Brown v. State

• Decision Date: 24 February 1981
• Docket Number: No. 36813,36813
• Citation: 247 Ga. 298,275 S.E.2d 52
• Parties: BROWN v. The STATE.
• Court: Georgia Supreme Court

Page 52

275 S.E.2d 52

247 Ga. 298

BROWN v. The STATE.

No. 36813.

Supreme Court of Georgia.

Feb. 24, 1981.

Walton Hardin, Washington, for Brown.

Kenneth E. Goolsby, Dist. Atty., Dennis Sanders, Asst. Dist. Atty., Thomson, Arthur K. Bolton, Atty. Gen., for State.

MARSHALL, Justice.

The appellant was tried and convicted for the offenses of murder, armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and two counts of kidnapping with bodily injury. He was sentenced to death for armed robbery, murder and the two counts of kidnapping. He was sentenced to five years on the possession-of-firearms conviction, and he was sentenced to ten years for the aggravated-assault conviction, these sentences to run consecutively. This is a companion case to High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981) (Case No. 36689) and Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), where the facts are amply set out.

I. Enumerations of Error

1. Although the appellant enumerates the general grounds as Enumeration 1, his argument also goes to the issues raised in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) and Fleming v. State, 246 Ga. 90, 270 S.E.2d 185 (1980).

The appellant was positively identified by the surviving victim of the crimes. In addition, the appellant made a complete and full confession. His fingerprints were found on the car identified as the vehicle used in the robbery after it was located by authorities.

The evidence amply supported the verdict of the jury beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We find no merit in this enumeration of error. Enumerations of error 2, 4 and 15 also raise the Godfrey issue, which will be dealt with in the sentence review portion of this opinion.

2. In his third enumeration of error, the appellant contends that since his attorney was appointed to represent both himself and his co-defendants, Ruffin and High, the death penalty cannot be imposed, citing Fleming v. State, supra.

Counsel represented the appellant's co-defendant, Ruffin, and the appellant. However, the other co-defendant, High, retained other counsel prior to trial. In Fleming v. State, supra, this court, by the authority of its supervisory power over the bar of this state, created a broad rule in cases in which the death penalty is sought. Under the rule of Fleming, the same attorney shall not represent co-defendants in cases in which the death penalty is sought. Fleming v. State, supra, was decided June 9, 1980, and the appellant's trial began on May 29, 1979. The rule of Fleming v. State, in that it is based on the court's supervisory power, is prospective only. In that case, this court found an actual conflict of interest. In the instant case, no actual conflict of interest has been shown. "Whenever a trial court improperly requires joint representation over timely defense objection, reversal is automatic." Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1181, 55 L.Ed. 426 (1978). However, "in order to establish a violation of the Sixth Amendment, a defendant who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); Fleming v. State, supra. "A mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence." Montgomery v. State, 156 Ga.App. 448, 275 S.E.2d 72 (1980). In the case under review, there was no timely defense objection nor was there any objection by the state, as was the case in Fleming v. State, and no material prejudice has been demonstrated. The disqualification of an attorney to represent co-defendants must be raised prior to trial, otherwise any disqualification could result in manufactured error. This enumeration of error is without merit.

3. In Enumerations of error 5 and 6, the appellant contends that the trial court erred in excusing 55 prospective jurors based on Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Without naming the jurors disqualified as being unalterably opposed to the imposition of the death penalty, we have reviewed the transcript of the voir dire, and all the prospective jurors stated that they could not impose the death penalty under any circumstances. Defense counsel agreed in almost all instances with the trial court that they were disqualified under the rule in Witherspoon.

The appellant also argues that the qualification of potential jurors under Witherspoon v. Illinois resulted in a "hanging jury panel" of 42 jurors. The same objection was raised by counsel in Ruffin v. State, supra, and was decided adversely to his position. This enumeration of error is without merit. Ruffin v. State, supra; Dampier v. State, 245 Ga. 427(7), 265 S.E.2d 565 (1980); Harris v. Hopper, 243 Ga. 244, 253 S.E.2d 707 (1979); Spinkelink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).

Additionally, the appellant attacks the array and asserts that blacks were underrepresented after the Witherspoon exclusions. Pretermitting that the challenge to the array was not timely, the appellant's argument is without merit. "A defendant is entitled to an array of properly drawn impartial jurors to which he may direct his peremptory challenges. A party is entitled to this as a matter of right but, conversely, he is entitled to no more." High v. State, supra, and cits.

4. In Enumeration of error 7, the appellant contends that the trial court erred in allowing both GBI agents Ingram and Monahan to remain in the courtroom after the rule of sequestration had been invoked. Both agents worked together on the initial investigation and interrogation of the defendant after his arrest. The district attorney stated in his place that both agents Ingram and Monahan were needed to assist him in the trial of the case. We find no abuse of discretion by the trial court in allowing both agents to remain in the courtroom. Ruffin v. State, supra; High v. State, supra, and cases cited.

5. In Enumeration of error 9, the appellant contends that the trial court erred in admitting testimony of a .32-caliber bullet when there was no evidence that defendant had in his possession any weapon on the night in question. The bullet was retrieved from the body of one of the victims.

The defendant in his statement said, "Judson got .32 and walked up to the booth ... I got out with single-barreled shotgun" and "loaded .32 revolver with different shells in Augusta." The defendant was also identified by the surviving victim as having a shotgun at the time of the robbery, and at the time he was removed out of the trunk of the car and shot. There was evidence that, at various times during the criminal enterprise, various participants had actual possession of one of the three weapons involved. The evidence complained of was a relevant and necessary part of the state's case, and the trial court did not err in admitting it.

6. Enumeration of error 10 is expressly abandoned. In Enumerations of error 11, 12 and 13, the appellant contends that the trial court erred in overruling his three motions for mistrial made during the sentencing phase of the trial. The defendant testified during the sentencing phase of his trial, and when cross-examined about his participation in the crimes charged, the defendant elected to stand on his Fifth Amendment right. The appellant, having already been convicted of the crimes, had no presumption of innocence. He stood before the sentencing jury as a convicted felon. He chose to testify in his own behalf as to sentence, but refused to respond to the state's cross-examination, asserting his Fifth Amendment right. This is not an instance in which the state has commented on a failure of a defendant to testify in his own behalf. It was not error of the district attorney to comment on this in argument to the jury. The district attorney's remark during argument, that "if his boys were treated like this, I don't know whether I'd want a jury to decide it," did not amount to such improper argument as would require a mistrial where the trial court on motion for mistrial instructed the jury to disregard the remark, and the district attorney voluntarily withdrew it. The prosecution may argue for a death sentence and offer plausible reasons for his position. See Rini v. State, 236 Ga. 715(3), 255 S.E.2d 234 (1976); Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975); Brand v. Wofford, 230 Ga. 750(9), 199 S.E.2d 231 (1973).

II. Sentence Review

7. We have reviewed the record and sentence in this case as mandated by the statute, and find that the verdict of the jury was not imposed under the influence of passion, prejudice or any other arbitrary factor. Code Ann. § 27-2537(c)(1).

8. We agree with the appellant's contention that Count 2 of the indictment, possession of a firearm during the commission of a crime, merged with Count 1 of the indictment, armed robbery. As was noted in High v. State, supra, (12) "whereas here, the evidence discloses that the crime of armed robbery was committed with the same firearm as that for which the appellant is charged with possessing, the lesser crime of possession of a firearm during the commission of a crime is included in the greater crime of armed robbery." Citing Chumley v. State, 235 Ga. 540, 221 S.E.2d 13 (1975); Roberts v. State, 228 Ga. 298, 185 S.E.2d 385 (1971); and Code Ann. § 26-506.

9. We note as part of our independent review, as was noted in the companion case of High v. State, that the appellant received a death penalty for both the armed robbery from the person of Henry Phillips, Count 1 of the indictment, and kidnapping with bodily injury of Henry Phillips, Count 4 of the indictment. The death sentence received by the appellant under Count 1 and Count 4 of the indictment must therefore be set aside...