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McFARLANE v. STATE

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Supreme Court of Georgia.

McFARLANE v. The STATE.

No. S12A1074.

Decided: July 02, 2012

Thomas Dee Wight, Lilburn, for appellant. Tommy Kenneth Floyd, Dist. Atty., John Andrew Pipkin, III, Asst. Dist. Atty, Office Of The District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Brittany Nicole Jones, Asst. Atty. Gen., Department of Law, Blair Douglas Mahaffey, Asst. Dist. Atty., District Attorney's Office, for appellee.

Following the denial of his motion for new trial, as amended, Dana Gregory McFarlane appeals his convictions for malice murder, kidnapping with bodily injury, and possession of a knife during the commission of a felony in connection with the fatal slashing of his fiancee Kinaya Schenese Byrd. His sole contention of error is that the trial transcript is incomplete in violation of statutory requirements. For the reasons which follow we find the challenge to be without merit, and we affirm.1

The evidence construed in favor of the verdicts showed the following. On February 12, 2010, Smith heard screaming while he was sitting in his living room in his home in Stockbridge. He looked outside and saw his neighbor, Kinaya Byrd, clothed in a house robe, running through his yard; he observed her fall in his driveway behind his car. McFarlane then picked her up, placed his hands underneath her armpits and dragged her back across Smith's lawn through the snow. Smith went outside and asked McFarlane, “What are you doing?” McFarlane told Smith to “[s]hut up.” Smith asked Byrd if she needed any help, but she was just whimpering. McFarlane continued to drag Byrd toward her home, telling Smith that there was no problem. McFarlane dragged Byrd inside her home and closed the door. Smith returned to his home and telephoned the police.

Approximately three to four minutes after Smith's call to the police, an officer arrived on the scene and knocked on the front door of Byrd's home, but there was no answer. Another officer arrived, and after checking the rear door of the residence, the police returned to the front door and found it unlocked. The officers entered the residence and found Byrd lying on her back, just past the front door; she was unresponsive. The officers did not find anyone else in the residence. Paramedics were dispatched to the scene and determined that Byrd was dead.

Shortly thereafter, Henry County police received a radio transmission indicating that the Rockdale County Sheriff's Department had stopped McFarlane, and that he was confessing to a crime in Henry County. After signing a statement of Miranda2 rights, he confessed to murdering Byrd. Byrd's throat had been cut, severing her jugular vein, carotid artery, and vagus nerve; the cut reached down to the cervical spine, i.e., to the bone.

At trial, McFarlane admitted to killing Byrd. He testified that he and Byrd argued after he became aware of text messages indicating that Byrd was having a sexual relationship with another individual, and that he choked Byrd until she lost consciousness and then cut her throat.

1. The evidence was sufficient to authorize a rational trier of fact to find McFarlane guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. McFarlane contends that he is entitled to a new trial because voir dire was not recorded as required by OCGA § 5–6–41(a).3 He urges that he was prejudiced thereby in not having a complete transcript of his trial and cites as an example that one of the jurors on his case was arrested during the trial. But, his complaint is unavailing.

It appears that McFarlane failed to request that voir dire be transcribed, and OCGA § 5–6–41(a) does not require that voir dire be reported in all felony cases. State v. Graham, 246 Ga. 341, 342, 271 S.E.2d 627 (1980). It is mandatory that voir dire be made part of the record in cases where the death penalty is imposed, which is not the circumstance here. Id., citing Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975). Moreover, as to McFarlane's offered example of prejudice, a review of the existing trial transcript indicates that indeed one of the sitting jurors was arrested on outstanding traffic-related charges, but that such juror was replaced with one of the alternates prior to jury deliberations. In any event, McFarlane's complaint is founded on the tenuous premise that an examination of the voir dire proceedings would have some bearing on or relationship to the subsequent arrest of the juror. Merely asserting a general unspecified hope of reversible error during voir dire is insufficient to warrant a new trial on the ground that a transcript of the proceeding should have been made so as to “accommodate a search for error now buried in unrecorded history.” Primas v. State, 231 Ga.App. 861, 501 S.E.2d 28 (1998).

Judgments affirmed.

HINES, Justice.

All the Justices concur.

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