McLean v. State

738 S.E.2d 267, 291 Ga. 873
CourtSupreme Court of Georgia
DecidedNovember 5, 2012
DocketS12A0930
StatusPublished
Cited by23 cases

This text of 738 S.E.2d 267 (McLean 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
McLean v. State, 738 S.E.2d 267, 291 Ga. 873 (Ga. 2012).

Opinion

Hines, Justice.

Michael Reginald McLean appeals his conviction for felony murder in connection with the shooting death of Perry Phillips. For the reasons that follow, we affirm.1

Construed to support the verdicts, the evidence showed that McLean and Jermarae Herbert drove from North Carolina with a woman and a man known as “Slim” to visit Treimain Thomas and Torrence McMillian in Clayton County, Georgia. At a gas station in Clayton County, they purchased marijuana from Phillips, and then went to the apartment of Thomas and McMillian, where they spent the night. The next morning, the four visitors spoke of buying more marijuana, and McLean, using Thomas’s cell phone, called Phillips and arranged to meet. He, Herbert, and Slim then discussed robbing Phillips. Thomas had left a pistol on a counter in the kitchen. McLean handled it for a few minutes. McLean, Herbert, and Slim then left the apartment, taking the pistol with them. They drove in Herbert’s vehicle to meet Phillips, and Phillips entered the back seat side of the vehicle with McLean; Herbert was in the driver’s seat, and Slim was in the front passenger’s seat. When Phillips produced the marijuana, McLean drew the pistol from his clothing and fatally shot Phillips in the abdomen. Herbert stopped the vehicle and Phillips’s body was removed from it.

[874]*874The three men returned to the apartment of Thomas and McMillian, speaking excitedly. There, Herbert said that McLean had shot Phillips; McLean said that Phillips should not have acted aggressively. Thomas and McMillian testified at McLean and Herbert’s joint trial; Slim made no appearance at this trial. Herbert’s conviction for felony murder was affirmed. See Herbert v. State, 288 Ga. 843 (708 SE2d 260) (2011).

1. McLean contends that the evidence was insufficient to support the verdicts as it largely rested upon the testimony of witnesses who were unreliable. “When this Court reviews the sufficiency of the evidence, it does not re-weigh the evidence or resolve conflicts in witness testimony, but instead it defers to the jury’s assessment of the weight and credibility of the evidence. [Cit.]” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010). It is for the jury to resolve conflicts in the evidence and questions of witness credibility, not this Court. Tolbert v. State, 282 Ga. 254, 256 (1) (647 SE2d 555) (2007). The evidence authorized the jury to find McLean guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. McLean’s motion to sever his trial from that of Herbert was denied, which he contends was error.

In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. In exercising that discretion, the trial court must consider the following factors: (1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights?

Butler v. State, 290 Ga. 412, 413 (2) (721 SE2d 876) (2012) (Citations and punctuation omitted.) There were only two defendants at McLean’s trial, the evidence showed they acted together, and the law applicable to each was substantially the same. See Herbert, supra at 845 (2). McLean contends that his defense, namely that Slim was the shooter, was antagonistic to Herbert’s defense that McLean was the shooter. However, at trial, both men primarily argued that the State’s evidence was insufficient and unreliable, although McLean also argued [875]*875that Slim was the actual shooter.2 In any event, antagonistic defenses alone are not sufficient to mandate severance; McLean must also demonstrate harm from the failure to sever. Loren v. State, 268 Ga. 792, 795 (2) (493 SE2d 175) (1997). McLean does not point to any evidence produced against him in this joint trial that would not have been admitted in a separate trial, Butler, supra, and he fails to show specific prejudice from the presentation of his and Herbert’s defenses at the joint trial. See Krause v. State, 286 Ga. 745, 750 (5) (691 SE2d 211) (2010). Accordingly, the trial court did not abuse its discretion in denying McLean’s motion to sever his trial from that of Herbert. Butler, supra.

3. During the direct examination of a detective who had questioned Herbert, the State asked: “[d]id Mr. Herbert tell you where the gun was?” The detective answered: “I believe he said they threw it out on the side —,” at which point counsel for Herbert objected. After the jury was excused, Herbert moved for a mistrial, in which McLean joined. McLean contends that his right to confrontation was violated under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).3

In Bruton, supra, the Court held that a defendant’s Sixth Amendment right of confrontation is violated, despite cautionary instructions, when: (a) co-defendants are tried jointly; (b) one co-defendant’s confession is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement. [Cit.] Bruton excludes only the statement of a nontestifying co-defendant that standing alone directly inculpates the defendant. [Cits.]

Nelms v. State, 285 Ga. 718, 721 (2) (b) (681 SE2d 141) (2009). Nothing in Herbert’s statement to which the detective testified mentioned McLean or otherwise implicated him. Although McLean argues that the use of the word “they” necessarily referred to McLean, “they” were never identified and “the remainder of [Herbert’s] remarks referred only to himself. [Cit.]” Id. Thus, the use of the term “at most... became incriminating only when linked with other evidence [876]*876introduced at trial. [Cit.]” Burns v. State, 280 Ga. 24, 27 (3) (622 SE2d 352) (2005). Such a statement “falls outside Bruton’s scope.” Id. Compare Ardis v. State, 290 Ga. 58, 60-62 (2) (718 SE2d 526) (2011) (Testimony about the statement obviously referred to appellant, despite the redaction of the appellant’s name from the statement itself.).

4. McLean now asserts that the trial court should have instructed the jury that, as to each crime in the indictment, a defendant must knowingly participate in the crime, using the pattern instruction. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.43.10 (4th ed. 2007). See also Eckman v. State, 274 Ga. 63, 67 (3) (548 SE2d 310) (2001). However, the record contains no such written request, no oral request during the charge conference for such an instruction, and no objection to the court’s failure to give such an instruction. Accordingly, this Court’s review is limited to a determination of whether the trial court’s instruction constituted “plain error.” See OCGA § 17-8-58.4

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738 S.E.2d 267, 291 Ga. 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclean-v-state-ga-2012.