Brown v. State
| Citation | 250 Ga. 862,302 S.E.2d 347 |
| Decision Date | 25 April 1983 |
| Docket Number | No. 39534,39534 |
| Parties | BROWN et al. v. The STATE. |
| Court | Supreme Court of Georgia |
Thomas J. Phillips, Jr., Milton F. Gardner, Sr., Gardner & Gardner, Milledgeville, for Fred Berry Brown, Jr., et al.
Joseph H. Briley, Dist. Atty., Gray, Michael J. Bowers, Atty. Gen., Virginia H. Jeffries, Staff Asst. Atty. Gen., for the State.
Fred (Freddie) and Edward (Eddie) Brown, two brothers age seventeen and sixteen respectively, were convicted of the murder of Michael Thigpen and sentenced to life imprisonment. Freddie was also sentenced to ten years for aggravated assault, to run concurrently with the life sentence.
Freddie and Eddie, along with a younger brother and a friend, Chris Byrd, attended a high school graduation party on Lake Sinclair. The party was given by the victim at his family's cabin and was attended primarily by young people from a Hancock County high school which has been described as a rival of the school attended by the Browns. Although there is contradictory evidence as to whether the Browns "crashed" the party or attended as invited guests, there is evidence that they were welcomed and began to participate in the activities once they arrived at the Thigpen cabin. Sometime later, perhaps as much as an hour and a half, they joined some others on a dock and got into a boat. Freddie stepped on someone's foot, and when his apology was insufficient, a fight broke out, and he and Eddie were beaten up. They fled in their car, and Chris Byrd quickly left in his truck. There was testimony that as they were leaving, some of the other boys were kicking and pounding on the Brown car and smashed the windshield of the Byrd truck.
The Browns headed back toward Milledgeville, making several stops before reaching home. They stopped at William Garrett's Jiffy Mart. Garrett testified that Freddie talked of returning to the party. At the Jiffy Mart they encountered another friend, who took them to his home. They cleaned up their wounds and were given something to eat. After several more stops they arrived home between 11:30 p.m. and 11:45 p.m.
According to the testimony of both boys, they realized at some point that Eddie's expensive boots were missing and decided to return for them. They took along a .12 gauge shotgun and several shells. They testified that they feared a repetition of the earlier fight and took the shotgun for protection, planning to fire it in the air if necessary. It was shown at trial that the boots were not at the dock but were in the back of Chris Byrd's truck.
On the road back to the Thigpen cabin, the boys encountered a vehicle driven by Wayne McGee coming from the direction of the cabin. They stopped McGee, who testified that Eddie pointed the shotgun at him while Freddie said "shoot him." Eddie and Freddie testified that the shotgun was not pointed at McGee but was leaning out the window. McGee was asked who was still left at the party. He then drove away and the Browns drove on to the cabin. This incident formed the basis of the aggravated assault charge against Freddie. Eddie was not tried for aggravated assault.
Before they reached the cabin Freddie put a shell in the shotgun. They testified that they intended to park and sneak down to the dock to look for the boots. Instead, words were exchanged with the boys in the cabin and Michael Thigpen came out. Freddie testified that by this time he had the gun in his hands and one foot out of the car. He alleged that Thigpen came at him in the dark and that in the ensuing struggle, as he tried to get himself and the gun back in the car, the gun went off. A witness who was a few feet behind Thigpen testified that he was shot from the car at a distance of approximately five yards.
The Browns left the scene immediately and went home, where they were soon picked up by a sheriff's deputy. They were taken to the sheriff's office without their parents' knowledge, and questioned. They gave statements which were ruled inadmissible following a Jackson v. Denno hearing. They bring this appeal from their conviction for murder and Freddie's conviction for aggravated assault.
We reverse the conviction for murder of Fred Berry Brown and grant a new trial as to this defendant. We reverse the conviction of Edward Thomas Brown for murder because there was insufficient evidence to prove that he was a party to the crime of murder. We affirm the conviction of Freddie Brown as to the aggravated assault on Wayne McGee, finding that there was sufficient evidence to satisfy the requirement of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Appellants have raised twenty enumerations of error. While not abandoning the other enumerations, counsel emphasized four at the oral argument on the appeal. These were (1) error in not granting a defense motion for mistrial following the district attorney's reference during his opening remarks to statements given by defendants which were later ruled inadmissible; (2) error in the admission of a photograph taken after autopsy; (3) error in denying a motion for directed verdict on the basis that the state failed to prove venue beyond a reasonable doubt; (4) error in permitting the state to attempt to impeach its own witness, Chris Byrd.
1. In addition to the four trial errors specifically argued, counsel for appellants contend that as to Eddie Brown the evidence does not show the requisite intent to sustain a conviction. We agree. Under the test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), a rational trier of fact could not find evidence of every element of the crime of murder beyond a reasonable doubt. Presence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20 (Code Ann. § 26-801). O'Neal v. State, 239 Ga. 532, 238 S.E.2d 73 (1977); Parker v. State, 155 Ga.App. 617, 271 S.E.2d 871 (1980). Even approval of the act, not amounting to encouragement, will not suffice. Parker v. State, supra. This is so because under OCGA § 24-4-6 (Code Ann. § 38-109) "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."
There is no direct evidence of any kind that Eddie intended the outcome which occurred. The mere fact that he participated in the act of bringing the shotgun and shells along or that he may have pointed the shotgun at Wayne McGee on the road does not constructively supply any intent to shoot Michael Thigpen. There is no direct evidence of his participation and no circumstantial evidence aside from his presence. In fact, his brother testified that as they stopped the car on the road at the Thigpen driveway and heard someone inside say, "The Baldwin County boys are back," Eddie said, "Come on, Freddie, we've got to go."
Aside from his mere presence, there was no evidence of Eddie's participation in the shooting. Therefore, the court erred in not granting a directed verdict of acquittal as to Eddie on the basis that the evidence was not sufficient for conviction under Jackson v. Virginia, supra.
2. We find no error in the court's denying the motion for a mistrial because of the district attorney's reference to "statements" made by defendants. Although it was improper for the district attorney to refer to statements made by the defendants prior to a Jackson v. Denno hearing to determine their admissibility, there was no harm to the defendants because the reference was to "statements," a neutral term, rather than "confessions." The district attorney did not go into the content of the statements but merely referred in passing to them. The cases relied upon by appellants, Watson v. State, 137 Ga.App. 530, 224 S.E.2d...
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