McKay v. State

Trial counsel was not deficient for failing to present evidence that two other individuals had allegedly confessed to the murder for which the defendant was charged, since his trial strategy was to discredit the witnesses who had implicated the defendant in the crime, rather than rely on the alleged confessions which could not be corroborated, consisted of hearsay and did not match the physical evidence in the case.

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Appellant Tracey McKay appeals his convictions for the shooting death of the victim John Thrash.1 The evidence in the light most favorable to the verdict shows that after midnight on July 30, 1989, appellant, his brother Tony McKay, and another man went to a donut shop in Muscogee County with the intent to rob it. Appellant had with him a .25 caliber weapon. Appellant held the victim at gunpoint through a pass-through window, while Tony entered the shop through an unlocked door and the third man stood watch. As Tony was approaching the cash register, appellant panicked and shot the victim. All three men fled the scene. At approximately 1 a.m., a police officer responded to a 911 call to the donut shop and discovered the victim’s body lying on the floor. The cash register was open with money and change still inside. The victim’s wallet was also still on his person. A day or two after the shooting, the store’s owner discovered a .25 caliber shell casing under a counter. The medical examiner was deceased at the time of trial, but the deputy coroner, who had observed the autopsy when it was performed, appeared at trial and testified that a .25 caliber bullet was recovered from the victim’s chest and testified that the victim died from a bullet that pierced his aorta causing irreversible blood loss. The case lay dormant until approximately 2003 when police obtained new leads prompting them to interview two of appellant’s sisters. The two sisters, who also testified at trial, stated that appellant had admitted to them that he had shot the victim during a robbery. Appellant’s older brother John McKay also came forward and gave a statement to police and testified at trial that Tony and appellant were involved in the donut shop killing.2

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307 99 SCt 2781, 61 LE2d 560 1979.

McKay v. State

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