by another prosecutor, it would not be a death-penalty case,” said a motion filed by McClain’s lawyers. “There was no beating or stabbing, no rape or other physical or emotional torture and no protracted period of pain or suffering,” the motion said. There was no kidnapping and only one victim. The motion cited more than 100 murder cases with similar or more aggravating facts that did not get the death penalty.
The lawyers also sought permission to review the district attorney’s files to see how similar cases were handled. But Judge Carlisle Overstreet denied the request. When the Georgia Supreme Court heard McClain’s appeal, it upheld Overstreet’s ruling. As is required by law in death-penalty appeals, the state high court also conducted a “proportionality review,” a test that determines whether a death sentence is disproportionately severe compared to similar cases.
In 1996, when upholding McClain’s death sentence, the court cited 10 similar cases that had received death sentences to justify upholding McClain’s. But the AJC found that five of the 10 cases cited by the state Supreme Court had been overturned on appeal before the court’s ruling. All five of the inmates were later resentenced to life in prison; their cases also involved armed robbery.
In the other five cases, two men have been executed; one’s case was overturned, the other was later sentenced to life in prison, and one was killed during a fight after he escaped from Death Row.
Michael C. Garrett, one of McClain’s trial lawyers, said his client’s death sentence makes no sense. Garrett noted that two months after McClain’s trial, he defended another person facing the death penalty in Richmond County.
In April 1994, Chester Simpkins and an accomplice entered the Crack Shot pawn shop. Simpkins was carrying a handgun he had previously stolen from the store. When they got inside, Simpkins reached over the counter and shot Beverly Williford, 62, in the head, killing him. Before entering Crack Shot, Simpkins told a witness he was going to “smoke” Williford. Even so, Simpkins was spared death. He is serving life without parole.
“When you consider McClain’s situation in the big picture,” Garrett said, “he doesn’t deserve to die.”
How we got the story
The AJC reviewed the trial transcript of Mark McClain’s death-penalty case and reviewed court motions filed by the prosecution and defense. The newspaper also reviewed court decisions upholding McClain’s death sentence and interviewed lawyers involved in the case. For this story, the AJC also relied on a two-year investigation of Georgia’s death penalty, in which reporters reviewed the facts and circumstances of every Georgia murder case that resulted in a conviction between Jan. 1, 1995, and Dec. 31, 2004. The AJC also reviewed every proportionality review conducted by the Georgia Supreme Court between 1982 and 2007.
PRESS ADVISORY
Friday, October 9, 2009
Killer Of Richmond County Domino's Store Manager To Be Executed On October 20
Georgia Attorney General Thurbert E. Baker offers the following information in the case against Mark Howard McClain, who is currently scheduled to be executed at 7:00pm on October 20, 2009.
Scheduled Execution
On October 8, 2009, the Superior Court of Richmond County filed an order, setting the seven-day window in which the execution of Mark Howard McClain may occur to begin at noon, October 20, 2009, and ending seven days later at noon on October 27, 2009. The Commissioner of the Department of Corrections then set the specific date and time for the execution at 7:00pm on October 20, 2009. McClain has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.
McClain’s Crimes
The Georgia Supreme Court summarized the facts of the case as follows: The state presented evidence that McClain picked up his girl friend, Tina Butler, around midnight on November 19, 1994, and drove to her apartment. They discussed their relationship over a few drinks, and Butler told McClain she needed money. An hour later, McClain left Butler’s apartment, drove to the Domino’s Pizza store on Washington Road and parked his blue Buick beside the building. Shortly before 2:00 a.m., Domino’s delivery man, Phillip Weeks, returned from making his pizza deliveries. McClain approached Weeks as he was walking toward the store and asked to buy a pizza. Weeks told him the store was closed, but McClain became insistent and refused to leave. In an attempt to placate McClain, Weeks agreed to ask the manager, Kevin Brown, who was inside the store, to make an exception. Weeks began yelling to Brown from outside the store. Brown looked at Weeks, whose hand was on the door, and released the security lock. As the door opened, McClain attempted to force his way inside behind Weeks. Weeks sought to bar him from entering, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown, who weighed 450 pounds and could not move quickly, remained standing behind the counter. As Weeks reached the door, he heard McClain order Brown to give him the money.
Weeks fled to a service center on Washington Road to call police, but the pay telephone was broken. Before crossing the road, Weeks looked around and saw a blue car pull out of the driveway leading to Domino’s at high speed. Believing the driver of the car to be the perpetrator, Weeks ran back to the sidewalk. McClain saw Weeks and made an obscene gesture towards him with his middle finger as he drove by. Weeks ran into the road behind the car and memorized the car’s tag number. Weeks flagged down a passing driver, who drove him back to the store. Brown, who had been shot, was lying behind the counter, barely alive. Brown’s keys to the store’s till, which he normally kept in his pocket, were in the till where the store’s money was kept. There was evidence that just over $100 was missing from the store. By the time paramedics arrived, Brown had bled to death from a single gunshot wound to the chest.
McClain returned to Butler’s house and gave her $100 without revealing its source. When McClain left Butler’s residence the next afternoon, he drove Butler’s car, leaving the Buick, the army jacket and boots he had worn during the robbery, and the gun he had used to shoot the victim at her house. Police traced the tag number of the Buick to McClain’s father, whose description of his son matched Weeks’ description of the perpetrator. The assistant manager at the Washington Road Domino’s store identified McClain as having bought a pizza in the store two days before the shooting under the name of Johnson. The box with the receipt for that pizza was found in the trash during a search of McClain’s residence.
The day after the shooting, McClain picked up the Buick at Butler’s house. He was arrested when he arrived at work in the car the following morning. That evening, McClain called Butler from the jail and told her to dispose of the clothes and gun he had left at her house. He demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate her if she refused. Butler hid the jacket in a neighbor’s shed and gave the gun to her nephew. The police questioned Butler on two occasions, and during the second interview, she told police about McClain’s telephone call and gave police the jacket and boots. The gun was recovered a month later, when Butler’s nephew was involved in a shooting. Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, where he testified that he intended only to rob the store, but heard a noise as he was leaving, and believing that Brown was pursuing him, McClain shot him. McClain v. State, 267 Ga. 378, 379-380, 477 S.E.2d 814 (1996).
The Trial (1994-1995)
McClain was indicted in the Superior Court of Richmond County, Georgia on November 29, 1994 for malice murder, felony murder, armed robbery, possession of a firearm during the commission of certain crimes, and possession of a firearm by a convicted felon. McClain was reindicted for the original charges and an additional count of burglary on January 4, 1995. On September 7, 1995, following a jury trial, McClain was convicted of malice murder, felony murder, burglary, armed robbery, and possession of a firearm during the commission of certain crimes. McClain subsequently entered a guilty plea to possession of a firearm by a convicted felon. The jury’s recommendation of a death sentence was returned on September 8, 1995.
The Direct Appeal (1996-1997)
The Georgia Supreme Court affirmed McClain’s convictions and sentence on November 12, 1996. McClainv. State, 267 Ga. 378, 477 S.E.2d. 814 (1996). McClain filed a petition for writ of certiorari in the United States Supreme Court, which was denied on June 23, 1997. McClain v. Georgia, 521 U.S. 1106 (1997).
State Habeas Corpus Proceedings (1997-2002)
McClain, represented by Christopher Kende, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on December 3, 1997. McClain filed an amended petition for writ of habeas corpus on May 3, 1999. An evidentiary hearing was held on July 15, 1999. On August 17, 2000, the state habeas corpus court entered an order denying McClain state habeas relief. McClain’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on April 15, 2002. McClain then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on November 18, 2002. McClain v. Head, 537 U.S. 1033 (2002).
Federal Habeas Corpus Proceedings (2002-2007)
McClain, represented by Thomas H. Dunn, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia on October 31, 2002. On June 26, 2007, the district court denied McClain federal habeas corpus relief. The district court denied a motion to alter and amend judgment on July 17, 2007. The district court denied McClain a certificate of appealability on August 23, 2007.
11th Circuit Court of Appeals (2008-2009)
On February 22, 2008, the Eleventh Circuit granted McClain’s application for an expansion of the certificate of appealability. The case was orally argued before the Eleventh Circuit on September 30, 2008. On December 18, 2008, the Eleventh Circuit issued an opinion which denied relief. McClainv. Hall, 552 F.3d 1245 (11th Cir. 2008). McClain filed a petition for panel rehearing, which was denied January 26, 2009.
United StatesSupreme Court (2009)
McClain filed a petition for writ of certiorari in the United States Supreme Court, which was denied October 5, 2009. McClain v. Hall, 2009 U.S.LEXIS 6013 (Case No. 09-5004).
Mark Howard McClain was sentenced to death for the November 20, 1994 murder of Kevin Brown, the 28-year-old manager of a Domino's Pizza store that McClain was robbing.
At approximately 1:00 a.m. on Sunday, November 20, 1994, McClain left the house of his girlfriend, Tina Butler, drove to a nearby Domino’s Pizza store on 2 Washington Road, and parked his blue Buick automobile beside the store. When Philip Martin Weeks Jr., a delivery man, returned to the store before 2:00 a.m., McClain approached Weeks and asked to purchase a pizza. Weeks explained that the store had stopped selling carry-out pizza at 10:00 p.m. the previous evening. McClain protested and refused to leave. To appease McClain, Weeks said that he would ask the manager, Kevin Scott Brown, to make an exception for McClain. McClain began yelling outside the store that he wanted a pizza. Brown released the lock of the door to the store, and Weeks opened the door. McClain attempted to force his way into the store. Weeks initially struggled with McClain, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door.
Brown, who weighed approximately 450 pounds, remained behind the counter of the store, unable to move quickly. As Weeks left the store, he heard McClain demand that Brown give him money. Weeks ran to a pay telephone to call the police. After he realized the phone was broken, Weeks ran toward another pay telephone at a gas station across Washington Road. As he began to cross the street, Weeks saw a car leave the Domino’s parking lot at a high rate of speed and turn onto Washington Road. The driver, McClain, made eye contact with Weeks and an obscene gesture toward him. Weeks memorized the license tag number of McClain’s car. Weeks then flagged down a passing motorist, who drove Weeks back to the store. Weeks entered the store and found Brown lying on the floor behind the counter and bleeding from a bullet wound to his chest. The keys to the money till of the store, which Brown ordinarily kept in his pocket, were in the till and approximately $100 was missing. Weeks called 911, but Brown bled to death before paramedics arrived.
Within an hour of leaving Butler’s house, McClain returned and gave Butler approximately $100, without explaining where he had obtained the money. McClain spent much of the following day at Butler’s house. In the meantime, police traced to McClain’s father the license tag number of the car Weeks saw. McClain’s father stated that McClain was the primary driver of the car and gave police a description of McClain that matched Weeks’s description. The assistant manager of the Domino’s store identified McClain as having bought a pizza in the store under the name of Johnson two days before the shooting. The box with the receipt for that pizza was found in the trash during a search of McClain’s residence. McClain was arrested when he arrived at work in his blue Buick the following Monday morning, November 21, 1994.
McClain called Butler from the jail that evening and told her to dispose of the clothes, boots, and gun that he had left at her house. McClain also demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate Butler and her family if she refused to help him. In response to McClain’s request, Butler hid McClain’s jacket in a neighbor’s shed and gave McClain’s gun to her nephew. The police questioned Butler, who eventually told the police about McClain’s telephone call to her and gave police McClain’s jacket and boots. McClain’s gun was recovered a month later when Butler’s nephew was involved in a shooting.
Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, when he testified that he had intended only to rob the store. McClain testified that he shot Brown when he heard a noise as he was leaving the store and believed Brown was pursuing him. McClain was convicted of murder, armed robbery, burglary, and possession of a firearm during the commission of certain crimes. He later pleaded guilty to possession of a firearm by a convicted felon. The jury sentenced McClain to death for the murder and found three statutory aggravating circumstances: the murder was committed during the commission of a burglary; the murder was committed during the commission of an armed robbery; “and the murder was committed for the purpose of receiving money or things of monetary value.”
Georgians for Alternatives to the Death Penalty
"Profiles of inmates on Georgia's death row," by Sandy Hodson. (Monday, September 22, 1997)
Jack Edward Alderman, 45, was sentenced to death in June 1975 by a Chatham County jury for killing his wife, Barbara Jean Alderman, 27, on Sept. 21, 1974. His sentence was overturned on a federal appeal in 1980, but in April 1984, he was again sentenced to death. A co-defendant, John Arthur Brown, pleaded guilty for a life sentence and told investigators Mr. Alderman wanted to kill his wife for the insurance money. Mr. Brown was paroled in 1987. The state appeal concerning the fairness of Mr. Alderman's second trial has been pending in Mr. Alderman's case since December 1994.
Stanley Edward Allen, 42, was sentenced to death in Elbert County in July 1981. Mr. Allen and an accomplice, Woodrow Davis, 18, were convicted in the Jan. 5, 1981, break-in of the home of Susie C. Rucker, 72. Both men raped the woman, and she was strangled to death. Mr. Davis was sentenced to life in prison. Mr. Allen's death sentence was overturned by the Georgia Supreme Court in January 1982, but he was resentenced to death in October 1984. Mr. Allen had previously been sentenced to 10 years in prison for rape in 1975. Since September 1991, Mr. Allen has been awaiting a new sentencing trial on the issue of mental retardation.
James Douglas Andrews, 28, was sentenced to death on Oct. 16, 1992, in Muscogee County for rape, robbery and murder. Investigators say that on July 23, 1990, he broke into the home of Viola Hick, 78. His first appeal to the state Supreme Court hasn't been filed.
Joseph Martin Barnes, 27, was sentenced to death in Newton County in June 1993 for the robbery and shooting death of Prestiss Lamar Wells, 57, on Feb. 13, 1992. Although Mr. Barnes was sentenced to death four years ago, his first appeal hasn't been filed yet.
Norman Darnell Baxter, 45, was sentenced to death in Henry County in November 1983 for the murder of Kathryn June "June Bug" Brooks, 22. Her nude body bound feet, wrists and neck was found a week after she was reported missing in July 1980. Mr. Baxter, who spent time in state mental hospitals, had prior criminal convictions. A new sentencing trial has been pending since February 1995.
Jack Alfred Bennett, 68, was sentenced to death in Douglas County for killing his 55-year-old wife four days after they were married on June 24, 1989. As she lay sleeping, Mr. Bennett stabbed her more than 100 times and caved in the left side of her head with a claw hammer. His state appeal challenging the fairness of his trial has been pending since December 1995.
Billy Sunday Birt, 60, and Bobby Gene Gaddis, 56, were sentenced to death in Jefferson County for the Dec. 22, 1973, torture and killing of Lois and Reed Oliver Fleming, ages 72 and 75. Three other men, including the man who arranged the robbery-killings, were granted immunity. A third man, Charles Reed, was sentenced to life in prison. Four years after Mr. Birt and Mr. Gaddis were sentenced to death for killing the white couple, their sentences were overturned by a state judge reviewing the fairness of their trials. Nothing has been done since and this year the Department of Corrections moved Mr. Birt and Mr. Gaddis off death row.
Joshua Daniel Bishop, 22, was sentenced to death in Baldwin County on Feb. 13, 1996, for the robbery and beating death of Leverett Lewis Morrison, 44, who refused to turn over his jeep keys. Mr. Bishop helped beat to death another man and that evidence was used against him in his capital murder trial. His first appeal is pending.
Roy Willard Blankenship, 41, was sentenced to death in April 1980 in Chatham County for beating, raping and killing Sara Bowen, 78, for whom he had done work in the past. Ms. Bowen actually died from a heart attack brought on by trauma including being bitten, scratched and stomped. Mr. Blankenship has been sentenced to death three times, the last time in June 1986, following the reversal of his sentence. A state appeal challenging the fairness of his trial has been pending since March 1994.
Kenneth Dan Bright, 36, was sentenced to death in Muscogee County for the Oct. 30, 1989, robbery and murder of his grandparents, R.C. Mitchell, 74, and Fannie Monroe Mitchell, 69, less than eight months after being released from a mental hospital. Mr. Bright was a crack addict on parole at the time of the killings. His sentence was overturned by the state Supreme Court in March 1995. He's still awaiting retrial.
Ward Anthony Brockman, 25, was sentenced to death March 12, 1994. He and three others killed a service station attendant during an attempted robbery on June 27, 1990. Mr. Brockman, who was the triggerman, and his accomplices had pulled a number of armed robberies, and he was arrested after a chase in Phenix City, Ala. His first appeal to the state Supreme Court hasn't been filed yet.
James Willie Brown, 48, was sentenced to death in Gwinnett County in July 1981 after he had been hospitalized for nearly six years. Mr. Brown, who had a history of mental illness and convictions for an attempted rape and robbery, killed Brenda Sue Watson, 19, on May 12, 1975, after the two went out for dinner and dancing. A federal court reversed Mr. Brown's death sentence in 1988. He was sentenced to death a second time in February 1990.
Raymond Burgess, 38, was sentenced to death on Feb. 25, 1992, in Douglas County. During a robbery spree with co-defendant Norris Young. Mr. Burgess shot and killed Liston Chunn, 44, eight months after he was paroled from a life sentence for another robbery-killing. Mr. Burgess was also convicted in 1977 of armed robbery and sexual assault. Mr. Young was sentenced to life in prison. Mr. Burgess' state appeal challenging the fairness of his trial has been pending since August 1995.
David Loomis Cargill, 38, was sentenced to death in Muscogee County in July 1985 for the robbery and murder of a couple with four children under age 10. Cheryl Williams, 29, and Danny Williams, 41, were at a service station when Mr. Cargill and his brother, Tommy, robbed it the night of Jan. 22, 1985. The couple was forced to lie on the floor where David Cargill shot both twice in the head. Tommy Cargill received a life sentence. David Cargill's federal appeal challenging the fairness of his trial is pending.
Timothy Don Carr, 26, was sentenced to die in Monroe County in October 1992. He and his girlfriend were partying the night of Oct. 8, 1992, with Keith Patrick Young, 18, whom Mr. Carr stabbed numerous times, slit his throat and bashed his head with a baseball bat. Mr. Carr, who was on probation, and his girlfriend stole Mr. Young's car and $120. The girlfriend was sentenced to life in prison plus 20 years. Mr. Carr's first appeal to the state Supreme Court was denied in February. Mr. Carr's execution was set in August. Since Mr. Carr had no attorneys, a deadline to appeal to the U.S. Supreme Court passed in May. The state Supreme Court and U.S. Supreme Court rejected the Attorney General's attempt to lift the stay of execution.
Roddy Elroy Childress, 49, was sentenced to death in May 1994 in Glynn County for the shooting deaths of his half-sister's husband, Patrick Kappus, 40, and her daughter, Emma Kappus, 15, on May 1, 1989. Mr. Childress' conviction and sentence were overturned in March 1996, however, because Mrs. Kappus violated the rules of sequestration during the trial by talking to other witnesses about testimony. Mr. Childress is awaiting a new trial.
Scott Lynn Christenson, 26, was sentenced to death in Harris County in March 1990 for the robbery and murder of Albert L. Oliver III, 31. Mr. Oliver gave Mr. Christenson a ride on July 6, 1989. His body, with five gunshot wounds, was found later that day. Mr. Christenson, then 18, had a juvenile record of burglaries and thefts and adult convictions for forgery, burglary and car thefts. His state appeal challenging the fairness of his trial has been pending since October 1995.
Michael Anthony Cohen, 40, was sentenced to death in Glynn County in December 1986. Mr. Cohen, who had a history of burglary convictions, had been out of prison about a month when he started burglarizing homes again, stealing a handgun Oct. 13, 1985. The next day, Auzzie Douglas Sr., 55, a disabled man, was shot to death inside his home. His case has been sent back to Glynn County on the issue of mental retardation.
Robert Lewis Collier, 49, was convicted in Catoosa County in August 1978 for shooting to death a sheriff's investigator, Baxter Shavers, 24. Investigator Shavers was investigating a robbery call April 14, 1978, when shot. Investigator Shavers, the youngest chief deputy in state history at the time, was married with one son. Jeremy Shavers followed in his father's footsteps and now is a sheriff's deputy in Catoosa County. Mr. Collier's second federal appeal challenging the fairness of his conviction is pending in the 11th U.S. Circuit Court of Appeals.
Roger Collins, 38, was sentenced to death in Houston County on Feb. 17, 1978, for the rape and murder of Deloris Luster, 17. On Aug. 6, 1977, he and a friend offered Ms. Luster a ride. The teen was raped, then Mr. Collins killed her with a car jack. William Durham was sentenced to life in prison. Mr. Collins' case was returned to the Houston County trial court in March 1991 on the issue of mental retardation.
Robert Dale Conklin, 36, was sentenced to death in June 1984 in Fulton County. Mr. Conklin was having an affair with attorney George Grant Crooks, 27, when the two got into an argument on March 28, 1984, and Mr. Conklin stabbed the other man in the ear with a screw driver. Mr. Conklin said he panicked afterward because he was on parole at the time. So he drained the blood from Mr. Crook's body and cut it up into nine pieces. Mr. Conklin's appeal is pending in federal court.
John Wayne Conner, 40, was sentenced to death in July 1982 in Telfair County. Six months before, Mr. Conner was drinking with his friend, James T. White, 29, when he became enraged and started beating Mr. White with his fist, a whiskey bottle and a stick. In the most recent appeal action, Mr. Conner's state appeal challenging the fairness of his trial was denied in December. That decision is being appealed to the state Supreme Court.
Eddie A. Crawford, 50, was sentenced to death in Spalding County in March 1984 for the kidnapping, rape and murder of his 29-month old niece, Leslie Michelle English, on Sept. 25, 1983. The toddler was strangled to death, bruised and raped. He told police he remembered the toddler had been in his car and remembered carrying her out of the car. He was sentenced to death twice. He was on probation when he killed the girl.
Samuel David Crowe, 36, was sentenced to death in Douglas County in November 1989. The former church deacon was convicted of the robbery and murder of his former boss, Joe Pala, 39. Mr. Pala was knocked to the floor of Wickes Lumber Co., shot, hit with a paint can and crowbar, and covered in paint the night of March 2, 1988. Mr. Crowe had no criminal record before the killing. His first appeal to the state Supreme Court was denied in June 1995, and the U.S. Supreme Court rejected hearing the case on appeal in March 1996.
George Bernard Davis Jr., 39, was sentenced to death in Elbert County in February 1985. He was convicted of robbing and shooting to death Richard L. Rice, 63. The garage owner was found dead in his tow truck Feb. 13, 1984. His wallet had been stolen along with more than $800. Mr. Davis had argued with Mr. Rice over payments for car repairs. Davis, who had no major felony convictions before the killing, has been awaiting a trial court decision on the issue of mental retardation since April 1990.
Troy Anthony Davis, 28, was sentenced to death in Chatham County in September 1991 for killing an off-duty police officer, Mark Allen MacPhail, 27. Officer MacPhail was trying to break up a fight between Mr. Davis and another man when Mr. Davis shot him. He was wearing a bullet-proof vest, but as Mr. Davis stood over the officer and shot him again, the bullet pierced his side. Mr. Davis' state appeal challenging the fairness of his trial has been pending since March 1994.
Andrew Grant DeYoung, 22, was sentenced to die in October 1995 in Cobb County. He and a friend, David Michael Haggerty, 28, stabbed to death his parents and little sister Gary Wayne, 42, Kathryn, 41, and Sarah, 14, on July 15, 1993. Mr. DeYoung had no prior criminal record. Mr. Haggerty was sentenced to life in prison in July 1996. An appeal hasn't been filed yet for Mr. DeYoung.
Wilbur Wiley Dobbs, 48, was sentenced to death in Walker County in May 1974 for the shotgun slaying of Roy L. Sizemore, 50. The grocery store owner was killed Dec. 14, 1973, when Mr. Dobbs and two others robbed the store. A salesman visiting the store was also shot but survived, as did a female customer who suffered a skull fracture after she was hit with a gun butt. Mr. Dobbs' co-defendants were sentenced to life in prison. In May, a federal judge ordered a new sentencing hearing for Mr. Dobbs, ruling his trial attorney was ineffective.
Leonard Maurice Drane, 37, was sentenced to death in Elbert County in September 1992 for killing Linda Renee Blackmon, 27, on June 13, 1990, while he was on probation for other crimes. The trial was moved from Spalding County to Elbert County. She had been raped and shot. Her throat was cut. Co-defendant David Robert Willis was sentenced to life in prison. Three years ago, the state Supreme Court sent Mr. Drane's case back to the trial court for a ruling on appeal issues.
Eric Lynn Ferrell, 34, was sentenced to death in September 1988 in DeKalb County for the robbery and murder of his 72-year-old grandmother and 15-year-old cousin. The bodies were found Dec. 30, 1987. Both had been shot twice in the head at close range. Mr. Ferrell was on probation at the time. At the time of his grandmother's and cousin's killings, two of his uncles had killed a man and police initially thought the double homicide was revenge for that homicide. When arrested, police found four spent .22-caliber casings in Mr. Ferrell's pockets, along with $600. The murder weapon was later found at his home. A state appeal challenging the fairness of his trial and sentence has been pending since July 1995.
Eddie William Finney Jr., 40, was sentenced to death in Jones County in November 1977 about three months after the bodies of Thelma Kalish, 69, and Ann Kaplan, 60, were found in their home. On Sept. 22, 1977, the women were robbed, raped and beaten to death. Mr. Finney and Johnny Mack Westbrook, who had both done yard work for the women, were convicted and sentenced to death. The Georgia Supreme Court reversed Mr. Westbrook's death sentence because the judge sent the jury back into the deliberation room when it first voted for life. Mr. Westbrook died of heart disease in prison in 1993. Mr. Finney's case was returned to the trial court in April 1991 for a decision on the issue of mental retardation.
Son Fleming, 66, was sentenced to death in January 1978 in Lanier County for the murder of Ray City Police Chief Ed Giddens, 29. The officer stopped a speeding car in February 1976, not knowing the men inside had just pulled an armed robbery. It was Chief Giddens' last day on the job he had intended to move to Florida. Mr. Fleming's brother was sentenced to life in prison. Henry Willis III, 36, was sentenced to death, too, and he was executed May 18, 1989. Mr. Fleming was the test case for the 1988 mental retardation exception for the death penalty. He was returned to Lanier County in March 1991 for a new sentencing trial.
Melbert Ray Ford Jr., 36, was sentenced to death in Newton County in October 1986. Seven months before, Mr. Ford shot to death his former girlfriend, Martha Chapman Matich, 31, and her 11-year-old niece, Lisa Renee Chapman. Although prosecutors contended Mr. Ford killed the woman and child in revenge for a romantic breakup, Mr. Ford also robbed the store where Ms. Matich was working that night. His attorneys are currently appealing the denial of his first appeal challenging the fairness of his trial and sentence.
Timothy Tyrone Foster, 29, was sentenced to death in Floyd County in May 1987. Mr. Foster confessed that on the night of Aug. 27, 1986, he broke into the home of Queen Madge White, 79. Her jaw was broken, she had gashes on the top of her head and she had been sexually assaulted and strangled. Mr. Foster had a juvenile record including armed robbery. In July 1991, his case was sent back to the trial court on the issue of mental retardation.
Wallace Marvin Fugate III, 47, was sentenced to death in Putnam County in April 1992 for killing his estranged wife, Pattie Fugate, 40. On May 4, 1991, he broke into his wife's home and waited for her. When she came in, he grabbed Ms. Fugate and dragged her outside to his vehicle, pistol whipped her about 50 times and then shot her in the forehead. Their son, who witnessed the killing and testified against his father, was the victim of a homicide the next year. One of the men who beat his son to death is now on Death Row too. Mr. Fugate's attorney has appealed the denial of his first appeal, challenging the fairness of his trial and sentence in October 1996.
Kenneth E. Fults, 28, was sentenced to death in May in Spalding County for killing a neighbor, 19-year-old Cathy Bonds, after breaking into her home on Jan. 30, 1996. Mr. Fults smothered her with a pillow and then shot her before stealing her car. Mr. Fults had a history of mental illness but no prior felony convictions. A direct appeal hasn't been filed yet.
Carlton Gary, 46, was sentenced to death in Muscogee County in August 1986. Between Sept. 11, 1977, and April 19, 1978, eight elderly women in Columbus were raped and strangled in their homes. One survived. In 1984, a gun stolen in the same neighborhood as the killing spree was found in Michigan in the possession of Mr. Gary's cousin. Mr. Gary's fingerprints were then matched to some left in the homes of four of the homicide victims. He was convicted of murdering three women. Mr. Gary had been accused of the rape and murder of an 89-year-old New York woman in 1970 and an additional rape, but he blamed another man who was tried and acquitted. Mr. Gary's second state appeal challenging the fairness of his trial and sentence was denied in December 1995. On May 27, the U.S. Supreme Court rejected an appeal on the same grounds.
Johnny Lee Gates, 41, was sentenced to death in Muscogee County in September 1977. On Nov. 30, 1976, Mr. Gates posed as a gas company employee to get into the home of 19-year-old Katharina Wright, whom he robbed, raped and then shot in the head. Mr. Gates was on parole at the time. He was arrested on unrelated charges Jan. 31, 1977, and confessed. Between Mrs. Wright's killing and his arrest, Mr. Gates also committed two other armed robberies and voluntary manslaughter. In 1992, Mr. Gates' case was sent back to Muscogee County for a new sentencing trial on the question of mental retardation.
Exzavious Lee Gibson, 25, was sentenced to death in Dodge County in June 1990. He was convicted of robbing and stabbing to death 46-year-old Douglas Coley at the Eastman convenience store where Mr. Coley was working Feb. 2, 1990. Mr. Gibson, who was covered in Mr. Coley's blood when arrested shortly after the robbery-slaying, was convicted four months later. This year, Augusta Judicial District Superior Court Judge J. Carlisle Overstreet denied Mr. Gibson's state appeal challenging the fairness of his trial, although Mr. Gibson had no legal counsel.
Fred Marion Gilreath Jr., 59, was sentenced to death in Cobb County in March 1980 for the killing of his estranged wife and her father. On May 11, 1979, Linda Gilreath, 28, and Gerrit W. VanLeevwen, 57, were shot to death she had been shot five times with a rifle, and then shot in the face at close range with a 12-gauge shotgun, he was shot with a rifle, shotgun and handgun. Mr. Gilreath's federal appeal challenging the fairness of his trial was denied in April 1996.
Daniel Greene, 30, was sentenced to death in December 1992 in Clayton County where the venue was changed from Taylor County. He committed a violent crime spree the night of Sept. 27, 1991, when he walked into a Reynolds convenience store and pulled a clerk into the back room, demanded money and stabbed her. He then stabbed customer Bernard Walker, 20, in the heart, killing him. A short time later, he forced his way into the home of an elderly couple he knew and stabbed both and stole their car. He then went to a convenience store in Warner Robins where he robbed and stabbed the clerk. In May, the state Supreme Court let the conviction and sentence stand.
Dennis Charles Hall, 41, was sentenced to death in August 1990 in Barrow County for the shotgun killing of his 10-year-old son, Adrian Hall. Police had been called to the Hall home numerous times before Jan. 7, 1990, when they found a drunken Hall and the dead child. His wife and two daughters told police Mr. Hall became enraged at Adrian for being noisy. The girls tried to hide Mr. Hall's gun, but he found it and shot the boy. He told a neighbor afterward, " I couldn't learn him nothing by beating him with a belt. So I guess I learned him something this time." His state appeal challenging the fairness of his trial has been pending since December 1995.
Willie James "Bo" Hall, 40, was sentenced to death in DeKalb County in February 1989 for killing his estranged wife, Thelma Hall, 23, who moved out of the family home just six days before her murder. On July 11, 1988, Ms. Hall made a frantic call to 911, and the dispatcher heard the sound of breaking glass and screams. Police arrived in minutes but, Mr. Hall had stabbed her 17 times. The day before, Mr. Hall told his sister-in-law that he would kill his wife and wouldn't get more than 10 years in prison for it. His state appeal was denied.
Emanuel Fitzgerald "Demon" Hammond, 30, was sentenced to die in Fulton County in March 1990 for the kidnapping, robbery, rape and murder of 27-year-old Julie Love. She was last seen by her boyfriend the night of July 11-12, 1988, when she left his apartment for home. A year later, in August 1989, Janice Weldon filed assault charges against Mr. Hammond after he tried to strangle her. Ms. Weldon told police that he and his cousin Maurice Porter killed Ms. Love. Mr. Porter confessed and took police to Ms. Love's remains near a trash pile. Ms. Love was kidnapped at gunpoint, Mr. Porter told police. Ms. Love was raped by Mr. Porter and beaten. Then the men tried to strangle her by wrapping a coat hanger around her neck and pulling the opposite ends. When that didn't work, Mr. Hammond shot her. Mr. Hammond had carjacked three other women stabbing one and leaving her to die on a trash pile, and he also broke into a woman's home and raped her. As a juvenile, he raped, robbed and kidnapped a woman and slit her throat, and he raped and sodomized another. While awaiting trial, he bragged to a deputy that he also had raped Ms. Love. His state appeal challenging the fairness of his trial was filed in December 1995.
George Russell Henry, 28, was sentenced to death in Cobb County in November 1994 for shooting to death a police officer. Officer Robert Ingram, a two-year police veteran, was shot in the face and behind his left ear while he was investigating a report of a suspicious person. Mr. Henry had previously been convicted of burglaries and forgery and was on probation at the time of the murder. His first appeal to the state Supreme Court hasn't been filed yet.
Robert Karl Hicks, 40, was sentenced to death in January 1986 in Spalding County for the kidnapping, rape and murder of 28-year-old Toni Strickland Rivers. On July 13, 1985, Ms. Rivers was waiting for a friend at a public park when she disappeared. That night, two men driving down a country road heard a scream and saw a man making stabbing motions. Ms. Rivers bled to death. Mr. Hicks had previously been convicted of rape. At his trial, doctors testified yes and no that Mr. Hicks was mentally ill. The denial of his state appeal challenging the fairness of his trial was upheld by the state Supreme Court in November 1995.
Jose Martinez High, 38, was sentenced to death in December 1978 in Tallaferro County for the kidnap and murder of 11-year-old Bonnie Bulloch who was kidnapped along with his father in July 1976. Judson Ruffin and Nathan Brown also were convicted and sentenced to death for Bonnie's murder, but their cases were reversed on appeal. They were resentenced to life in prison. A fourth man with the gang when Bonnie and his father were kidnapped and shot, Alphonso Morgan, was convicted and sentenced to die in Richmond County for another abduction and murder in the gang's crime spree. His sentence, however, also was overturned and he's now serving a life sentence. A second federal appeal challenging the fairness of Mr. High's trial is pending.
John W. Hightower, 53, was sentenced to death in Morgan County in May 1988 for killing his wife and two stepdaughters. Mr. Hightower's trial was moved from Baldwin County, where on July 12, 1987, the bodies of Dorothy Hightower, 42, Sandra Reaves, 22, and Evelyn Reaves, 19, were found at their home. Each had been shot. Mr. Hightower was arrested hours later in his wife's car, a bloody handgun inside. He bought the murder weapon the day before the slayings. A federal appeal challenging the fairness of his trial has been pending since November.
Floyd Ernest Hill, 60, was sentenced to death in July 1981 in Cobb County for shooting to death Austell Police Officer Gregory Mullinax. On Feb. 8, 1981, Officer Mullinax was sent to a trailer park on a domestic disturbance call. Officer Mullinax became the target of the battling couple when Mr. Hill got into the fray and shot the officer, and the officer shot and killed another person in the fight. Mr. Hill's death sentence was overturned on federal appeal in December.
Warren Lee Hill, 36, was sentenced to death in September 1991 in Lee County for beating to death fellow inmate Joseph Handspike, 34, with a nail-embedded board on Aug. 17, 1990. At the time, Mr. Hill was serving time for a 1985 murder. Mr. Hill's state appeal challenging the fairness of his trial has been pending since April 1994.
Travis Clinton Hittson, 26, was sentenced to death in Houston County in March 1993 for killing 20-year-old Conway U. Herbeck, a fellow sailor. On April 3, 1993, Mr. Hittson, Edward Vollmer and the victim left Pensacola, Fla., where they were stationed, and drove to Mr. Vollmer's parent's home in Warner Robins. Mr. Vollmer wanted to kill Mr. Herbeck and gave Mr. Hittson a baseball bat to use on April 5, 1992. Mr. Hittson hit the victim in the head several times with the bat and then shot him. They cut up Mr. Herbeck's body, buried the torso in Houston County and the rest in Pensacola. Mr. Vollmer was sentenced to life in prison. Mr. Hittson had never been convicted of a felony before the killing. A state appeal challenging the fairness of his trial has been pending since December 1995.
Dallas Bernard Holiday, 34, was sentenced to death in November 1986 in Jefferson County for killing 66-year-old Leon Johnson Williams on March 11, 1986. Mr. Williams went on his usual early morning walk when Mr. Holiday attacked him, hitting him in the head at least seven times and shooting him. Mr. Holiday had broken into a home the night before and stolen the murder weapon. Mr. Holiday had prior felony convictions. His case was returned to the trial court on the issue of mental retardation in June 1990.
Robert Wayne Holsey, 31, was sentenced to death on Feb. 13, 1997, in Morgan County where his trial was moved. In December 1995, he shot to death Baldwin County Sheriff's Deputy Will Robinson, 26. The officer had stopped Mr. Holsey's vehicle after an armed robbery. At the time, Mr. Holsey had been out on parole less than a year following convictions for assault and armed robbery.
Tracy Lee Housel, 38, was sentenced to death in February 1986 in Gwinnett County for the rape and murder of 46-year-old Jean D. Drew. Ms. Drew was in the habit of stopping at a truck stop for a snack after her ballroom dancing lessons. On the night of April 7, 1985, she met Mr. Housel at the restaurant. Her body was found the next day, and he was arrested about a week later in Daytona Beach, Fla., after using her credit cards. He confessed to killing Ms. Drew, killing a man in Texas, and trying to kill two others in Illinois and Texas. He also confessed to murders in California and Tennessee. A decision is pending from the 11th Circuit Court of Appeals on Mr. Housel's federal appeal challenging the fairness of his trial.
Carl J. Isaacs, 43, was sentenced to death in Seminole County in 1974 and again in Houston County at a retrial in 1988. In May 1973 when he was 19 years old, he escaped from a Maryland prison and took off for Florida with his brother Billy, half brother Wayne Coleman and friend George Dungee. On May 14, 1973, they ran out of gas in Seminole County and stopped to burglarize a trailer. Within hours, they had shot to death Jerry Alday, Ned Alday, Jimmy Alday, Chester Alday and Aubrey Alday in addition to raping Mary Alday and then killing her. They were arrested in West Virginia with the murder weapons and items belonging to the Alday family. Billy Isaacs, 15 years old at the time of the killings, received a 40-year sentence. He was taken to Maryland in 1993 to serve a life sentence there for murder. At the 1988 retrial, Mr. Coleman and Mr. Dungee received life sentences.
Jonathen Jarrells, 40, was sentenced to death in March 1988 in Walker County for the robbery and murder of Gertie E. Elrod, a 77-year-old woman. On Aug. 24, 1987, Ms. Elrod and her sister, Lorraine Elrod, were attacked in their home by Mr. Jarrells. He stabbed both with scissors, tied their hands and feet and beat them with an iron. Lorriane survived the attack although she lost the sight in one eye and her hearing in one ear. When arrested in Hazard, Ky., he had items belonging to the Elrod sisters in his possession. In May 1991, Mr. Jarrell's case was sent back to the trial court on the issue of mental retardation.
Lawrence Joseph Jefferson, 42, was sentenced to death in March 1986 in Cobb County for the robbery and killing of his construction job supervisor Edward Taulbee, 37. On May 1, 1985, they went fishing at Lake Allatoona. Later, Mr. Jefferson arrived home in the victim's vehicle and told a neighbor, "My fat little buddy is dead." Mr. Taulbee's body was found the next day; he had been beaten with a stick and then his skull was crushed with a 40-pound tree trunk. In 1979, Mr. Jefferson had pleaded guilty in Louisville to armed robbery and burglary. His first appeal to the state Supreme Court and next state appeal challenging the fairness of his trial have been denied.
Larry L. Jenkins Jr., 21, was sentenced to death in Wayne County for the robbery and killing of the owner of a laundry and her 15-year-old son. Mr. Jenkins accosted Terry Ralston, 37, and her son Michael on Jan. 8, 1993. He kidnapped the mother and son and shot them both to death in a rural area. Although sentenced to death in September 1995, his first appeal to the Georgia Supreme Court hasn't been filed yet.
Ashley Lyndol Jones, 23, was sentenced to death in June 1995 in Coffee County. On March 31, 1993, in Ware County, Mr. Jones and co-defendant Allen Brunner were drinking and driving in a stolen vehicle when it developed car trouble. Mr. Jones knocked on the door at Carlton Keith Holland's home and asked for help. As Mr. Holland, 39, leaned over the engine and his wife watched through the window, Mr. Jones slammed a wrench and later a sledgehammer on Mr. Holland's head. Mr. Brunner was sentenced to life without parole. In March, the state Supreme Court affirmed Mr. Jones' conviction and death sentence.
Brandon Aston Jones, 54, was sentenced to death in October 1979 in Cobb County. On June 17, 1979, he and Van Roosevelt Solomon were arrested at a service station after an officer who just happened to drive up heard gunshots. In the storeroom, the officer found 29-year-old Roger Tackett, the station manager, who had been shot in the legs and arms and beaten before the fatal contact shot was fired behind his left ear. Mr. Solomon also was sentenced to death and he was executed on Feb. 20, 1985. In 1989, a U.S. District Court judge reversed Mr. Jones' sentence, ruling it was unfairly imposed considering the prosecutor's Bible quoting. Mr. Jones is still awaiting a new sentencing trial. In September 1996, the Department of Corrections transferred him off death row and into the general prison population.
Ronald Leroy Kinsman, 39, was sentenced to death April 18, 1987, in Muscogee County for the robbery and murder of a Hardee's manager. Bruce Keeter, 29, was found shot to death the morning of Sept. 14, 1984. About $400 was stolen from the restaurant safe, and Mr. Keeter's car was later found abandoned. Two years later, a friend of Mr. Kinsman's told police Mr. Kinsman had admitted to the murder. In 1976, Mr. Kinsman had been convicted of another robbery-murder and was paroled not long before Mr. Keeter was murdered. A state appeal challenging the fairness of his trial has been pending since December 1995.
J.W. Ledford Jr., 25, was sentenced to death in Murry County with a jury selected from Gordon County in November 1992 for the murder of a neighbor he had known all his life, Dr. Harry Johnston Jr., 73. On Jan. 31, 1992, Mr. Ledford went to the Johnston home and asked his wife, Antoinette, to speak to Mr. Johnston. He forced his way into the home at knife point, demanding money and guns. Mr. Johnston's body was found later, his head nearly cut off and a knife in his back. Mr. Ledford's state appeal challenging the fairness of his trial has been pending since December 1995.
James Allyson Lee, 22, was sentenced to death in June by a Charlton County Superior Court jury. On Nov. 17, 1996, he shot his 43-year-old stepmother, Sharon Varnadore Chancey, to death. Although Mr. Lee pleaded with the jury to spare him because he wasn't the same man who committed murder, when first questioned by police, Mr. Lee said killing was so easy it would be easy to do again.
Larry Lee, 36, was sentenced to death in November 1987 in Wayne County for the robbery and killing of a couple and their 14-year-old son. Clifford and Nina Murray Jones Sr., both 48, and Clifford Jones Jr. were killed April 26, 1988 all had been shot, stabbed and beaten. Mr. Lee's brother Bruce Lee was reportedly also involved in the triple homicide, but he died while committing a burglary two months after the Jones family killings. Mr. Lee's state appeal challenging the fairness of his trial was denied, but the judge was ordered to reconsider it in June 1995 because of new case law.
William Anthony Lipham, 33, was sentenced to death in Coweta County in February 1987 for the rape, robbery, burglary and murder of a 79-year-old woman, Kate Furlow. Mr. Lipham was seen in Ms. Furlow's home on Dec. 4, 1985. The next day, her nude body was found at home with a .25-caliber bullet wound in her head. Mr. Lipham confessed but said he had sex with the elderly woman after she was dead. A state appeal challenging the fairness of his trial has been pending since 1989.
William Earl Lynd, 42, was sentenced to death in February 1990 for killing his girlfriend three days before Christmas 1988. Mr. Lynd was living with 27-year-old Virginia "Ginger" Moore when they got into an argument and he shot her in the face and went outside. Ms. Moore followed him outside where he shot her again and put her in the trunk of his car. When he heard noise from the trunk, he stopped the car and shot her a third time. After burying her body, Mr. Lynd drove to Ohio where he shot and killed another woman. He returned to Georgia and surrendered to police on New Year's Eve. Mr. Lynd had numerous convictions for prior assaults on women. His state appeal challenging the fairness of his trial has been pending since December 1995.
James Mathis, 51, was sentenced to death in Douglas County in May 1991 for killing J.L. Washington and his wife Ruby Washington, both 69. On Thanksgiving Day 1980, Mr. Mathis was seen in the back seat of the Washington's vehicle as they drove through their apartment complex. Their bodies were found in a wooded area. Both had been beaten, stabbed and shot. In 1989, a U.S. District judge reversed Mr. Mathis' death sentence because of ineffective counsel, but in 1992 the 11th Circuit sent the case back to the federal judge to explain the ruling.
Mark Howard McClain, 30, was sentenced to death in Richmond County in September 1995 for the robbery and murder of a Domino's Pizza store manager. In November 1994, Mr. McClain, who had previously been convicted of armed robbery, forced his way into the closed Domino's store and robbed Kevin Brown, 28. As Mr. McClain turned to leave he shot and killed Mr. Brown, an eyewitness testified. The witness got the license tag number off the getaway car and police traced the vehicle to Mr. McClain's girlfriend. Earlier this year, the state Supreme Court affirmed Mr. McClain's conviction and sentence, and in June, the U.S. Supreme Court refused to consider an appeal of that decision.
James R. McDaniel, 23, was sentenced to death in June by a Butts County Superior Court jury. He was convicted of murdering his grandparents Erner and Eugene Barkley, ages 70 and 75, and his 10-year-old stepbrother, Justin Davis. Family members of the victims, also Mr. McDaniel's family, opposed the death penalty for the young man with a history of commitments to mental hospitals and crack addition. Police said Mr. McDaniel robbed his grandfather to buy crack.
Kim Anthony McMichen, 39, was sentenced to death in Douglas County in July 1993 for the shooting deaths of his estranged wife and her boyfriend. On Nov. 16, 1990, he shot Luan McMichen, 27, and Jeff Robinson, 27, and then walked his 8-year-old daughter past the bodies. Ms. McMichen's friends told police he had harassed her since she left him in January 1990 and that he had raped her. Mr. McMichen had no prior criminal convictions. His first appeal to the Georgia Supreme Court hasn't been filed.
Jimmy Fletcher Meders, 36, was sentenced to death in April 1989 in Glynn County for the robbery and murder of a convenience store clerk. Don Anderson, 47, was shot twice as he lay on the floor after being robbed of $38 the night of Oct. 14, 1987. Police say two men with Mr. Meders weren't involved in the killing and they weren't prosecuted. Mr. Meders' current attorneys claims just the opposite that the other two men did the robbery and killing while a drunken Mr. Meders was in the back of the store. All three men had prior felony convictions. Mr. Meders state appeal challenging the fairness of his trial has been pending since April 1993.
Michael Miller, 34, was sentenced to death in November 1988 in Walton County for the robbery and killing of 35-year-old Larry Judson Sneed. On Oct. 29, 1987, Mr. Sneed was driving along a Walton County road when shots were fired at his vehicle and he was forced off the road. Mr. Sneed got out and ran but he was shot in the back and bled to death. Two days before, Mr. Miller and another man had kidnapped a man during a burglary. In January 1995 his case was sent back to the trial court on the issue of mental retardation.
Terry Mincey, 37, was sentenced to death in August 1982 in Bibb County for the robbery and killing of a store clerk, the mother of two small children. On April 12, 1982, Paulette Riggs was working at a convenience store when Mr. Mincey and two others decided to rob it. After making Ms. Riggs hand over the money, he walked her outside where Russell Peterman was pumping gas into his car. Mr. Mincey shot Mr. Peterman in the chest and when he fell, Mr. Mincey shot him again in the face. Ms. Riggs tried to run away, but Mr. Mincey shot her and after she fell, he shot her in the face. Mr. Peterman survived but lost 40 percent of his vision in one eye and lives with a bullet lodged near his spine. Mr. Mincey, a preacher's son, had at least three prior armed robbed convictions in 1977. His two co-defendants in the 1989 killing received life sentences. In September 1996, his federal appeal challenging the fairness of his trial was filed.
Nelson Earl Mitchell, 34, was sentenced to death in January 1990 in Early County for killing Iron City Police Chief Robert Cunningham, 51, during a routine traffic stop. Mr. Mitchell, who had prior convictions for larceny and theft, testified that the white police chief used racial slurs and the gun went off during a struggle. One issue the defense may raise on appeal is an allegation that the jury foreman's husband was sitting in the courtroom and allegedly signaled his wife to vote for death by drawing his finger across his throat. Although it's been more than seven years since his conviction, the first appeal to the Georgia Supreme Court hasn't been filed.
William Mark Mize, 40, was sentenced to death in Oconee County in December 1995 after demanding the jury sentence him to death. The Klansman ordered the killing of William Eddie Tucker, 34, because he was angry Mr. Tucker had messed up an arson job on a crack house in October 1994. Mr. Mize had prior convictions for escape, theft, arson, and being a felon in possession of a firearm. Co-defendants Christopher Hattrup and Mark Allen received life sentences.
Stephen Anthony Mobley, 31, was sentenced to death in Hall County in February 1994. During a Feb. 17, 1991, robbery of a Domino's store, he shot and killed 24-year-old John Copeland Collins. Mr. Mobley had been convicted of burglary and forgery, but he didn't get into violent crimes until 1991 when he began a robbery spree that ended in Mr. Collins' death. While awaiting trial, Mr. Mobley raped his cellmate and had Domino's tattooed on his chest. His state appeal challenging the fairness of his trial has been pending since March 1996.
Larry Eugene Moon, 52, was sentenced to death in Catoosa County in January 1988 for killing 34-year-old Ricky Callahan who had driven to a convenience store to buy his wife some aspirin on Nov. 24, 1984. At the time Mr. Callahan was murdered, Mr. Moon was hiding out in Georgia after committing a Tennessee murder. After killing Mr. Callahan, Mr. Moon drove back to Chattanooga and on Dec. 1, 1984, he robbed an adult book store and kidnapped a female impersonator whom he raped. The next day, he killed another man in Gatlinburg, Tenn., and shot at a woman; then on Dec. 7, 1984 he robbed a Chattanooga convenience store. He was arrested Dec. 14, 1984 in Oneida, Tenn., in another stolen car containing a number of guns, including Mr. Callahan's murder weapon. Mr. Moon's prior record included seven burglaries, three aggravated assaults and escape. Mr. Moon's federal appeal challenging the fairness of his trial was filed in April 1996.
Carzell Moore, 45, was sentenced to death in January 1977 in Monroe County for the Dec. 12, 1976 rape, robbery and murder of 18-year-old Teresa Carol Allen, an honors college student. Mr. Moore met up with Roosevelt Greene the day before the killing. Mr. Greene had just escaped from prison. On Feb. 12, 1976, they robbed the store where Ms. Allen worked, taking her, $466 and her vehicle. Both men raped Ms. Allen and Mr. Moore shot her. Mr. Green was arrested in South Carolina driving Ms. Allen's car. He was sentenced to death and executed Jan. 9, 1985, at the age of 28. Mr. Moore's sentence was overturned once but he was resentenced to death. It was overturned a third time, and a new sentencing trial has been pending since August 1992. Mr. Moore, who has a Web site, was transferred to the general prison population last September.
Ernest Ulysses Morrison, 36, was sentenced to death in November 1987 by Richmond County Superior Court Judge Albert Pickett. Mr. Morrison pleaded guilty to the rape, robbery and murder of a family acquaintance, Mary Edna Griffin, 54, on Jan. 9, 1987. Mr. Morrison asked Judge Pickett to sentence him to death. At the time he killed Mrs. Griffin, he was an escapee from the Aiken jail where he was awaiting trial for rape and robbery. A new sentencing trial to include the issue of mental retardation has been pending in Richmond County Superior Court since June 1993.
Robert L. Newland, 54, was sentenced to death in August 1987 in Glynn County for killing Carol Beatty, a 27-year-old woman who lived across the street from Mr. Newland and his roommate. Mr. Newland used a pocket knife to cut Ms. Beatty, slashing her throat deep enough to cut her vocal cords and her stomach enough for her intestines to show. Ms. Beatty lived for 22 hours after the attack and with an investigator's help she was able to spell out the name of her attacker. Mr. Newland had previously been convicted of a similar assault, but that conviction was reversed on appeal. His state appeal challenging the fairness of his trial has been pending since January 1991.
Curtis Osborne, 27, was sentenced to death in Spalding County in August 1991 for shooting to death two acquaintances Linda Lisa Seaborne, 28, and Arthur Lee Jones, also 28. Mr. Osborne confessed that on Aug. 6, 1990, he shot both people as they sat in a car parked alongside a dirt road. His state appeal challenging the fairness of his trial and sentence has been pending since June 1994.
Lyndon Fitzgerald Pace, 32, was sentenced to death in March 1996 in Fulton County. Mr. Pace committed a series of rapes and murders, mainly preying on elderly women from August 1988 through February 1989. He was convicted of killing women ages 78, 86, 79, 78 and 42. He was also convicted of several burglaries during that time period His first appeal to the Georgia Supreme Court hasn't been filed yet.
Bryan Ashley Parker, 36, was sentenced to death in Douglas County in November 1984 for the sexual assault and murder of an 11-year-old girl June 1, 1984. When Christie Anne Griffith disappeared from her trailer park home, Mr. Parker was among the people police questioned. They later learned he had been convicted in Florida of a child molesting charge. Mr. Parker choked and tried to rape the girl while he left his 2-year-old son sitting a car parked nearby. His federal appeal challenging the fairness of his trial was filed in December.
David Aaron Perkins, 36, was sentenced to death in June in Clayton County for the Aug. 13, 1995, slaying of Herbert Ryals III, a 38-year-old man who lived in the same apartment complex. Prosecutors believe Mr. Perkins, who had a long history of criminal convictions for violence and theft, lured Mr. Ryals to his home to rob him. Mr. Ryals' body was found in the bathroom where he had fledtrying to defend himself from more than 11 stab wounds. During his trial when a Virginia police officer testified how Mr. Perkins had thrown a fellow officer through a window, Mr. Perkins taunted the courtroom by making boxing gestures.
Jack H. Potts, 52, was sentenced to death in March 1976 in two counties Forsyth and Cobb counties for the kidnapping and murder of a 24-year-old good Samaritan, Michael Priest. Mr. Priest agreed to help Mr. Potts, who told him there had been an accident May 8, 1975. His co-defendant pleaded guilty to aggravated assault in exchange for a 10-year sentence. Mr. Potts escaped from the Forsyth County Jail in September 1987 and was shot twice by officers. Mr. Potts' conviction was overturned in May 1984, but he was resentenced to death in 1988 and again 1990.
Virgil Delano Presnell Jr., 43, was sentenced to death in October 1976 in Cobb County. Five months earlier, on May 4, 1976, he kidnapped two school girls . Mr. Presnell lay in wait for the 10- and 8-year-old girls, he confessed. He raped and sodomized the older girl and when 8-year-old Lori Ann Smith tried to run away, he drowned her in a stream. His sentence was overturned in 1992 by a federal appeals court. Mr. Presnell is still awaiting a new sentencing trial.
Mark Anthony Pruitt, 32, was sentenced to death in September 1987 in Pulaski County for the Montgomery County killing of 5-year-old Charise Walker. The girl was found raped, sodomized and beaten Nov. 15, 1986, when she disappeared from home. Charise, who's skull was fractured and leg broken, died a short time later. Mr. Pruitt was seen coming out of the woods where Charise was found. He wasn't wearing any pants and had blood on him. Mr. Pruitt has been awaiting a new sentencing trial on the issue of mental retardation since September 1994.
Timothy Pruitt, 25, was sentenced to death in Lumpkin County in October 1996 for the stabbing and strangulation killing of a 10-year-old neighbor girl. Wendy Nicole Vincent was killed in her own home. Mr. Pruitt's first appeal to the Georgia Supreme Court has not been filed yet.
William Howard Putman, 54, was sentenced to death in September 1982 in Cook County. Mr. Putnam, who had no prior felony record, attacked and robbed people at a truck stop the night of July 10, 1980, killing William Gerald Hodges, 49, David N. Hardin, 22, and Katie Christine Back, 28. His state appeal challenging the fairness of his trial was denied, as was his appeal of that to the state Supreme Court in September 1995.
Willie James Pye, 29, was sentenced to death in Spalding County in July 1996. He was convicted of the November 1993 rape, sodomy and shooting death of a 21-year-old woman in a supposed drug deal gone bad. His co-defendant was sentenced to life in prison. Mr. Pye still claims he's innocent and a motion for a new trial is pending.
Billy Daniel Raulerson Jr., 27, was sentenced to death in March 1996 in Chatham County for a Memorial Day 1993 killing spree. Mr. Raulerson killed 18-year-old Charlye Dixon and her fiance, 19-year-old Jason Hampton, raping Ms. Dixon after her murder. Mr. Raulerson then broke into the home of Teresa Gail Taylor, 40, and killed her. His first possible appeal to the Georgia Supreme Court has not been filed yet.
James Randall Rogers, 36, was sentenced to death in May 1982 in Floyd County for the torture and killing of a 75-year-old woman. On May 21, 1980, Grace Perry died when a rake handle was forced up her vagina so hard it punctured a lung, causing massive hemorrhaging. At the time of the killing, Mr. Rogers was on parole for burglary. Mr. Rogers' case has been pending in the trial court since 1994 on the issue of mental retardation.
Larry Romine, 45, was sentenced to die in April 1982 in Pickens County for the shotgun slayings of his parents, Roy Lee, 48, and Aville R. Romine, 50. Police say robbery was the motive for the March 19, 1991, double homicide. Mr. Romine's death sentence was reversed by the Georgia Supreme Court in June 1983, but he was resentenced to death again in August 1985. His federal appeal challenging the fairness of his trial was filed in 1996.
William C. Sallie, 31, was sentenced to death in March 1991 in Bacon County for killing his 41-year-old ex-father-in-law. In a violent rampage against his ex-wife and her family on March 31, 1990, Mr. Sallie shot to death John Lee Moore and wounded Mr. Moore's wife. He then kidnapped his ex-wife and her sister and took them to Liberty County where he repeatedly raped both women. His first possible appeal to the Georgia Supreme Court has not been filed yet.
Demarcus Ali Sears, 25, was sentenced to death in September 1993 in Cobb County. He and Phillip Williams kidnapped Gloria Ann Wilbur, 59, on Oct. 7, 1990, and then robbed, raped, stabbed and beat her with brass knuckles over a four-hour period. Mr. Williams was sentenced to two life sentences in May 1991. Mr. Sears first appeal to the Georgia Supreme Court has not been filed yet.
David Phillip Smith, 20, was sentenced to death Jan. 24 in Clayton County. He was convicted of the shotgun slaying of 16-year-old Jeremy Javies, a friend and neighbor. Mr. Smith methodically shot Jeremy in the arms and legs before putting the barrel of a sawed-off shotgun in the teen-ager's mouth and firing a final time. The first appeal to the state Supreme Court hasn't been filed yet.
Norris Speed, 26, was sentenced to death in October 1993 in Fulton County for killing a police officer, 32-year-old Niles Johantgen, known on his beat as "Russian." Prosecutors contended Mr. Speed was angry with Officer Johantgen who had arrested a man selling drugs from Mr. Speed's home, and for stopping and patting down three friends on Dec. 12, 1991. Witnesses said Mr. Speed walked up behind Officer Johantgen and shot him in the head. Mr. Speed had prior felony convictions. His first possible appeal to the state Supreme Court hasn't been filed yet.
Ronald Keith Spivey, 57, was sentenced to death in August 1977 in Muscogee County for shooting to death Columbus Police Officer Billy Watson, 41. The officer was off-duty on Dec. 28, 1976, when Mr. Spivey was in the process of robbing a lounge. Officer Watson, a six-year veteran officer, was married with three children. A federal appeal challenging the fairness of his trial has been pending since November 1995.
William Kenny Stephens, 49, was sentenced to death in Richmond County in February 1980 and again in November 1989. The second jury heard evidence of Mr. Stephens' schizophrenia and mental retardation but found death was the appropriate punishment for the shooting death of Investigator Larry D. Stevens, 38. The state Supreme Court sent Mr. Stephens' case back to Richmond County Superior Court for an answer to a question nearly seven years ago. The case has been pending every since.
Alphonso Stripling, 39, was sentenced to death in July 1989 in Douglas County. Mr. Stripling, who served time for armed robberies in 1973, 1979 and 1980, was convicted of shooting four co-workers on Oct. 15, 1988, when he decided to rob the fast food restaurant. Two of the employees 19-year-old Anthony Evans and 34-year-old Gregory Bass died from gunshot wounds. A state appeal challenging the fairness of his trial has been pending since June 1995.
Keith Bryan Taylor, 43, was sentenced to death in October 1990 in Pierce County for killing his 29-year-old estranged wife the day he received a court order to stay away from her. When an officer went to check on Lorrie Taylor on Jan. 12, 1989, Mr. Taylor answered the door dripping blood. The jury rejected an insanity defense by Mr. Taylor, who had been hospitalized for paranoid schizophrenic in 1987 and 1988. His state appeal challenging the fairness of his trial has been pending since December 1995.
Bryan Keith Terrell, 29, was sentenced to death in January 1995 in Newton County for the robbery and murder of 70-year-old John Henry Watson. Mr. Terrell had been released on parole about two months before Mr. Watson's June 22, 1992, murder. Mr. Terrell had forged about $8,000 in checks on Mr. Watson's bank account before the killing. Mr. Watson was beaten in the head and shot four times. Mr. Terrell's first possible appeal to the state Supreme Court hasn't been filed yet.
Keith Leroy Tharpe, 39, was sentenced to death in January 1991 in Jones County for the shotgun slaying of his 29-year-old sister-in-law, Jacqueline Freeman. On Sept. 25, 1990, Mr. Tharpe, who had repeatedly threatened and harassed his estranged wife and her family, used his vehicle to force his wife's car off the road. After shooting Ms. Freeman twice, he kidnapped and raped his estranged wife. Mr. Tharpe's only prior arrests were for driving violations. The state Supreme Court ordered the trial court to reconsider Mr. Tharpe's sentence, and that has been pending since February 1993.
Gary Chad Thomason, 21, was sentenced to death in Floyd County in October 1996. Mr. Thomason was convicted of killing 34-year-old Jerry Self, who was shot in his truck in his own driveway when he interrupted a burglary. Mr. Thomason's defense attorney had him plead guilty and waive a jury trial, leaving a judge to determine his punishment. The Supreme Court affirmed his conviction and sentence in July.
Ronnie Thornton, 32, was sentenced to death in November 1992 in Douglas County for the beating death of his girlfriend's 2-year-old daughter, Artealia Lavant, on May 7, 1991. Doctors determined Artealia and her siblings had been repeatedly abused. The state Supreme Court reversed Mr. Thornton's convictions in May 1994 because the prosecutor used videotaped testimony instead of calling the children to testify. A retrial hasn't been held yet and Mr. Thornton was transferred off death row in September. Artealia's mother, Shirley Lavant, pleaded guilty to cruelty to children and received a four-year sentence.
William Lamar Todd, 40, was sentenced to death in May 1989 in Harris County. On July 12, 1988, a co-worker found the body of Randy Churchwell, 33, at his home. Mr. Churchwell had been hit at least 12 times with a hammer. Mr. Todd later told police that he and his girlfriend stole Mr. Churchwell's wallet and car and headed to Texas where they were arrested two weeks later. Mr. Todd's only prior conviction was for simple possession of marijuana in Florida. A state appeal challenging the fairness of his trial has been pending since December 1995.
Johnny Lamar Wade, 41, was sentenced to death in March 1987 in Newton County for the strangulation killing of 13-year-old Lance Barnes. The boy disappeared Aug. 8, 1986, after riding his bike to the store. Lance was seen leaving the store with Mr. Wade, his bike in the back of Mr. Wade's pickup truck. Lance's body was found the next day in the woods, his bike nearby. He had been beaten on the head and strangled. The Georgia Supreme Court reversed Mr. Wade's death sentence, but he was resentenced to death by another jury in April 1989. His state appeal challenging the fairness of his second trial has been pending since January 1994.
Tommy Lee Waldrip, 51, was sentenced to death in October 1994 in Dawson County for killing an eyewitness to a robbery that his son committed. Keith Evans, 23, was beaten and shot to death on April 13, 1991. Mr. Waldrip's son John Mark Waldrip and friend Howard Kelly Livingston were both sentenced to life in prison. In March the Georgia Supreme Court affirmed Mr. Waldrip's conviction and sentence. In July, the state Supreme Court overturned Mr. Livingston's conviction.
Jamie Ray Ward, 41, was sentenced to death in July 1991 in Walker County for killing a 23-year-old woman who was five months pregnant. Investigators believe Mr. Ward was a serial rapist whose crimes escalated to murder on Aug. 17, 1989, when he abducted Nikia Gilbreath from her home. Mr. Ward was arrested months later after he kidnapped and raped a woman in another county and police found items belong to Mrs. Gilbreath at his home. Mr. Ward's state appeal challenging the fairness of his trial has been pending since April 1993.
Eurus Kelly Waters, 52, was sentenced to death in January 1981 in Glynn County for killing a teen-age girl and a woman. On April 25, 1980, emergency workers found 35-year-old Kathryn Ann Culpepper bleeding from a chest wound. She described Mr. Waters and his car and told police that she and her friend, 16-year-old Anita Lynette Paseur, were fishing when accosted. Anita's body was found that night on a back road, and Ms. Culpepper died five days later. Mr. Waters, a Waycross cab driver, had been treated for mental illness since 1978. His case was sent back to the trial court on the issue of mental retardation in December 1995.
Marcus Wellons, 41, was sentenced to death June 1993 in Cobb County. In December, Mr. Wellons came within three hours of execution because an attorney who had just volunteered to file an appeal petition was denied time to study the case. A U.S. District judge stayed the execution. Mr. Wellons was convicted of the rape and murder of 15-year-old India Roberts who lived in the same apartment building as Mr. Wellons' girlfriend on the morning of Aug. 31, 1989.
Frederick R. Whatley, 23, was sentenced to die in Spalding County this year for the Nov. 3, 1993, robbery and beating death of a McDonald's restaurant employee. The 18-year-old victim, Mark Fugate, was a key witness against his own father, Wallace Marvin Fugate III, who killed his mother and is now on death row in Georgia. Mr. Whatley's co-defendant Jeffery Cross hasn't been tried yet. Mr. Whatley's first appeal to the Georgia Supreme Court hasn't been filed yet.
Alexander E. Williams, 29, was sentenced to death in Richmond County in August 1986 for the kidnapping, robbery, rape and murder of 16-year-old Aleta Carol Bunch. She disappeared March 4, 1986. Her body was found 11 days later after Mr. Williams' then attorney told police where to look. Mr. Williams had prior convictions for theft and entering an automobile. In August, U.S. District Judge Dudley H. Bowen Jr. denied Mr. Williams' federal appeal challenging the fairness of his trial.
Willie James Wilson Jr., 40, was sentenced to death in February 1982 in Pierce County for the shooting deaths of two men during an armed robbery. Alfred Boatwright, 64, and Morris Highsmith, 58, were shot to death June 22, 1981 at Mr. Boatright's handyman store. At the time, Mr. Wilson was a soldier who was AWOL from Fort Stewart. In March 1991, Mr. Wilson's case was sent back to the trial court on the issue of mental retardation. Mize v. State
McClain v. State, 267 Ga. 378, 379-380, 477 S.E.2d 814 (1996). (Direct Appeal)
Defendant was convicted before the Superior Court, Richmond County, J. Carlisle Overstreet, J., of malice murder, felony murder, armed robbery, and possession of a firearm during the commission of certain crimes, and was sentenced to death. On his appeal, the Supreme Court, Sears, J., held that: (1) evidence was sufficient to sustain conviction; (2) testimony by deputy that defendant stated that if he was convicted of victim's murder he would rather be executed than return to jail was admissible as an admission against interest; (3) prosecutor's closing argument at guilt-innocence phase at trial was not improper; (4) prosecutor's argument on general deterrence during sentencing phase of trial was proper; (5) although victim impact testimony referring to anger in the community about increasing lawlessness or crime in general should not have been allowed, it was not so prejudicial as to render sentencing trial fundamentally unfair; (6) search warrant affidavit afforded probable cause for search of defendant's residence; and (7) death sentence was not disproportionate to penalty imposed in similar cases, considering both crime and defendant. Affirmed.
SEARS, Justice.
The appellant, Mark Howard McClain, shot and killed Kevin Scott Brown during an armed robbery of a Domino's Pizza store in Augusta.FN1 The jury sentenced McClain to death for murder, finding the following statutory aggravating circumstances: The murder was committed while the offender was engaged in the commission of a burglary; the murder was committed while the offender was engaged in the commission of an armed robbery; and the murder was committed for the purpose of receiving money or things of monetary value.FN2
FN1. The crimes occurred on November 20, 1994. McClain was indicted on November 29, 1994, for malice murder, felony murder, armed robbery, possession of a firearm during the commission of certain crimes and possession of a firearm by a convicted felon. McClain was reindicted for the original charges, with the addition of burglary, on January 4, 1995. On September 7, 1995, the jury found McClain guilty on all counts except possession of a firearm by a convicted felon, which count was not initially tried with the others. McClain subsequently pled guilty to possession of a firearm by a convicted felon. On September 15, 1995, McClain was sentenced to death for murder, twenty years consecutive for burglary, a consecutive life sentence for armed robbery, five years consecutive for possession of a firearm during the commission of a crime and five years consecutive for possession of a firearm by a convicted felon. McClain filed a motion for new trial on September 29, 1995, and amended it on February 27, 1996. The motion was denied on March 5, 1996. McClain's notice of appeal was filed on March 18, 1996. The case was docketed on April 25, 1996, and orally argued on September 26, 1996.
FN2. OCGA § 17-10-30(b)(2); OCGA § 17-10-30(b)(4).
The state presented evidence that McClain picked up his girl friend, Tina Butler, around midnight on November 19, 1994, and drove to her apartment. They discussed their relationship over a few drinks, and Butler told McClain she needed money. An hour later, McClain left Butler's apartment, drove to the Domino's Pizza store on Washington Road and parked his blue Buick beside the building. Shortly before 2:00 a.m., Domino's delivery man, Phillip Weeks, returned from making his pizza deliveries. McClain approached Weeks as he was walking toward the store and asked to buy a pizza. Weeks told him the store was closed, but McClain became insistent and refused to leave. In an attempt to placate McClain, Weeks agreed to ask the manager, Kevin Brown, who was inside the store, to make an exception. Weeks began yelling to Brown from outside the store. Brown looked at Weeks, whose hand was on the door, and released the security lock. As the door opened, McClain attempted to force his way inside behind Weeks. Weeks sought to bar him from entering, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown, who weighed four hundred and fifty pounds and could not move quickly, remained standing behind the counter. As Weeks reached the door, he heard McClain order Brown to give him the money.
Weeks fled to a service center on Washington Road to call police, but the pay telephone was broken. Before crossing the road, Weeks looked around and saw a blue car pull out of the driveway leading to Domino's at high speed. Believing the driver of the car to be the perpetrator, Weeks ran back to the sidewalk. McClain saw Weeks and made an obscene gesture towards him with his middle finger as he drove by. Weeks ran into the road behind the car and memorized the car's tag number. Weeks flagged down a passing driver, who drove him back to the store. Brown, who had been shot, was lying behind the counter, barely alive. Brown's keys to the store's till, which he normally kept in his pocket, were in the till where the store's money was kept. There was evidence that just over one hundred dollars was missing from the store. By the time paramedics arrived, Brown had bled to death from a single gunshot wound to the chest.
McClain returned to Butler's house and gave her one hundred dollars without revealing its source. When McClain left Butler's residence the next afternoon, he drove Butler's car, leaving the Buick, the army jacket and boots he had worn during the robbery, and the gun he had used to shoot the victim at her house. Police traced the tag number of the Buick to McClain's father, whose description of his son matched Weeks' description of the perpetrator. The assistant manager at the Washington Road Domino's store identified McClain as having bought a pizza in the store two days before the shooting under the name of Johnson. The box with the receipt for that pizza was found in the trash during a search of McClain's residence.
The day after the shooting, McClain picked up the Buick at Butler's house. He was arrested when he arrived at work in the car the following morning. That evening, McClain called Butler from the jail and told her to dispose of the clothes and gun he had left at her house. He demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate her if she refused. Butler hid the jacket in a neighbor's shed and gave the gun to her nephew. The police questioned Butler on two occasions, and during the second interview, she told police about McClain's telephone call and gave police the jacket and boots. The gun was recovered a month later, when Butler's nephew was involved in a shooting. Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, where he testified that he intended only to rob the store, but heard a noise as he was leaving, and believing that Brown was pursuing him, McClain shot him.
The evidence is sufficient to enable a rational juror to find McClain guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
1. McClain's first four enumerations of error challenge the trial court's rulings with regard to the qualifications of four jurors during voir dire.
a. McClain argues that the trial court erred in relying on prospective juror William L. Platte's assurances that he could be impartial in denying McClain's motion to excuse this juror for cause because Platte's voir dire responses indicated that he was biased in favor of the state. Before a juror can be disqualified for cause, it must be shown that the juror has formed an opinion on the guilt or innocence of the accused which is “so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence.” Garland v. State, 263 Ga. 495, 496, 435 S.E.2d 431 (1993); Johnson v. State, 262 Ga. 652, 653, 424 S.E.2d 271 (1993). However, a trial court may not rely solely on a prospective juror's assurances of his impartiality where the record shows on its face that the juror has a compelling bias or interest in the outcome of the case. Lively v. State, 262 Ga. 510, 511, 421 S.E.2d 528 (1992); Walker v. State, 262 Ga. 694, 696, 424 S.E.2d 782 (1993).
The record does not support McClain's assertion that Platte's responses revealed he was obviously biased. Unlike the prospective jurors in Lively and Walker, Platte did not have a close relationship with either of the parties or the victim.FN3 Moreover, even though factual circumstances strongly in favor of disqualification were absent in Platte's case, the trial court did not rely solely on Platte's own opinion of his ability to be impartial in finding Platte qualified to serve as a juror. After questioning Platte, the trial court articulated reasons for its ruling, specifically addressing the relationship between Platte and the prosecutor, Platte's voir dire responses, and his demeanor. The trial court did not abuse its discretion in denying McClain's motion to disqualify Platte. Garland, 263 Ga. at 496, 435 S.E.2d 431.
FN3. The prosecutor probated Platte's father's estate when Platte was six or seven and taught Platte's eighth grade Sunday School class. There had not been any contact between Platte and the prosecutor for eight years prior to McClain's trial. Platte's relationship with law enforcement officers was even more attenuated. Platte testified that he had played softball and occasionally socialized with Richmond County policemen, although he characterized only one of these individuals as a “good friend.”
b. McClain contends that the trial court erred in failing to remove prospective jurors Charles Penn and Robert Snyder for cause. Since Penn and Snyder qualified forty-third or later in the panel, the issue of whether they were qualified to serve as jurors is moot. Crowe v. State, 265 Ga. 582, 588-589, 458 S.E.2d 799 (1995); Hittson v. State, 264 Ga. 682, 449 S.E.2d 586 (1994); Pope v. State, 256 Ga. 195, 202, 345 S.E.2d 831 (1986).
c. McClain argues that the trial court erred in excusing prospective juror Louise Head, sua sponte, because her voir dire responses failed to meet the standard for dismissal under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The holding in Witt is irrelevant to the issue of whether Head's excusal was proper, since Head was excused for good cause under OCGA § 15-12-1 and not for her views on the death penalty. We reject McClain's implicit argument that OCGA § 15-12-1 does not apply in a death penalty case, and the court may only excuse a juror for a “legal reason.”
Head testified that her responsibilities as publicity chairman for an upcoming fiftieth anniversary reunion of a worldwide organization might distract her from her duties as a juror and interfere with sequestration. The trial court did not abuse its broad discretion in excusing Head because of her age and responsibilities in preparing for what was “a one time only event.” Blankenship v. State, 258 Ga. 43, 44, 365 S.E.2d 265 (1988). McClain's argument that the court acted in a discriminatory manner in excusing Head but failing to sua sponte excuse prospective juror Platte, because Platte was similarly situated, has no basis in fact or law.
2. McClain contends that the trial court erred in admitting testimony by a Richmond County deputy that McClain stated if he was convicted of Brown's murder he would rather be executed than return to jail. During the guilt phase of trial, Deputy Sheriff Ronnie Strength testified that in a follow-up interview several days after McClain was arrested, Strength informed McClain that police were aware of his incriminating telephone conversation with his girl friend, Tina Butler, in which McClain instructed Butler to dispose of the jacket and boots he wore on the night of the crime and the gun, which he had also left at Butler's house. Although McClain had previously denied any involvement in Brown's murder, after Strength showed him the jacket and boots, McClain stated that if he were found guilty of Brown's murder, he would rather die in the electric chair that day than return to prison. The trial court found McClain's statement to be voluntary and admissible following a Jackson v. Denno hearing, and McClain does not challenge its reliability. Cf. Christenson v. State, 261 Ga. 80, 91-92, 402 S.E.2d 41 (1991).
McClain contends that Strength's testimony is prejudicial and inflammatory and is irrelevant to the question of McClain's guilt. We conclude, however, that Strength's testimony was admissible because it can be inferred from McClain's comment that he was implicitly acknowledging that the evidence that Strength summarized for him connected McClain to the crime. Thus, McClain's comment, when considered in the context in which it was given, is, at least implicitly, an admission against interest, and is inconsistent with McClain's earlier statement denying involvement in the crime. OCGA § 24-3-53; Satterfield v. State, 256 Ga. 593, 600, 351 S.E.2d 625 (1987); Toledo v. State, 216 Ga.App. 480, 482, 455 S.E.2d 595 (1995); Cable v. State, 191 Ga.App. 46, 47, 380 S.E.2d 715 (1989). McClain's argument that the admission of this testimony violated the Eighth Amendment by injecting an improper sentencing factor into the proceedings is not a legal justification for excluding reliable and relevant evidence. The jury was entitled to hear this testimony and accord it whatever weight they so chose.
McClain argues that the jury may have relied upon this testimony in determining McClain's sentence. The sentencing hearing does not exclude matters heard in the guilt phase of trial but is for additional evidence. Ford v. State, 257 Ga. 461, 463, 360 S.E.2d 258 (1987). See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). “All aspects of his [the defendant's] crime or crimes, his character and attitude are admissible, subject to the applicable rules of evidence regarding reliability, to guide the fact finder in determining appropriate sentence.” Fair v. State, 245 Ga. 868, 871, 268 S.E.2d 316 (1980); Lee v. State, 258 Ga. 82, 85, 365 S.E.2d 99 (1988). The jury was entitled to consider McClain's voluntary statement in addition to all of the other evidence presented at both stages of trial in deciding what sentence to impose.
3. Enumerations of Error six and seven concern the prosecutor's closing argument at the guilt-innocence phase of trial.
a. McClain asserts that the trial court erred in allowing the prosecutor to make an improper “golden rule” argument, inviting jurors to place themselves in the victim's position, by asking them to consider a day in the future when a housewife opens the door on moving day, and McClain introduces himself as “Mark.” FN4
FN4. McClain's objection was to arguing facts not in evidence. McClain testified at trial that he was employed by a moving company, and his job entailed packing customers' belongings in their homes.
“[A]ny argument regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused's fair trial rights has occurred.” White v. State, 208 Ga.App. 885, 889-890, 432 S.E.2d 562 (1993), citing Horne v. State, 192 Ga.App. 528, 529(2), 385 S.E.2d 704 (1989). The argument in this case is ambiguous and does not fit neatly into the “golden rule” category. When an argument is ambiguous, we are reluctant to assume that the prosecutor intended its most damaging meaning. Hammond v. State, 260 Ga. 591, 597, 398 S.E.2d 168 (1990). However, we agree with McClain that the argument constituted an improper reference to McClain's future dangerousness. The issue of a defendant's future dangerousness, although relevant to the jury's sentencing decision, is irrelevant to the question of his guilt.FN5 While we disapprove of this portion of the prosecutor's argument, we find that it does not constitute reversible error. Considering the overwhelming evidence of McClain's guilt, we find it highly unlikely that this portion of the argument contributed to the verdict. Burgess v. State, 264 Ga. 777, 785, 450 S.E.2d 680 (1994); Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976); Horne v. State, supra at 528, 385 S.E.2d 704.
FN5. We note that there was some authority for introducing the issue of a defendant's future dangerousness in guilt stage closing argument at the time this case was tried. Vance v. State, 262 Ga. 236, 416 S.E.2d 516 (1992). This part of Vance appears to be an anomaly and has recently been overruled in Sterling v. State, 267 Ga. 209, 477 S.E.2d 807 (1996).
b. (1) McClain argues that the prosecutor improperly injected his personal opinion that McClain was guilty of malice murder in closing argument by referring to McClain as a “murderer” who “chose to kill” the victim. Although expressions of personal opinion by the prosecutor are improper in closing argument, the prosecutor has wide latitude to argue inferences from the evidence. Crowe v. State, 265 Ga. at 593, 458 S.E.2d 799; Hill v. State, 263 Ga. 37, 45, 427 S.E.2d 770 (1993). The state's evidence showed that McClain fired the gun at a distance of five feet or more from the victim, and there was no indication that Brown ever moved from behind the counter where he was found shot. Since the state's evidence showed there was no barrier between McClain and the front door to the store, the victim, who was unarmed, could not have presented a threat to McClain, and the reference to McClain as a murderer who chose to kill Brown is a reasonable inference from evidence. See Todd v. State, 261 Ga. 766, 768, 410 S.E.2d 725 (1991); Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992).
b. (2) McClain also contends that the prosecutor argued his personal opinion, thereby invoking his expertise in such matters, by warning the jury “not to be fooled” by McClain, and by concluding, after describing the crime, that “if that's not malice murder I don't know what is. The evidence of malice is as tight as a tick on a dog.” Although this arguably was an expression of personal opinion, we do not find it to be an invocation of “the prosecutorial mantle of authority.” Brooks v. Kemp, 762 F.2d 1383, 1413 (11th Cir.1985), vacated and remanded on other grounds, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986). Accord Conner v. State, 251 Ga. 113, 123, 303 S.E.2d 266 (1983).
Despite the phraseology, we find that these comments can most reasonably be seen as an attempt to draw inferences from the evidence. Conklin v. State, 254 Ga. 558, 571, 331 S.E.2d 532 (1985). We reach this conclusion because the prosecutor did not compare McClain's case with any other case, the comment was made after the prosecutor outlined the evidence showing McClain's intent, and the remarks were clearly responsive to McClain's argument that the state failed to prove malice. Id. Cook v. State, 255 Ga. 565, 575, 340 S.E.2d 843 (1986); cf. Hoerner v. State, 246 Ga. 374, 375, 271 S.E.2d 458 (1980). When the evidentiary facts supporting a conclusion are cited and the conclusion follows naturally from those facts, the use of personal opinion is unlikely to have a strong impact on the jury's independent evaluation of evidence. Conklin, supra. Considering the evidence presented to the jury regarding the brutality of the killing, we find it unlikely that prosecutorial experience or expertise played a discernable role in the jury's evaluation of McClain's intent, and even if objectionable, we do not find this argument to be reversible error.
McClain's contention that the trial court put its “stamp of approval” on this argument is without merit. A judge's remarks assigning a reason for a ruling are neither an improper expression of opinion nor a comment on the evidence. OCGA § 17-8-57; Crowe v. State, 265 Ga. at 582, 458 S.E.2d 799. It follows that a trial court's refusal to issue a curative instruction does not violate OCGA § 17-8-57.
4.a. McClain objects to the prosecutor's argument on general deterrence during the sentencing phase of trial, in which the prosecutor argued that the jury's verdict would send a message to the community, and asked jurors whether they would like an imaginary billboard at the entrance of Richmond County to read: “Welcome to Richmond County where if you kill our people we find a way to give you a fifth, sixth or seventh chance?” The prosecutor then asked the jury, “Will you have your billboard or the word that goes to the criminals that try to invade your community with that kind of message?” McClain acknowledges that our holdings in Fleming v. State, 265 Ga. 541, 458 S.E.2d 638 (1995) and Walker v. State, 254 Ga. 149, 327 S.E.2d 475 (1985), authorize the state to argue the deterrent effect of the death penalty during the sentencing phase of trial, but contends that the billboard argument is distinguishable from those arguments, because the prosecutor here implied that if the jurors voted for a life sentence, they would be inviting “a criminal invasion.”
A prosecutor may appeal to the jury to convict for the safety of the community or to send a message to others that criminal activities will be punished. Davis v. State, 266 Ga. 801, 804, 471 S.E.2d 191 (1996); Philmore v. State, 263 Ga. 67, 69, 428 S.E.2d 329 (1993). The prosecutor may also impress on the jury its responsibility in that regard. Id. Moreover, prosecutors are afforded “considerable latitude in imagery and illustration” in reminding the jury of its responsibilities in enforcing the law. Philmore, 263 Ga. at 69, 428 S.E.2d 329, citing Nebbitt v. State, 187 Ga.App. 265, 268, 370 S.E.2d 1 (1988). (Citations and punctuation omitted.) The thrust of the prosecutor's argument was that McClain had previously been convicted of other violent felonies, served prison time for them, and upon his release killed the victim. The prosecutor was entitled to argue that affording McClain an opportunity to commit another violent crime would send the wrong message to others who would engage in criminal activities in Richmond County. Philmore, supra.
Although we find that portion of the prosecutor's argument on general deterrence to be proper, we also note that a review of the entire sentencing phase argument alleviates any concern that McClain's sentence was the result of the jury's outrage and fear of criminals in general, and not McClain's individual behavior. The prosecutor argued that by its verdict, the jury was deciding whether McClain, as a result of his own actions, had given up the right to live in a civilized society and asked jurors whether they should subject themselves to his “continuing, criminal, heinous, brutal acts.” The prosecutor noted that after three armed robberies, McClain had learned to leave no witnesses, and since he had proved his dangerousness, deserved the most effective punishment. The prosecutor concluded with a plea to convict McClain by sending a signal to the community that such behavior will not be tolerated. We find that the argument was sufficiently tailored to the individual culpability of McClain, and there is no error on this ground.
b. McClain's contention that the trial court denied him an opportunity to respond to the state's argument on deterrence is without merit. McClain began his responsive argument by asserting that there was absolutely no dispute that the death penalty is not a deterrent, although there were no facts in evidence to support this conclusion. Hill v. State, supra. Moreover, such facts are inadmissible under Fleming, which prohibits the introduction of outside evidence on the deterrent effect of the death penalty by either party. 265 Ga. at 541, 458 S.E.2d 638. Although the state objected to arguing facts not in evidence, the trial court did not sustain the objection but cautioned McClain and asked him to proceed. It was McClain's decision to abandon the deterrence argument, stating that he would make a proffer at a later time. Since McClain had the option of proceeding with this argument, but elected not to do so, we find no error on this ground.
5. The trial court's recharge on the meaning of life without parole did not leave jurors to speculate regarding McClain's parole eligibility if convicted of life without parole. The trial court instructed the jury that the “defendant shall be incarcerated for the remainder of his natural life and shall not be eligible for parole.” This instruction was proper, and the court was not required, as McClain argues, to respond “that life without parole means what it says.” Henry v. State, 265 Ga. 732, 741, 462 S.E.2d 737 (1995). McClain further argues that under settled principles of law, the trial court should have discouraged the jury's consideration of McClain's parole eligibility. Quick v. State, 256 Ga. 780, 786, 353 S.E.2d 497 (1987); Westbrook v. State, 256 Ga. 776, 353 S.E.2d 504 (1987). OCGA § 17-8-76(a), which prohibits argument on the issue of parole and provided the basis for the holding in Quick, supra, has been overruled by OCGA § 17-10-31.1, to the extent that counsel for the state and the accused may present argument on the meaning of life without parole, and the trial court may charge the jury on life without parole. Jenkins v. State, 265 Ga. 539, 540, 458 S.E.2d 477 (1995). McClain's contention that the trial court should have discouraged the jury's consideration of parole is without merit.
6. The trial court did not err in failing to instruct the jury that a unanimous finding on mitigating circumstances is not required, while charging the jury that its sentencing verdict had to be unanimous, since the court charged the jury that it was not necessary for the jury to find any mitigating circumstances to impose a life sentence. Wellons v. State, 266 Ga. 77, 89, 463 S.E.2d 868 (1995); Ledford v. State, 264 Ga. 60, 69, 439 S.E.2d 917 (1994). Contrary to McClain's contention, the trial court expressly instructed jurors to consider mitigating evidence. Davis v. State, 255 Ga. 598, 612, 340 S.E.2d 869 (1986).
7. McClain argues that the (b)(2) aggravating circumstances of murder in the commission of a burglary and murder in the commission of an armed robbery are duplicative of the (b)(4) circumstance of murder committed for pecuniary gain, because the motive of obtaining money provides the impetus for all three aggravating facts. Aggravating circumstances are not invalid simply because they might overlap to some extent. Thornton v. State, 264 Ga. at 578, 449 S.E.2d 98; Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983). The (b)(2) circumstances refer to the manner in which the victim was killed, and the (b)(4), the motive for killing.
8. The trial court did not err in failing to charge the jury on a burden of proof with regard to non-statutory aggravating circumstances. Ross v. State, 254 Ga. 22, 31(5)(d), 326 S.E.2d 194 (1985); Ward v. State, 262 Ga. 293(29), 417 S.E.2d 130 (1992).
9. The trial court did not err in instructing the jury it could “recommend” the imposition of the death penalty, since the charge made it clear that such a recommendation would be binding. Hittson v. State, 264 Ga. at 682, 449 S.E.2d 586.
10. McClain contends that admission of victim impact testimony by the victim's father and the victim's neighbor, Kyle Rondeau, was error on several grounds.
a. McClain's contention that OCGA § 17-10-1.2, which governs the introduction of victim impact testimony during the sentencing phase of a capital trial, violates the State and Federal Constitutions has been decided adversely to McClain. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Livingston v. State, 264 Ga. 402, 444 S.E.2d 748 (1994).
b. When asked about the effect of the victim's death on the community, Rondeau responded that the victim's murder was the primary topic of a local radio show in the weeks following the crime and “there was much anger expressed about the crime and the apparent trend.” McClain contends that this is unreliable personal opinion testimony which is not supported by any evidence and which exceeds the scope of permissible evidence authorized by OCGA § 17-10-1.2 and Livingston. Under OCGA § 17-10-1.2(b)(6), the trial court has discretion to question witnesses regarding the effect of the victim's death on the community. Although we noted in Livingston that even legal victim impact testimony may be inflammatory if admitted in excess, Rondeau's testimony regarding the community's anger about the crime was neither a “detailed narrative of the emotional and economic suffering of the community,” nor did it encourage comparative judgments between Kevin Brown's value to the community and that of another victim. Livingston, 264 Ga. at 417, 444 S.E.2d 748, Benham, then Presiding Justice, dissenting. Moreover, we do not find this response was prejudicial to McClain, since in all likelihood, that portion of Rondeau's testimony did not tell the jury anything they did not already know. References to publicity and community anger have been held not to be improper during sentencing phase closing argument because “the jurors are members of the community and would know about community reaction.” Burden v. Zant, 903 F.2d 1352, 1365 (11th Cir.1990), rev'd on other grounds 498 U.S. 433, 111 S.Ct. 862, 112 L.Ed.2d 962 (1991). We conclude, however, that Rondeau's testimony that “there was anger in the community about ... the apparent trend” was improper. Rondeau apparently was referring to anger in the community about increasing lawlessness or crime in general. Such testimony is not permissible victim impact evidence. See § 17-10-1.2 (the court may allow evidence of the impact of the crime on the community); Livingston v. State, 264 Ga. at 404-405, 444 S.E.2d 748 (victim impact evidence is “limit[ed] ... to the impact of the offense upon the victim's family or community”). However, considering this abbreviated reference to “the apparent trend” with the remainder of the sentencing phase argument, see Division 4(a) at 823-24, supra, and with the sentencing phase evidence, we conclude that it was not so prejudicial as to render McClain's sentencing trial fundamentally unfair.
c. McClain contends that the prosecutor, and not the trial court, read the written questions to Rondeau at trial in violation of OCGA § 17-10-1.2(b)(6), which states that the court is required to ask the questions authorized by the statute. We find that the procedure followed by the trial court substantially complied with the provisions of the statute, since the questions were previously approved by the trial court. Moreover, failure to comply with the procedure in the Code section does not constitute reversible error absent a constitutional violation. OCGA § 17-10-1.2(d).
11. The trial court did not err in denying McClain's motion to suppress evidence seized from his residence pursuant to a search warrant, because the warrant affidavit contained no information McClain returned to his residence following the crime, or that the items sought were at the residence. The affidavit contained information from an eyewitness describing the crime, as well as information that the license tag on the car driven by the perpetrator was traced to McClain's father and that McClain had a prior record. The warrant listed boots, clothes and a gun as the items sought in the search. A reviewing court will pay substantial deference to a search warrant finding probable cause issued by a magistrate. Williams v. State, 251 Ga. 749, 795, 312 S.E.2d 40 (1983). An officer's inference that items sought will be at the place to be searched requires no more than “a fair presumption” to be reasonable. Murphy v. State, 238 Ga. 725, 727-728, 234 S.E.2d 911 (1977). We find it reasonable for the officer to infer that McClain returned to his residence after the shooting, which occurred in the early hours of the morning. Williams, supra; Reeves v. State, 197 Ga.App. 107, 108, 397 S.E.2d 601 (1990). The trial court's finding of probable cause was not clearly erroneous. Durden v. State, 187 Ga.App. 433, 370 S.E.2d 528 (1988).
12. Contrary to McClain's contention, district attorneys do not have unfettered discretion to seek the death penalty, and the decision to impose it rests with the jury and cannot be upheld absent a finding of an aggravating circumstance. Crowe v. State, 265 Ga. at 595, 458 S.E.2d 799. We find no merit to McClain's contention that the trial court erred in denying his motion requesting the prosecutor to produce information regarding cases involving murder and armed robbery or murder and burglary in which the prosecutor did or did not seek the death penalty. See Jones v. State, 263 Ga. 904(3), 440 S.E.2d 161 (1994).
McClain's sentence is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the Appendix support the imposition of the death penalty in this case. Judgment affirmed. All the Justices concur.
McClainv. Hall, 552 F.3d 1245 (11th Cir. 2008). (Habeas)
Background: Following affirmance of his felony murder conviction and sentence of death, 477 S.E.2d 814, and denial of his petition for state habeas relief, petitioner sought federal habeas relief. The United States District Court for the Southern District of Georgia, No. 02-00184-CV-LGW, Lisa Godbey Wood, J., denied the petition. Certificate of appealability (COA) was granted.
Holdings: The Court of Appeals, Pryor, Circuit Judge, held that: (1) the Georgia court reasonably applied clearly established federal law when it ruled that petitioner failed to prove ineffective assistance of trial counsel in the investigation of mitigating evidence for the penalty phase of his trial, and (2) petitioner's new argument, that trial counsel was ineffective for failing to discover and present mitigating evidence that petitioner's girlfriend instigated the robbery and that she and her nephew testified in exchange for a grant of immunity, was outside the scope of the COA. Affirmed. Barkett, Circuit Judge, filed concurring opinion.
PRYOR, Circuit Judge:
The issue in this appeal is whether the Superior Court of Butts County, Georgia, unreasonably applied clearly established federal law when it ruled that Mark Howard McClain failed to prove ineffective assistance of trial counsel in the investigation of mitigating evidence for the penalty phase of McClain's trial. McClain was sentenced to death for a murder he committed during an armed robbery. Counsel met with McClain between twenty and thirty times before trial, interviewed McClain's father and sister, and secured the help of a mental health expert. In his petition for a writ of habeas corpus, McClain alleged that his trial counsel was ineffective for failing to discover and present mitigating evidence regarding his criminal history, childhood abuse, substance abuse, neurological disorder, and good character. The Georgia court denied McClain's petition because his experienced counsel knew of some of the evidence but reasonably did not pursue it further, counsel reasonably attempted but failed to obtain other evidence, and McClain failed to establish prejudice about any remaining issues. Because that ruling was not objectively unreasonable, we affirm the denial of McClain's petition.
I. BACKGROUND
At approximately 1:00 a.m. on Sunday, November 20, 1994, McClain left the house of his girlfriend, Tina Butler, drove to a nearby Domino's Pizza store on Washington Road, and parked his blue Buick automobile beside the store. When Philip Martin Weeks Jr., a delivery man, returned to the store before 2:00 a.m., McClain approached Weeks and asked to purchase a pizza. Weeks explained that the store had stopped selling carry-out pizza at 10:00 p.m. the previous evening. McClain protested and refused to leave. To appease McClain, Weeks said that he would ask the manager, Kevin Scott Brown, to make an exception for McClain. McClain began yelling outside the store that he wanted a pizza. Brown released the lock of the door to the store, and Weeks opened the door.
McClain attempted to force his way into the store. Weeks initially struggled with McClain, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown, who weighed approximately 450 pounds, remained behind the counter of the store, unable to move quickly. As Weeks left the store, he heard McClain demand that Brown give him money.
Weeks ran to a pay telephone to call the police. After he realized the phone was broken, Weeks ran toward another pay telephone at a gas station across Washington Road. As he began to cross the street, Weeks saw a car leave the Domino's parking lot at a high rate of speed and turn onto Washington Road. The driver, McClain, made eye contact with Weeks and an obscene gesture toward him. Weeks memorized the license tag number of McClain's car. Weeks then flagged down a passing motorist, who drove Weeks back to the store.
Weeks entered the store and found Brown lying on the floor behind the counter and bleeding from a bullet wound to his chest. The keys to the money till of the store, which Brown ordinarily kept in his pocket, were in the till and approximately $100 was missing. Weeks called 911, but Brown bled to death before paramedics arrived.
Within an hour of leaving Butler's house, McClain returned and gave Butler approximately $100, without explaining where he had obtained the money. McClain spent much of the following day at Butler's house. In the meantime, police traced to McClain's father the license tag number of the car Weeks saw. McClain's father stated that McClain was the primary driver of the car and gave police a description of McClain that matched Weeks's description. The assistant manager of the Domino's store identified McClain as having bought a pizza in the store under the name of Johnson two days before the shooting. The box with the receipt for that pizza was found in the trash during a search of McClain's residence.
McClain was arrested when he arrived at work in his blue Buick the following Monday morning, November 21, 1994. McClain called Butler from the jail that evening and told her to dispose of the clothes, boots, and gun that he had left at her house. McClain also demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate Butler and her family if she refused to help him. In response to McClain's request, Butler hid McClain's jacket in a neighbor's shed and gave McClain's gun to her nephew.
The police questioned Butler, who eventually told the police about McClain's telephone call to her and gave police McClain's jacket and boots. McClain's gun was recovered a month later when Butler's nephew was involved in a shooting. Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, when he testified that he had intended only to rob the store. McClain testified that he shot Brown when he heard a noise as he was leaving the store and believed Brown was pursuing him.
McClain was convicted of murder, armed robbery, burglary, and possession of a firearm during the commission of certain crimes. McClain v. State, 267 Ga. 378, 379 n. 1, 477 S.E.2d 814, 818 n. 1 (1996). He later pleaded guilty to possession of a firearm by a convicted felon. Id. The jury sentenced McClain to death for the murder and found three statutory aggravating circumstances: the murder was committed during the commission of a burglary; the murder was committed during the commission of an armed robbery; “and the murder was committed for the purpose of receiving money or things of monetary value.” Id. at 379, 477 S.E.2d at 818-19. The Supreme Court of Georgia affirmed McClain's conviction and sentence, id. at 388, 477 S.E.2d at 826, and the Supreme Court of the United States denied certiorari. McClain v. Georgia, 521 U.S. 1106, 117 S.Ct. 2485, 138 L.Ed.2d 993 (1997).
McClain filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia, and attacked his sentence on numerous grounds, including ineffectiveness of trial counsel. After conducting an evidentiary hearing, the state court denied habeas relief. The court identified Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling precedent and determined that McClain's claim of ineffective assistance failed either or both parts of the Strickland test. The Supreme Court of Georgia denied McClain's application for a certificate of probable cause to appeal, and the Supreme Court of the United States again denied certiorari. McClain v. Head, 537 U.S. 1033, 123 S.Ct. 565, 154 L.Ed.2d 451 (2002).
On November 1, 2002, McClain filed a petition for a writ of habeas corpus in a federal district court. See 28 U.S.C. § 2254. The district court, in a careful and well-reasoned opinion, denied McClain's petition and request for a certificate of appealability. We granted McClain's request for a certificate of appealability on one issue: whether McClain's trial counsel rendered ineffective assistance in his investigation of mitigating evidence for the penalty phase of the trial.
II. STANDARDS OF REVIEW
McClain's petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996, which establishes a “general framework of substantial deference” for reviewing “every issue that the state courts have decided[.]” Diaz v. Sec'y for the Dep't of Corr., 402 F.3d 1136, 1141 (11th Cir.2005). Unless the decision of the Georgia court “ ‘(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court,’ ” we will not disturb that decision. Crowe v. Hall, 490 F.3d 840, 844 (11th Cir.2007) (quoting 28 U.S.C. § 2254(d)). Findings of fact by the Georgia court are presumed correct, and McClain bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Crowe, 490 F.3d at 844.
III. DISCUSSION
As the Georgia court correctly concluded, Strickland v. Washington governs McClain's claims of ineffective assistance of counsel. We must decide whether the Georgia court unreasonably applied Strickland when it ruled that McClain failed to prove ineffective assistance of counsel in the investigation of mitigating evidence for the penalty phase of McClain's trial. To prevail, McClain must establish not that the Georgia court applied Strickland incorrectly, but that its decision was objectively unreasonable. Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002).
To prove ineffective assistance of counsel under Strickland, McClain “must show that: (1) counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense.” Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir.2007). “Courts conduct a highly deferential review of counsel's performance and indulge the strong presumption that counsel's performance was reasonable ....” Id. (internal quotation marks omitted). This presumption is especially strong in this appeal because McClain's lead counsel had practiced as a criminal defense lawyer for more than twenty years and had served as counsel in over one hundred murder cases, ten of which were capital cases.
To rebut the strong presumption that counsel's performance was reasonable, McClain “must establish that no competent counsel would have taken the action that his counsel did take.” Id. (internal quotation marks omitted). “In considering claims that counsel was ineffective at the penalty phase of trial, we determine whether counsel reasonably investigated possible mitigating factors and made a reasonable effort to present mitigating evidence to the sentencing court.” Id. (internal quotation marks omitted). To establish prejudice under Strickland, McClain must establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. We may decline to decide whether the performance of counsel was deficient if we are convinced that McClain was not prejudiced. Id. at 697, 104 S.Ct. at 2069.
McClain raises two kinds of arguments. He presents several arguments that were addressed first by the Georgia court. McClain argues that his trial counsel was ineffective for failing to discover and present mitigating evidence of McClain's role in two previous robberies, which was used as aggravating evidence by the prosecution, and evidence of McClain's childhood abuse, substance abuse, neurological disorder, and good character. These arguments fail because the decision of the Georgia court about these issues was not objectively unreasonable. McClain also argues, for the first time, that his trial counsel was ineffective for failing to discover and present mitigating evidence that Butler instigated the robbery and that Butler and her nephew testified in exchange for a grant of immunity, but this argument is outside the scope of the certificate of appealability.
Our discussion is divided in six parts. We review the conclusions of the Georgia court about the five kinds of mitigating evidence separately, and we then explain why McClain's new argument is outside the scope of our review.
A. Criminal History
The Georgia court concluded that McClain failed to establish that his counsel's allegedly deficient performance in investigating McClain's criminal history prejudiced his sentence, and we cannot say that decision was objectively unreasonable. McClain argues that his counsel would have discovered that McClain had a minimal and nonviolent role in two previous armed robberies if counsel had interviewed Allen Davenport and Jeff Western, his codefendants for those robberies, but their testimonies would have been outweighed heavily by the evidence of McClain's culpability for those crimes. McClain testified to driving “the getaway car” during both robberies, pleaded guilty to being an accessory after-the-fact, and admitted knowingly participating in the second robbery. Chief Detective Billy Ivey of the Marion County Sheriff's Department also testified at the penalty phase of McClain's trial that McClain, Davenport, and Western planned the first robbery together. We agree with the district court that the decision of the Georgia court was reasonable.
B. Childhood Abuse
The Georgia court ruled that McClain failed to establish either that his counsel's performance in investigating evidence of childhood abuse was deficient or that any alleged deficiency prejudiced his sentence, and we cannot say that decision was objectively unreasonable. McClain argues that his counsel would have uncovered mitigating evidence of McClain's abusive childhood had they conducted adequate interviews of McClain, his family, and other witnesses. Based on the record before it, the Georgia court reasonably concluded that McClain failed to prove ineffective assistance.
Neither McClain nor his family informed counsel of McClain's abusive childhood. We have explained that whether information about childhood abuse was supplied by a defendant to his counsel is “extremely important” in determining reasonable performance. Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1325 (11th Cir.2002) (per curiam). McClain's counsel met with him between twenty and thirty times before trial and counsel conducted both telephone and in-person interviews of McClain's father, William McClain, and McClain's sister, Sharon McClain Gay.
Contrary to McClain's allegation that his counsel did not explain the kind of mitigating evidence they needed, counsel testified that they told McClain and his father and sister that they wanted to know “absolutely everything” about McClain, including both “the good and the bad.” McClain's counsel also testified that McClain's father and sister both told counsel about McClain's drug use and that McClain began “hanging out with the wrong crowd” in high school when his mother died, which suggests that McClain's father and sister understood the type of “bad” information that counsel wanted to elicit. McClain argues that his counsel's in-person interview of his sister was unlikely to uncover McClain's childhood abuse because the interview was conducted at least partially in the presence of McClain's allegedly abusive father, but the Georgia court reasonably concluded that McClain's counsel conducted a reasonable investigation after McClain failed to notify his counsel of any abuse.
McClain argues that his counsel would have uncovered mitigating evidence of McClain's abusive childhood had they interviewed McClain's brother, Tim McClain, McClain's friend, Richard Price, or other friends and acquaintances of McClain, but we cannot say the Georgia court was objectively unreasonable in ruling that reasonable counsel might not have attempted to interview Tim McClain, Price, or McClain's unidentified friends and acquaintances. McClain did not inform counsel of the alleged childhood abuse or that Tim McClain, Price, or any of his friends and acquaintances would have testified to any abuse. When asked by his counsel, McClain struggled to provide the names of any potential mitigating witnesses. McClain eventually identified Price, but McClain described Price only as a “friend.” McClain never identified Tim McClain as a potential mitigating witness and instead said that he did not get along with his brother.
McClain also argues that his counsel would have uncovered mitigating evidence of McClain's abusive childhood had they communicated better with their mental health expert, Dr. James I. Maish, but we cannot say the Georgia court was objectively unreasonable in ruling to the contrary. Dr. Maish testified that he was “made aware, through speaking with [McClain], his father, and his sister, that [McClain] had an abusive childhood ....” McClain's attorneys testified that they were unaware of any potential childhood abuse and that Dr. Maish did not mention it to them. Counsel could have relied on the report of Dr. Maish, which did not mention child abuse, without asking Dr. Maish about the possibility of abuse. A reasonable attorney could have expected a mental health expert to report to counsel evidence of abuse. We agree with the district court that the decision of the Georgia court was reasonable.
C. Substance Abuse
The Georgia court concluded that McClain's counsel was not deficient for failing to investigate and present more evidence of McClain's substance abuse, and we cannot say that decision was objectively unreasonable. McClain argues that many of his friends and acquaintances would have told his counsel of his substance abuse, including Price; McClain's roommate and coworker, Chuck Musgrove; and McClain's friend, Debbie Gwinn. McClain admits that his counsel was aware of his history of substance abuse, including his substance abuse on the night of the murder, and McClain acknowledges that evidence of substance abuse is often a “two-edged sword” that provides “little mitigating value ....” Stewart, 476 F.3d at 1217. “Rarely, if ever, will evidence of [substance abuse] be so powerful that every objectively reasonable lawyer who had the evidence would have used it.” Id.
McClain's counsel could have reasonably concluded that it would be better to argue at sentencing, as McClain's counsel did, that the shooting was reflexive and unintentional, without presenting more evidence of McClain's substance abuse. McClain argues that counsel's failure to investigate was due to inattention, not a strategic decision to avoid potentially damaging testimony, but our review of counsel's performance is objective. “Because this standard is objective, it matters not whether the challenged actions of counsel were the product of a deliberate strategy or mere oversight. The relevant question is not what actually motivated counsel, but what reasonably could have motivated counsel.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir.2008) (citation omitted). Even if McClain's counsel in fact had no strategic reason for not further investigating McClain's history of drug abuse, counsel could have reasonably concluded that further investigation would not yield valuable evidence of mitigation. We agree with the district court that the decision of the Georgia court was reasonable.
D. Neurological Disorder
The Georgia court ruled that McClain's counsel was not deficient in failing to discover McClain's alleged neurological disorder, and we again cannot say that decision was objectively unreasonable. The Georgia court also found that the testimony McClain contends should have been offered is not entirely favorable to him. McClain relies on the post-conviction testimony of Dr. Jorge A. Herrera-Pino that McClain suffered from a frontal lobe disorder as a result of his substance abuse, and McClain argues that adequate investigation by his counsel and proper communication between counsel and Dr. Maish would have uncovered the frontal lobe disorder.
That McClain later secured a more favorable opinion of an expert than the opinion of Dr. Maish does not mean that trial counsel's failure to obtain that expert testimony constituted deficient performance. See Gilliam v. Sec'y for Dep't of Corr., 480 F.3d 1027, 1035 (11th Cir.2007) (per curiam). McClain's counsel reasonably relied on Dr. Maish's opinion that McClain suffered from “Antisocial Personality Disorder” but did not suffer from a frontal lobe disorder or from any “significant emotional disorder.” McClain blames Dr. Maish's failure to diagnose the frontal lobe disorder on his counsel's failure to inform Dr. Maish of McClain's history of childhood abuse and substance abuse, but that argument fails. As McClain acknowledges, Dr. Maish was aware of both McClain's substance abuse and childhood abuse. We agree with the district court that the decision of the Georgia court was reasonable.
E. Good Character
The Georgia court concluded that McClain failed to establish either that his counsel's performance in investigating evidence of McClain's good character was deficient or that any alleged deficiency prejudiced his sentence, and we cannot say that decision was objectively unreasonable. McClain argues that his counsel would have uncovered “strong humanizing evidence ... about McClain's good qualities and his attempts to lead a clean life after prison” had they interviewed his friends and acquaintances. Based on the record before it, the Georgia court reasonably concluded that, even if the failure of McClain's counsel to investigate fell below the standard of effective representation, McClain failed to establish that any deficient performance prejudiced his sentence.
The Georgia court reasonably concluded that McClain's character evidence was insignificant. McClain argues that Brian Ellefson, McClain's supervisor at his place of work, would have testified that McClain had an “excellent” work ethic and a “pleasant” personality. McClain also argues that Gwinn would have testified that McClain was a “wonderful person” whom Gwinn knew to be “patient and kind and caring.” In the light of the seriousness of McClain's crime, the Georgia court concluded that there was not a reasonable probability that McClain's sentence would have been different had his counsel offered minimally consequential testimony regarding McClain's “good qualities.” We agree with the district court that the decision of the Georgia court was reasonable.
F. New Argument
McClain also argues, for the first time, that his trial counsel was ineffective for failing to discover and present for the penalty phase mitigating evidence that Butler instigated the robbery and that Butler and her nephew, Diego Davis, testified for the state in return for a grant of immunity, but this argument is outside the scope of the certificate of appealability. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.1998) (per curiam). “[I]n an appeal brought by an unsuccessful habeas petitioner, appellate review is limited to the issues specified in the [certificate of appealability].” Id. at 1251. We granted McClain's request for a certificate of appealability with respect to one issue: “[w]hether McClain's [trial] counsel rendered ineffective assistance in his investigation of mitigating evidence for the penalty phase of the trial.” Although we did not restate the mitigating evidence at issue, McClain identified the following mitigating evidence in each of his requests for a certificate of appealability: “evidence about McClain's family background, his long-term drug addictions, his good character, his prior convictions, and his impairments the night of the offense ....” McClain did not identify evidence that Butler instigated the robbery or evidence relating to prosecutorial immunity as mitigating evidence for the penalty phase in any of his requests for a certificate of appealability or in either his state or federal petition for a writ of habeas corpus. McClain instead relied on that evidence to support his claims of prosecutorial misconduct and ineffective assistance of trial counsel in the investigation of “exculpatory and impeach[ment]” evidence for the guilt phase of his trial. McClain may not now repackage his argument and describe this evidence as mitigating for the penalty phase to bring it within the scope of the certificate of appealability; neither the Georgia court nor the district court was ever asked to consider this argument.
IV. CONCLUSION
The denial of McClain's petition for a writ of habeas corpus is AFFIRMED.
BARKETT, Circuit Judge, concurring:
A lawyer must undertake a reasonable investigation as to the existence of mitigating evidence. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The scope of counsel's duty to investigate is not limited by the amount of information that a defendant chooses to reveal. See generally Rompilla v. Beard, 545 U.S. 374, 377, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (holding that trial counsel's duty to investigate persists “even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available”); Coleman v. Mitchell, 268 F.3d 417, 449-50 (6th Cir.2001) (“[D]efendant resistance to disclosure of information does not excuse counsel's duty to independently investigate.”); American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 11.4.1(C) (1989) (“The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered.”).FN1
FN1. “Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable.” Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). These principles recognize a layperson's lack of knowledge of the law. This is especially true of the legal thicket surrounding death penalty jurisprudence. A defendant generally would not know what evidence is admissible or might impact a jury's decision to impose the death penalty. Thus, a lawyer must explain what kind of evidence he or she is looking for or ask questions that would elicit such evidence. Simply asking a defendant for information about his or her life without any indication of what counsel is, or should be, looking for does not inform a defendant of the relevance of certain mitigating evidence that a defendant might not think of disclosing or want to disclose without having a reason to do so.
In this case, I am satisfied that the state court was not unreasonable in its application of clearly established federal law in concluding that McClain did not meet his burden of showing ineffective assistance of counsel. Counsel for McClain were extremely experienced and had many conversations with the defendant, his father, and his sister. Additionally, counsel hired a mental health expert to evaluate McClain and search for mitigating evidence. The mental health expert, who understood the relevance of evidence of abuse, conferred with counsel in preparation for his testimony and did not deem the abuse he discovered significant enough to be relevant to his testimony.