Brown v. State

• Decision Date: 25 October 2004
• Docket Number: No. S04A0971.,S04A0971.
• Citation: Brown v. State, 278 Ga. 544, 604 S.E.2d 503 (Ga. 2004)
• Parties: BROWN v. The STATE.
• Court: Georgia Supreme Court

604 S.E.2d 503

278 Ga. 544

BROWN v. The STATE.

No. S04A0971.

Supreme Court of Georgia.

October 25, 2004.

John W. Kraus, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Alvera A Wheeler, Assistant District Attorneys, Thurbert E. Baker, Attorney General Chad E. Jacobs, Assistant Attorney General, for appellee.

HINES, Justice.

Antonio Lamar Brown appeals his convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a felony in connection with the fatal shooting of James Smith. Brown complains of discovery violations by the State, the trial court's failure to conduct an in camera inspection of the State's file, the restriction of cross-examination of a witness, certain comments by the State during closing argument, and portions of the trial court's instruction to the jury. Finding the complaints to be without merit, we affirm. ¹

The evidence construed in favor of the verdicts showed that James Smith, Beticto Norris, and Anthony Allen were sharing a duplex used as a rooming house in Fulton County. People often came to the duplex to buy or use drugs and to engage in sexual activity. On November 26, 1996, Smith got home from work around 6:30 p.m. and insisted that Norris leave. Norris left, walked down the street, and saw a red Chevrolet truck drive twice past the rooming house. Allen saw Sertonius Isaac Harris and Tridarryious Mondra Carter pull into the driveway in a red truck. They asked for "Jake," the local drug dealer, and Allen told them Jake was not there. Twice more, an unidentified man came to the door, asked for Jake, and Allen told each man that Jake was not there. Later, Carter came inside, asked for Jake, and put a gun to Allen's head. Allen saw Brown, who was armed, and three more men enter. Carter and Allen argued, and Smith opened his door to ask what was happening. The men pushed Smith back into his room. Allen heard two shots. Norris returned and saw Brown, Harris, Terrance Javon Curry, and Carter, run out of the house, jump into the red truck, and leave.

Smith stated that he had been shot and that he had taken the weapon from Brown, the man who shot him; Smith fired the weapon at the fleeing men. Smith later died from his gunshot wounds. He had been shot in the left side of his front lower chest, resulting in substantial bleeding and loss of blood pressure.

1. The evidence was sufficient to enable a rational trier of fact to find Brown guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Brown complains that the State repeatedly failed to provide timely discovery, alleging that it did not turn over photos, did not list witnesses, and did not provide copies of warrants, documents, and Georgia Crime Information Center ("GCIC") reports; he requests reversal of his convictions because of this alleged "pattern of discovery abuses." However, the complaints are unavailing.

In regard to all but one of the discovery matters alluded to by Brown, he has completely failed to allege, much less show, how he was prejudiced. Knight v. State, 271 Ga. 557, 559(3), 521 S.E.2d 819 (1999).² Moreover, examination of the record discloses that the trial court took curative action with regard to several of the discovery complaints raised by Brown. A trial court is vested with discretion in formulating remedies for discovery violations, and absent an abuse of that discretion, the trial court's action will stand. Mullins v. State, 267 Ga.App. 393, 398(3), 599 S.E.2d 340 (2004).

3. Brown next asserts that the trial court did not conduct an in camera review of the State's entire file as it agreed to do. A trial court is required to conduct an in camera inspection of the State's file upon the request of a defendant who is dissatisfied with the State's response to the defendant's request for exculpatory material; but, the trial court's failure or refusal to conduct such an inspection is not a cause for reversal of the defendant's convictions because a post-trial examination of the State's file may be made. McNeal v. State, 263 Ga. 397, 398(4), 435 S.E.2d 47 (1993). However, a post-trial review is not warranted in this case.

First, at the hearing on the motion for new trial, as amended, the trial court acknowledged that the State's entire file had not been made a part of the record for appeal, but related that the court had conducted an in camera inspection of the detective's files for exculpatory material in response to the request of Brown's trial counsel. Furthermore, even though a trial court is required to make an in camera inspection in response to a proper request, a defendant still "bears the burden of showing prejudice to his case resulting from the prosecution's refusal to turn over documents or evidence." Tribble v. State, 248 Ga. 274, 275(1), 280 S.E.2d 352 (1981). Brown fails to even allege any prejudice from the limited in camera inspection.

4. Citing, inter alia, State v. Vogleson, 275 Ga. 637, 571 S.E.2d 752 (2002), and Hines v. State, 249 Ga. 257, 260(2), 290 S.E.2d 911 (1982), Brown contends that the trial court erred in refusing to allow him to cross-examine victim Anthony Allen³ about a letter Allen wrote to another trial judge, which Brown characterizes as a "request for leniency in the witnesses pending cases."⁴ The trial court ruled that it was not inclined to allow Brown to explore the letter.⁵ There is no basis for reversal on the ground urged as the trial court was correct in its assessment of the letter's content. There is simply no showing of any deal between the victim and the State or any actual or perceived benefit to the victim for his testimony. Compare State v. Vogleson, supra; Hines v. State, supra.

5. Brown contends that during closing argument, the State improperly commented on his right to remain silent. But the contention is wholly unavailing.

First, Brown fails to cite to the comment at issue in closing argument. The State responds that Brown may be referring to the prosecutor's assertion that "not one witness came in here to dispute anything that the State's witnesses said." However, even if that is the case, it does not aid Brown because he failed to timely object to the comment. Mullins v. Thompson, 274 Ga. 366, 367(2), 553 S.E.2d 154 (2001); Butler v. State, 273 Ga. 380, 384(8), 541 S.E.2d 653 (2001). See also Boyd v. State, 275 Ga. 237, 238(3), 564 S.E.2d 185 (2002). What is more, the prosecutor was commenting on Brown's failure to present evidence, not his right to remain silent. Jordan v. State, 239 Ga. 526, 527(3), 238 S.E.2d 69 (1977).

6. Brown next contends that during closing argument, the State improperly injected his character into the trial by referring to him as a criminal, a thug, and a drug dealer. But again, Brown fails to cite the subject references in the closing argument. Moreover, Brown failed at trial to timely object to the statements; he waited to object until he moved for a mistrial, after the closing argument had ended. Boyd v. State, supra at 238(3), 564 S.E.2d 185; Mullins v. Thompson, supra at 367(2), 553 S.E.2d 154; Butler v. State, supra at 384(8), 541 S.E.2d 653.

7. Brown maintains that during closing argument the State improperly injected his character into the trial by alleging incorrectly that Brown was charged with possession of a firearm by a convicted felon. But the prosecutor acknowledged the misstatement and the trial court gave curative instructions to the jury.⁶ Brown did not object to the curative instructions when they were given or ask that any other action be taken. Instead, he waited until closing argument ended and then moved for a mistrial, urging the prosecutor's misstatement as one basis for the motion. But it was not error for the trial court to refuse to grant a mistrial on such ground.

When prejudicial matter is improperly presented to the jury, a mistrial is appropriate if it is essential to preserve the defendant's right to a fair trial. Scruggs v. State, 273 Ga. 752, 753(2), 545 S.E.2d 888 (2001). It is for the trial court to determine whether the granting of a mistrial is the only corrective measure or whether any prejudice can be corrected by withdrawing the testimony from the jury's consideration under proper instruction from the court. Id. at 754(2), 545 S.E.2d 888. Here, the trial court's curative instructions adequately preserved Brown's right to a fair trial; therefore, the trial court did not abuse its discretion in denying a mistrial. Id.

8. Brown also complains about the fact that in closing argument, the prosecutor misstated that the doctor said the victim was "shot from the front to the back." First, Brown does not allege or show any specific prejudice from the misstatement. Moreover, the prosecutor acknowledged the mistake and corrected it. Brown did not request any curative instruction or further action from the trial court; therefore, he cannot now object to the trial court's action or lack thereof. Thomas v. State, 268 Ga. 135, 136(3), 485 S.E.2d 783 (1997).

9. Brown further complains about the prosecutor's comment in closing argument that in assessing the defendant's guilt, the jury could consider the defendant's reactions to the testimony in court. Brown objected, but did not move for a mistrial. The trial court gave curative instructions, and Brown made no further objection. Thus, the issue is waived. Id. at 136(3), 485 S.E.2d 783. See also Ford v. State, 269 Ga. 139, 141(3), 498 S.E.2d 58 (1998).

10. The trial court charged the jury regarding inferring the intent to kill from the use of a deadly weapon. Subsequently, this Court held that the giving of such an instruction is error. Harris v. State, 273 Ga. 608, 610(2), 543 S.E.2d 716 (2001). However, this Court has repeatedly determined that a prohibited Harris charge is harmless when a defendant is acquitted of malice murder and...