Braley v. State

• Decision Date: 12 November 2002
• Docket Number: No. S02P1191.,S02P1191.
• Citation: 572 S.E.2d 583,276 Ga. 47
• Court: Georgia Supreme Court
• Parties: BRALEY v. The STATE.

572 S.E.2d 583

276 Ga. 47

BRALEY v. The STATE.

No. S02P1191.

Supreme Court of Georgia.

November 12, 2002.

Reconsideration Denied December 13, 2002.

Lindsey & Jacobs, Tamara Jacobs, Barnesville, William Allen Adams, Jr., Thomaston, for appellant.

William T. McBroom, III, Dist. Atty., Daniel A. Hiatt, Asst. Dist, Atty., Thurbert E. Baker, Atty. Gen., Romin Vincent Alavi, Asst. Atty. Gen., for appellee. CARLEY, Justice.

A jury found Leeland Mark Braley guilty of malice murder, an alternative count of felony murder, kidnapping with bodily injury, armed robbery, and aggravated battery. The jury recommended a death sentence after finding beyond a reasonable doubt that the murder was committed while Braley was engaged in the commission of a kidnapping with bodily injury and of an armed robbery, was committed for the purpose of receiving money or any other thing of monetary value, and was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind and aggravated battery to the victim. See OCGA § 17-10-30(b)(2), (4), and (7). Braley's motion for new trial was denied and he appeals. For the reasons set forth below, we vacate the conviction and sentence for aggravated battery, and we affirm the other convictions and sentences.¹

General Grounds

1. Construed in the light most favorable to the jury's verdicts, the evidence in the guilt-innocence phase showed the following: Braley, who was employed by a charitable organization, attempted to solicit a donation from Kelli Hammond at her place of business. When she stated that she did not have any money that day, Appellant retrieved a handgun and a knife from his automobile, robbed her of her bank cards, had her write the personal identification number for one of the bank cards on a piece of paper, threw her to the floor, cut her throat, stabbed her repeatedly, pursued her as she fled toward the door, held her until she weakened from blood loss, and then dragged her, still alive, into the interior of the office. Braley then made repeated attempts, some of them successful, to obtain money from automated teller machines with her bank cards. Law enforcement officers, who had received a description of Braley's automobile from witnesses and who had obtained security camera photographs of the person attempting to make withdrawals with the victim's bank cards, observed Appellant approaching an automated teller machine while attempting to conceal his face and his automobile from security cameras. When the officers approached Braley and identified themselves, he placed his hands in the air and declared, "You've got me, take me in." He then handed one of the officers the victim's bank cards and stated, "Everything you're looking for is in the car." A consent search of Appellant's automobile revealed the murder weapons, both of which had hair and blood on them that were consistent with the victim's. Braley informed the officers that the weapons had been used in the "murder of that insurance lady." He then gave a detailed confession at the headquarters of the Georgia Bureau of Investigation. A later search of his automobile pursuant to a warrant yielded the piece of paper with the victim's personal identification number. We find that the evidence was sufficient to authorize a rational trier of fact to find Braley guilty on all charges. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Pre-Trial Issues

2. Because the trial court did not enter judgment on the guilty verdict on the felony murder count of the indictment, his contention that the trial court erred by refusing to quash that count is moot. Laney v. State, 271 Ga. 194, 195(2), 515 S.E.2d 610 (1999).

3. Appellant complains that the trial court erroneously denied his motion to quash the kidnapping with bodily injury count of the indictment. That count, however, placed him on sufficient notice of the charges against him. Burgeson v. State, 267 Ga. 102, 103(1), 475 S.E.2d 580 (1996). Georgia's statute defining kidnapping with bodily injury, OCGA § 16-5-40, is not unconstitutionally vague for its failure to define "bodily injury." Waters v. State, 248 Ga. 355, 367(10), 283 S.E.2d 238 (1981). "Bodily injury" is a term that is "commonly understood." Ferguson v. State, 211 Ga.App. 218, 221(3), 438 S.E.2d 682 (1993). This is particularly true when viewed in light of the facts in this case. See Baker v. State, 246 Ga. 317, 318(2), 271 S.E.2d 360 (1980) (citing United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)). OCGA § 16-5-40 is also not unconstitutional on the ground that it may serve as the basis for a death sentence when the kidnapping results in the victim's death. Sears v. State, 270 Ga. 834, 841(4), 514 S.E.2d 426 (1999).

4. Braley also contends that the trial court erroneously refused to quash the armed robbery count of the indictment. However, that count's assertion that Braley was guilty of "ARMED ROBBERY" in that he, "with intent to commit theft," had taken specified items of property "from the immediate presence of Kelli Hammond, by use of an offensive weapon" was sufficient to allege the element of armed robbery that the property taken belonged to another. See State v. Eubanks, 239 Ga. 483, 485-486, 238 S.E.2d 38 (1977); Campbell v. State, 223 Ga.App. 484, 485-486(3), 477 S.E.2d 905 (1996). The count was sufficient to place Braley on notice of the allegations to be met at trial. Burgeson v. State, supra at 103(1), 475 S.E.2d 580. Georgia's statute defining armed robbery, OCGA § 16-8-41, is not unconstitutionally vague for its failure to further define objects "having the appearance" of an offensive weapon. Moody v. State, 258 Ga. 818, 819 820(1), 375 S.E.2d 30 (1989).

5. Because we are vacating the aggravated battery conviction, Appellant's contention that the trial court erred by refusing to quash the aggravated battery count of the indictment is moot.

6. The Unified Appeal Procedure exists for the protection of capital defendants' rights and is not unconstitutional. Jackson v. State, 270 Ga. 494, 498-499(10), 512 S.E.2d 241 (1999).

To the extent that the Unified Appeal Procedure suggests that defendants' objections to jury charges in death penalty trials are subject to waiver for reasons that would not result in waiver in other cases under Georgia statutory and case law, it will not be followed by this Court. See U.A.P. III(A)(3)(a), (B)(3)(a); OCGA § 5-5-24; Head v. Ferrell, 274 Ga. 399, 403(IV), 554 S.E.2d 155 (2001) ("Claims regarding sentencing phase jury charges in a death penalty case are never barred by procedural default."); White v. State, 243 Ga. 250, 251, 253 S.E.2d 694 (1979).

7. The trial court did not err in denying Braley's motion to bar the State from seeking a death sentence on the ground of the District Attorney's policy of initially seeking the death penalty in all cases where statutory aggravating circumstances appear to be present. Jenkins v. State, 269 Ga. 282, 284-285(2), 498 S.E.2d 502 (1998).

8. By failing to make any objection, Appellant waived his right to complain that court personnel were allowed in the courtroom during his ex parte hearings. Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992). Furthermore, Braley has failed to show how he was harmed by the presence of the court personnel, who were warned by the trial court that the proceedings were not to be discussed with anyone.

9. The trial court did not err in denying Appellant's motion for funds to hire a neuropsychologist, because Braley, who had been examined previously by a court-funded psychiatrist selected by the defense, was unable to demonstrate that the services of a neuropsychologist were "critical" to his defense. Roseboro v. State, 258 Ga. 39, 41(3)(d), 365 S.E.2d 115 (1988).

10. Pretermitting whether the trial court erred in ordering Appellant's attorneys to produce for the State a letter written by Braley to his girlfriend and in ruling that the letter would be admissible at trial, we conclude that any possible error was harmless, because the letter was never introduced into evidence. See Mobley v. State, 265 Ga. 292, 294(4), 455 S.E.2d 61 (1995).

Jury Selection Issues

11. Appellant urges that the trial court erred by excusing five prospective jurors on the basis of their inability or unwillingness to consider a death sentence. The standard to be applied by a trial court in determining whether such a prospective juror is qualified to serve is whether "the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,'" and this Court will give due deference to the trial court's application of that standard. Greene v. State, 268 Ga. 47, 48, 485 S.E.2d 741 (1997) (quoting Wainwright v. Witt, 469 U.S. 412, 424(II), 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). We find that the trial court did not abuse its discretion in excusing prospective jurors Hanson, Wilder, and Grier. With respect to the excusal of prospective jurors Smith and Collins, Braley waived his right to raise the issue on appeal because he did not make a timely objection. Earnest v. State, supra at 495(1), 422 S.E.2d 188.

12. Appellant contends that the trial court abused its discretion in questioning prospective jurors Smith, Hanson, and Wilder. We find that, contrary to Braley's argument, the trial court's questioning was "not an attempt to achieve a desired answer, but rather [was] a `neutral attempt to determine the juror[s'] impartiality.'" Brannan v. State, 275 Ga. 70, 77-78(6), 561 S.E.2d 414 (2002) (quoting Walker v. State, 262 Ga. 694, 696(2), 424 S.E.2d 782 (1993)).

13. Prospective juror Remick's voir dire responses demonstrated that he would be able and willing to consider all three sentences authorized for a murder conviction and that there were circumstances in which he could impose each of those sentences. We do not find any abuse of...