Bragg v. State

• Decision Date: 22 September 2014
• Docket Number: No. S14A0832.,S14A0832.
• Citation: 763 S.E.2d 476,295 Ga. 676
• Court: Georgia Supreme Court
• Parties: BRAGG v. The STATE.

295 Ga. 676

763 S.E.2d 476

BRAGG

v.The STATE.

No. S14A0832.

Supreme Court of Georgia.

Sept. 22, 2014

Affirmed.

William A. Adams, Jr., for appellant.

Scott L. Ballard, Dist. Atty., Robert W. Smith, Jr., Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Jason M. Rea, Asst. Atty. Gen., for appellee.

MELTON, Justice.

Following a jury trial, Mary Ann Bragg was found guilty of malice murder, felony murder, and aggravated assault in connection with the murder of her husband, Tom Bragg.¹ On appeal, Bragg contends, among other things, that the trial court erred by admitting similar transaction evidence and by improperly charging the jury on parties to a crime. Bragg further claims that trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm.

1. Viewed in the light most favorable to the jury's verdict, the evidence reveals that, on September 9, 2002 between the hours of 4:00 a.m. and 6:00 a.m., Tom was killed in his home. The medical examiner determined that Tom's death was caused by blunt force trauma, consistent with hammer strikes to his head. There were no signs of forced entry, and a trail of blood drops led from the bedroom where Tom was found, through the front door, and onto the porch. A single drop of blood was found in the driveway.

That same morning, at approximately 6:30 a.m., Bragg left the home she shared with Tom in Thomaston, picked up her friend, Debra Clay, and drove to LaGrange for an appointment with her psychiatrist. Shortly after Bragg left, Lee Henry, Bragg's neighbor, saw what she believed to be the glow of someone lighting a cigarette on Bragg's screened porch.² While waiting for Bragg's appointment, Clay received a phone call indicating that Tom had been murdered, and Clay suggested to Bragg that they return to Thomaston.

Investigators interviewed Bragg on September 9 and again the next morning. In both interviews, Bragg expressed concern for her finances, asking when she would receive her insurance money, as she was the beneficiary of two life insurance policies which had been purchased without Tom's knowledge. In a third interview on October 25, 2002, after investigators had seized and searched her home computer, Bragg also admitted to having extra-marital affairs with men she met on the Internet.

At trial, the State presented evidence of three similar transactions in which Bragg solicited others to kill her former husband. Bonnie Powell also testified that she had witnessed Bragg threaten to “blow [Tom's] brains out” if she caught him with another woman. Penny Carter and Kristina Wright, friends and family of Bragg, testified that Bragg admitted she had killed Tom after explaining that she had to “get something off her chest.”

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

2. Bragg contends the trial court erred by admitting similar transaction evidence and failing to limit the jury's consideration of it. ³ To be admitted, similar transaction evidence must meet three requirements: (1) the evidence must be introduced for a proper purpose; (2) sufficient evidence must show that the defendant committed the independent act; and (3) a sufficient connection must exist between the independent act and the charged crime, such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640(2)(b), 409 S.E.2d 649 (1991).

At trial, the state presented evidence of three occasions when Bragg solicited the assistance of others to murder her prior husband, James Wright. In the first instance, Bragg offered to pay Harry Pennington if he murdered James and made it look like a car accident. In the second instance, Bragg asked her former boyfriend, Archie Storey, to kill James by running him off the road. Finally, in the third instance, Bragg promised to share the money from James's life insurance policy with Rufus Guy if he killed James. “When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences.” (Citation and punctuation omitted.) Pareja v. State, 286 Ga. 117, 121, 686 S.E.2d 232 (2009).

Here, Bragg was the primary beneficiary of life insurance policies on both James and Tom. Bragg also experienced marital problems in both relationships, engaged in extra-marital affairs, and openly threatened both men. Due to the similarities between the three prior incidents and the charged crime, the trial court did not abuse its discretion by admitting the similar transaction evidence. Moore v. State, 293 Ga. 676(1), 748 S.E.2d 419 (2013). Moreover, the court advised the jury on two occasions to only consider the similar transaction evidence for the proper purposes of identity, state of mind, common design or scheme, and intent. Biggs v. State, 281 Ga. 627(2), 642 S.E.2d 74 (2007). These are appropriate purposes.

3. Bragg also asserts that the trial court erred by charging the jury on parties to a crime. “To authorize a jury instruction ... there need only be produced at trial slight evidence supporting the theory of the charge.” (Citation omitted.) Davis v. State, 269 Ga. 276, 279(3), 496 S.E.2d 699 (1998). Henry, Bragg's neighbor, testified at trial that, a few moments after Bragg left the house on the morning of Tom's murder, a glow that closely resembled a lit cigarette appeared on Bragg's porch. During the charge conference, the trial court indicated that the short period of time between Bragg leaving and the glow igniting on the porch suggested that Bragg may have collaborated with another to murder Tom. This evidence, though slight, was sufficient to support a charge on parties to a crime. Medical testimony as well as medical documentation showing that Bragg was physically incapable of causing the type of injuries Tom sustained also supported the theory that another person may have been involved in Tom's murder.

4. Bragg contends trial counsel provided ineffective assistance in a number of ways. To prevail on a claim of ineffective assistance of counsel, Bragg must show that trial counsel's performance was so deficient that it fell below an objective standard of reasonableness, and that counsel's deficient performance prejudiced the defense such that a reasonable probability exists that the trial results would have been different but for counsel's performance. Strickland v. Washington, 466 U.S. 668(II), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

(a) First, Bragg contends trial counsel was deficient for failing to file a motion to suppress evidence seized from Bragg's computer. The computer in question was seized from Bragg's home on September 9, 2002, pursuant to a warrant which authorized investigators to take any “ trace” evidence associated with the investigation of Tom's death. A GBI agent testified that it is common practice in a murder investigation to seize personal computers in order to prevent the deletion of evidence. After the seizure of a computer, the GBI then seeks a second warrant specifically regarding the computer contents. In this case, the evidence about which Bragg complains, i.e., the e-mails and online conversations evidencing Bragg's extra-martial affairs, was discovered on her computer after a second valid warrant authorizing data collection was executed. Even if the initial seizure of Bragg's computer were improper and not remedied by the second warrant, any error in this case would ultimately not be prejudicial, given the overwhelming evidence against Bragg, which included a confession to friends and family. Therefore, this claim of ineffective assistance lacks merit. (b) Bragg also contends trial counsel rendered ineffective assistance by failing to request a Jackson v. Denno hearing to...