Bradley v. State

• Decision Date: 18 March 2013
• Docket Number: No. S12A1857.,S12A1857.
• Citation: 740 S.E.2d 100,292 Ga. 607
• Parties: BRADLEY v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 607

740 S.E.2d 100

BRADLEY

v.The STATE.

No. S12A1857.

Supreme Court of Georgia.

March 18, 2013.

John Gee Edwards, Valdosta, for appellant.

J. David Miller, Dist. Atty., Jessica Whittington Clark, Asst. Dist. Atty., Bradfield M. Shealy, Asst. Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Kenneth Wesley Mishoe, Asst. Atty. Gen., for appellee.

BLACKWELL, Justice.

Tobee Bradley was tried by a Lowndes County jury and convicted of murder, aggravated assault, armed robbery, and three counts of possession of a firearm during the commission of a crime. Bradley appeals, contending that the evidence is insufficient to sustain his convictions and that several of the crimes of which he was convicted should have merged. Bradley also claims that the trial court erred when it excluded evidence that others might have been involved in the crimes, when it allowed an audio recording of a conversation between Bradley and a police informant to go out with the jury during its deliberations, and when it admitted the prior consistent statements of the police informant. In addition, Bradley contends that he was denied the effective assistance of counsel at trial. Upon our review of the record and briefs, we conclude that the trial court erred with respect to merger, and for that reason, we must vacate the convictions and sentences for aggravated assault and one count of possession of a firearm during the commission of a crime. We find no other error, however, and we otherwise affirm the judgment below.¹

[292 Ga. 608]1. Viewed in the light most favorable to the verdict, the evidence shows that on the afternoon of October 15, 2003, two men ran into the AB Food Mart in Valdosta, where Natavarlal Patel and his son Bobby worked. One of these men, who was wearing a mask, fired three shots from a .38–caliber revolver, killing Natavarlal, who was at the lottery ticket stand, and injuring Bobby, who was behind the cash register. The masked man then fled the scene. The second man walked behind the counter and took approximately $1,500 from a cigar box, and he then fled the scene as well. Bobby Patel provided a description of the men, including their height, build, and race. His description of the shooter was consistent with Bradley, and his description of the second man was consistent with Rogers Pounder, whom Bradley knew as “Jay.” One week later, Valdosta police officers confiscated a .38–caliber revolver from Michael Thomas, whom they suspected of selling drugs. A forensic criminologist examined the revolver, as well as the metal jackets and bullets found at the crime scene, and he determined that the confiscated revolver was the weapon used in the crimes.

Approximately two years later, a woman contacted the Valdosta Police Department and told officers that she overheard Bradley say that he had robbed the AB Food Mart and that he had given the weapon he used in the robbery to “Mike Thomas.” The police officers asked the woman to speak directly with Bradley to get more information, and she agreed to do so. In her first conversation with Bradley, he admitted that he went to the food store on the day of the crimes and saw a cigar box that was “full of cash.” He said that he and a man named “Jay” agreed to go back and rob the store later that day “because damn near every cop in Valdosta was at the courthouse for [the mayor's] funeral[,]” that he wore a mask into the store, that he shot the “old man” while he was hanging up lottery tickets and fired several more shots before running out of the store, that he later met up with “Jay” to split the money, and that he was upset with “Jay” because he had already “been in” the money by the time they met and Bradley did not receive as much money as he thought he should have. In a second conversation with Bradley, during which the informant wore a wire, Bradley provided the same information, adding that he fired a total of three shots during the robbery and describing the mask that he wore during the robbery.²

Police officers identified Pounder as a man known in the neighborhood as “Jay,” and Pounder later admitted to his role in the crimes. At trial, Pounder testified that Bradley approached him about robbing the AB Food Mart, that when they went to the store later that day, Bradley immediately started shooting and then ran out of the store, that Pounder went behind the counter and took approximately $1,500 from a cigar box, that he later met Bradley but gave him only $600, and that Bradley was upset and told him that he thought he was “supposed to get more than that.”

(a) Although Bradley claims that the evidence suggests that other people may have been involved in the crimes, we must view the evidence in the light most favorable to the verdict and leave questions of credibility and the resolution of conflicts in the evidence to the jury. As a result, we conclude that the evidence in this case was sufficient to authorize a rational trier of fact to find Bradley guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(b) Bradley also argues that the trial court should have merged several of his convictions. Bradley was convicted of three counts of possession of a firearm during the commission of a crime, with one possession charge stemming from each of the other crimes of which he was convicted—the murder of Natavarlal Patel, the aggravated assault of Bobby Patel, and the armed robbery of Bobby Patel. But this Court has held that OCGA § 16–11–106(b) does not necessarily authorize one possession charge for every predicate offense. See State v. Marlowe, 277 Ga. 383, 386(2)(b), 589 S.E.2d 69 (2003). Instead,

where multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree, as provided under OCGA § 16–11–106(b)(1), and additionally once for firearm possession for every crime enumerated in subsections (b)(2) through (5).

Id. at 386(2)(c), 589 S.E.2d 69; see also Grell v. State, 291 Ga. 615, 616–617(1), 732 S.E.2d 741 (2012).

In this case, there were two victims, and none of the crimes are of the type enumerated in subsections (2) through (5) of OCGA § 16–11–106(b). As a result, Bradley properly could be convicted and sentenced for two of the counts of possession of a firearm: the possession count in which Natavarlal was the victim and one of the possession counts in which Bobby was the victim. As acknowledged by the State, the other possession conviction—for which Bradley received a five-year consecutive sentence—must be vacated. See Abdullah v. State, 284 Ga. 399, 401(4), 667 S.E.2d 584 (2008); see also Grell, 291 Ga. at 617(1), 732 S.E.2d 741.

(c) We also find that the trial court erred in failing to merge Bradley's conviction for the aggravated assault of Bobby Patel with his conviction for the armed robbery of Bobby Patel. We have held “that there is no element of aggravated assault with a deadly weapon that is not contained in armed robbery.” Long v. State, 287 Ga. 886, 889(2), 700 S.E.2d 399 (2010) (finding that the “deadly weapon” requirement of aggravated assault with a deadly weapon is the equivalent of the “offensive weapon” requirement of armed robbery, and relying on Lucky v. State, 286 Ga. 478, 481, 689 S.E.2d 825 (2010), which established that the assault requirement of aggravated assault is the equivalent of the “use of an offensive weapon” requirement of armed robbery). And “[b]ecause aggravated assault [with a deadly weapon] does not require proof of any element that armed robbery does not, convictions for both offenses will merge—but only if the crimes are part of the same ‘act or transaction.’ ” Thomas v. State, 289 Ga. 877, 880(3), 717 S.E.2d 187 (2011) (citations omitted).

Here, the aggravated assault, as charged in the indictment, occurred when Bradley assaulted Bobby Patel with the .38–caliber revolver. The State argues that the aggravated assault was completed when Bradley fired the weapon and then ran out of the store and that only then did the armed robbery occur as a separate transaction. But the armed robbery could not have occurred exclusively after Bradley fled from the store because the undisputed evidence was that Pounder did not have a weapon. Instead, the armed robbery must have begun when Bradley pointed the .38–caliber revolver at Bobby for the purpose of robbing the store, during which time the aggravated assault also occurred, and the armed robbery concluded immediately thereafter when Pounder took the money out of the cigar box. Because the aggravated assault of Bobby arose out of the same “act or transaction” as the armed robbery of Bobby, the aggravated assault was an offense included in the armed robbery conviction, and Bradley's conviction and sentence for aggravated assault also must be vacated. See Sears v. State, 292 Ga. 64, 73–74(6), 734 S.E.2d 345 (2012); Thomas, 289 Ga. at 880(3), 717 S.E.2d 187.

[292 Ga. 611]2. Bradley claims that the trial court erred when it excluded statements suggesting that other people may have been involved in the crimes. As to the first statement, a girlfriend of Hashim Walker apparently was available to testify at trial that Walker told her that he robbed the “Indian store” and that he had shot someone.³ As to the second statement, which is only a partial statement, a middle school teacher apparently was available to testify that she heard G.M., who was one of her students, say that Bradley “ didn't shoot him because I was the....” The trial court excluded both of these statements from trial after finding that neither statement possessed sufficient indicia of reliability.

First, Bradley claims that the statements were admissible under the necessity exception to the hearsay rule.⁴ But Bradley has failed to...