Brown v. State

• Decision Date: 08 May 2019
• Docket Number: A19A0197
• Citation: 350 Ga.App. 104,828 S.E.2d 110
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

350 Ga.App. 104

828 S.E.2d 110

BROWN

v.The STATE.

A19A0197

Court of Appeals of Georgia.

May 8, 2019

Clifford Louis Kurlander, for Appellant.

Joshua Bradley Smith, Henry Wayne Syms Jr., for Appellee.

Brown, Judge.

A jury convicted Janay Marques Brown of armed robbery, two counts of aggravated assault, two counts of possession of a firearm during the commission of a crime, and criminal attempt to commit armed robbery.¹ She appeals the denial of her amended motion for new trial, challenging the sufficiency of the evidence to support her convictions and arguing that the trial court (1) erred in denying her motion to sever her trial from that of a co-defendant; (2) erred in admitting other act evidence; and (3) erred in its instruction to the jury on other act evidence. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, we neither weigh the evidence nor decide witness credibility, but determine only whether the evidence is sufficient to sustain the conviction. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We set out the evidence relevant to this appeal in an unpublished opinion in which we affirmed the conviction of Brown’s co-defendant Mario Mack as follows:

So viewed, the evidence shows that on June 7, 2011, the two victims, Omar Grissett and Kenneth Harris, went to an apartment complex in Augusta to meet Brian Dixon and some women. Grissett testified that he had $ 8,000 in cash on his person and that he gave Harris $ 4,000 in cash so they could impress the women and look like "big men." When they arrived at the complex, they met three women who were outside. The women, Tevia Smith, [appellant] Janay Brown, and Brittany Walton, told Grissett they were going to "hit a lick ... rob somebody." [Smith testified that Grissett had a lot of money and that both Grissett and Harris were "flashing cash."] Grissett testified that he gave Brown $ 100 so she would not have to rob anyone and that he and Harris then took Walton and Brown to the store to get beer and cigarettes. When they returned and entered Brown’s apartment, Grissett saw Dixon on the couch with Smith. According to Grissett, Harris was directly behind him as they entered the apartment, at which point "a dude came at him, pointed a gun, say you already know what it is, give it up." When Harris saw what was happening, he tried to back out the door, but one of the women grabbed him and tried to pull him back into the apartment. When Harris brushed her off, another gunman appeared and "put the gun to Harris, they get to tussling" and then shots were fired. In the meantime, the man pointing a gun at Grissett told him to lie on the ground. The two struggled, and the gunman pulled down Grissett’s pants and grabbed Grissett’s money. At some point, both Harris and Grissett were shot. The man who had been struggling with Harris shot Grissett four or five times. Grissett fled and flagged down a police officer, but was unable to identify either gunman.

An investigator with the Richmond County Sheriff’s Department responded to the scene and found Grissett, Harris, and ... Jerome Greene, all of whom had been shot. The men were taken to the hospital for treatment. Nine-millimeter shell casings were found at the crime scene, and a nine-millimeter live cartridge was recovered from Greene’s pants. Dixon was taken into custody with a nine-millimeter firearm in his possession. Dixon told the investigator that he had obtained the firearm for Greene because Mack and Greene had planned to rob Harris and Grissett and that he had recovered the firearm in some bushes after Greene discarded it following the robbery. Dixon told the investigator he knew Greene, but that he was "not familiar with" Mack. Dixon also told the investigator that Greene confronted Harris with the gun and demanded money, and that when Harris handed him a pack of cigarettes instead, Greene shot Harris in the leg. Dixon identified Mack from a photographic lineup as Greene’s accomplice during the robbery.

At trial, Smith testified that she saw two masked men in the kitchen of the apartment and that they were armed with what she believed to be either nine-millimeter or .380-caliber handguns. She heard but did not see the shootings, and, as she fled the apartment, she saw Grissett and Greene on the ground; Smith testified that the two masked men robbed Grissett and Harris and that after the robbery she saw that Grissett and Greene had been shot. In her statement to police after the robbery, which she recanted at trial, Smith stated that Dixon brought Mack and Greene into Brown’s apartment to rob Grissett and Harris when they returned from the store and that when the two victims entered the apartment, Mack and Greene were standing in the kitchen. [In her testimony during her sentencing hearing, which she also recanted at trial, Smith testified that she, Brown, Walton, Dixon, Greene, and Mack were involved in the robbery.]

...

Mack, Greene, Dixon, and all three women were indicted for crimes stemming from the incident.^[2] Smith and Dixon pled guilty, and Greene and Brown were tried jointly with Mack.

(Punctuation omitted.)

Mack v. State , 345 Ga. App. XXVI (May 11, 2018) (unpublished), certiorari denied, Case No. S18C1420 (decided January 7, 2019). Additional facts will be recited as necessary to consider Brown’s arguments.

1. In her first enumeration, Brown contends that the trial court erred in denying her motion to sever her trial from that of Greene, who was dressed in prison inmate attire. Brown’s co-defendant Mack asserted the identical argument in his appeal, which we rejected. We reject Brown’s argument for the same reasons as those stated in Mack , supra:

"It is well established that to compel a criminal defendant to wear distinctive prison garb at his trial is to deny him the presumption of innocence, a violation of his constitutional due process rights." (Citation omitted.) Robbins v. State , 177 Ga. App. 547, 340 S.E.2d 206 (1986). In this case, Greene appeared for the first day of trial wearing prison garb. Greene knew a week prior that his case was scheduled for trial, and he advised the trial court that he communicated with his family in that time, but that no one brought him other clothes to wear at trial. Mack [and Brown] moved for severance, arguing that [they were] prejudiced by "being involved with someone that’s dressed that way." The trial court denied [the] motion, stating, "in my experience, jurors are extremely intelligent and they’re able to separate those individuals that they find are, in fact, guilty of crimes and not be prejudiced by the way people are dressed." [The trial court also noted that Brown was dressed in civilian attire].

We find no reason to believe that Greene’s prison attire prejudiced [Brown]. On the contrary, it is more likely that [Brown]’s appearance in civilian clothes, alongside Greene dressed in prison garb, reinforced a presumption of [Brown]’s individual innocence. In this instance, we see no justification for finding that Greene’s attire inherently prejudiced [Brown]....

(Punctuation omitted.) Mack , 345 Ga. App. XXVI.

2. In her second enumeration of error, Brown contends that the trial court erred in admitting pursuant to OCGA § 24-4-404 (b) ("Rule 404 (b)") evidence that she had been planning a separate robbery the same day. She contends that the State violated the notice requirement of Rule 404 (b), and that the evidence was not intrinsic or relevant to all of the purposes for which it was admitted.

As noted previously, Brown’s co-indictee, Smith, pled guilty to all of the charges stemming from the incident. During trial, Smith testified that she lied when she told investigating officers that Dixon had set up the robbery, and testified that she had no idea who was involved in the robbery, and that she did not know that the robbery was going to occur.³ Smith testified, however, that she, Brown, and co-indictee Walton were supposed to commit another robbery in South Carolina earlier on the same day of the incident at issue in this case, but that it never happened: "[Brown] knew of two people, two males. ... She knew that they had a certain amount of money. She wanted to rob them. She told me about it. ... [I]t never took place." Smith testified that "Brian, Janay and Brittany" were involved in the planning process of the South Carolina robbery, and that "Janay Brown, Brittany, Brian, Jerome and Mario" were going to be involved in the South Carolina robbery.

(a) Brown contends the trial court erred in admitting this other act evidence because it was not intrinsic and not relevant "to proving the added purposes of ‘participation in the conspiracy,’ knowledge, opportunity, or identity." At the hearing, the State argued that the other act evidence "shows [Brown’s] intent and shows her motive and it does go to the overall crime spree where she conspired with the other five co-defendants to rob two victims." The trial court admitted the evidence under Rule 404 (b) "to show motive, preparation and planning and intent," but that it is "not an intrinsic act showing a continuous course of conduct." At two instances before the other act evidence was introduced at trial, the trial court gave limiting instructions that the jury could consider the evidence to show knowledge or intent, participation and plan, or preparation and motive.

Because Brown’s trial was held after January 1, 2013, Georgia’s new Evidence Code governs this issue. Bradshaw v. State , 296 Ga. 650, 655 (3), 769 S.E.2d 892 (2015). We review decisions to admit evidence for a clear abuse of discretion. Reeves v. State , 294 Ga. 673, 676 (2), 755 S.E.2d 695 (2014). Rule 404 (b), which tracks Federal Rule of Evidence 404 (b),⁴ governs the admissibility of evidence of other crimes or wrongs and provides:

Evidence of other

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