Brannan v. State
| Decision Date | 25 March 2002 |
| Docket Number | No. S01P1789.,S01P1789. |
| Citation | 561 S.E.2d 414,275 Ga. 70 |
| Parties | BRANNAN v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Taylor & Viers, Richard T. Taylor, Michael Mears, Thomas H. Dunn, Atlanta, for appellant.
Ralph M. Walke, Dist. Atty., Peter F. Larsen, Louie C. Fraser, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Allison B. Vrolijk, Romin Alavi, Asst. Attys. Gen., for appellee. CARLEY, Justice.
A jury found Andrew Brannan guilty of malice murder for the shooting death of Deputy Sheriff Kyle Dinkheller. The jury recommended a death sentence after finding the following aggravating circumstances: the offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, and an aggravated battery to the victim before death; the offense of murder was committed against a peace officer while engaged in the performance of his official duties; and, the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest of the defendant. OCGA § 17-10-30(b)(7), (8), (10). Brannan's motion for new trial was denied and he appeals.1
1. The evidence presented at trial showed the following: Andrew Brannan left his mother's house in Stockbridge, Georgia, to drive to his house in Laurens County in the afternoon of January 12, 1998. He was driving his white pickup truck 98 miles per hour on Interstate 16 when Laurens County Deputy Sheriff Kyle Dinkheller clocked his speed with a radar gun. Brannan exited the highway and stopped on a rural stretch of Whipple Crossing Road after the deputy caught up to him. During the pursuit, Deputy Dinkheller activated a video camera which is aimed through his windshield. The camera captured almost all of Brannan's actions during the ensuing traffic stop. Deputy Dinkheller also wore a microphone. The deputy stopped his patrol car about 20 feet behind Brannan's truck. Brannan exited his truck and stood near the driver's side door with his hands in his pockets. The right side of Deputy Dinkheller is visible on the tape as he stood next to his driver's side door.
Deputy Dinkheller said, Brannan said, "Okay," but did not move. The deputy said, Brannan said that he was okay and asked how the deputy was doing, but still did not move. Deputy Dinkheller said he was good and repeated, "[C]ome on back here and keep your hands out of your pockets." Brannan asked why and the deputy again said, "Keep your hands out of your pockets, sir." Brannan responded, He then began dancing in the street, saying, "Here I am, here I am." The deputy ordered, but Brannan responded, "Shoot me," and kept dancing.
Deputy Dinkheller radioed for assistance on his belt-mounted radio, and the defendant stopped dancing and approached him. The deputy said, "Sir, get back." Brannan replied, "Who are you calling, motherfucker?" and then rushed the deputy and a confrontation ensued to the left of the patrol car and off camera. The deputy ordered Brannan to get back nine more times. Brannan replied with "Fuck you" four times and at one point shouted, "I am a goddam Vietnam combat veteran."
Brannan then ran back to his truck and began rummaging around behind the driver's seat. Deputy Dinkheller remained beside his patrol car and ordered, "Sir, get out of the car." The right side of the deputy is briefly visible during this time. The deputy had drawn his baton, but not his firearm. Brannan replied that he was in fear of his life. The deputy shouted, Brannan said, "No," and then pulled a .30 caliber M 1 carbine from his truck. The deputy radioed for help and shouted for him to put the gun down. Instead, Brannan crouched by his open driver's side door. The deputy shouted for Brannan to put the gun down three more times. Brannan opened fire and the deputy returned fire.
Deputy Dinkheller was hit and shouted, "Shoot, shoot, stop now!" Brannan continued firing and advanced to the front of the patrol car. The deputy apparently tried to take cover behind the patrol car. Brannan exhausted one magazine, reloaded, and continued firing. The microphone recorded the sounds of the deputy being shot. At trial, the medical examiner testified that by this time Deputy Dinkheller had been struck by at least nine bullets, in the arms, legs, buttocks, chest, and head. The medical examiner opined that the deputy, although still breathing into the microphone, had lost consciousness because he was no longer returning fire or crying out when shot. The video shows Brannan cease crouching, take careful aim with his carbine, say "Die, Fucker," and fire one last shot. Brannan then fled the scene in his truck.
Brannan was found hiding in the woods about 100 yards from his house, and he made incriminating statements after his arrest. He had a gunshot wound to his abdomen. The police found the murder weapon in his house. Brannan claimed that he was not guilty by reason of insanity, and presented experts who testified that he had been unable to distinguish right from wrong because post-traumatic stress disorder had triggered a flashback to Vietnam. However, the court-appointed psychiatrist concluded that Brannan was sane, and the jury could have inferred from comments made by Brannan during the crime and after his arrest that he shot the victim because he believed the 22-year-old deputy was not showing him a sufficient amount of respect. Regarding his dancing during the altercation, Brannan explained to the police that he once defused a tense situation with an angry man by dancing and saying "shoot me." He also later told a psychiatrist that he had seen Mel Gibson act that way in the movie "Lethal Weapon." By its verdict the jury rejected Brannan's insanity defense. The evidence was sufficient to enable a rational trier of fact to find proof of Brannan's guilt of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trial court did not err by denying Brannan's motion for a directed verdict of acquittal. Jackson v. Virginia, supra; Raulerson v. State, 268 Ga. 623, 625(1), 491 S.E.2d 791 (1997). See also OCGA § 17-9-1(a).
2. Brannan complains that the trial court erroneously denied four of his pre-trial motions.
(a) Motion to Exclude the Death Penalty on Account of the Arbitrary Use of Prosecutorial Discretion in the Plea Bargaining Process. Brannan contends that the State has too much discretion in choosing to seek the death penalty or to offer a plea bargain. This contention is without merit. See Gregg v. Georgia, 428 U.S. 153, 199(IV)(B)(1), 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jenkins v. State, 269 Ga. 282(2), 498 S.E.2d 502 (1998). Georgia law authorizes the death penalty for Brannan's crime, and he has failed to show that the prosecutor acted in an unconstitutional manner with respect to his case. See Jenkins v. State, supra; Rower v. State, 264 Ga. 323(1), 443 S.E.2d 839 (1994).
(b) Motion to Suppress Evidence. Brannan urges that the trial court should have suppressed several pieces of evidence that were used against him at trial. With regard to a blood sample drawn pursuant to a search warrant, Brannan has failed to demonstrate that the hospital employee who spontaneously informed the police that Brannan's emergency room toxicology screen was positive for marijuana was acting as an agent of the State, or that the toxicology screen was for purposes other than medical diagnosis and treatment of his gunshot wound. See Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). The subsequent search warrant to obtain Brannan's blood sample was therefore proper and based on probable cause.
The two searches of Brannan's home were also proper. After determining the location of Brannan's house that he built by himself in the woods, the police arrived with an arrest warrant for Brannan, but could not find him in the house as he was hiding in the woods. They observed two rifles leaning against a wall, one of which was the murder weapon, and properly seized them. See Payton v. New York, 445 U.S. 573, 603(IV), 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (); May v. State, 181 Ga.App. 228(1), 351 S.E.2d 649 (1986) (). The officers also noticed that the white pickup truck parked next to the house contained bullet holes and blood stains. They obtained a search warrant for the house and curtilage, and the resulting search of the house and truck uncovered ammunition, a shell casing, and marijuana. See Owens v. State, 202 Ga.App. 785(1), 415 S.E.2d 704 (1992) (). The trial court did not err by admitting the evidence obtained during these searches.
(c) Motion to Dismiss the Case or Exclude Evidence due to Prosecutorial Misconduct. After Brannan's arrest, the police impounded his white pickup truck and photographed the bullet holes in it. A private towing company under contract with the police then towed the truck to the company's parking lot. On May 8, 1998, Brannan filed a motion to preserve, inspect, and examine all physical evidence. In November 1998, when defense counsel asked the prosecutor about inspecting the truck, both attorneys learned for the first time that the towing company had released the truck to the lienholder, a large national bank, on May 1,...
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