Brady v. State

• Decision Date: 01 March 1999
• Docket Number: No. S98A1777.,S98A1777.
• Citation: 270 Ga. 574,513 S.E.2d 199
• Parties: BRADY v. The STATE.
• Court: Georgia Supreme Court

513 S.E.2d 199

270 Ga. 574

BRADY v. The STATE.

No. S98A1777.

Supreme Court of Georgia.

March 1, 1999.

John Benjamin Sumner, Woodstock, for Kenneth Lamar Brady.

Garry Thomas Moss, Dist. Atty., Canton, Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Department of Law, Atlanta, for the State. HINES, Justice.

Kenneth Lamar Brady appeals his convictions for two counts of malice murder and two counts of armed robbery in connection with the killings of Tony and Kathy Reid.¹ For the reasons which follow, we affirm.

Brady was tried with co-defendant Avery; another co-indictee, Robertson, was tried separately.² Viewed to support the verdicts, the evidence showed that the Reids were murdered in their home in Forsyth County. They were found lying face down on the floor of the dining room, both shot in the head. Kathy Reid had also been shot in the leg. The crime scene revealed bloody footprints, matching Avery's shoe size, leading from the bodies to the doorway.

After the crimes, Brady spoke several times with Hammett, who surreptitiously taped several of the conversations. Brady told Hammett that he killed two people in Forsyth County, although he did not name them. He also stated that he and Avery, with the help of a "set-up man," had planned and executed the crimes, but that he, Brady, had not gone into the house and that if he had the killings might not have occurred.

A ring Brady had given his girlfriend was identified as belonging to Kathy Reid, and a set of keys Brady had left at his girlfriend's house contained a key to the time clock at Tony Reid's place of business, and a key that fit several lock boxes there. Brady told his girlfriend that he and another person had "gone in on" some people, that the people had "balked," that he and his accomplice "had to do what they had to do," and that he, Brady, had killed a woman.

1. The evidence was sufficient to enable the jury to find beyond a reasonable doubt that Brady was guilty 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).

2. On the second day of jury voir dire, a juror informed the court that she now realized that the family that serviced the lawns at her home and business was related to the victims, apparently as cousins. She had not discussed the case with them but stated that this connection to the victims' family "possibly" could affect her ability to properly judge the case. When the court asked if she would be able to put aside this relationship and decide the case based on the evidence and instructions she responded, "I will try." The court denied Brady's motion to remove this juror for cause.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Garland v. State, 263 Ga. 495, 496(1), 435 S.E.2d 431 (1993). Before a juror is to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence. Id.; McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996). The fact that a juror states he or she "will try" to follow the court's instructions does not, by itself, require that the juror be excused for cause. See Holmes v. State, 269 Ga. 124, 126(2), 498 S.E.2d 732 (1998); Garland, supra. A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court's province, and those findings are to be given deference. Greene v. State, 266 Ga. 439, 441(2), 469 S.E.2d 129 (1996).

The juror's revelation and responses did not reveal any compelling bias or interest in the case. See Garland, supra at 497, 435 S.E.2d 431. The juror informed the court of the connection with the victims' family because she believed she was required to; she did not suggest any personal experiences that might affect her decision, see Johnson v. State, 262 Ga. 652, 653(2), 424 S.E.2d 271 (1993), nor did she state that she had a prejudice or bias against Brady, compare Menefee v. State, 270 Ga. 540(2), 512 S.E.2d 275 (1999). There was no indication that she had formed an opinion about Brady's guilt or innocence, and the court did not abuse its discretion in refusing to strike her for cause.

3. The trial court did not err in denying Brady's motion to change venue. A motion for change of venue based upon pretrial publicity is in the trial court's discretion and its ruling will not be disturbed absent abuse of that discretion. Dixson v. State, 269 Ga. 898(2), 506 S.E.2d 128 (1998). Brady's burden is to show (1) that the trial's setting was inherently prejudicial or (2) that the jury selection process revealed actual prejudice to a degree that rendered a fair trial impossible. Id.

First, "[t]he general rule is that appellate courts will not reverse the trial court's overruling of a motion for change of venue where the appellant has not exhausted his peremptory challenges," as was the case here. Coleman v. State, 237 Ga. 84, 92(1), 226 S.E.2d 911 (1976). Second, there is no merit to Brady's contention that the jury selection process revealed actual prejudice. Eighty-two jurors were sworn, sixty-three were questioned, four were deferred for personal reasons, and ten were excused for cause. Of those ten, one was excused for religious reasons, one because she was a law enforcement officer, six because of some connection to the victims or their family, and two for prior knowledge of and exposure to the case; one of those two had been exposed to the case through mass communications media, and the other had learned of the case from a law enforcement friend. The court correctly ruled that this failed to reveal an inability to obtain a fair and impartial jury. Dixson, supra at 899, 506 S.E.2d 128.

4. Brady contends his trial counsel was ineffective in several respects. In order to prevail on this claim, he must show both that counsel's performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of this test, Brady must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct" and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the circumstances of the case. Id. at 784, 325 S.E.2d 362. The second prong requires that Brady show there is a reasonable probability that, absent counsel's unprofessional errors, the result of the trial would have been different. Id. at 783, 325 S.E.2d 362.

(a) Brady contends that his trial counsel, Sliz, recognized that one attorney would not be able to properly represent him and instead of securing additional counsel to represent Brady chose to meet the situation by abdicating his responsibilities to Jackson, who was counsel for co-defendant Avery. However, the record does not reveal that Sliz believed he could not fulfill his duty and does not show he abdicated his role to Jackson. Rather, counsel for both defendants determined that their defenses were not adversarial, but were in fact the same; the evidence against them was only circumstantial, they were not present, and the murders were committed by other persons. Counsel chose to pool their resources, and Sliz concentrated on attacking the State's case, while Jackson, Avery's counsel, focused on showing that others could have committed the crimes.

As this Court has observed, a defense attorney may face finite resources of time and money such that a reasonably competent attorney often must rely on his own experience and judgment, without the benefit of a substantial investigation, when deciding whether or not to forego a particular line of defense. Jefferson v. Zant, 263 Ga. 316, 320(3)(b), 431 S.E.2d 110 (1993). The question is whether the decision was reasonable under the circumstances. Id. Although Brady argues the decision to divide responsibility with Jackson was unreasonable as it was undertaken without Sliz making any independent decision or review of the evidence supporting the theory that others committed the crime, the record reveals that Sliz discussed pursuit of this theory with Jackson and spoke with him several times about witnesses and evidence that had been found. Sliz also spoke with the investigator Jackson employed, whom Sliz had employed in the past and whom Sliz knew to be very competent and thorough, and Sliz believed he could rely on the investigator in this instance. Accordingly, the trial court did not err in finding Sliz' actions reasonable.

Brady also complains that in pursuing this strategy, the defense tried to show that other persons committed the murders for reasons connected with the Reids' purported involvement with drugs, a strategy which inflamed the jury because the Reids were well known and respected in the community. However, the possibility that the victims were involved in the drug trade was actually introduced by the State in attempting to show a motive for Brady's commission of the crimes. Defense efforts to show other persons killed the Reids because of drug activity included a witness, Thompson, who testified that Daniel, a drug dealer, had told her that he killed the Reids, shooting one in the leg and one in the head, because Tony Reid owed him $16,000 for drugs. On cross-examination, the witness stated she had previously told police that Daniel said he had shot one of the Reids in the kneecap and one in the back. She also stated that she had a conversation about the Reid murders...