McCain v. State
300 Ga. 400
Ga.2016Background
- Victim Whitt “Bobby” Timms was shot and killed; Cleve McCain was indicted and convicted of malice murder, possession of a firearm during the commission of a felony, and possession of a firearm by a first-offender probationer relating to the June 19, 2007 murder.
- McCain had escalating hostility toward the victim and Ken Waters, including threats, prior assault, and possession of a .38 revolver borrowed from his uncle Kenneth Folsom.
- On the night before and the morning of the killing, McCain, Folsom, and the victim were together; testimony placed McCain as having the .38, telling the victim to sit, then fatally shooting him; they later dumped the body in an abandoned well.
- Physical evidence: multiple gunshot wounds to the victim; a spent .38 casing matched to Folsom’s .38 (whose barrel had been filed); Folsom’s .22 and blood in Folsom’s truck; witnesses saw McCain at the well days later covering the body.
- After the murder, McCain washed clothes and cleaned the .38; Folsom pawned the .38; both returned to the well to conceal the body. McCain was tried March 2010, convicted, and sentenced to life plus terms; post-trial motions were denied and McCain appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support convictions | State: accomplice Folsom’s testimony corroborated by phone records, conduct, physical evidence linking McCain to weapon, scene, and postcrime acts | McCain: conviction rests solely on uncorroborated accomplice testimony (violating OCGA § 24-4-8) | Affirmed — slight circumstantial corroboration sufficient; jury could find guilt beyond reasonable doubt |
Key Cases Cited
- Bradford v. State, 261 Ga. 833 (accomplice corroboration requires only slight evidence)
- Berry v. State, 248 Ga. 430 (corroboration may be entirely circumstantial; pre- and post-offense conduct can corroborate accomplice testimony)
- Crawford v. State, 294 Ga. 898 (cell-phone and travel records can corroborate accomplice testimony)
- Simpson v. State, 278 Ga. 336 (phone records and ballistic evidence can corroborate accomplice testimony)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Malcolm v. State, 263 Ga. 369 (merger and vacatur of overlapping convictions)
- Bradshaw v. State, 296 Ga. 650 (construction of corroboration statute in new Evidence Code)