McClendon v. State, 299 Ga. 611

Background

On April 13, 2007, Christopher Crawford was shot and killed in West Atlanta; the prosecution’s theory was a retaliatory killing after Crawford robbed a prostitute associated with Courtney Franklin.
Defendants Courtney Franklin, Johnny McClendon, and Marquice Burks were tried jointly; witnesses placed a masked shooter exiting and returning to a red Chevy Cobalt; several witnesses identified McClendon from photo lineups as the shooter.
Testimony included (a) jailhouse statements implicating McClendon and Burks, (b) threats and phone calls by Franklin, and (c) cell‑tower records showing communications from Franklin’s and Burks‑associated phones around the time of the shooting.
The jury convicted McClendon and Burks of malice murder, two counts of felony murder (aggravated assault and possession by a felon), aggravated assault, possession of a firearm during a crime, and possession of a firearm by a convicted felon; both were sentenced to life plus suspended weapon terms.
On appeal the Court affirmed most trial rulings but held the felony‑murder convictions were vacated by operation of law (not merged), requiring vacatur of those counts in both defendants’ sentences.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence	State: evidence (IDs, cell records, witness statements) proves guilt beyond reasonable doubt	McClendon/Burks: challenge sufficiency (generally)	Affirmed: evidence sufficient to support convictions (Jackson standard)
Ineffective assistance for failure to move for mistrial after co‑defense closing comment	McClendon: counsel should have moved for mistrial when Burks’ counsel commented on McClendon’s silence	State: counsel made a tactical decision not to seek mistrial to preserve impeachment of key witness	Denied: counsel’s tactical choice was objectively reasonable; Strickland not met
Motion to sever joint trials	McClendon/Burks: joint trial prejudiced them and counsel conflict warranted severance	State: same offenses, overlapping evidence, jury instructions and separate verdicts mitigate prejudice	Denied: no abuse of discretion; defendants failed to show clear prejudice
Admission of co‑defendant jailhouse statements (Confrontation Clause)	Burks: McClendon’s out‑of‑court statements inadmissible absent proof of conspiracy or indicia of reliability (Copeland/Dutton)	State: statements admissible as co‑conspirator statements and not "testimonial" under Crawford; Whorton removes Copeland reliability test	Admitted: statements were non‑testimonial co‑conspirator statements; Copeland’s indicia‑of‑reliability test disapproved for Confrontation Clause purposes
Sentencing merger/vacatur of felony‑murder counts	Burks: trial court should have vacated felony‑murder counts rather than "merge" them into malice murder	State: trial court attempted merger	Held: felony‑murder verdicts do not merge into malice murder but are vacated by operation of law; felony‑murder convictions vacated for both defendants; aggravated assault properly merged into malice murder

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test)
Crawford v. Washington, 541 U.S. 36 (testimonial statement Confrontation Clause framework)
Whorton v. Bockting, 549 U.S. 406 (limits Roberts/Copeland reliability approach)
Hulett v. State, 296 Ga. 49 (merger error may be raised sua sponte)
Franklin v. State, 298 Ga. 636 (co‑conspirator statements non‑testimonial; discussion of Crawford application)
Favors v. State, 296 Ga. 842 (felony‑murder convictions vacated vs. merged; merger of aggravated assault into malice murder)
Copeland v. State, 266 Ga. 664 (previous indicia‑of‑reliability test — disapproved here for Confrontation Clause review)
Dutton v. Evans, 400 U.S. 74 (pre‑Crawford reliability jurisprudence)
Hurt v. State, 298 Ga. 51 (addresses vacatur of felony‑murder convictions)