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Mark Howard McCLAIN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: November 20, 1994
Date of arrest: Next day
Date of birth: June 1, 1967
Victim profile: Kevin Brown, 28 (Domino's Pizza store manager)
Method of murder: Shooting
Location: Richmond County, Georgia, USA
Status: Executed by lethal injection in Georgia on October 20, 2009
 
 
 
 
 
 

Summary:

At approximately 1:00 a.m. McClain left the house of his girlfriend, Tina Butler, and drove to a nearby Domino’s Pizza. When a delivery man returned to the store McClain asked to purchase a pizza. When the delivery man gained entry to the store, McClain forced his way in and pulled a gun. The deliveryman ran through the store and as he was leaving saw McClain demanding money from the store manager, Kevin Brown. He then identidied the license of the vehicle driven away by McClain, which was traced to McClain's father.

When the deliveryman returned to the store moments later, he saw Brown dead in a pool of blood shot in the chest. He died before paramedics arrived. McClain returned to Butler's house within an hour after leaving and gave her $100, without explaining where he had obtained the money.

Following his arrest, 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 if she refused.

The police later 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 testified that he shot Brown accidentally when he heard a noise as he was leaving the store and believed Brown was pursuing him.

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."

ClarkProsecutor.org

  


 

Georgia Department of Corrections

MCCLAIN, MARK HOWARD
GDC ID: 0000847405

YOB: 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

 
 

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.

  


 

McClain executed for Augusta murder; Protesters hold vigils

By Walter C. Jones and Adam Folk - The Augusta Chronicle

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 - The Atlanta Journal Constitution

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 - NBCaugusta.com

Oct 20, 2009

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 - The Atlanta Journal Constitution

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.

 
 

Georgia Attorney General

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 States Supreme 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

ProDeathPenalty.com

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.”

 
 

MCCLAIN v. THE STATE

1834#267 Ga. 378, 1834#477 SE2d 814

Supreme Court of Georgia, (November 12, 1996)

Docket number: S96P1266

The appellant, Mark Howard McClain, shot and killed Kevin Scott Brown during an armed robbery of a Domino's Pizza store in Augusta. [1] The jury sentenced McClain to death for murder, finding

the motion, the court stated that it did not notice any jurors sleeping and no such activity was reported during the trial. Additionally, it appears that Greene did not inform trial counsel of the alleged sleeping jurors until after the trial ended. Greene fails to show any harm from the lack of an autopsy report inasmuch as it was undisputed that the cause of the victim's death was a gunshot wound to the head.

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. [2]

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

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.

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.

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 SC 2781, 61 LE2d 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 SE2d 431) (1993); Johnson v. State, 262 Ga. 652, 653 (424 SE2d 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 SE2d 528) (1992); Walker v. State, 262 Ga. 694, 696 (424 SE2d 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. [3] 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.

  (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 SE2d 799) (1995); Hittson v. State, 264 Ga. 682 (449 SE2d 586) (1994); Pope v. State, 256 Ga. 195, 202 (345 SE2d 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 SC 844, 83 LE2d 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 SE2d 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 SE2d 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 SE2d 625) (1987); Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995); Cable v. State, 191 Ga. App. 46, 47 (380 SE2d 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 SE2d 258) (1987). See Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976). "All aspects of his [the defendant's] crime or crimes, his character and his attitude are admissible, subject to the applicable rules of evidence regarding reliability, to guide the fact finder in determining appropriate sentence." Fair v. State, 258 Ga. 82, 85 (365 SE2d 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." [4]

" '[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 SE2d 562) (1993), citing Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 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 SE2d 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. [5] 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 SE2d 680) (1994); Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Horne v. State, supra at 528.

  (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; Hill v. State, 263 Ga. 37, 45 (427 SE2d 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 SE2d 725) (1991); Ward v. State, 262 Ga. 293 (417 SE2d 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 F2d 1383, 1413 (11th Cir. 1985), vacated and remanded on other grounds, 478 U. S. 1016 (106 SC 3325, 92 LE2d 732) (1986). Accord Conner v. State, 251 Ga. 113, 123 (303 SE2d 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 SE2d 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 SE2d 843) (1986); cf. Hoerner v. State, 246 Ga. 374 (271 SE2d 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 discernible 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. 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 SE2d 638) (1995) and Walker v. State, 254 Ga. 149 (327 SE2d 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 SE2d 191) (1996); Philmore v. State, 263 Ga. 67, 69 (428 SE2d 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. (Citations and punctuation omitted.) Philmore, 263 Ga. at 69, citing Nebbitt v. State, 187 Ga. App. 265, 268 (370 SE2d 1) (1988). 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. 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 SE2d 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. 776 (353 SE2d 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 SE2d 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 SE2d 868) (1995); Ledford v. State, 264 Ga. 60, 69 (439 SE2d 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 SE2d 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; Castell v. State, 250 Ga. 776 (301 SE2d 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 SE2d 194) (1985); Ward v. State, 262 Ga. 293 (29) (417 SE2d 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.

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 SC 2597, 115 LE2d 720) (1991); Livingston v. State, 264 Ga. 402 (444 SE2d 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, 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 F2d 1352, 1365 (11th Cir. 1990), rev'd on other grounds, 498 U. S. 433 (111 SC 862, 112 LE2d 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 (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 385-386, 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, 238 Ga. 725, 727-728 (234 SE2d 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 SE2d 601) (1990). The trial court's finding of probable cause was not clearly erroneous. Durden v. State, 187 Ga. App. 433 (370 SE2d 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. 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 SE2d 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.

APPENDIX.

Mobley v. State, 265 Ga. 292 (455 SE2d 61) (1995); Meders v. State, 261 Ga. 806 (411 SE2d 491) (1992); Cargill v. State, 255 Ga. 616 (340 SE2d 891) (1986); Davis v. State, 255 Ga. 588 (340 SE2d 862) (1986); Wright v. State, 255 Ga. 109 (335 SE2d 857) (1985); Dick v. State, 246 Ga. 697 (273 SE2d 124) (1980); Amadeo v. State, 243 Ga. 627 (255 SE2d 718) (1979); Young v. State, 237 Ga. 852 (230 SE2d 287) (1976); Pulliam v. State, 236 Ga. 460 (224 SE2d 8) (1976); Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974).

Garrett & Gilliard, Michael C. Garrett, Melissa S. Padgett, for appellant.

1996

Notes:

1. 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

2. OCGA 17-10-30 (b) (2) (4).

3. 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."

4. 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.

5. 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 SE2d 516) (1992). This part of Vance appears to be an anomaly and has recently been overruled in Sterling v. State, 267 Ga. 209 (477 SE2d 807) (1996).

 
 

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.

 
 


 

Mark Howard McClain