Brower v. State
| Decision Date | 02 July 2009 |
| Docket Number | No. A09A0755.,A09A0755. |
| Citation | 298 Ga. App. 699,680 S.E.2d 859 |
| Parties | BROWER v. The STATE. |
| Court | Georgia Court of Appeals |
Robert L. Persse, for appellant.
Richard A. Mallard, Dist. Atty., Daphne H. Jarriel, Asst. Dist. Atty., for appellee.
Robbie Eugene Brower appeals his convictions of four counts of kidnapping, two counts of possession of a hoax device, two counts of terroristic threats, and one count of possession of a knife during the commission of a crime. He contends the trial court erred by refusing to charge the jury on the principles of the defense of justification and on the lesser included offense of false imprisonment. Brower also contends the State failed to prove an essential element of the crime of kidnapping, asportation. We disagree, and for the reasons stated below affirm Brower's convictions.
When this court reviews the sufficiency of the evidence, Dean v. State, 273 Ga. 806, 806-807(1), 546 S.E.2d 499 (2001). We review the evidence in the light most favorable to the verdict, giving deference to the jury's determination on the proper weight and credibility to be given. Id. at 807(1), 546 S.E.2d 499. It is the function of the jury to assess the credibility of the witnesses, to resolve any conflicting evidence, and to determine the facts, not an appellate court. Butler v. State, 273 Ga. 380, 382(1), 541 S.E.2d 653 (2001). If competent evidence exists, though contradicted, to support the fact necessary to prove the State's case, we will not reverse the jury's verdict. Childress v. State, 251 Ga.App. 873, 876(2), 554 S.E.2d 818 (2001).
Viewed in the light most favorable to the verdict, the evidence shows that Brower and his wife entered the law office of the lawyer who had represented him in a previous criminal case1 and who Brower claims was guilty of "gross misfeasance" in handling his case. They first encountered three female members of the office staff.
The receptionist was standing in the doorway of the legal assistant's office when she heard the office door open, but before she could turn to see who it was, someone grabbed her jacket, asked where the attorney was, and when she told him, pushed her to the very last office where the attorney was working. When they got to the office, the man had her sit in a chair inside the office door. At that point the man complained that the attorney had ruined his life and he had waited 11 years for revenge. The attorney offered to pay Brower, but Brower said no, that he wanted revenge. Brower ordered the attorney to go stand in a corner, and when the attorney kept turning around, Brower told Mrs. Brower to put duct tape over the attorney's mouth, and she also taped his hands.
The legal assistant heard someone tell the receptionist to go to the back, and then Mrs. Brower entered the legal assistant's office and told her to go to the back of the office. When she did not comply immediately, Mrs. Brower grabbed the legal assistant by the arm "real hard," and said, "You better go to the back before I push you." Mrs. Brower had a wrapped-up package with her that the legal assistant assumed was a gun. The legal assistant then started walking to the back of the office. After Mrs. Brower locked the door to the office, she pushed open the door to another office and "got" another of the office staff. Mrs. Brower "caught" this second woman by the arm and told her to come with Mrs. Brower; Mrs. Brower pulled and pushed her down the hall. When they arrived in the attorney's private office, they found the receptionist and the attorney with another man. The man told them to sit down. What appeared to be a bomb was on the attorney's desk.
Brower and his wife were dressed in what appeared to be camouflage jackets and pants. The attorney attempted to find out what Brower wanted and negotiate with him, but Brower made him stand in a corner facing the wall. Brower told the office staff that he did not want them, he would not hurt them, he wanted the attorney, and he would release them in about five minutes. The women did not feel free to leave and the legal assistant did not believe that Brower would not hurt her; she was held against her will and she did not go to the back office of her own volition.
After holding the women for ten to thirty minutes, depending upon the staff's estimates, Brower opened the back door of the office and, after allowing the women to get their purses, released the women. He told them before they were released that he had a bomb and he wanted the women to tell everyone that they were armed and dangerous and meant business. As they were leaving, Mrs. Brower asked Brower if he wanted to hold one of them hostage, but he said no. Two of the women went to a nearby office and called 911.
The attorney testified that he was in his office in the back of the building, when the receptionist and a man he later recognized as Brower, arrived. The man said something like, "Today is the day you're going to meet your maker." Brower and his wife ordered the attorney to get against the wall, raise his hands, and get on his knees. When the attorney tried to talk to them, Brower repeated, "Shut up, shut up." Then, while the attorney was on his knees facing the wall, Brower duct taped his hands behind his head.
Finally, after about 15 to 20 minutes, the attorney convinced Brower that his dispute was with him, not the women, and Brower let the women go. After this, Brower taped the attorney to a rolling chair and rolled him from the back to the front of the office. Brower, Mrs. Brower, and the attorney remained in the front office for most of the remainder of the day while the Browers watched the TV reports about the hostage situation, threatened revenge on the attorney, negotiated with the authorities, and send out demands.
Late in the afternoon, food was sent in and the Browers freed the attorney's hands so that he could eat. The attorney was able to free himself from the duct tape sufficiently to attempt an escape, but the Browers caught him. This time he was tied with extension cords and duct tape, and put on the floor in a dark office until at some point, he convinced Brower to talk to another local attorney. After conversations with the attorney and some of the official negotiators, the attorney convinced Brower to surrender. Finally, after many hours, they attempted to come out they were directed to get on their knees, and then Brower became upset and, threatening to break the attorney's neck, forced him back in the building and again locked him in a room.
The next morning, the attorney talked with Brower and Brower decided to attempt to surrender again. And, this time they were able to do so successfully.
Subsequently, Brower was indicted, tried, and convicted. After his motion for a new trial was denied, this appeal followed.
1. Because of matters received from the defense suggesting that Brower intended to rely upon the affirmative defense of justification, the State moved in limine for a hearing to consider the admissibility of evidence concerning the defense. Brower contended that his sole defense was that he was justified in acting as he did as a last resort to correct a grave injustice done by the attorney when he represented Brower in the criminal case ten years ago. Brower alleged he was sent to prison2 because of the attorney's "gross malfeasance." Thus, he asserted that he was entitled to cross-examine the attorney about his prior representation, offer testimony claiming justification and his reasons for it, offer documentary evidence supporting his claims, include justification in his opening statement and closing argument, and receive jury instructions on the principles of justification.
The trial court found that Brower was not entitled to assert the defense of justification, granted the State's motion, and subsequently refused to give Brower's requested charge on the affirmative defense of justification.
Brower contends the trial court erred by refusing to charge the jury on the affirmative defense of justification. He asserts that he was entitled to a charge on this defense because the broad legal principles of OCGA § 16-3-20(5) and (6) apply in this case. We disagree.
The issue here is whether the defense Brower wished to assert, i.e., that his actions in this incident were "justified for any other reason under the laws of this state," or stood on the "same footing of reason and justice as those enumerated" in OCGA § 16-3-20 and was authorized by the evidence. This is a question of law. Davis v. State, 269 Ga. 276, 279(3), 496 S.E.2d 699 (1998); Heath v. State, 240 Ga.App. 492, 493(2), 522 S.E.2d 761 (1999).
The defense of justification is an affirmative defense.
With a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent. All defenses which have been held to be statutory affirmative defenses meet this criteria; i.e., justification, self-defense or defense of others, rendering assistance to law enforcement officers, defense of habitation, defense of property other than habitation, entrapment, and coercion. See OCGA §§ 16-3-20 through 16-3-28. Each of these affirmative defenses requires that the defendant admit the crime before he can raise such defense. In fact, even under the more general provision of OCGA § 16-3-20(6), the defense of justification can only be claimed "in all other instances which stand upon the same footing of reason and justice as those enumerated in this article (Article 2 of Chapter 3 of Title 16)."
Hightower v. State, 224 Ga.App. 703, 705(2), 481 S.E.2d 867 (1997). The defense of justification can be claimed:
...
To continue reading
Request your trial
-
Harper v. State, A09A0878.
... ... However, the state cites no such identification in this case ... 40. 284 Ga. 696, 670 S.E.2d 73 (2008). Subsequent to Garza, the kidnapping statute was amended. Because the amendment applies to crimes committed on or after July 1, 2009, it is inapplicable to this case. See Brower v. State, 298 Ga.App. 699, 706(2), n. 3, 680 S.E.2d 859 (2009) ... 41. Garza, supra at 702(1), 670 S.E.2d 73 (citation omitted) ... 42. Id. (citation omitted) ... 43. See id. at 704(3), 670 S.E.2d 73 (grabbing victim in house, forcing victim into an adjoining bedroom, and forcing victim ... ...
-
McClure v. State
...App. 818, 823 (3), 695 S.E.2d 285 (2010) ; Martin v. State , 300 Ga. App. 419, 421 (4), 685 S.E.2d 399 (2009) ; Brower v. State , 298 Ga. App. 699, 702 (1), 680 S.E.2d 859 (2009) ; Burrowes v. State , 296 Ga. App. 629, 632 (3), 675 S.E.2d 518 (2009) ; Burnette v. State , 291 Ga. App. 504, 5......
-
Glenn v. State
...rather was an intentional act occurring some time after he was detained." Id. at 16-17, 827 S.E.2d 698, citing Brower v. State , 298 Ga. App. 699, 705 (1), 680 S.E.2d 859 (2009) ("A premise underlying all the defenses specified in OCGA § 16-3-20 is that the defendant faced circumstances cre......
-
Walker v. The State
... ... See ... Henderson v. State, 285 Ga. 240, 244-245(5), 675 S.E.2d 28 (2009); ... In the Interest of D.S., 302 Ga.App. at 874(1), 691 S.E.2d 897; ... Verdree v. State, 299 Ga.App. 673, 681-682(5)(a), 683 S.E.2d 632 (2009); ... Brower v. State, 298 Ga.App. 699, 707(2), 680 S.E.2d 859 (2009); ... Flores v. State, 298 Ga.App. 574, 576-577(1), 680 S.E.2d 609 (2009). 2 (c) Walker further asserts that two of his convictions for possession of a firearm during the commission of a crime must be merged with his other ... ...