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McCray v. State

Supreme Court of Georgia

April 17, 2017

McCRAY
v.
THE STATE

          Benham, Justice.

         Appellant Don McCray was convicted of murder and other offenses arising out of the shooting death of Darius Grover.[1] McCray was apparently jealous of Grover's relationship with Lashante Holloway, McCray's former girlfriend. On the evening of the shooting, Grover was visiting Holloway's apartment when McCray entered the apartment complex and commenced knocking, and then beating, on her door, but Holloway would not answer. Eventually, Holloway spoke to McCray through the locked door and told him to leave. He then commenced calling her repeatedly on the phone, but Holloway refused to answer. Grover became irritated and answered the phone, angrily telling McCray to stop calling and beating on the door. The two men engaged in an argument over the phone. Later, Grover called a friend, Mr. Burton, who lived in the adjacent apartment building with his then-fiancée, and invited him to come over to Holloway's apartment to play video games.

         After Burton arrived, Holloway left to go visit Burton's fiancée, Ms. Daniel. She believed McCray was gone. When Holloway heard McCray's voice calling her name and heard him chasing after her, she commenced running toward the other couple's apartment, and she testified at trial that she was in fear for her life. Holloway then heard McCray banging on other apartment doors and calling her name. Finally, he arrived at the door of the apartment where Holloway had fled, started beating and kicking at the door, and commenced threatening Holloway. Daniel telephoned Burton and told him about the man at her door, and both Burton and Grover ran over to Burton and Daniel's apartment. After a verbal confrontation, McCray started running and Burton and Grover chased after him. They watched McCray reach his car outside the apartment complex gate, but when McCray opened the driver's door, McCray drew a gun and pointed it at the other two men, who ran back to Burton's apartment. According to Burton's testimony, McCray could have driven away from the scene at that point. When Burton and Grover arrived back at Burton's apartment, Holloway expressed concern about her young daughter who was alone at her apartment, and Holloway said she wanted to go back to get her. Grover went to the apartment of a friend who lived next door to Burton and Daniel to whom he had given his shotgun and ammunition for safekeeping. That friend returned Grover's shotgun along with one cartridge. The friend tried to get the men to calm down, but Grover kept saying they had to protect themselves. He declared that no one was going to pull a gun on him over a woman. In McCray's custodial statement to the authorities, which was videotaped and played to the jury, he admitted that after reaching his car he had followed behind Grover and Burton and hid under the stairs to Burton's apartment where, he acknowledged, the two men did not see him. Grover told Holloway he would stand watch with the shotgun to protect her as she went to get her daughter, and said that if he saw McCray he was going to "bust him."

         Hearing this statement, McCray came out from his hiding place under the apartment building stairs and opened fire while angrily shouting twice at Grover, "You going to do what?" McCray struck Grover at least six times. Grover returned his one shot, missing McCray and striking the building's staircase. Some shotgun shell pellets apparently ricocheted and a few of them hit McCray's arm, but he was otherwise unhurt. An eyewitness who observed these events from her window in another building testified she had not seen Grover point a weapon at anyone when she heard six or seven gunshots and then left her window. Grover died at the scene from multiple gunshot wounds, some of which entered his back. McCray fled the scene, but he turned himself in the next day. In response to questioning after being read his rights, McCray gave conflicting statements, first saying Grover fired the first shot, and then stating that he made the challenging comment to Grover about what Grover was going to do "after I had shot him and he shot me." After his trial and conviction, McCray filed this appeal.

         1. McCray's sole defense was justification in that he acted in self- defense. In his first two enumerations of error, McCray asserts the evidence was insufficient to convict him of aggravated assault with a deadly weapon, and also that the State failed to disprove every other reasonable hypothesis except guilt and thus failed to prove guilt beyond a reasonable doubt. We note, however, that although the jury found McCray guilty of aggravated assault, he was neither convicted nor sentenced for that offense since the guilty verdict for aggravated assault merged into the guilty verdict for malice murder, and he was convicted and sentenced only for the latter offense. See Culpepper v. State, 289 Ga. 736, 738 (2) (a) (715 S.E.2d 155) (2011). Consequently, the assertion that the evidence was insufficient to support the conviction for aggravated assault is moot. With respect to the sufficiency of the evidence to support the conviction for malice murder, we conclude the evidence was sufficient to authorize a jury to find McCray guilty beyond a reasonable doubt.

         Citing OCGA §§ 16-3-20 and 16-3-21 (a), however, McCray asserts that he presented sufficient evidence to show justification by establishing that he reasonably believed his actions were necessary to defend himself against Grover. As in any case in which a defendant effectively raises such an affirmative defense, the State in this case had the burden of disproving McCray's defense of justification and self-defense beyond a reasonable doubt, [2]and McCray asserts that the State failed to meet this burden. But where, as here, conflicting evidence was presented regarding whether a defendant acted in self-defense in shooting the victim, the jury is free to reject the evidence in support of self-defense and to accept the evidence that the defendant did not act in self-defense. See Bradford v. State, 299 Ga. 880, 881 (1) (792 S.E.2d 684) (2016); Anthony v. State, 298 Ga. 827, 829 (1) (785 S.E.2d 277) (2016).

         Multiple witnesses testified that McCray came out from his hiding place behind the victim and loudly taunted him as he fired his weapon. Indeed, in the initial statement McCray gave to the authorities, he admitted surreptitiously following the victim and then taunting him as he fired. Several witnesses testified the victim was standing with his back to McCray when shots rang out and before the victim fired a shot. This testimony is consistent with the medical examiner's testimony about the location of some of the victim's gunshot wounds. It is also consistent with expert testimony that, given the shot pattern from a shotgun, it would be highly improbable that a person who fired a shotgun at another person at such a short range as was involved in this case would miss the target (with the exception here of a few pellets), and that missing the target would be consistent with spinning around and firing the shotgun after having already been struck with a bullet.

         McCray argues that the evidence demonstrated he had an innocent reason for returning to the apartment building, as he told the officer who interrogated him-to look for his phone, not to pursue the victim-and that the only evidence regarding who was the aggressor in the gun fight was circumstantial. Because McCray claims the circumstantial evidence supports more than one theory about the shootings, he argues the State failed to disprove every other reasonable hypothesis except that of guilt, as the State is required to do in a circumstantial evidence case.[3] Evidence was presented, however, that no phone was found on the premises during the police officers' exhaustive search of the property for ballistic evidence immediately after the shooting; and in his custodial statement, McCray admitted he followed Grover and Burton back onto the property after their encounter at McCray's car, outside the gate of the apartment complex. The evidence showed that McCray had earlier pursued Holloway and angrily attempted a confrontation with her. The jury was not required to believe McCray's assertion that he returned for an innocent reason.

         Further, we reject the assertion that the evidence of McCray's guilt was purely circumstantial. Although none of the witnesses could state that they saw McCray pull the trigger, several witnesses testified that Grover was facing away from McCray and the building when they heard the shooting begin. "Direct evidence is that which is consistent with either the proposed conclusion or its opposite; circumstantial evidence is that which is consistent with both the proposed conclusion and its opposite." Stubbs v. State, 265 Ga. 883, 885 (2) (463 S.E.2d 686) (1995). As this testimony is consistent only with the conclusion that McCray started the gun battle in this case and was the aggressor, we conclude the evidence of guilt was not purely circumstantial. From the evidence presented, the jury could conclude McCray pursued Grover and Burton, laid in wait to shoot Grover, and commenced shooting when Grover's back was turned to him. The State carried its burden of presenting sufficient evidence to authorize any rational trier of fact to find McCray guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. McCray asserts the trial court erred in denying his motion to suppress evidence relating to the custodial statement he gave to the authorities when he voluntarily turned himself in. At the hearing on the motion, the interrogating officer testified he first spoke to McCray over the phone after the officer had made attempts to reach McCray through his relatives as well as by calls to McCray's own phone number. Upon speaking to McCray, the officer told him he needed to turn himself in, and that it would be in his best interest if he did so. When McCray tried to tell the officer what had happened, the officer told him he didn't want to go into that over the phone because the officer needed to advise him of his rights before he gave a statement. The officer testified that when McCray presented himself to the homicide office the next day, the officer took McCray into his office, provided him with something to drink, advised him of the charges he was facing, asked initial questions aimed at assessing whether McCray was properly oriented, and gave him Miranda[4]warnings. According to the officer, McCray signed a waiver form and told the officer he did not object to having his statement videotaped. During the interval between when McCray first signed a waiver of rights to the time when the two men went to an interview room where the statement was videotaped, McCray stated that he shot Grover but that it was in self-defense. The transcript of the recording (that was played to the jury at trial) indicates the officer stated that although he had already advised McCray of his rights, he wanted to do so again for the benefit of the video camera, to which McCray stated "Okay, " and responded that he understood. The State was able to produce only the waiver form McCray executed on camera and not the form the officer testified was executed just minutes before the men adjourned to go into the interrogation room. Nevertheless, the trial court summarily denied McCray's motion to suppress.

         (a) McCray asserts on appeal that the State violated his constitutional rights against self-incrimination by interviewing him before advising him of these rights. But the only evidence presented at the motion hearing regarding this issue was the officer's testimony that McCray was fully advised of his rights before he gave any statement to the authorities, even the admission that he shot Grover in self-defense, and the trial court was entitled to credit that testimony.

         (b) Likewise, McCray's assertion that admission of his statement violated the principle set forth in Missouri v. Seibert[5] is unsupported. In Seibert the defendant was first interrogated before he was advised of his constitutional rights, and only after he confessed did the interrogating officers provide the defendant with Miranda warnings and obtain a second statement. The uncontested evidence in this case, by contrast, supports the conclusion that McCray was duly advised of his constitutional rights before he made any inculpatory statement.

         (c) We also reject McCray's argument that the State's failure to produce the original waiver of rights form amounts to a violation of the State's duty to disclose exculpatory information to the defense as set forth in Brady v. Maryland.[6] McCray asserts the document would be exculpatory because the interrogating officer testified he would have noted the time it was executed on the face of the waiver form. To prevail on a Brady claim, a defendant must establish four factors:

(1) [T]he State, including any part of the prosecution team, possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the ...

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