Brannon v. State

• Decision Date: 07 March 2016
• Docket Number: No. S15A1724.,S15A1724.
• Citation: Brannon v. State, 298 Ga. 601, 783 S.E.2d 642 (Ga. 2016)
• Parties: BRANNON v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 601

783 S.E.2d 642

BRANNON

v.The STATE.

No. S15A1724.

Supreme Court of Georgia.

March 7, 2016.

Michael Anthony Rivera, Houston County Public Defender's Office, Perry, for appellant.

Patricia B. Attaway Burton, Sr. Asst. Atty. Gen, Paula Khristian Smith, Sr. Asst. Atty. Gen, Samuel S. Olens, Atty. Gen., Department of Law, Daniel Patrick Bibler, Asst. Dist. Atty., George Herbert Hartwig III, Houston County District Attorney's Office, Perry, for appellee.

THOMPSON, Chief Justice.

AppellantStewart Brannon was found guilty of malice murder, felony murder, armed robbery and aggravated assault with a firearm in connection with the shooting death of Mario Smith.¹He appeals from the denial of his motion for new trial, asserting that the trial court erred in refusing to hold that OCGA § 17–16–4, Georgia's reciprocal discovery statute, required the State to turn over law enforcement officers' notes; erred in failing to find that the State withheld exculpatory material from the defense in violation of Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963)andGiglio v. United States,405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104(1972); erred in admitting other acts evidence pursuant to OCGA § 24–4–404(b); erred in allowing a police detective to identify the victim in video evidence; erred in improperly rehabilitating a witness for the State; and erred in failing to find he received ineffective assistance of counsel at trial.Finding no error, we affirm appellant's conviction of malice murder.In view of a sentencing error, however, we vacate a portion of the sentencing order and remand this case to the trial court for resentencing.

1.Viewed in the light most favorable to the jury's verdict, the evidence at trial showed the victim owned a 1987 red Chevrolet Monte Carlo which he advertised for sale in Autotrader magazine in August of 2008.Appellant's codefendant Joshua Rounsoville saw the advertisement and made arrangements to see the car which the victim kept at a rented storage unit in Warner Robbins, Georgia.On August 23, 2008, appellant, driving his mother's black Ford F–150, took Rounsoville to meet with the victim and see the car.Appellant knew Rounsoville was carrying a gun.The next day, the victim was found dead in his storage unit with a single gunshot wound to the head and a 9–mm shell casing lying nearby.

Rounsoville, who pled guilty to the murder and testified at appellant's trial, admitted to shooting the victim in the storage bay with a 9–mm handgun.He testified that he then drove the victim's car to Eatonton with appellant following in the F–150; that he and appellant left the stolen vehicle at a friend's house overnight; that they returned the next morning to retrieve the car which had been damaged and stripped of its distinctive tires; and, that after obtaining tires for the victim's car, they drove it off the property.Darcus Lane testified that appellant and Rounsoville brought the victim's car to his house and that both men returned the next day to retrieve the vehicle.The victim's car was subsequently found ditched in the woods.

Following his arrest, appellant admitted in a recorded statement that he went to Warner Robins with Rounsoville to meet the victim and that he waited for Rounsoville to leave in the victim's car before following him back to Putnam County where both defendants lived.Appellant's statement was corroborated at trial by videotape evidence from the storage facility taken on the day of the crime which showed the victim's black SUV pulling up to the storage building; the red Monte Carlo exiting the premises with a black F–150 truck following behind; the victim re-entering the storage building while the black F–150 waits; and the Monte Carlo again exiting the premises followed by the F–150.Additionally, another witness who was at a shop near the storage facility on the day of the crime testified that he saw two black males leaning against a Monte Carlo with a black F–150 truck parked nearby.Finally, evidence of appellant's guilty plea to a similar crime in which appellant and Rounsoville shot a man in Monroe County, Georgia in order to steal his vehicle only 13 days prior to the crime at issue was admitted into evidence.

We conclude the evidence in this case was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted.SeeJackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.While the evidence was sufficient to support the jury's guilty verdicts in this case, the trial court erred in merging certain counts for judgment and sentencing.SeeHulett v. State,296 Ga. 49, 54, 766 S.E.2d 1(2014).Although the State has not appealed this sentencing error, upon noticing such merger issues in a direct appeal, this Court may resolve them.Seeid.;Nazario v. State,293 Ga. 480, 488(2)(b), 746 S.E.2d 109(2013).Here, appellant was charged with malice murder (Count 1), felony murder based on armed robbery (Count 2), armed robbery (Count 3), felony murder based on aggravated assault (Count 4) and aggravated assault with a firearm (Count 5) and was convicted by the jury on all counts.The trial court correctly sentenced appellant on the malice murder conviction, seeMalcolm v. State,263 Ga. 369, 372(4), 434 S.E.2d 479(1993), but failed to recognize that the felony murder counts thereafter were vacated as surplusage.SeeHulett,supra at 53, 766 S.E.2d 1.As a result, the trial court improperly merged the non-murder counts into the corresponding felony murder counts and merged both felony murder counts into the malice murder count for sentencing.Id.As the felony murder counts no longer existed, the only determination for the trial court was whether the underlying felonies merged, as a matter of fact, into the malice murder count.Id.Because there was no evidence presented authorizing the jury to find that the aggravated assault with a firearm committed on the victim was not followed almost immediately by the fatal shooting or that a deliberate interval existed between the two events, we find that appellant's conviction for aggravated assault (Count 5) merges as a matter of fact into his conviction for malice murder (Count 1).Seeid. at 55, 766 S.E.2d 1.See alsoSolomon v. State,293 Ga. 605, 606(1), 748 S.E.2d 865(2013).However, " ‘because malice murder has an element that must be proven (death of the victim) that armed robbery does not, and armed robbery has an element (taking of property) that malice murder does not,’ "we find that appellant's conviction for armed robbery (Count 3) did not merge as a matter of fact with his malice murder conviction (Count 1).Hulett,296 Ga. at 55, 766 S.E.2d 1.The trial court, therefore, should have sentenced appellant for Count 3, in addition to the sentence it imposed on Count 1.Accordingly, we vacate that portion of the sentencing order in which the trial court"merged" Count 5 into Count 4, Count 3 into Count 2, and Counts 2 and 4 into Count 1, and remand this case to the trial court for re-sentencing on Count 3.3.Appellant contends the trial court erred in denying his motion to compel the State's production of law enforcement officers' notes pursuant to OCGA § 17–16–4 and further erred in denying his claim on motion for new trial that the State withheld exculpatory material from the defense in violation of Brady,supra, 373 U.S. at 87, 83 S.Ct. 1194.Additionally, appellant contends the trial court erred in refusing to compel the State to provide the defense with information about plea deals given to State witnesses as required by Giglio,supra, 405 U.S. 150, 92 S.Ct. 763.These contentions lack merit.

(a)Appellant, who was interrogated by officers from three separate counties about several different crimes, moved to compel the State to produce any and all information shared between law enforcement officers about their various interrogations of appellant, including any of the officers' handwritten notes.Finding that the informal notes of law enforcement officials were not included among the types of evidence the State is statutorily required to produce in criminal cases, the trial court denied the motion.In so ruling, however, the trial court reminded the State that it had a continuing obligation under Brady to provide the defense with any law enforcement notes in the State's possession which contained potentially exculpatory information.SeeBrady,supra.

On motion for new trial, the trial court rejected appellant's argument that OCGA § 17–16–4 required the State to produce law enforcement officers' notes, and, finding no evidence that such notes containing exculpatory information had been withheld from the defense by the State, or even existed, the trial court found no merit to appellant's claim that the State's failure to produce these notes violated Brady,supra.We agree.

By its plain language, OCGA § 17–16–4, which addresses Georgia's requirements for the disclosure of evidence in criminal trials and specifies the types of evidence the State must turn over to the defense, does not include the informal notes of law enforcement officials among the types of evidence the State is statutorily required to produce.Accordingly, we find no error in the trial court's determination that absent a showing by the defense that it was legally entitled to the discovery of such notes on some other basis, the State had no duty to provide them under OCGA § 17–16–4.SeeKing v. State,273 Ga. 258, 263, 539 S.E.2d 783(2000).See alsoHarper v. State,249 Ga. 519, 528, 292 S.E.2d 389(1982)(observing there is " ‘no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case,’ " quoting Moore v. Illinois,408 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 706(1972)).

Although appellant disputes the trial court's finding that the type of notes he sought...