McCullough v. State

818 S.E.2d 520, 304 Ga. 290
CourtSupreme Court of Georgia
DecidedAugust 20, 2018
DocketS18A0855
StatusPublished
Cited by4 cases

This text of 818 S.E.2d 520 (McCullough v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCullough v. State, 818 S.E.2d 520, 304 Ga. 290 (Ga. 2018).

Opinion

NAHMIAS, Justice.

**290Appellant Brawny McCullough was found guilty of malice murder and other crimes in connection with the shooting deaths of his father, Donald Eugene McCullough ("Gene"), and his great-aunt, Peggy Molden. The State sought the death penalty, but the jury decided that Appellant should instead be sentenced to life in prison without parole. In this Court, Appellant contends that the evidence presented at his trial was insufficient to support his convictions and that the trial court abused its discretion and violated his Sixth Amendment right to counsel by denying his request to continue the trial to accommodate a scheduling conflict that one of his lawyers had, even though Appellant had already been granted one lengthy continuance and was represented at trial by three other competent capital defenders. We reject these contentions, but we vacate the trial court's judgment in part to correct a sentencing error.1

*522**2911. (a) Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. In 2008, while Gene was living in Alabama, a black man attempted to shoot him through the door of his house, but missed. In 2010, Gene was shot twice at the door of his house by a white man. The shooting left Gene paralyzed from the waist down, so he moved to Covington, Georgia to live with his aunt, Molden. Appellant also lived in Georgia and would sometimes visit Gene and Molden.

On February 5, 2012, two days before the murders, Appellant went to a Super Bowl party, where he told a coworker, Bernard Watts, that he had arranged for a man to shoot Gene in 2010. Appellant also told Watts that he now planned to pay Jonathan Henderson, a black man who was Watts's cousin and Appellant's friend, $10,000 to kill Gene in order to collect on a $150,000 life insurance policy on Gene that named Appellant as the primary beneficiary. Appellant said that he planned to have Henderson use the same gun that was used to shoot Gene in 2010.

On the morning of February 7, paramedics responded to a Life Alert call from Gene and Molden's house. They found Gene, who had been shot seven times, lying dead between his bed and the wall. Sheriff's officers and GBI investigators then came to the house. They found Molden, who had died from a single gunshot wound to the head, lying on the basement stairs. The investigators found a .38-caliber shell casing in the driveway, a .38 projectile on the floor by the front door, and two more .38 projectiles under Gene's bed.

That evening, the investigators interviewed Appellant as a family member, not a suspect. He said that he and Gene were close, that he had last seen Gene a week ago, and that he had no idea who could have shot Gene and Molden. Later that night, Appellant told his roommate that Appellant was going to receive a large amount of money as the beneficiary of his father's life insurance policy, and several times during the next week, Appellant asked family members and the investigators about the insurance.

About a week after the murders, Watts contacted the investigators and related what Appellant had told him at the Super Bowl party. The GBI then obtained cell phone records that showed that Appellant and Henderson exchanged numerous calls and text messages in the days leading up to the murders, including nine calls on the day before; their cell phones were turned off on the morning of the murders, and they did not communicate after that. On February 17, Appellant and Henderson were arrested. During a search of Henderson's car, police **292found a bottle of bleach, a box of latex gloves, a holster in which a .38 revolver would fit, and a copy of Gene's obituary. Appellant and Henderson both admitted involvement in the murders during their interviews with investigators later that day.

In his interview, the videotape of which was played for the jury, Appellant said that he was angry with his father because Gene had always treated him badly. Appellant said that in 2008, after he complained about Gene to Henderson, Henderson shot at Gene but missed. Appellant claimed that Henderson had approached him recently and offered to kill Gene in exchange for money. According to Appellant, he accepted the offer, planned the murders with Henderson, and brought his .38 revolver when he and Henderson drove in Henderson's car to Gene and Molden's house, but he then told Henderson not to go through with their plan. Appellant claimed that Henderson shot Gene and Molden with Appellant's revolver anyway, and when Appellant asked why, Henderson said "it had to go down because we were already here now." Appellant did not testify at trial.

Henderson testified at Appellant's trial under a grant of testimonial immunity and in exchange for the State's withdrawing its intent to seek the death penalty against him.2 As he had told the investigators, Henderson told the jury that in 2008, 2009, 2010, and late 2011 or early 2012, Appellant asked him to kill Gene for $10,000, but he declined. On *523the day of the murders, he drove Appellant to Gene's house because Appellant claimed that Gene was sick and Appellant wanted to visit. On the way there, Appellant asked Henderson to turn off his cell phone. After they arrived and exchanged pleasantries with Gene and Molden, Appellant pulled out his revolver and shot Molden and then Gene. Appellant later warned Henderson not to tell the police about the shootings, and Henderson fled to South Carolina before returning to Georgia.

While they were both in jail, Appellant sent several notes and documents to Henderson. One document was an unsigned affidavit for a person to fill out stating that he or she had witnessed Henderson recant his statement to the investigators. In a note, Appellant included suggestions on how to get a confession suppressed. Appellant also drafted a statement for Henderson to make saying that everything Henderson had told the investigators about Appellant was false.

According to Dustin Huddleston, a white man who was interviewed by the investigators and also testified at trial, Appellant offered him money to kill Gene in 2010; they later went to Gene's **293house in Alabama, where Appellant shot Gene. Gene's autopsy found three recent and two older bullet fragments in his body. The medical examiner determined that the two older fragments were from the 2010 shooting. A ballistics expert determined that all of the bullet fragments found in Gene's body were fired from the same .38-caliber revolver as the shell casing and projectiles found at the scene of the murders. The revolver was never located.

(b) Appellant contends that this evidence was legally insufficient to support his convictions. In particular, he argues that the State presented no physical evidence like fingerprints or DNA linking him to the crimes and that the State's main witness, Henderson, was biased against Appellant because he was granted a deal in exchange for his testimony.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rogers v. State
Supreme Court of Georgia, 2026
Kerns v. State
Supreme Court of Georgia, 2026
Lofton v. State
854 S.E.2d 690 (Supreme Court of Georgia, 2021)
Crouch v. State
305 Ga. 391 (Supreme Court of Georgia, 2019)
McCULLOUGH v. State
304 Ga. 290 (Supreme Court of Georgia, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
818 S.E.2d 520, 304 Ga. 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccullough-v-state-ga-2018.