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McClendon v. State

The trial court erred during sentencing when it failed to recognize that the defendants' felony murder verdicts did not "merge" into their malice murder convictions, but rather, were vacated by operation of law.

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Appellants Johnny McClendon and Marquice Burks were tried jointly and convicted of malice murder and related offenses in connection with the April 2007 shooting death of Christopher Crawford.1 Both men now appeal. Though we find no merit in any of the pre-trial and trial phase enumerations raised by Appellants, we agree with Burks that the trial court erred during sentencing when it failed to recognize that his felony murder verdicts were vacated by operation of law. Further, although not raised by McClendon, the trial court’s purported merger of his felony murder verdicts was similarly erroneous. See Hulett v. State, 296 Ga. 49 2 766 SE2d 1 2014 merger error, even if not raised by the parties, may be addressed by appellate court sua sponte. Therefore, we must vacate those aspects of the sentences.

Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial established as follows. Victim Crawford was shot and killed on the evening of April 13, 2007, in a West Atlanta neighborhood. At the time, co-defendant Franklin, a local pimp, was on unfriendly terms with Crawford, whose “baby mother,” Natasha Hurst, had begun working as a prostitute for Franklin. Franklin and Crawford often exchanged taunts and threats when they encountered each other on the street.

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