Brown v. State

• Citation: 246 Ga. App. 517,541 S.E.2d 112
• Decision Date: 24 October 2000
• Docket Number: No. A00A1822.,A00A1822.
• Parties: BROWN v. The STATE.
• Court: United States Court of Appeals (Georgia)

541 S.E.2d 112

246 Ga. App. 517

BROWN v. The STATE.

No. A00A1822.

Court of Appeals of Georgia.

October 24, 2000.

Ricky C. Brown, pro se.

Keith C. Martin, Solicitor, Evelyn P. Sandefur, Assistant Solicitor, for appellee. MIKELL, Judge.

A jury found Ricky Razino Brown guilty of two counts of disorderly conduct. Brown appeals his conviction, challenging the sufficiency of the evidence. Brown also contends that the trial court erred by: (1) proceeding with a jury trial when it had no jurisdiction over the statute he allegedly violated; (2) proceeding upon an accusation filed by the solicitor without requiring a warrant; (3) failing to invoke the rule of sequestration against a surprise witness; (4) failing to exclude the testimony and statement of a surprise witness; (5) admitting evidence of a prior conviction; (6) admitting a document that had not been authenticated; (7) making a prejudicial statement; (8) limiting his closing argument; (9) failing to charge the jury on justification, intent, and defense of persons; and (10) denying Brown a presentencing hearing and the opportunity to poll the jury. Having determined that the evidence was sufficient to support the verdict and that no reversible error occurred, we affirm.

The standard of review applied in determining the sufficiency of the evidence is that of Jackson v. Virginia¹ whether any rational trier of fact could have found guilt beyond a reasonable doubt. This Court has held, "[o]n appeal from a criminal conviction, the evidence must be construed in the light most favorable to [support] the verdict, and an appellant no longer enjoys [the] presumption of innocence."²

Viewed in the light most favorable to the verdict, the evidence shows that on May 5, 1999, at approximately 6:00 p.m., Luther and Tim Neace, employees of Tara Wrecker, went to Lake Harbin Apartments to remove 13 illegally parked cars. The apartment complex had contacted Tara Wrecker to provide this service. Courtesy Officer Danny Avery placed orange stickers on the windshields of all of the cars designated for towing.

In preparation to tow the first car, Luther Neace lowered the bed of his truck and loosened his chains to connect the car. Defendant Brown approached Luther Neace and asked what he was doing. Luther Neace testified that upon learning that the car was being removed, Brown became angry and told him, "That's my so-and-so car." In response, Luther Neace told Brown to contact the complex if he had a dispute. Neace testified that Brown pushed him and said, "I'll kill you. If I ever catch you at a gas station or a food mart, I'll beat you up."

Tim Neace, Luther Neace's nephew and co-worker, testified that he saw Brown push his uncle and that Brown also said he would kill Tim Neace as well. The Neaces testified that they feared that Brown might hurt them. Brown's wife and an employee at Tara Wrecker's home office both called the police. Officer Hanner, the police officer who responded to the 911 call, testified that the scene was volatile when he arrived. Brown denied that he threatened to kill the Neaces, but admitted that he threatened to "kick their ass." As a result, Officer Hanner placed Brown under arrest. Before leaving the scene, however, Officer Hanner released Brown and gave him a copy of the charges. Brown's family members testified that he did not verbally threaten or touch anyone.

1. Brown claims the evidence was insufficient to sustain the convictions. We disagree. "An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses."³ Additionally, this court will not second-guess what evidence the jury chose to believe.⁴ As long as there is some competent evidence on each element necessary to prove the state's case, the jury's verdict will be upheld.⁵

In relevant part, OCGA § 16-11-39(a)(1) provides: "A person commits the offense of disorderly conduct when such person... acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person's life, limb, or health." Brown admitted that he threatened the Neaces. The Neaces testified that they were in fear for their safety. Although Brown's family testified that he did not threaten the Neaces, conflicts in the witnesses' testimony are properly resolved by the jury, not this court.⁶ Accordingly, we find that there was sufficient evidence to convict Brown.

2. In several enumerations of error, Brown argues that the state court lacked jurisdiction to preside over his trial since he was charged with violating a county ordinance. Brown's argument is without merit. State courts have jurisdiction over the trials of misdemeanors,⁷ and the offense of disorderly conduct is a misdemeanor.⁸ Though the accusation upon which Brown was tried does not specifically cite OCGA § 16-11-39(a)(1), the accusation mirrors the language of the statute. Brown was not tried for the violation of a county ordinance as he argues in his brief. Since the error enumerated on appeal did not occur, Brown's arguments with respect to this issue are without merit.⁹ Furthermore, as Brown was accused of violating a state statute, any arguments regarding the county ordinance are inapposite, including challenges to the constitutionality of the ordinance.

Brown also argues that the state court had no jurisdiction because he did not file a demand for a jury trial. This argument, too, must fail for the reason stated above, i.e., the alleged error did not occur.¹⁰ Brown's demand for a jury trial is contained in the record.

3. Brown contends that the trial court erred by proceeding with the trial on an accusation, instead of a warrant, which would have required a sworn affidavit. This contention must fail. OCGA § 17-7-71(a) provides that

[i]n all misdemeanor cases ... the defendant may be tried upon an accusation framed and signed by the prosecuting attorney of the court. The accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and where the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.¹¹

In the instant case, no affidavit was required because both exceptions were met. Brown was arrested for the charged offenses at the scene. Also, the accusation was not intended or used as the basis for the issuance of a warrant for his arrest. Furthermore, "Georgia law allows misdemeanor charges to be brought by either accusation or indictment."¹²

Brown also argues that his arrest was unconstitutional because it was based upon an offense that did not occur in the presence of the officer. An arrest for a crime may be made by a law enforcement officer without a warrant if the offense is committed in such officer's presence or within such officer's immediate knowledge.¹³ In order to determine exactly what constitutes "immediate knowledge," we must look to "the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest is made."¹⁴ In this case, Brown was arrested immediately after he admitted to the police officer that he threatened the Neaces. Therefore, even though the initial threat was made outside of the officer's presence, it was within his immediate knowledge and justified the arrest. Accordingly, this argument is without merit.

4. Brown contends that the trial court erred by admitting the testimony of Officer Avery because he was not identified on the state's witness list. Brown was charged with a misdemeanor, and the applicable statutory provisions for discovery differ somewhat from those applicable to felony prosecutions. The elective, optional mutual discovery provisions of OCGA § 17-16-1 et seq. are not available. The statute applicable to misdemeanor prosecutions expressly states that the list of witnesses shall be furnished "on demand." Pursuant to OCGA § 17-16-21,

[p]rior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.

Since the language of this statute, pertaining now only to misdemeanors, is identical to that contained in now repealed OCGA § 17-7-110, the case law construing OCGA § 17-7-110 applies even though former § 17-7-110 applied to felonies and misdemeanors.¹⁵ In Tyus v. State,¹⁶ this Court held, "[w]here the record does not show that any demand for a list of witnesses was filed prior to arraignment as provided by OCGA § 17-7-110, the trial court does not err in permitting an unlisted witness to testify over objection."¹⁷

Brown served his demand for discovery upon the solicitor's office. However, he did not file his demand with the clerk's office; thus, it was not a part of the record before the trial judge. The trial judge examined the clerk's record before overruling Brown's objection to Avery's testifying. Accordingly, under Tyus, the trial court was permitted to allow Avery's testimony.

5. Brown argues that the rule of sequestration should have been applied to Officer Avery. The evidence shows that the state invoked the rule before opening arguments. During Officer Hanner's testimony, the solicitor informed the court that Officer Avery was "here to testify." At that moment, Brown did not object to a violation of the sequestration rule. Thus, there is no...