Brooks v. State

• Decision Date: 30 June 1995
• Citation: 458 S.E.2d 349,265 Ga. 548
• Parties: BROOKS v. The STATE (three cases). S95A0215, S95A0258 and S95A0265.
• Court: Georgia Supreme Court

Page 349

458 S.E.2d 349

265 Ga. 548

BROOKS v. The STATE (three cases).

S95A0215, S95A0258 and S95A0265.

Supreme Court of Georgia.

June 30, 1995.

Bert W. Cohen, Marietta, John B. Sumner, Woodstock, for Derreck Wayne Brooks in Nos. S95A0215 and S95A0265.

Bruce Hornbuckle, Asst. Dist. Atty., Marietta, Susan V. Boleyn, Asst. Atty. Gen., Dept. of Law, Atlanta.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordan, Bruce D. Hornbuckle, Asst. Dist. Attys., Marietta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Marla-Deen Brooks, Asst. Atty. Gen., Atlanta, for the State.

BENHAM, Presiding Justice.

Derreck and Paul Brooks, brothers, were convicted of felony murder for the stabbing death of Randy Wallace. ¹ The evidence at trial showed that the Brookses spent the evening preceding the killing with Wallace and several others, drinking, smoking marijuana, playing cards, and shooting pool. When the bar where they were drinking closed at 2:00 a.m., the Brookses returned to their apartment with Wallace, Shilling, and Thibodeaux to continue drinking. The conversation turned to wrestling and Paul and Wallace decided to wrestle in the yard. Consistently defeated by Wallace, Paul grew angry and struck him in the face. When Wallace pinned Paul again, Derreck entered the fray, only to be pinned along with his brother. The Brookses went into their apartment, but as the other three started toward Thibodeaux's truck, the brothers came back outside, each armed with a knife, and attacked Wallace. Although he attempted to defend himself with a pool cue case, Wallace was stabbed several times and died of a stab wound to the heart. The Brookses were jointly indicted and tried for malice murder and felony murder with aggravated assault as the underlying felony. They were convicted of felony murder. Derreck and Paul, represented by counsel, appeal their convictions in Cases No. S95A0215 and S95A0265, respectively. In Case No. S95A0258, Derreck appeals pro se. For the reasons set forth below, we affirm in the cases involving counsel and dismiss Derreck's separate appeal.

1. Although there was conflicting testimony at trial with regard to which of the Brookses struck the fatal blow, the evidence showed without conflict that there was a joint aggravated assault on Wallace by the Brookses resulting in Wallace's death. The evidence at trial was sufficient to authorize a rational trier of fact to find both Brookses guilty beyond a reasonable doubt of felony murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Crane v. State, 263 Ga. 518(3), 436 S.E.2d 216 (1993). That being so, there was no error in denying Derreck's motion for a directed verdict of acquittal. Blackwell v. State, 264 Ga. 517, 448 S.E.2d 359 (1994).

2. Because there was some direct evidence of Derreck's guilt and no request was made for a charge on circumstantial evidence, the trial court's failure to give an instruction in the language of OCGA § 24-4-6 was not error. Barner v. State, 263 Ga. 365(1), 434 S.E.2d 484 (1993).

3. Neither Derreck nor the State called Derreck's trial counsel to testify at the hearing on Derreck's motion for new trial, but the trial court stated at the conclusion of the hearing that the record would remain open for 30 days for the submission of affidavits. Derreck did not object at that time to the use of affidavits, but objected to the admission more than 30 days later of an affidavit of his trial counsel. His sole objection in the trial court was that the record automatically closed at the conclusion of the time period established by OCGA § 15-6-21 for ruling on motions. However, there is no provision in that statute for closing the record as a result of a trial court's failure to make a timely ruling. The only remedies for violation of the statute are mandamus and impeachment of the judge. Graham v. Cavender, 252 Ga. 123, 311 S.E.2d 832 (1984). We conclude, therefore, that the tardiness of the trial court's ruling did not close the record and was not a valid basis for objecting to the admission of trial counsel's affidavit. Another objection raised on appeal was not raised in the trial court and will not be considered. Shealey v. State, 257 Ga. 437(3), 360 S.E.2d 266 (1987).

4. Asserting that his trial counsel failed to interview an eyewitness and failed to call for testimony a witness to whom Paul confessed in jail, Derreck contends he was denied effective assistance of counsel. On motion for new trial, however, trial counsel explained by affidavit his decision not to interview the eyewitness or call her to testify. He learned from Paul's counsel that the witness did not see the stabbing, was unsure how many people had knives, could not identify the participants, had received threatening telephone calls since the stabbing, and that her testimony would be inculpatory of Derreck because there was some evidence that the person who stabbed Wallace was wearing a shirt, whereas Paul was shirtless when arrested. The decision not to call the witness to whom Paul allegedly confessed was based on the fact that the witness was a convicted felon and on counsel's concern that his testimony would open the door for the State to use, as rebuttal evidence, a videotape on which Derreck admitted stabbing Wallace. We conclude, as did the trial court in denying Derreck's motion for new trial, that counsel's decisions were matters of trial strategy founded on legitimate evidentiary concerns and do not demonstrate ineffectiveness of counsel. Bentley v. State, 262 Ga. 801(2), 426 S.E.2d 364 (1993).

5. At the hearing on Derreck's motion for new trial, a juror testified that he heard another juror tell the jury that he had visited the scene of the crime. Derreck insists that the juror misconduct so tainted the verdict that he was entitled to a new trial. We agree, however, with the trial court that a new trial was not required. "[A] new trial will not be granted unless there is a reasonable possibility that the improper evidence collected by jurors contributed to the conviction. [Cits.]" Bobo v. State, 254 Ga. 146(1), 327 S.E.2d 208 (1985). The situation in the present case is more like that in Chadwick v. State, 164 Ga.App. 102(2), 296 S.E.2d 398 (1982), where the jurors stated that they could not remember what was said about the scene and that their votes were based on the evidence, than that in Bobo, where the jurors' observations changed the vote. Here, the juror-witness testified that he did not hear what the other juror said about the visit to the scene, and testified that although he felt pressured by that other juror, who had been forceful from the beginning of deliberation in arguing for conviction, his vote to convict was not influenced by any information about the scene allegedly gathered by the other juror. Under those circumstances, there is no reasonable possibility that the observations of the juror who visited the scene contributed to the conviction and reversal is not required. Chadwick, supra.

6. Paul Brooks enumerates as error the denial of his pretrial motion to sever contending that the antagonistic defenses he and his brother asserted (each based his defense on the theory that the other struck the fatal blow) and the confusion resulting from conflicting testimony on that issue prejudiced his defense. He has not set forth, however, any specific way in which his defense was prejudiced by the refusal to sever.

In Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975), this court noted that among the considerations for the trial court in exercising its discretion on a motion to sever is the question of whether the number of defendants creates confusion of the evidence and law applicable to each individual defendant. That is not the sort of confusion that appeared in this case. Although it was evident that some of the witnesses were confused about which brother did what, the same confusion would have been present in separate trials.

Another consideration mentioned in Cain is prejudice from the existence of antagonistic defenses. As...