Brown v. State

• Court: Georgia Court of Appeals
• Writing for the Court: POPE, Presiding.
• Citation: Brown v. State, 246 Ga. App. 60, 539 S.E.2d 545 (Ga. App. 2000)
• Decision Date: 19 September 2000
• Docket Number: No. A00A1184.,A00A1184.
• Parties: BROWN v. The STATE.

539 S.E.2d 545

246 Ga. App. 60

BROWN v. The STATE.

No. A00A1184.

Court of Appeals of Georgia.

September 19, 2000.

Thomas J. Killeen, Athens, for appellant.

Harry N. Gordon, District Attorney, Michael E. Eberhardt, Assistant District Attorney, for appellee.

POPE, Presiding Judge.

Johnny Mack Brown was tried for aggravated assault with intent to murder, hijacking a motor vehicle, two counts of armed robbery and two counts of aggravated assault. He was convicted of armed robbery, two counts of aggravated assault, aggravated battery, hijacking a motor vehicle and the lesser offense of theft by taking; he was acquitted of one count of aggravated assault. He appeals, raising four enumerations of error. For the following reasons, we vacate one conviction of aggravated assault; we affirm the remainder of the judgment.

Evidence at trial showed that around 11:00 a.m. on December 22, 1997, Brown shot Ricky Eberhardt, who was a courier guard, in the parking lot of a large shopping center. Brown came up behind Eberhardt as he was loading a money deposit into the armored truck. Without saying a word, Brown shot Eberhardt three times with a .45 caliber semi-automatic handgun. Two shots hit Eberhardt in the back of his body, while the third struck him in the front. Eberhardt fell to the ground next to the armored vehicle, and Brown grabbed the moneybag, which contained more than $146,000, and ran across the busy parking lot. James Pearce, Eberhardt's co-worker, who was inside the armored vehicle, came out of it when he heard the shots. He followed Brown across the parking lot. Officer Bobby Tribble, an off-duty instructor at the Northeast Georgia Police Academy, was inside the Wal-Mart store and also heard the gunshots. He went outside and saw Brown holding a large canvas bag in one hand and a weapon in the other.

Both Tribble and Pearce followed Brown towards the exit of the shopping center. In front of the Upton's store, Brown confronted Raymond Davenport, who was waiting in his car for his wife. Brown pointed his weapon at Davenport and stated several times that he wanted the car.

At about this time, Pearce (the co-worker of wounded Eberhardt) saw a police car and fired his revolver in the air to alert the police to Brown's location. Brown then turned and pointed his gun in Pearce and Tribble's direction. Brown opened fire on the two, and, as Tribble ducked behind the tire of a vehicle, Brown impaled the tire with a shot. Tribble then pulled his gun and returned fire. He fired three shots, grazing Brown once and striking Davenport's vehicle twice.

Although Davenport was in his vehicle when the shooting began, he jumped out of his car when he heard the shots. Brown then jumped into Davenport's car with his gun and the money and headed to the exit. Brown left behind his car which was parked back-end first in the parking lot of an adjoining restaurant. Brown then drove across the highway to Georgia Square Mall where he was apprehended in the common area. A police officer told Brown to stop several times at which point Brown raised his hands and eventually, as instructed, lay down on the ground. When apprehended, Brown was carrying a pistol and plastic pouches containing the stolen money.

After his arrest and after being read his rights, Brown confessed to all of the acts; he stated that he committed the crimes because he was trying to be killed by a police officer. He gave a statement to the police in which he explained that he had wanted to kill himself the night before, but had been unable to do so. Accordingly, Brown had gone to the mall with the specific purpose of doing something that would prompt a law enforcement officer to shoot him. He stated that he assumed that Eberhardt was wearing a bulletproof vest and he tried to shoot him where he would be protected by the vest.

In September 1998, about nine months after committing the crimes outlined above, Brown escaped from jail. Brown was picked up by the police in November 1998, in Florida.

At trial, Brown presented an insanity defense. In this regard, he presented the testimony of a psychologist who testified that Brown was suffering from severe recurrent depression and a borderline personality. Nevertheless, this expert also testified that, in his opinion, Brown could distinguish right from wrong at the time of the crimes and that he was not acting under a delusional compulsion. Furthermore, testimony from the two mental health experts called by the State and by the court was also that Brown could distinguish right from wrong at the time of the crimes and that he was not acting under a delusional compulsion which, if true would have justified his acts.

1. Brown argues that the court erred by failing to merge the conviction and sentence for aggravated assault with intent to murder with the aggravated battery.¹ Citing Lowe v. State, 267 Ga. 410, 411(1), 478 S.E.2d 762 (1996), Brown contends that the act which formed the basis for these crimes was the same: the shooting of Eberhardt. He argues that he committed one continuous act and that therefore there was a factual merger.

The State, citing Grace v. State, 262 Ga. 746, 747-748(2), 425 S.E.2d 865 (1993), argues that the crimes do not merge. The State argues that the shots which formed the basis of the aggravated battery were those to Eberhardt's elbow and to his left back and spine; these shots caused Eberhardt to lose use of his arm and some use of his legs. The State contends that the assault with intent to murder was based on the third shot which Brown fired which struck Eberhardt's bulletproof vest, resulting in a welt and a mark.

Evidence at trial was that Brown shot Eberhardt three times in quick succession. With regard to the gunshots, Eberhardt testified: "[t]o me the duration was pretty much like bam, bam, bam." Eberhardt dropped his moneybag and fell to the ground. Eberhardt's co-worker stated: "I heard something like a fire pop, and I seen Rick turn around and looking. And I'm like Rick, you okay. You okay. And then I heard rapid fire pop, pop like that. Then I heard him saying Oh, Lord, have mercy." In Brown's statement in which he confessed the crime, he stated that he did not know how many times he shot Eberhardt.

The issue of whether the firing of multiple gunshots may serve as the basis for separate charges has been addressed several times. In Lowe v. State, 267 Ga. 410, 478 S.E.2d 762, the defendant was charged with various crimes including malice murder and aggravated assault. The evidence showed that Lowe fired one shot which struck the victim in the arm and caused him to fall. Lowe then walked over to the victim and stood above him while he pled for his life. He then fired a second shot which struck the victim in the abdomen and killed him. Id. at 411(1), 478 S.E.2d 762.

Lowe argued that the aggravated assault merged into malice murder as a matter of fact. Our Supreme Court rejected his argument, concluding that the separate convictions and sentences were authorized because Lowe committed the aggravated assault independently of the act which caused the victim's death. Because the aggravated assault was proven by evidence that was not used to prove the murder itself and because the aggravated assault was completed before the murder was committed, the court concluded that the crimes did not merge. Lowe v. State, 267 Ga. at 412(1)(b), 478 S.E.2d 762. "If, however, the murder itself resulted from the single act of firing a series of shots in quick succession at the victim, no aggravated assault independent of the murder would be shown." (Citations and punctuation omitted.) Id.

Similarly, in Grace v. State, 262 Ga. at 747-748(2), 425 S.E.2d 865, our Supreme Court concluded that the evidence established that the defendant had committed both an aggravated assault and an aggravated battery of Warren Jackson during an armed robbery. In Grace, the evidence showed that Jackson, the cash register operator, was shot between his eyes after ringing up a sale. The force of the gunshot knocked Jackson to the floor where he heard his co-worker plead for his life and then heard a second gunshot. Jackson was then shot a second time. Id. The State argued that the aggravated battery was established by evidence of the first shot, which blinded Jackson in one eye, and that the second shot constituted an aggravated assault. The court agreed, concluding that "[t]he evidence used to prove the commission of the aggravated assault was not used at all in proving the commission of the aggravated battery." Id. at 748(2), 425 S.E.2d 865.

On the other hand, in Montes v. State, 262 Ga. 473, 474-475(1), 421 S.E.2d 710 (1992), our Supreme Court concluded that the evidence failed to show that the defendant had perpetrated both an aggravated assault and a malice murder of the deceased victim. In Montes, the evidence showed that using a semi-automatic weapon, the defendant had fired a number of shots that had struck several victims. One of the victims had been struck by three bullets; defendant was convicted of malice murder for the infliction of the fatal wound, and for aggravated assault for the infliction of the two non-fatal wounds. Id. at 474, n. 3, 421 S.E.2d 710.

Applying the "actual evidence" test of the substantive double jeopardy provisions, OCGA §§ 16-1-6 and 16-1-7(a), the Montes court concluded that the evidence used to prove the aggravated assault—that the defendant fired a deadly weapon and wounded the deceased victim—was also used to prove that defendant had committed malice murder. Accordingly, the court set aside the conviction and sentence for the aggravated assault. In doing so, the court stated: "[w]e take this opportunity to disapprove the language in Pryor v. State, 238 Ga. 698(1), 234 S.E.2d 918 (1977), that each of a series of shots fired in quick succession constitutes a `renewed assault.'" Id. at 474-475(1), 234 S.E.2d 918.

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