Brady v. State, No. S89A0521

• Court: Supreme Court of Georgia
• Writing for the Court: MARSHALL
• Citation: 385 S.E.2d 653,259 Ga. 573
• Decision Date: 21 November 1989
• Docket Number: No. S89A0521
• Parties: BRADY v. The STATE.

Page 653

385 S.E.2d 653 259 Ga. 573 BRADY
v.
The STATE. No. S89A0521. Supreme Court of Georgia. Nov. 21, 1989.

Page 654

[259 Ga. 579] Charles G. Haldi, Jr., Atlanta, for Brady.

Thomas J. Charron, Dist. Atty., Nancy I. Jordan, Rose L. Wing, Asst. Dist. Attys., Marietta, Michael J. Bowers, Atty. Gen., Richard C. Litwin, Atlanta, for the State.

[259 Ga. 573] MARSHALL, Chief Justice.

The appellant James Gray Brady, Archie Neal Bowman, and Theodore Bullard Bradfield were indicted for the murder of Danny Lee Brown. Although the appellant was acquitted of a charge of having murdered the victim with malice aforethought, he was found guilty of two counts of felony murder. ¹

In this regard, Count 1 of the indictment alleged that the appellant, unlawfully and with malice aforethought, caused the victim's death by striking him with a gun. Count 2 alleged that the appellant, while in the commission of the felony of aggravated assault, unlawfully caused the victim's death by striking him with a gun, said assault[259 Ga. 574] being with the intent to rob the victim. Count 3 alleged that the appellant, while in the commission of the felony of aggravated assault, unlawfully caused the victim's death by striking him with a gun, an instrument which, when used offensively against a person, is likely to result in serious bodily injury.

The appellant was given two concurrent sentences of life imprisonment for convictions on the two counts of felony murder. In this direct appeal, the appellant argues that a statement made by him to police during a custodial interrogation was obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and he also contends that the trial court infringed upon his right to a thorough and sifting cross-examination of a state's witness. Finally, he challenges the sufficiency of the evidence to support the verdict.

We hold that the evidence does not support the appellant's conviction of felony murder under Count 2, in that there is no evidence of any intent to rob the victim; however, we do note that the appellant's conviction under one of the felony-murder counts would have to be set aside on double-jeopardy grounds in any event. And, for reasons which follow, we affirm the appellant's conviction of felony murder under Count 3 of the indictment.

Facts

State's witness Doyle Smith testified that the co-indictees appeared at his home on the evening of August 19, 1987. According to Smith, they were "freaked out," and they acted like they were high on drugs. The appellant told Smith that he had "accidently shot somebody ... hit him in the head" and had to "put him in the ground." The appellant had blood on him, and there was blood on the truck they were driving, which they attempted to wash off. In the back of the truck, Smith observed a "tarp or tent wrapped up ... Looked like a burrito wrapped up," and Smith heard gurgling noises coming from that direction. Smith dissuaded them from burying the body on his property, and he advised them to dump

Page 655

the body somewhere else and then notify medical authorities as to the location of the body. When one of Smith's neighbors turned on his floodlight and threatened to call the police, they left.

The victim's body was left by the co-indictees in a grassy, wooded area in close proximity to railroad tracks near Buckner Road in Cobb County, and it was recovered by law enforcement authorities at that location. The medical examiner testified that the cause of the victim's death was a "severe blunt-force head injury, trauma to his head."

Smith reported the preceding events to the police, who, on the morning of August 20th, went to the appellant's residence and interviewed him. Later that morning, when the appellant was at work, the police returned to the appellant's residence and interviewed his girl [259 Ga. 575] friend, whose statement concerning the events of the night in question conflicted with the appellant's statement.

The appellant telephoned his house from his place of employment while the police were there, and the appellant asked to speak to one of the policemen. According to testimony given by the police officer at the Jackson v. Denno hearing, the appellant stated that, "if this continues to go further, I might need to get an attorney." At trial, the police officer testified that the appellant had stated that, "if this continued he had to get an attorney." In any event, after the appellant made this statement, the police officer responded that the appellant had the right to an attorney, although at that time it was the appellant's girl friend, and not the appellant, who was being questioned.

Later that day, the police recovered the victim's body. They then went to speak to the appellant at his place of employment. They advised him that although he was a suspect in the homicide investigation, he was not under arrest, but that they would like him to accompany them to police headquarters to discuss the incident. He agreed. At police headquarters, the appellant was again advised that he was not under arrest and was free to leave, although, prior to questioning him, the police informed the appellant of his Miranda rights, and he signed an acknowledgment, and written waiver, thereof.

Giving a version of events conflicting with his prior statement, the appellant stated that he, Bowman, and Bradfield had gone to the Bankhead Highway area to "rip off" drugs, because on prior occasions they had gotten mugged there. While at that location, the appellant was in the back of the truck, and the victim jumped in. The appellant stated at one point that he struck the victim on the head because he thought that he had a knife; later, the appellant stated that the victim had actually brandished the knife before the appellant hit him. In any event, according to the appellant, when he hit the victim with the gun, the gun discharged accidentally.

Blood-stained clothing and other items in the possession of the co-indictees on the night the victim was murdered were recovered by the police from various locations.

Eyewitnesses, including Ricardo Jackson, testified that the co-indictees were driving a truck in the Bankhead Highway area, ostensibly trying to purchase drugs. A man in the back of the...