Mark Howard McClain

Case record: Mark Howard McClain

Background

Mark Howard McClain was a white male. He was known by the aliases “A.K.A. MALACHI” and “MARK.” He was born in 1967 and was executed in 2009 at age 42. He was 5'09'' tall and weighed 160, with blue eyes and red&ABN hair color as listed in prison materials.

McClain was convicted for the robbery and murder of a Domino’s Pizza store manager, Kevin Brown. McClain had previously been convicted of armed robbery.

The offence

At approximately 1:00 a.m. on November 20, 1994, McClain left the house of his girlfriend, Tina Butler, and drove to a nearby Domino’s Pizza store on Washington Road. McClain parked his blue Buick beside the building.

Shortly before 2:00 a.m., Domino’s delivery man Phillip Weeks returned from making his pizza deliveries. McClain approached Weeks and asked to buy a pizza. Weeks told him the store was closed, but McClain became insistent and refused to leave. Weeks agreed to ask the manager, Kevin Brown, to make an exception. Weeks began yelling to Brown from outside the store. Brown released the security lock and the door opened.

McClain attempted to force his way inside behind Weeks. When McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown remained standing behind the counter; he weighed about 450 pounds and could not move quickly.

As Weeks reached the door, he heard McClain order Brown to give him the money. Weeks ran to a pay telephone to call police. The pay telephone was broken. Weeks ran toward another pay telephone at a gas station across Washington Road. As he began to cross the street, Weeks saw a blue car leave the Domino’s parking lot at high speed and turn onto Washington Road. Weeks believed the driver to be the perpetrator, saw McClain, and the driver made eye contact and made an obscene gesture toward Weeks with his middle finger. Weeks memorized the car’s tag number, flagged down a passing motorist, and the motorist drove him back to the store.

When Weeks returned, he found Brown shot, lying behind the counter and bleeding from a bullet wound to his chest. Brown’s keys to the store’s till, which Brown normally kept in his pocket, were in the till where the store’s money was kept. There was evidence that just over $100 was missing from the store. Weeks called 911, but Brown bled to death before paramedics arrived.

Within an hour of leaving Butler’s house, McClain returned and gave Butler $100 without explaining where he had obtained the money. McClain spent much of the following day at Butler’s house.

When McClain left Butler’s residence the next afternoon, he drove Butler’s car (leaving the Buick, the army jacket and boots he had worn during the robbery, and the gun he had used to shoot the victim) at Butler’s house.

Police traced the tag number of the Buick to McClain’s father. McClain’s description matched Weeks’ description of the perpetrator. The assistant manager identified McClain as having bought a pizza in the store two days before the shooting under the name of Johnson, and the box with the receipt for that pizza was found in the trash during a search of McClain’s residence. The day after the shooting, McClain picked up the Buick at Butler’s house.

McClain was arrested when he arrived at work in the car the following morning, November 21, 1994. That evening, he called Butler from the jail and told her to dispose of the clothes, boots, and gun left at her house. He demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate her if she refused. Butler hid McClain’s jacket in a neighbor’s shed and gave McClain’s gun to her nephew. Police questioned Butler on two occasions; during the second interview she told police about McClain’s telephone call and gave police McClain’s jacket and boots. McClain’s gun was recovered a month later when Butler’s nephew was involved in a shooting.

Butler testified against McClain at trial.

At trial, McClain denied any involvement in the crime until trial. He testified that he intended only to rob the store, but heard a noise as he was leaving and believed Brown was pursuing him and then shot him. McClain also testified “I didn’t even know if he got hit.” McClain’s testimony included that: “I turned around like this right here, and the gun went off,” demonstrating to the jury. The prosecutor, at trial, called McClain’s story “hogwash.”

Victim

Kevin Brown was the Domino’s Pizza store manager. He was 28. He was shot once in the chest during the armed robbery. He died before paramedics arrived.

Investigation

McClain’s father described McClain as the primary driver, matching Weeks’ description of the perpetrator. The assistant manager identified McClain as having bought a pizza in the store two days before the shooting under the name of Johnson. The box with the receipt was found in the trash during a search of McClain’s residence. Police questioned Tina Butler; during the second interview she told police about McClain’s telephone call and gave police McClain’s jacket and boots.

Arrest

McClain was arrested when he arrived at work in the car on the following morning, November 21, 1994.

Trial

McClain was indicted in the Superior Court of Richmond County, Georgia on November 29, 1994 for malice murder, felony murder, armed robbery, possession of a firearm during the commission of certain crimes, and possession of a firearm by a convicted felon.

McClain was reindicted for the original charges and an additional count of burglary on January 4, 1995.

On September 7, 1995, following a jury trial, McClain was convicted of malice murder, felony murder, burglary, armed robbery, and possession of a firearm during the commission of certain crimes. McClain subsequently entered a guilty plea to possession of a firearm by a convicted felon. The jury’s recommendation of a death sentence was returned on September 8, 1995.

At sentencing, the jury sentenced McClain to death. The jury found three statutory aggravating circumstances: the murder was committed while the offender was engaged in the commission of a burglary; the murder was committed while the offender was engaged in the commission of an armed robbery; and the murder was committed for the purpose of receiving money or things of monetary value.

McClain made statements during the proceedings that were admitted at trial. Deputy Sheriff Ronnie Strength testified that in a follow-up interview several days after McClain was arrested, Strength informed McClain that police were aware of his incriminating telephone conversation with Butler in which McClain instructed Butler to dispose of the jacket and boots he wore on the night of the crime and the gun he had left at Butler’s house. After Strength showed him the jacket and boots, McClain stated that if he were found guilty of Brown’s murder, he would rather die in the electric chair that day than return to prison.

During the guilt phase closing argument, McClain challenged parts of the prosecutor’s argument, including an “imaginary billboard” argument and a “golden rule”-type argument that the appellate court treated as an improper reference to future dangerousness but not reversible error. The appellate court also discussed closing argument referring to McClain as a “murderer” who “chose to kill” the victim, and it treated the comments as reasonable inferences from evidence.

McClain objected to admission of certain testimony during sentencing and also raised multiple issues on voir dire rulings, including rulings about prospective jurors William L. Platte, Charles Penn, Robert Snyder, and Louise Head, and other trial rulings.

Verbatim quotes included in the record:

• McClain’s statement in prison materials when asked about prayer:

  “No, I'm fine.”

• McClain’s prison statement when asked about prayer (as recorded in the account of the execution):
• McClain’s testimony to the jury (demonstration and shooting statement):

  “I turned around like this right here, and the gun went off,” “I didn’t even know if he got hit.”

• The prosecutor’s characterization of McClain’s story:

  “hogwash.”

• District Attorney Danny Craig’s statement to jurors during the trial:

  “The defendant had a choice, you see,” “He preferred to kill.”

Albert Brown’s testimony included:

“His death has caused me to be in a state of deep depression, and I still am waiting to come out of it,”
“Kevin was not only my son, he was my friend. I can’t put into words how this loss has affected me.”

Sentencing

McClain was sentenced to death in Richmond County in September 1995. The Georgia Supreme Court later affirmed the death sentence.

Prison records listed multiple sentence components for case number 349678: 20 years, 20 years, death, and 5 years. Incarceration began on 09-29-95.

Appeals

McClain pursued multiple appeals and habeas proceedings.

• McClain v. State, 267 Ga. 378, 379-380, 477 S.E.2d 814 (1996). (Direct Appeal)
• McClain v. Hall, 552 F.3d 1245 (11th Cir. 2008). (Habeas)

McClain filed a petition for writ of certiorari in the United States Supreme Court, which was denied on June 23, 1997.

McClain filed a petition for writ of habeas corpus in the Superior Court of Butts County, Georgia on December 3, 1997 and amended it on May 3, 1999. An evidentiary hearing was held on July 15, 1999. On August 17, 2000, the state habeas corpus court entered an order denying McClain state habeas relief.

McClain’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on April 15, 2002. McClain then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on November 18, 2002.

McClain filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Georgia on October 31, 2002. On June 26, 2007, the district court denied McClain federal habeas corpus relief. The district court denied a motion to alter and amend judgment on July 17, 2007. The district court denied McClain a certificate of appealability on August 23, 2007.

On February 22, 2008, the Eleventh Circuit granted McClain’s application for an expansion of the certificate of appealability. The case was orally argued before the Eleventh Circuit on September 30, 2008. On December 18, 2008, the Eleventh Circuit issued an opinion denying relief. McClain filed a petition for panel rehearing, which was denied January 26, 2009.

McClain filed a petition for writ of certiorari in the United States Supreme Court, which was denied October 5, 2009.

Other details

Georgia Attorney General press advisory reported:

• On October 8, 2009, the Superior Court of Richmond County filed an order setting a seven-day window beginning at noon on October 20, 2009 and ending seven days later at noon on October 27, 2009.
• The Commissioner of the Department of Corrections then set the specific date and time for execution at 7:00 p.m. on October 20, 2009.
• McClain concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.
• McClain had been scheduled to be executed at 7:00 p.m. on October 20, 2009.

Parole clemency:

• The Georgia Board of Pardons and Paroles denied McClain clemency on Friday (in the period preceding October 20, 2009), as described in the accounts included in the case material.

Execution timing and location in the accounts:

• McClain was pronounced dead at 7:24 p.m. at the Georgia Diagnostic and Classification State Prison in Jackson, Georgia.

Final meal and sedative:

• McClain declined to eat his final meal.
• He refused a sedative offered one hour before his execution.

People and persons involved named in the case material:

• Tina Butler (girlfriend; gave police evidence and testified at trial)
• Kevin Brown (victim; Domino’s Pizza store manager)
• Phillip Weeks / Philip Martin Weeks Jr. (delivery man/witness)
• Steve Upton (prison Warden)
• Joan Heath (Department of Corrections spokeswoman)
• Ashley Wright (Richmond County District Attorney, in the sentencing-related discussion)
• Danny Craig (then-District Attorney; referenced in trial-sentencing remarks)
• Brian Kammer (attorney; quoted regarding McClain)
• Christopher Kende (listed as representing McClain in state habeas filing)
• Thomas H. Dunn (listed as representing McClain in federal habeas filing)
• Lisa Godbey Wood (U.S. District Court judge, in the habeas background)
• Pryor, Circuit Judge (Eleventh Circuit)
• Barkett, Circuit Judge (concurring opinion)
• Thurbert E. Baker (Georgia Attorney General, in press advisory)
• Katey Brown, James Clark, Walter C. Jones, Adam Folk, Christian Boone, Ashley Campbell, Scott Hudson, Stoney Cannon, Pat Seaborn, Ronald Spivey, Chris Ridings, Katey Brown, Ken Rogers, Joey (none named in required fields beyond what appears in the included text)
• Ronald Spivey (mentioned as a participant’s cousin executed earlier)
• James Clark (coordinator of Georgians for Alternatives to the Death Penalty; quoted regarding vigils)

Timeline

• November 19, 1994 — McClain picked up Tina Butler around midnight and drove to her apartment; they discussed their relationship and Butler told McClain she needed money.
• November 20, 1994 — McClain left Butler’s house at approximately 1:00 a.m., drove to Domino’s Pizza on Washington Road, and attempted to buy a pizza before forcing entry during which Kevin Brown was shot; McClain returned to Butler’s house within an hour and gave her $100; paramedics arrived after Brown had bled to death from a gunshot wound to the chest.
• November 21, 1994 — McClain was arrested when he arrived at work in his blue Buick.
• November 29, 1994 — McClain was indicted in the Superior Court of Richmond County for malice murder, felony murder, armed robbery, possession of a firearm during the commission of certain crimes, and possession of a firearm by a convicted felon.
• January 4, 1995 — McClain was reindicted for the original charges and an additional count of burglary.
• September 7, 1995 — Following a jury trial, McClain was convicted of malice murder, felony murder, burglary, armed robbery, and possession of a firearm during the commission of certain crimes.
• September 8, 1995 — The jury’s recommendation of a death sentence was returned.
• September 1995 — McClain was sentenced to death in Richmond County.
• November 12, 1996 — The Georgia Supreme Court affirmed McClain’s convictions and sentence.
• June 23, 1997 — The United States Supreme Court denied certiorari.
• December 3, 1997 — McClain filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia.
• May 3, 1999 — McClain filed an amended petition for a writ of habeas corpus.
• July 15, 1999 — An evidentiary hearing was held.
• August 17, 2000 — The state habeas corpus court entered an order denying McClain state habeas relief.
• April 15, 2002 — The Georgia Supreme Court denied McClain’s application for a certificate of probable cause to appeal.
• November 18, 2002 — The United States Supreme Court denied certiorari.
• October 31, 2002 — McClain filed a federal habeas corpus petition in the United States District Court for the Southern District of Georgia.
• June 26, 2007 — The district court denied McClain federal habeas corpus relief.
• July 17, 2007 — The district court denied McClain’s motion to alter and amend judgment.
• August 23, 2007 — The district court denied McClain a certificate of appealability.
• February 22, 2008 — The Eleventh Circuit granted McClain’s application for an expansion of the certificate of appealability.
• September 30, 2008 — The case was orally argued before the Eleventh Circuit.
• December 18, 2008 — The Eleventh Circuit issued an opinion denying relief.
• January 26, 2009 — McClain’s petition for panel rehearing was denied.
• October 5, 2009 — The United States Supreme Court denied certiorari.
• October 8, 2009 — The Superior Court of Richmond County filed an order setting the seven-day window for the execution.
• October 20, 2009 — McClain was executed by lethal injection in Georgia.