Browder v. State, S13A1187.

• Decision Date: 18 November 2013
• Docket Number: No. S13A1187.,S13A1187.
• Citation: 294 Ga. 188,751 S.E.2d 354
• Parties: BROWDER v. The STATE.
• Court: Georgia Supreme Court

294 Ga. 188

751 S.E.2d 354

BROWDER

v.The STATE.

No. S13A1187.

Supreme Court of Georgia.

Nov. 18, 2013.

John Kendall Gross, Metter, Glen A. Cheney, Reidsville, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., David Allan Zisook, Asst. Atty. Gen., Atlanta, Tom Durden, Dist. Atty., Melissa Leigh Poole, Joe Grady Skeens, Asst. Dist. Attys., Hinesville, for appellee.

BENHAM, Justice.

Melvin Browder filed this appeal from his conviction and sentencing for the murder of Eboni Galloway, aggravated assault of two other victims by discharging a firearm from within a motor vehicle toward a person, and possession of a firearm during the commission of a felony.¹ Browder asserts reversible error on several grounds. First, he asserts the evidence was insufficient to support a conviction of murder or aggravated assault. Browder also claims the trial court erred by failing to give requested charges on involuntary manslaughter as a lesser included offense of the murder charge; by admitting out-of-court statements made by the co-defendant; and by denying his motion for new trial on the ground that he received ineffective assistance of counsel at the trial. For the reasons set forth below, we affirm the convictions and the trial court's denial of Browder's motion for new trial.

Viewed in the light most favorable to the verdict, the evidence shows Browder and his accomplices drove in two different vehicles to a neighborhood in response to a report by female relatives of co-defendant Jerry Downey that they had been involved in a physical altercation. Browder was a passenger in the vehicle driven by Downey. Browder took a gun with him because, he testified, “I just know how they [are] down there,” and he also testified he had the gun “ready.” They drove twice through the neighborhood through a crowd that had gathered, some carrying sticks and bats. One of the assault victims, Mr. McNeal, appeared to rush toward the car in which Browder was a passenger in an aggressive manner and to yell at them. Ms. Galloway and another woman were following McNeal toward the car. McNeal had a BB gun or air gun in his possession that looked like a real gun, but there is no evidence he brandished the weapon at anyone and Browder testified he never saw a gun. Browder testified, however, that it appeared to him that two boys were running toward the car with their hands not in plain sight and he thought he heard gunfire. Browder admitted he fired two shots from the passenger's side of the car while leaning over the roof. Browder testified he did not intend to fire at anyone but only intended to fire into the air to scare what he thought were assailants. A bullet hit victim Galloway in the neck, severing her spine and spinal cord. She died several days later after she was removed from life support because the medical prognosis was that she would never be able to breathe without life support and she had minimal brain activity. Upon conviction by a jury, Browder was sentenced to life in prison for murder with sentences for the other convictions to be served concurrently.

1. With respect to malice murder, Browder asserts no evidence was presented to support a finding of specific intent to kill under OCGA § 16–5–1(a) or to support a finding of implied malice under OCGA § 16–5–1(b). We agree the evidence was insufficient to establish specific intent to kill. But pursuant to OCGA § 16–5–1(b), “[m]alice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” In a case involving implied malice, the state has the burden of proving beyond a reasonable doubt that no considerable provocation for the killing was present and that all the circumstances of the killing show an abandoned or malignant heart. Tucker v. State, 245 Ga. 68, 70(5), 263 S.E.2d 109 (1980). But the question of “[w]hether or not a provocation, if any, is such a serious provocation as would be sufficient to excite a sudden-violent, and irresistible passion in a reasonable person, reducing the offense from murder to manslaughter, is generally ... for the jury.” Anderson v. State, 248 Ga. 682, 683(3), 285 S.E.2d 533 (1982). From the evidence presented concerning the behavior of the crowd at the scene of the killing and specifically the actions of McNeal, it is apparent the jury did not find considerable provocation for the killing.

Browder testified that he had no intent to shoot anyone but meant only to shoot into the air to warn McNeal away from the car. Implied malice, however, may be found when the defendant's conduct exhibits a reckless disregard for human life. Parker v. State, 270 Ga. 256, 260(4), 507 S.E.2d 744 (1998), overruled on other grounds by Linson v. State, 287 Ga. 881, 700 S.E.2d 394 (2010). This Court has adopted the definition of implied malice as being

extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others—though unaccompanied by any intent to kill or do serious bodily injury—and which actually causes the death of another.... [R]eckless disregard for human life may be [the] equivalent [of] a specific intent to kill.

Id. (Citation and punctuation omitted.)

Browder further testified that he felt threatened and acted in self-defense and, at his request, the jury was instructed on the law of self-defense as set forth in OCGA § 16–3–21. Again, however, “[w]hether the circumstances of the confrontation between the victim and appellant were such as to excite the fears of a reasonable person that he had to use deadly force in order to prevent the use of deadly force against him is a question for the jury.” Andrews v. State, 267 Ga. 473, 474(1), 480 S.E.2d 29 (1997); see also Sifuentes v. State, 293 Ga. 441(1), 746 S.E.2d 127 (2013).

It is not the job of this Court to weigh the evidence on appeal or resolve conflicts in trial testimony but rather “to examine the evidence in the light most favorable to the verdict and to determine whether any rational trier of fact could have found appellant guilty beyond a reasonable doubt.” Caldwell v. State, 263 Ga. 560, 562(1), 436 S.E.2d 488 (1993). Having reviewed the evidence presented at trial, we find it was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Browder did not act in self-defense, that no considerable provocation appeared from the evidence, and that his acts demonstrated such reckless disregard for human life that implied malice was established to support the conviction for murder. In summary, the evidence was sufficient to authorize a rational trier of fact to find Browder guilty of murder beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Having found the evidence sufficient to affirm the conviction for malice murder, the issue of whether the evidence was sufficient to convict of felony murder, pursuant to OCGA § 16–5–1(c), is now moot because the felony murder conviction was vacated by operation of law by virtue of the fact that Browder was convicted on the charge of malice murder. See Hoehn v. State, 293 Ga. 127, 130(3), 744 S.E.2d 46 (2013); Miller v. State, 289 Ga. 854, 861(9), 717 S.E.2d 179 (2011).

We find no merit in Browder's assertion that the State failed to present sufficient evidence that the gunshot was the cause of death. The medical examiner who conducted the autopsy testified that the cause of death was the victim's gunshot wounds. The treating surgeon testified the injuries from the gunshot wound made it impossible for the victim ever to breathe on her own. He also testified that although the victim was never declared brain dead before life support systems were removed and that trace brain wave forms were present, the victim's brain activity was incompatible with “meaningful life.” Citing OCGA § 31–10–16(a) and Clay v. State, 256 Ga. 797(4), 353 S.E.2d 517 (1987), Browder asserts the evidence did not establish the victim was legally dead at the time life support systems were disconnected and thus the evidence was insufficient to establish the victim's gunshot injury to be the efficient, proximate cause of death. We disagree. Expert testimony established that the victim died as the result of an inability to breathe which was the result of injuries sustained from the gunshot wound. Because the injuries were such that the victim could not live once life support systems were removed, the evidence was sufficient to authorize the jury to find the victim died as a result of the injuries inflicted by Browder. See Phillips v. State, 280 Ga. 728, 729(1), 632 S.E.2d 131 (2006) (evidence sufficient to support conviction for murder where the victim's brain injuries were such that he could not live when taken off life support). See also Hicks v. State, 285 Ga. 386(1), 677 S.E.2d 111 (2009) (evidence sufficient to support conviction where the forensic pathologist determined the victim's death after life support equipment was removed to be the result of complications from a physical assault).

2. Browder asserts the trial court erred in refusing to give a jury instruction on involuntary manslaughter as a lesser included offense. We agree with the trial court that the evidence did not support such a charge. “A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.” OCGA § 16–5–3(a). At the charge conference, Browder's counsel argued a jury could conclude that Browder caused the victim's death by engaging in reckless conduct, an unlawful act that is not a felony, and thus could convict for involuntary manslaughter. But Browder...