Brown v. State

• Decision Date: 23 November 2004
• Docket Number: No. S04A1160.,S04A1160.
• Citation: Brown v. State, 278 Ga. 724, 609 S.E.2d 312 (Ga. 2004)
• Parties: BROWN v. The STATE.
• Court: Georgia Supreme Court

609 S.E.2d 312

278 Ga. 724

BROWN v. The STATE.

No. S04A1160.

Supreme Court of Georgia.

November 23, 2004.

Peter D. Johnson, Augusta, for appellant.

Daniel J. Craig, District Attorney, Madonna M. Little, Assistant District Attorney, Hon. Thurbert E. Baker, Attorney General, Chad E. Jacobs, Assistant Attorney General, for appellee.

HINES, Justice.

Jamie Kenmont Kerien Brown appeals his convictions for felony murder, aggravated assault, criminal attempt to commit armed robbery, and possession of a firearm during the commission of certain crimes.¹ For the reasons that follow, we affirm.

Construed to support the verdicts, the evidence showed that on the evening of April 20, 1991, Everett and Louise Chastain, and their son Clay, were robbed at gunpoint in a restaurant parking lot by Brown and co-indictee Tutt. Brown and Tutt then entered a car which Clay Chastain described as a dirty white Ford Grenada with a missing gas cap.

That same evening, Kenneth Andy Cone, Jr. was confronted by Brown and another man outside a high school. The other man put a pistol to Cone's side, and Brown took his wallet.

Also that evening, Franklin Eugene Staulcup was using a public telephone at a gas station when Brown walked up to him, put a .45 caliber handgun to his head, and demanded money, threatening to kill Staulcup if he did not comply. Staulcup resisted, and Brown hit him in the head with the handgun; Staulcup was able to escape.

On April 22, 1991, Phillip Gettle was cleaning the air conditioning vent at a convenience store when Brown and another man approached him from behind. Both men displayed handguns, and Brown pointed one at him; his wallet was taken. The two men discussed which one would shoot Gettle, who turned and began to run away. Gettle heard a shot and felt a bullet go through his shoulder; he did not see which man fired the shot. The men then entered Brown's car, and Brown drove away.

On that same evening, Victor Hall, a taxicab driver, was dispatched to a certain address to pick up a customer. At approximately 9:00 p.m., Clay Bagby saw Hall's taxicab roll across the street and into a tree. He also saw someone exit the cab and run behind another person. Hall was behind the steering wheel, slouched to the side with a bullet hole in his back. After the ambulance left, Bagby saw Brown standing on the street corner, and realized that Brown was dressed like the person he saw exiting the cab. Hall bled to death.

On April 23, 1991, police officers were issued a lookout for a white Ford Grenada with a missing gas cap, and were advised that its occupants were armed and dangerous and had been involved in a murder, armed robberies, and assaults. Officer Dennis West was involved in the stop of a vehicle matching that description. West saw a .45 caliber handgun on the front passenger floorboard. The four occupants of the vehicle, which included Brown, were placed in different police cars and taken to the police station. Brown admitted that the handgun found in the vehicle belonged to him.

Later that evening, Brown made a custodial statement to the police. He said that both he and Tutt displayed pistols during the robbery of Gettle, and that Tutt shot Gettle. As to the shooting of Hall, Brown said that: Tutt approached him and said that he had to make some money and told Brown that they were going to rob a taxi driver; Brown did not want to commit another robbery; Tutt asked him whether they were "going to be men or mice"; Brown responded that they would be men and told Tutt to "just tell me what we're going [to] do"; they discussed the plan for the robbery; Brown was not armed; both he and Tutt got into the backseat of the taxi; Tutt pointed a gun at Hall, who grabbed Brown; Tutt shot Hall; Brown and Tutt ran from the taxi; both entered Brown's car; and Brown let Tutt out on another street.

1. Brown asserts that the evidence adduced at trial was insufficient to sustain a guilty verdict as to the crime of felony murder of cab driver Hall during the commission of aggravated assault with a deadly weapon, because the evidence was insufficient to show that he committed the underlying felony alleged in the indictment, aggravated assault. More specifically, Brown argues that there was insufficient evidence to show that he was an accomplice of the person who was in possession of the pistol at the time of the shooting. Brown testified that he was "merely present" when co-indictee Tutt shot Hall, and contends that this is supported by the physical evidence, such as ballistic examinations which revealed that the cartridge shell found in the cab was not matched to the handgun found in Brown's vehicle the next day.

However, evidence shows that Brown was not merely present at the crime scene, but was an active participant. A party to a crime is one who intentionally aids or abets the commission of the crime. OCGA § 16-2-20. "Whether a person is a party to a crime may be inferred from that person's presence, companionship, and conduct before, during, and after the crime." (Citation and punctuation omitted.) Hewitt v. State, 277 Ga. 327, 329, 588 S.E.2d 722 (2003). While Brown claims that he felt coerced to be present when Hall was killed, he was seen making notes at the crime scene the day of the shooting, he accompanied Tutt knowing that Tutt intended to rob the cab driver, and he drove Tutt away after the shooting. See Tho Van Huynh v. State, 257 Ga. 375, 377, 359 S.E.2d 667 (1987) ("It matters not whether it was the appellant or (his accomplice) who actually fired the gun during the robbery. . . . The act of one was the act of the other in the commission of the [aggravated assault] and the ensuing death which resulted therefrom.") (citations and punctuation omitted). The jury was authorized to find that Brown was a party to the crime of aggravated assault committed with a deadly weapon, and hence to felony murder.

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

2. The trial court denied Brown's motion to suppress his statements to police. He contends that the trial court erred in failing to grant the motion because his warrantless arrest was without probable cause, and the statements made thereafter were the result of an illegal arrest. See Burnham v. State, 265 Ga. 129, 453 S.E.2d 449 (1995). When ruling on such a motion, the trial court sits as the trier of facts, and its findings regarding them are not disturbed on appeal if there is any evidence to support them; the trial court's decisions with regard to questions of fact and credibility must be accepted unless clearly erroneous, and a reviewing court construes the evidence most favorably to the trial court's findings. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). "A `warrantless arrest' is constitutionally valid if . . . the arresting officer has probable cause to believe the accused has committed or is committing an offense. . . . [Cit.]" Brown v. State, 262 Ga. 728, 729(2)(a), 425 S.E.2d 856 (1993). Probable cause exists if the arresting officer has reasonably trustworthy information that would allow a reasonable person to believe the accused committed a crime. Id. Brown asserts that there was no probable cause in this case because the only information available to the police at the time the vehicle was stopped was the generic description of a white Ford Grenada with a missing gas cap. But this assertion fails.

A vehicle stop pursuant to a police lookout requires specific and articulable facts which, together with rational inferences drawn therefrom, reasonably warrant the intrusion. Bright v. State, 265 Ga. 265, 279(5)(a), 455 S.E.2d 37 (1995). At the time of the stop, the police knew the vehicle's color, manufacturer and model, the race and gender of its occupants, that there were at least two occupants, and that the car was missing its gas cap.² This detailed information provided the police with the requisite articulable suspicion to warrant the investigative stop and detention. See Thomason v. State, 268 Ga. 298, 301-302(2)(a), 486 S.E.2d 861 (1997); Hestley v. State, 216 Ga.App. 573, 574(1), 455 S.E.2d 333 (1995). And, when stopping individuals for questioning, law enforcement officers are entitled to take reasonable steps to protect their own safety. State v. Williams, 264 Ga.App. 199, 203, 590 S.E.2d 151 (2003). It is not unreasonable for officers stopping a car reportedly involved in numerous violent crimes to temporarily, and separately, detain the occupants.

During the stop, the officers saw the .45 caliber handgun on the floorboard of the front passenger compartment. Information about that weapon, together with the other circumstances set forth in the police advisory and confirmed by observation at the scene of the vehicle stop, gave the police officers probable cause to take Brown into custody. See Thomason, supra at 303(2)(c), 486 S.E.2d 861; Brown, supra.

3. Brown further contends that his custodial statement to police was not voluntary because it was induced by Investigator McCann with the "hope of benefit" of having no criminal charges filed against him.³ "To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." OCGA § 24-3-50. Brown claims that McCann told him that he would soon be free to go without any charges being filed, which constituted a hope of benefit. While the "slightest hope of benefit" can mean hope of a lighter sentence, State v. Ray, 272 Ga. 450, 531 S.E.2d 705 (2000), there is no evidence that McCann led Brown to believe that he would receive a lighter sentence, or immediate freedom, if he confessed to the crimes. In his testimony, Brown does not contend that McCann mentioned a confession or sentence,...