Brown v. State

• Decision Date: 17 February 2012
• Docket Number: No. A11A2198.,A11A2198.
• Citation: 12 FCDR 671,723 S.E.2d 520,314 Ga.App. 198
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

12 FCDR 671

314 Ga.App. 198

723 S.E.2d 520

BROWN

v.The STATE.

No. A11A2198.

Court of Appeals of Georgia.

Feb. 17, 2012.

Jill Evelyn Roth, for appellant.

Larry Chisolm, Dist. Atty., Sarah L. Moorhead, Asst. Dist. Atty., for appellee.

BLACKWELL, Judge.

Prince Christopher Brown was tried by a Chatham County jury and convicted of armed robbery,¹ aggravated assault,² and possession of a firearm during the commission of a felony.³ Brown appeals, contending that the evidence is insufficient to sustain his convictions, that the court below erred when it failed to exclude certain evidence as hearsay, that the court erred when it failed to grant his motion for a mistrial, that there was prosecutorial misconduct at trial, that the court gave an erroneous charge on the burden of proof, and that the court should have merged his convictions for armed robbery and aggravated assault based on his use of a deadly weapon. We find no merit in these contentions, and we affirm the judgment of conviction.

1. We first consider whether the evidence is sufficient to sustain the convictions. To this end, we ask whether any rational jury could have found proof beyond a reasonable doubt of guilt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Howard v. State, 310 Ga.App. 659, 659(1), 714 S.E.2d 255 (2011). And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence. See Ferguson v. State, 307 Ga.App. 232, 233(1), 704 S.E.2d 470 (2010). So, if the record contains some competent evidence to prove beyond a reasonable doubt each element of the crimes of which the defendant was convicted, we must uphold the convictions, even if the evidence is controverted. Id.

Viewed in the light most favorable to the verdict, the evidence in this case shows that, on the afternoon of November 1, 2007, someone knocked on the door of the apartment in which the victim resided.⁴ The victim opened the door, and he saw Brown, whom he had seen before in the neighborhood. Brown said that someone wanted to speak with the victim, and when the victim asked who it was, Brown told the victim to wait and that Brown would bring that person to the apartment. Brown left, and then, a few minutes later, he returned to the apartment, entered it, and struck the victim in the face. Another man, Edward Shuman, followed Brown into the apartment.⁵ Brown pulled a gun and hit the victim about the head with the gun, striking the victim as many as forty times. According to the victim, the assault continued for ten or twenty minutes. At some point, Brown told the victim to “give it up,” and Brown took about $250 from the pocket of the victim. At another point, Shuman told Brown to kill the victim, and Brown continued to strike the victim about the head with the gun. The victim then struggled with both men for several more minutes. The victim eventually made his way to the front window of his apartment and broke it, and Brown and Shuman then left the apartment through the back door.

Brown argues that the evidence is insufficient because the testimony of the victim “was so internally inconsistent and contradicted by other evidence that a rational trier of fact could not have convicted [Brown] based upon it.” But as appellate judges, we do not undertake to pass upon the credibility of witnesses. As we have explained before, we do not have “the opportunity to hear the witnesses and observe their demeanor,” and for this reason, we leave questions of credibility to the jury, and we do not substitute our own assessments of credibility for those of the factfinder. Walton v. State, 217 Ga.App. 773, 774(1), 459 S.E.2d 184 (1995) (citation and punctuation omitted). The victim in this case testified about the assault and identified Brown as the man who committed it, and the competent testimony of even a single witness can be enough to sustain a conviction. See Smith v. State, 237 Ga.App. 852, 853(1), 521 S.E.2d 7 (1999).⁶ We view the evidence in the light most favorable to the verdict, and so viewed, a rational jury in this case could have accepted the testimony of the victim and, based upon that testimony, found proof beyond a reasonable doubt of Brown's guilt. The evidence adduced at trial is, therefore, sufficient to sustain the convictions.

2. We turn next to the contention that the trial court erred when it admitted evidence that, Brown says, is hearsay. At the time of the assault and robbery, the victim recognized Brown but apparently did not know his name. The victim subsequently learned from others that Brown was known as “Chris,” and the victim advised investigating officers to look for someone named “Chris.” At trial, the court permitted the victim to testify that he learned the name “Chris” from others, but it would not allow the victim to testify that others had told him that “Chris” was, in fact, the person who assaulted and robbed him, and so, the victim testified as follows:

Q: Were you given the name of Chris Brown?

A: Yes, sir.

Q: Okay. And who gave you the name of Chris Brown?

A: It's his step-daddy, supposed to have been the baby's momma or something.

Q: Do you know this person's name?

A: No, sir....

Q: All right. Does the name Ramone Coleman mean anything to you?

A: He came and told me the name, too, sir....

Q: Did you call the police and say I know a name for the people or one of the men that robbed me?

A: Yes, sir.

Q: And the name that you gave was Chris?

A: Yes, sir.

On appeal, Brown contends that this testimony is hearsay and should not have been admitted.

Even assuming that the testimony is hearsay,⁷ we conclude that its admission was harmless and, therefore, does not amount to reversible error. As our Supreme Court has explained, “[t]he erroneous admission of hearsay is harmless where ... legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict.” Felder v. State, 270 Ga. 641, 646(8), 514 S.E.2d 416 (1999) (citations omitted). If the testimony about which Brown complains is hearsay at all, it is hearsay that concerns only the question of identity, and there was plenty of other evidence on that question. At trial, the victim identified Brown as the person who beat him with a handgun, and another witness, a neighbor of the victim, identified Brown as someone who had visited the apartment of the victim on the day of the assault. The victim and his neighbor each also identified Brown in photographic lineups soon after the assault. In addition, the victim identified Shuman, both at trial and in a photographic lineup, as the person who followed Brown into his apartment, and Brown and Shuman apparently are brothers. In light of this other evidence of identity, the testimony about which Brown complains was merely cumulative, and we conclude that its admission had no effect upon the verdict and was, therefore, harmless. See, e.g., Johnson v. State, 289 Ga. 22, 27(4), 709 S.E.2d 217 (2011) (admission of hearsay identification evidence with respect to similar transaction was harmless where victim in similar transaction also identified defendant as his assailant); White v. State, 273 Ga. 787, 791(4), 546 S.E.2d 514 (2001) (erroneous admission of hearsay identification evidence was harmless where one victim identified defendant and co-defendant, another victim identified co-defendant, and defendant and co-defendant were brothers); Cooper v. State, 258 Ga.App. 825, 830–831(4), 575 S.E.2d 691 (2002) (erroneous admission of hearsay identification evidence was harmless where other evidence established identity).

3. We turn now to the question of a mistrial. During a break for lunch on the first day of trial, Brown's lawyer saw a witness for the State, a detective, speaking with some jurors near the courthouse elevator. After lunch, Brown moved for a mistrial, and the court inquired into the conversation among the detective and the jurors. The detective testified that, as he was leaving the courthouse for lunch, he encountered the jurors and some other individuals near the elevator. There was some casual conversation about what a long day it had been, and the detective said that he “pretty much [spent his] life sitting in court,” to which the jurors responded with a laugh. One juror asked for directions out of the courthouse, and the detective explained that the front door would be locked and that the jurors would have to exit through the rear door. The detective could not remember what else, if anything, was said, although he was sure that he did not discuss the case with the jurors and spoke with them only for about 30 seconds.

Four jurors also testified about their encounter with the detective. One recalled that they had a short conversation with the detective about how to exit the courthouse, but nothing was said about the case or about Brown. Another testified that the detective remarked that delays are “not unusual” in court and that the jurors “shouldn't be worried” about any such delays. Both of these jurors said that they could consider the case objectively, notwithstanding their brief conversation with the detective. Of the other two jurors, one did not recall any conversation at all with the detective, and the other remembered only that the detective said “hello.” After hearing from the detective and the jurors, the court below denied the motion for mistrial.⁸

Whether a mistrial is warranted is a question committed to the sound discretion of the trial court, see Brown v. State, 285 Ga. 324, 325(1), 676 S.E.2d 221 (2009), and when an appeal is taken from the denial of a motion for mistrial, we consider only whether the court below abused its discretion. See Collins v. State, 310 Ga.App. 613, 618(4), 714 S.E.2d 249 (2011). It is true, of course,...