Georgia Attorney General Thurbert E. Baker offers the following information in the case against Mark Howard McClain, who is currently scheduled to be executed at 7:00pm on October 20, 2009.

Scheduled Execution

On October 8, 2009, the Superior Court of Richmond County filed an order, setting the seven-day window in which the execution of Mark Howard McClain may occur to begin at noon, 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 the execution at 7:00pm on October 20, 2009. McClain has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.

McClain’s Crimes

The Georgia Supreme Court summarized the facts of the case as follows:

The state presented evidence that McClain picked up his girl friend, Tina Butler, around midnight on November 19, 1994, and drove to her apartment. They discussed their relationship over a few drinks, and Butler told McClain she needed money. An hour later, McClain left Butler’s apartment, drove to the Domino’s Pizza store on Washington Road and 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 as he was walking toward the store and asked to buy a pizza. Weeks told him the store was closed, but McClain became insistent and refused to leave. In an attempt to placate McClain, Weeks agreed to ask the manager, Kevin Brown, who was inside the store, to make an exception. Weeks began yelling to Brown from outside the store. Brown looked at Weeks, whose hand was on the door, and released the security lock. As the door opened, McClain attempted to force his way inside behind Weeks. Weeks sought to bar him from entering, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown, who weighed 450 pounds and could not move quickly, remained standing behind the counter. As Weeks reached the door, he heard McClain order Brown to give him the money.

Weeks fled to a service center on Washington Road to call police, but the pay telephone was broken. Before crossing the road, Weeks looked around and saw a blue car pull out of the driveway leading to Domino’s at high speed. Believing the driver of the car to be the perpetrator, Weeks ran back to the sidewalk. McClain saw Weeks and made an obscene gesture towards him with his middle finger as he drove by. Weeks ran into the road behind the car and memorized the car’s tag number. Weeks flagged down a passing driver, who drove him back to the store. Brown, who had been shot, was lying behind the counter, barely alive. Brown’s keys to the store’s till, which he 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. By the time paramedics arrived, Brown had bled to death from a single gunshot wound to the chest.

McClain returned to Butler’s house and gave her $100 without revealing its source. 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 her house. Police traced the tag number of the Buick to McClain’s father, whose description of his son matched Weeks’ description of the perpetrator. The assistant manager at the Washington Road Domino’s store 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 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. He was arrested when he arrived at work in the car the following morning. That evening, McClain called Butler from the jail and told her to dispose of the clothes and gun he had 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 the jacket in a neighbor’s shed and gave the gun to her nephew. The police questioned Butler on two occasions, and during the second interview, she told police about McClain’s telephone call and gave police the jacket and boots. The gun was recovered a month later, when Butler’s nephew was involved in a shooting. Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, where he testified that he intended only to rob the store, but heard a noise as he was leaving, and believing that Brown was pursuing him, McClain shot him.

McClain v. State, 267 Ga. 378, 379-380, 477 S.E.2d 814 (1996).

The Trial (1994-1995)

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.

The Direct Appeal (1996-1997)

The Georgia Supreme Court affirmed McClain’s convictions and sentence on November 12, 1996. McClainv. State, 267 Ga. 378, 477 S.E.2d. 814 (1996). McClain filed a petition for writ of certiorari in the United States Supreme Court, which was denied on June 23, 1997. McClain v. Georgia, 521 U.S. 1106 (1997).

State Habeas Corpus Proceedings (1997-2002)

McClain, represented by Christopher Kende, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on December 3, 1997. McClain filed an amended petition for writ of habeas corpus 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 v. Head, 537 U.S. 1033 (2002).

Federal Habeas Corpus Proceedings (2002-2007)

McClain, represented by Thomas H. Dunn, filed a petition for a 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.

11th Circuit Court of Appeals (2008-2009)

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 which denied relief. McClainv. Hall, 552 F.3d 1245 (11th Cir. 2008). McClain filed a petition for panel rehearing, which was denied January 26, 2009.

United States Supreme Court (2009)

McClain filed a petition for writ of certiorari in the United States Supreme Court, which was denied October 5, 2009. McClain v. Hall, 2009 U.S.LEXIS 6013 (Case No. 09-5004).