McDonald v. State

296 Ga. 643
FINAL COPY

S14A1342. McDONALD v. THE STATE.

HUNSTEIN, Justice.

Appellant Steve McDonald was convicted of malice murder and other

offenses in connection with the July 13, 2001 homicide of Kim Condry.

Appellant now appeals, contending that his trial counsel rendered ineffective

assistance and challenging the sufficiency of the evidence, the composition of

the jury pool, and the trial court’s refusal to allow him to represent himself at

trial. Though we find no error in the verdicts, we do find error with respect to

the trial court’s merger of offenses, and we therefore must vacate and remand

to the trial court for proper merger and resentencing.1

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Appellant and co-indictee Carol Sue Gibson were indicted by a Seminole
County grand jury in October 2001 for malice murder, three counts of felony murder,
armed robbery, false imprisonment, theft by taking, and possession of a firearm
during the commission of a crime; Appellant was additionally charged with
possession of a firearm by a convicted felon. At the conclusion of a jury trial held
June 17-20, 2002, at which Gibson testified for the State under a plea deal, Appellant
was convicted on all counts and was sentenced to life imprisonment for malice
murder and two consecutive five-year terms, one for each of the firearm possession
counts. The trial court purported to “merge” the three felony murder verdicts and the
verdicts for armed robbery, false imprisonment, and theft by taking into the malice
murder conviction. See Division 5, infra. Following the grant of an out-of-time
appeal in May 2005, an untimely notice of appeal was filed, and the appeal was
dismissed. A second out-of-time appeal was granted, and Appellant filed a motion
 Viewed in the light most favorable to the jury’s verdicts, the evidence

adduced at trial established as follows. In July 2001, Appellant and co-indictee

Carol Sue Gibson devised a plan to rob a drug dealer. On the day of the crimes,

the pair purchased handcuffs and duct tape from a K-Mart in Bainbridge, then

drove to Dothan, Alabama, where they checked into an American Inn motel

under a false name. Appellant drove Gibson to a local gambling house known

as the Tree, where Gibson met the victim, Kim Condry, and asked about buying

some marijuana. Condry took Gibson to his house, where he propositioned her

for sex; she told him she wanted to go to a motel, and the pair proceeded to the

American Inn. Once back in the motel room, Gibson summoned Appellant, who

entered with a gun and ordered the victim to take off his clothes and get on the

ground. Condry complied, and Gibson handcuffed him.

Gibson took the victim’s car, drove back to the victim’s home, and

ransacked it in search of drugs and money. She took approximately $200 worth

of crack cocaine and then returned to the motel. When she entered the room,

for new trial in January 2006. That motion was amended three times and, after a
hearing in August 2013, the motion was denied on February 3, 2014. A timely notice
of appeal was filed on February 17, 2014. The appeal was docketed to the September
2014 term of this Court and was thereafter submitted for decision on the briefs.
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Condry was bound and gagged. On Appellant’s orders, Gibson went to a

convenience store in close proximity to the Tree to ascertain whether anyone

was looking for Condry, and two people approached her to ask of his

whereabouts. Gibson used Condry’s phone to call Appellant to inform him of

these inquiries.

When Gibson returned to the motel, she and Appellant discussed the fact

that various individuals at the Tree knew her or would recognize her as having

been with the victim that night, and Appellant told Gibson they would have to

kill Condry. The pair put Condry, still bound and gagged, in the trunk of

Appellant’s car and drove out of Dothan. On a bridge on Highway 91 at the

Georgia-Florida state line, Appellant stopped the car. Appellant and Gibson

removed Condry from the car and tied him to a deflated spare tire using a ripped

red shirt. On Appellant’s orders, Gibson put a gun to Condry’s head and shot

him, and the pair then heaved his body over the bridge into the river below.

Two days later, the victim’s body was discovered, still tied to the tire, in

the Chattahoochee River. The cause of his death was determined to be a

gunshot to the head and possible drowning. At the time the victim was found,

he was still handcuffed, and his hands and feet were bound with strips of cloth

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and duct tape. On the Georgia side of the Highway 91 bridge, investigators

discovered a bullet casing and blood spot, which was later determined to be that

of the victim. The victim’s car was later discovered at the American Inn. In the

room rented by Appellant and Gibson were torn bed sheets matching those used

to bind the victim and a wash cloth that was identical to the wash cloth used to

gag the victim.

The victim’s sister, who had been at the Tree on the night of the murder,

identified Gibson as having been with her brother at the Tree that night. This

witness also reported that Gibson had been accompanied at the Tree by a man

driving a white “box-type” Oldsmobile with a Georgia license plate.

Appellant’s car, which matched this description, was discovered during the

investigation, burned and abandoned in a junkyard.

Investigators located Gibson and questioned her; she confessed and was

arrested. Appellant was not found until a few weeks later, when police located

him in a New Jersey apartment where his father resided. In a search of the

apartment, investigators found in the pocket of a pair of Appellant’s shorts a

gold necklace with an eagle pendant. The victim’s sister-in-law identified this

necklace as belonging to her and testified that she had loaned it to the victim,

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whom she had observed wearing the necklace a few days prior to the murder.

Appellant made incriminating statements to New Jersey authorities and

the GBI, in which he claimed that he and Gibson were using drugs on the night

of the crimes and that it was Gibson that shot the victim. He admitted that he

and Gibson had planned to rob a drug dealer. He also admitted that afterwards

he fled to Florida and then to New Jersey.

1. The evidence as summarized above was sufficient to enable a rational

trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of

the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979). Appellant contends, however, that the State’s

case was based on the uncorroborated testimony of Gibson, an admitted

accomplice, and was thus insufficient to sustain his conviction. See former

OCGA § 24-4-8 (in felony cases, testimony of an accomplice is alone

insufficient to convict).2 We disagree. Though it is true that Gibson supplied

the chronological narrative describing the crimes, this testimony was amply

corroborated in material respects by phone records, physical evidence, and the

2
Under the new Georgia Evidence Code, effective for trials conducted on or
after January 1, 2013, this language is now codified at OCGA § 24-14-8.
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testimony of other witnesses. Most importantly, the participation of Appellant

in both the planning of the robbery and the execution of the murder and other

crimes was corroborated by his own statements to police, his possession of the

necklace worn by the victim, and his flight in the days after the crimes. See

Crawford v. State, 294 Ga. 898, 901 (1) (757 SE2d 102) (2014) (to corroborate

an accomplice’s testimony, State must adduce “some independent evidence

tending to show that the defendant himself was a participant in the crimes”).

The evidence here was thus clearly sufficient to sustain Appellant’s convictions.

2. Appellant next contends that his trial counsel rendered constitutionally

ineffective assistance in several respects. To establish ineffective assistance, a

defendant must show that his trial counsel’s performance was professionally

deficient and that but for such deficient performance there is a reasonable

probability that the result of his trial would have been different. Strickland v.

Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley

v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010). To prove deficient

performance, one must show that his attorney “performed at trial in an

objectively unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745

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SE2d 637) (2013). Courts reviewing ineffectiveness claims must apply a strong

presumption that counsel’s conduct fell within the wide range of reasonable

professional performance. Id. Thus, decisions regarding trial tactics and

strategy may form the basis for an ineffectiveness claim only if they were so

patently unreasonable that no competent attorney would have followed such a

course. Id. If the defendant fails to satisfy either the “deficient performance”

or the “prejudice” prong of the Strickland test, this Court is not required to

examine the other. See Green v. State, 291 Ga. 579 (2) (731 SE2d 359) (2012).

(a) Appellant claims that trial counsel were generally unprepared to try his

case. In support of this generalized assertion, Appellant cites a litany of alleged

shortcomings in counsel’s conduct of the trial but makes no effort to show that

such conduct was the product of anything other than reasonable trial strategy or

to establish that any of these shortcomings, individually or in the aggregate, had

any effect on the outcome of the trial. The record reflects that Appellant had

retained a seasoned trial attorney, who was assisted by his daughter, who herself

had been practicing law for eleven years.

In support of his claim of general ineffectiveness, Appellant highlights the

health problems lead counsel had been suffering during the time period leading

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up to trial. The record reflects, however, that counsel stated in his place in a

pretrial conference that his physician had determined these problems did not

affect his cognitive abilities or mental acuity. The trial court, in considering the

impact of counsel’s health problems, noted specifically that counsel had done

substantial work on the case in the pretrial phase, but also informed Appellant

that the decision whether to continue counsel’s representation in the case rested

with Appellant. Though Appellant expressed doubts at various points in the

case as to whether to terminate counsel’s representation, he ultimately declined

to do so. Due to Appellant’s inability to demonstrate deficient performance or

prejudice owing to counsel’s health problems or to otherwise substantiate his

assertion that counsel failed to prepare adequately for trial, this enumeration

must fail.

(b) Appellant claims that trial counsel rendered ineffective assistance in

failing to challenge venue. Noting that the victim’s body was discovered on the

Florida side of the Chattahoochee River, Appellant asserts that there was no

evidence that the victim died or even sustained fatal injuries in the State of

Georgia. Contrary to Appellant’s assertion, however, a challenge to venue

would likely have failed, given the evidence supporting a finding that the fatal

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gunshot was inflicted on the Seminole County, Georgia side of the Highway 91

bridge. See OCGA § 17-2-3 (where crime committed on boundary line with

another state, State of Georgia shall have jurisdiction unless other state makes

a demand for the accused as a fugitive from justice); OCGA § 17-2-2 (c)

(criminal homicide shall be considered to have been committed in the county

where cause of death inflicted); see also Tankersley v. State, 261 Ga. 318 (8)

(404 SE2d 564) (1991) (where victim was shot and drowned, venue proper in

county in which victim was shot because shooting, if not the cause of death,

directly and materially contributed to the subsequent cause of death). Because

counsel cannot be deemed ineffective for failing to make a meritless objection,

see Wesley, 286 Ga. at 356, this enumeration must fail.

(c) Appellant next contends counsel were ineffective for failing to seek

severance of the felon-in-possession count of the indictment, which was

supported at trial with proof of Appellant’s previous convictions for theft by

taking and cocaine possession. Even assuming arguendo that counsel performed

deficiently in failing to seek bifurcation of this count, Appellant cannot establish

prejudice, given his admissions, in his statements to investigators, that he

conspired with Gibson to plan the armed robbery, used drugs on the day of the

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crimes, was present for the murder, participated in disposing of the body, and

fled to two different states afterwards. Also undercutting a finding of prejudice

is the fact that the trial court gave the jury a limiting instruction regarding the

narrow purpose for which it could consider the evidence of Appellant’s prior

convictions. Accordingly, this enumeration lacks merit.

(d) Appellant next contends that trial counsel were ineffective for failing

to request a Jackson-Denno3 hearing to assess the voluntariness of Appellant’s

statement to Georgia law enforcement authorities. However, such a hearing was

in fact conducted on June 6, 2002, at the conclusion of which the trial court

found Appellant’s statement to have been freely, knowingly, and voluntarily

given. This enumeration, therefore, is meritless.

(e) Appellant asserts that counsel were ineffective for failing to move to

dismiss the traverse jury pool after a prospective juror commented on his belief

that Appellant was guilty. At the outset of voir dire, the trial court asked the

jury panel whether anyone had for any reason formed “any opinion as to the

guilt or innocence of Steve McDonald.” One prospective juror responded,

3
Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
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stating that he had “heard a lot of stuff about” the crimes and had “already made

my mind up. I think he’s guilty myself.” After an unreported bench conference,

defense counsel moved to strike the juror for cause, which was granted.

Appellant now claims that the entire jury panel was tainted by this remark and

that counsel were ineffective for failing to move for a mistrial or for

postponement to impanel a new set of jurors.

Counsel clearly did not perform deficiently in failing to move for a

mistrial, as a mistrial motion is not ripe until after a jury has been impaneled and

sworn. See Sharpe v. State, 272 Ga. 684 (5) (531 SE2d 84) (2000). As to the

failure to move to excuse the panel, we find neither deficient performance nor

prejudice, because the trial court, on the heels of the remark, again questioned

the remaining jurors about their impartiality, and none indicated that they

harbored any prejudice or bias either for or against Appellant. See Cotton v.

State, 279 Ga. 358 (4) (613 SE2d 628) (2005) (no error in failing to excuse jury

panel where trial court inquired whether errant remark had affected remaining

jurors’ impartiality). In addition, defense counsel subsequently confirmed

during their questioning of the panel that none of the prospective jurors had

gained any knowledge about the case from any source which would tend to

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influence their opinion about Appellant’s guilt. These measures by the trial

court and defense counsel were sufficient to ensure that the offending remark

had not tainted the remaining members of the jury panel. See generally Norton

v. State, 263 Ga. 448 (2) (435 SE2d 30) (1993) (potential jurors’ knowledge as

to others’ opinions about the defendant’s guilt does not automatically disqualify

them).

(f) Appellant also contends counsel were ineffective for failing to seek

suppression of the physical items — in particular, the gold necklace and pendant

stolen from the victim — seized from his father’s New Jersey home. Though

Appellant contends these items were unlawfully seized incident to his arrest, this

claim fails insofar as the items were actually seized pursuant to a search warrant,

the validity of which has never been challenged.

3. Appellant next contends that the trial court erred in refusing his request

to represent himself.

Both the federal and state constitutions guarantee a criminal
defendant the right to self-representation. [Cits.] An unequivocal
assertion of the right to represent oneself, made prior to trial, should
be followed by a hearing to ensure that the defendant knowingly
and intelligently waives the right to counsel and understands the
disadvantages of self-representation. [Cits.]

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Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990). Here, Appellant

informed the court at the outset of the Jackson-Denno hearing less than two

weeks before trial that he wished to represent himself. The trial court then

engaged in a colloquy with Appellant to ascertain his understanding of the

charges he faced, possible sentences, and basic trial procedures, during which,

in response to one of the court’s questions, Appellant acknowledged that he

would need counsel’s assistance. The trial court deferred ruling on Appellant’s

request pending further research and deliberation. However, no ruling was

ultimately made, nor was one necessary, as Appellant apparently had a change

of heart: immediately prior to voir dire, counsel confirmed on the record in

Appellant’s presence that Appellant did in fact wish for them to represent him.

Appellant thus abandoned his request to represent himself and cannot now assert

error on this basis.

4. Appellant also challenges the composition of the jury pool from which

his jury was drawn, contending that the State cannot prove that the jury pool was

sufficiently representative of the composition of Seminole County as reflected

by the 2000 census. Having made no challenge to the composition of the jury

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array at trial, Appellant has waived this objection on appeal. Rosser v. State, 284

Ga. 335, 337 (3) (667 SE2d 62) (2008).

5. Though we find no error with respect to the jury’s verdicts, we have

noted an error with regard to the merger of certain counts for judgment and

sentencing. See Hulett v. State, 296 Ga. 49 (2) (766 SE2d 1) (2014) (merger

error, even if it is not raised by the parties, may be addressed by appellate court

sua sponte). As noted in footnote 1, supra, the trial court imposed a life sentence

for malice murder and then purported to “merge” all remaining verdicts, with the

exception of those for firearm possession, into the malice murder verdict. As to

the three felony murder counts, the trial court merely used incorrect

nomenclature, as these verdicts did not “merge” into the malice murder verdict

but rather were vacated by operation of law. See Hulett, 296 Ga. at 53 (when

valid guilty verdict is returned on both malice murder and felony murder of the

same victim, defendant should be sentenced for malice murder, and alternative

felony murder verdicts stand vacated by operation of law). With the felony

murder verdicts vacated, the three remaining felonies on which a guilty verdict

was reached – armed robbery, false imprisonment, and theft by taking – must be

evaluated to determine whether any of these verdicts merged as a matter of fact

into the malice murder. See id.
The test for determining whether one crime is included in
another, and therefore merges as a matter of fact, is the “required
evidence” test — whether conviction for one of the offenses is

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 established by proof of the same or less than all the facts required to
establish the other crime[.]
Grissom v. State, 296 Ga. 406, 410 (1) (768 SE2d 494) (2015). Here, none of the

three remaining verdicts merged as a matter of fact into the malice murder:

malice murder requires proof of, among other things, the victim’s death, a fact

which is not required to support any of the three remaining counts; armed

robbery, theft by taking, and false imprisonment all require proof of facts — the

taking of property, the detention of the victim — not required to establish malice

murder. See OCGA §§ 16-8-41 (a) (armed robbery), 16-8-2 (theft by taking),

16-5-41 (a) (false imprisonment).

We do find, however, that the theft by taking verdict merged into the

armed robbery count. Both of these counts charged Appellant with the taking of

the necklace and pendant worn by the victim. Where the indictment charges

both armed robbery and theft arising from a single transaction, “theft by taking

does not require proof of any facts separate from those required for armed

robbery.” Wells v. State, 294 Ga. App. 277, 280 (1) (b) (668 SE2d 881) (2008).

Thus, the theft by taking must be merged into the armed robbery verdict.

Accordingly, we vacate the sentencing order to the extent that it “merged”

the felony murder, armed robbery, theft by taking, and false imprisonment

verdicts into the malice murder verdict. The felony murder verdicts were

vacated by operation of law, and, on remand, the trial court is directed to merge

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the theft by taking verdict into the armed robbery verdict, and to impose lawful

sentences on the remaining armed robbery and false imprisonment verdicts. See

Grissom, 296 Ga. at 410 (1); Hulett, 296 Ga. at 55-56.

Judgment affirmed in part and vacated in part, and case remanded for

resentencing. All the Justices concur.

Decided March 2, 2015.

Murder. Seminole Superior Court. Before Judge Bishop.

The Smith Group, Gregory D. Smith, for appellant.

T. Craig Earnest, District Attorney, Samuel S. Olens, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney General,

for appellee.

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