Brockman v. State

• Decision Date: 28 March 2013
• Docket Number: No. S12P1490.,S12P1490.
• Citation: 739 S.E.2d 332,292 Ga. 707
• Parties: BROCKMAN v. The STATE.
• Court: Georgia Supreme Court

292 Ga. 707

739 S.E.2d 332

BROCKMAN

v.The STATE.

No. S12P1490.

Supreme Court of Georgia.

March 4, 2013.

Reconsideration Denied March 28, 2013.

Hagler & Hyles, Richard C. Hagler, Jackson & Schiavone, George T. Jackson, Steven L. Sparger, for appellant.

Julia Fessenden Slater, Dist. Atty., William D. Kelly, Jr., Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Dana E. Weinberger, Sabrina D. Graham, Asst. Attys. Gen., Waldrep, Mullin & Callahan, David R. Helmick, for appellee.

MELTON, Justice.

A Muscogee County jury convicted Ward Anthony Brockman of felony murder and criminal attempt to commit armed robbery and recommended a death sentence for the murder after finding beyond a reasonable doubt that the murder was committed during the commission of another capital felony, to wit, armed robbery. See OCGA § 17–10–30(b)(2). The trial court entered judgment accordingly. See OCGA § 17–10–31(a). Brockman's motion for new trial was denied, and he appeals. For the reasons set forth below, we affirm.¹

General Grounds

1. Viewed in the light most favorable to the verdict, the evidence at trial showed the following. On the night of June 26, 1990, Brockman's accomplices, Quenton Lewis, Larry Moore, and Ronald Mathis, came to the apartment in Phenix City, Alabama, where Brockman was staying with his girlfriend. Brockman and his accomplices made plans to commit several armed robberies in order to obtain enough money to pay the bond to secure the release from jail of Lewis's brother and a friend. A few days earlier, Brockman had stolen a black Chevrolet Camaro IROC–Z T–Top from a car lot in Columbus and replaced the dealer's tag with a Florida license tag, and he possessed a .38 revolver that belonged to his girlfriend and that he had previously used to commit an armed robbery.

On the following day, June 27, Brockman and his accomplices also obtained a .22 pistol and a twelve-gauge sawed-off shotgun to use in the planned robberies. After obtaining the guns, they went to a Kentucky Fried Chicken restaurant to commit armed robbery against the manager when she left to make a bank deposit, but they apparently “missed” her exit from the restaurant. Then Brockman and the others drove to the Premium Oil gas station that the victim, Billy Lynn, managed, because Moore and Mathis, who were familiar with the neighborhood, believed that he carried “large amounts of money.” Brockman made certain that Lynn was at the station and then dropped off Moore and Mathis a short distance away, because they feared that Lynn would recognize them. Brockman drove by the full-service station a couple of times until he found the lot empty, pulled in, and parked at approximately 5:30 p.m. When the victim approached and asked if he could help Brockman, Brockman “pulled the [.38],” “clicked it back,” and told Lynn, “Give me all the money.” Lynn raised his arms out to his side and told Brockman, “You got it.” Brockman asked for the money again. Again Lynn said, “You got it,” but he made no attempt to hand Brockman any money. According to Brockman, Lynn “had a grin on his face,” and, at this point, he knew that Lynn was not going to give him the money. Brockman told Lynn, “No, you got it.” Then he shot Lynn once in the abdomen, killing him. In his videotaped statement that was played at trial,² Brockman stated that he had the cocked revolver in his right hand and that “[he] was reaching back—[he] was going to leave, and in the process the gun shot, and [he] just drove off.” Brockman also stated that Lynn would not have been harmed had he handed over the money and that Lewis did nothing but sit beside him holding the sawed-off shotgun. At trial, however, Brockman testified that Lewis was originally supposed “to get out and get the money and jump back in” but that Lewis had the barrel of the sawed-off shotgun pointed in Brockman's direction and directed him to “get the money” when Lynn approached. Brockman also testified that Lewis hit him on the shoulder while yelling at him to “go” after he had abandoned the robbery, causing him to accidentally shoot Lynn. Lewis, who testified for the State, denied that he was originally supposed to carry out the robbery, that he ever hit Brockman, and that he was holding the shotgun at the time. Lewis also testified that Brockman had not cocked the gun before shooting Lynn, that he shot Lynn by pulling the trigger,³ and that he told Lewis that he did so to prevent Lynn from “laugh[ing] about it with his buddies, telling his buddies that we tried to rob him and ... didn't really get no money.” Although Lynn had $70 in his pocket, Brockman sped away without taking any money. He stopped to pick up Moore and Mathis, to put the T-tops on the IROC, and to adjust the T-tops. During one stop, he exchanged places with Lewis.

When police responded to the 911 call reporting the shooting, nearby witnesses gave them a description of the IROC, and the officers issued a lookout for the vehicle. It was spotted by police, and a chase ensued. With Lewis now driving, Brockman and his accomplices fled through traffic at speeds of over 100 miles per hour. After eluding police in Phenix City, Brockman tried to wipe his fingerprints from the IROC, took the .38 revolver, abandoned the vehicle, and returned to his girlfriend's apartment with the others. When police approached, Brockman hid in the insulation in the attic until the officers threw tear gas into the attic and he was arrested. Authorities located the IROC and recovered fingerprints belonging to Brockman, Moore, and Lewis on the outside and a piece of paper that outlined an itinerary inside. According to Brockman, the “agenda” consisted of “things that [he] had seen and [he] had planned on doing.” The list included stealing a car and robbing the gas station that Lynn managed. The State also presented evidence of three similar transactions showing that Brockman participated in three armed robberies in June 1990. Two of these transactions took place within 48 hours of the attempted armed robbery and murder of Lynn.

We find that the evidence, construed most favorably to the jury's verdicts, was sufficient to authorize a rational trier of fact to find Brockman guilty of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Unified Appeal Procedure IV(B)(2) (providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence).

2. “[T]aking of property is an essential element of the crime of armed robbery.” Woodall v. State, 235 Ga. 525, 533, 221 S.E.2d 794 (1975). See OCGA § 16–8–41(a). Because the only statutory aggravating circumstance introduced by the State and found by the jury was that the murder was committed while Brockman was engaged in the capital felony of armed robbery, see OCGA § 17–10–30(b)(2), and no evidence was presented that Brockman took anything during the incident, Brockman contends that the evidence was insufficient to authorize the jury to conclude that the State had proven the existence of a statutory aggravating circumstance. However, “a murder may be found to have been committed while the murderer was ‘engaged in the commission’ of an armed robbery even if the attempted armed robbery fails or is otherwise abandoned.” Tate v. State, 287 Ga. 364, 368(5), 695 S.E.2d 591 (2010) (citing Amadeo v. State, 243 Ga. 627, 631, 255 S.E.2d 718 (1979)). The evidence supported the jury's finding of the existence of the required statutory aggravating circumstance here, and, as explained more fully below, Brockman's argument to the contrary is without merit.

OCGA § 17–10–30(b)(2) specifies as a statutory aggravating circumstance that the murder “was committed while the offender was engaged in the commission of another capital felony,⁴ or aggravated battery, or ... while the offender was engaged in the commission of burglary in any degree or arson in the first degree.” However, the statute does not require that the other felony be completed. See Roberts v. State, 252 Ga. 227, 241(14), 314 S.E.2d 83 (1984). Nor does the statute require that the defendant be charged with or convicted of the other felony. See, e.g., Hooks v. State, 233 Ga. 149, 151(5), 210 S.E.2d 668 (1974), vacated in part on other grounds by 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977). What the statute does require is that the State prove beyond a reasonable doubt the existence of the statutory aggravating circumstance for purposes of sentencing, i.e., that the murder was committed “while the offender was engaged in the commission of” the other felony. OCGA § 17–10–30(b)(2), (c). The State is required to do so regardless of whether or not the defendant has been convicted of the other felony in the guilt/innocence phase. See Romine v. State, 256 Ga. 521, 528(3), 350 S.E.2d 446 (1986). Establishing that the murder was committed “while the offender was engaged in the commission of” an armed robbery in this case is what made Brockman eligible for the death penalty, not the commission of the criminal attempt to commit armed robbery. Brockman's argument misconstrues that fact.

The evidence was sufficient to support the jury's finding of the alleged statutory aggravating circumstance, not because Brockman was convicted of the criminal attempt to commit armed robbery, but because the jury was authorized to conclude beyond a reasonable doubt from the evidence presented at trial that he was engaged in the commission of an armed robbery at the time that he murdered the victim and, thus, that the requirements of the (b)(2) statutory circumstance had been established. It is true that some of the same facts may go to prove both the criminal attempt to commit armed robbery and the (b)(2) circumstance, because one of the essential elements of the crime of attempt to commit armed robbery is that the accused “perform[ ] any act which constitutes a...