McDaniel pled guilty to three counts of malice
murder, three counts of felony murder, and armed
robbery. After a bench sentencing trial, he was
sentenced to death by the trial court for one of the
malice murders.  Because we conclude that the
guilty pleas were involuntary, we reverse the
1. Evidence presented at the
sentencing trial showed that McDaniel lived with his
grandparents and ten-year-old brother, the victims
in this case. After using crack cocaine, McDaniel
took a gun from his grandfather's bedroom and shot
each victim once in the head. He then took his
grandfather's wallet and left to buy more crack.
McDaniel returned home and smoked the crack on the
front porch before calling 911 and reporting the
crime. When initially questioned, McDaniel claimed
he had returned home and found his family murdered.
However, in a later audiotaped statement, he
admitted killing the victims. He also gave a
videotaped statement, and the police were able to
recover his grandfather's wallet and ammunition for
the gun based on the information he provided.
Although McDaniel pled guilty, the evidence
presented at the sentencing trial was sufficient to
support his convictions. Jackson v. Virginia, 443 U.
S. 307 (99 SC 2781, 61 LE2d 560) (1979); DeYoung v.
State, 268 Ga. 780 (1) (493 SE2d
157) (1997). The evidence was also
sufficient to support the finding of the existence
of the statutory aggravating circumstances beyond a
reasonable doubt. Id.; OCGA
17-10-35 (c) (2).
2. McDaniel contends that his
decision to plead guilty was unduly influenced by
several improper statements by the trial court
during plea negotiations, and that the trial court's
involvement rendered his pleas involuntary. The
record shows that during the trial, after the
preliminary voir dire of the jurors, the trial court
called for an in-chambers conference for the purpose
of further discussion of the possibility of McDaniel
entering a guilty plea and allowing the trial court
to pass sentence. The trial court summarized for the
record its discussion with counsel over the previous
I have indicated to [all counsel]
that the court would be reluctant as an individual
or as a judge to impose a death sentence. My
personal philosophy is that if that is done it ought
to be done by a jury and not by a judge. Now that's
completely my opinion. I'm not saying I'm not
committing to that. There was some indication that
if the court reversed that decision based on the
facts and circumstances the counsel would request an
immediate withdrawal but I am not -- I am not in a
mind to impose a death sentence as an individual. I
just think that is something that should be
relegated and the duties that a jury should --
that's their sworn duty. Of course, I would be the
jury and the judge all at the same time. That's the
court's feeling and I will listen to both sides,
I'll listen about life, I'll listen to life without
parole and I'll listen to the recommendation for
death but I'm 90 percent certain that I would impose
a life without parole sentence.
McDaniel expressed willingness to
enter a plea of guilty in exchange for a sentence of
life without parole, but the State would only agree
to McDaniel pleading guilty, waiving his right to
withdraw the plea, and having the judge decide the
sentence according to evidence presented in a
sentencing trial. The trial court said, "That would
be the only procedure the Court would entertain."
After a brief private conference with counsel,
McDaniel agreed to waive his right to a jury and to
have the trial court make the sentencing
determination after a sentencing trial.
Despite this concession, the
prosecutor was still reluctant to accept a plea
agreement because he considered it "very unlikely"
that the trial court would impose a death sentence.
Only when McDaniel agreed, after further
negotiations involving the trial court and the
parties, to waive additional rights, including his
right to appeal all issues previously raised in
motions and his objection to the admission of his
statements, did the prosecutor agree to a deal. The
proceedings reconvened in the courtroom, at which
time McDaniel formally withdrew his plea of not
guilty and entered a plea of guilty. After the
sentencing trial, the trial court sentenced McDaniel
to death for the murder of his younger brother.
Judicial participation in the
plea negotiation process is prohibited by court rule
in this state and in the federal system. USCR 33.5
(A); F.R.Crim.P. Rule 11 (e) (1). USCR 33.5 (A)
provides that "[t]he trial judge should not
participate in plea discussions." If the parties
negotiate a tentative plea agreement, the trial
court may indicate whether it will concur with the
agreement, but that review is separate from the plea
negotiation process itself. USCR 33.5 (B). In
addition to the restrictions imposed by procedural
rules, " '[j]udicial participation in plea
negotiations is prohibited as a constitutional
matter when it is so great as to render a guilty
plea involuntary.' [Cits.]" Skomer v. State,
183 Ga. App. 308, 310 (358
SE2d 886) (1987), quoting United States v.
Adams, 634 F2d 830, 839 (5th Cir. 1981).
A guilty plea must be knowingly
and voluntarily entered. Boykin v. Alabama, 395 U.
S. 238 (89 SC 1709, 23 LE2d 274) (1969); Goodman v.
Davis, 249 Ga. 11, 13 (287
SE2d 26) (1982); USCR 33.7. Making a
knowing and voluntary plea requires an understanding
of the nature of the charge, the rights being waived,
and the consequences of the plea. Boykin, supra at
244; Goodman, supra. See also USCR 33.8. Due to the
force and majesty of the judiciary, a trial court's
participation in the plea negotiation may skew the
defendant's decision-making and render the plea
involuntary because a defendant may disregard proper
considerations and waive rights based solely on the
trial court's stated inclination as to sentence. See
Skomer, 183 Ga. App. at 310.
In this case, McDaniel heard the
trial court repeatedly state its reluctance to
impose a death sentence and give 90 percent odds on
a sentence of life without parole if permitted to
impose sentence. That participation by the trial
court in the plea negotiation process rendered the
resulting guilty plea involuntary. See Goodman,
supra; Skomer, supra; USCR 33.5 (A). Accordingly, we
must reverse McDaniel's convictions.
3. Because the convictions are
reversed, we need not address the remaining
enumerations of error. However, we remind judges in
death penalty cases to adequately complete the
report required by OCGA 17-10-35 (a), and to transmit it to this Court as part of
the record for review. See Unified Appeal Procedure
Rule IV (A) (8).
W. Franklin Freeman, Jr., Michael
A. Dillon, Palmer C. Singleton III, for appellant.
1. The crimes occurred on October
8, 1994. After the initial indictment was quashed,
McDaniel was re-indicted in Butts County on November
4, 1996, for malice murder (three counts), felony
murder (three counts) and armed robbery. McDaniel
pled guilty to all counts on June 9, 1997, and the
trial judge imposed the death penalty for one of the
malice murders on June 12, 1997. In addition, the
judge imposed life without parole for each remaining
malice murder conviction and life imprisonment for
armed robbery. The felony murder convictions were
vacated by operation of law. Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993).
McDaniel filed a motion for new
trial on July 11, 1997, and an amended motion for
new trial and a motion to withdraw the guilty plea
on February 5, 1998. The trial court denied the
motions on February 4, 1999, and a notice of appeal
was filed on March 3, 1999. This case was docketed
on March 17, 1999, and orally argued on June 21,