Brown v. State

• Citation: 734 S.E.2d 23,291 Ga. 892
• Decision Date: 05 November 2012
• Docket Number: No. S12A1552.,S12A1552.
• Parties: BROWN v. The STATE.
• Court: Supreme Court of Georgia

291 Ga. 892

734 S.E.2d 23

BROWN

v.The STATE.

No. S12A1552.

Supreme Court of Georgia.

Nov. 5, 2012.

Ashleigh Bartkus Merchant, The Merchant Law Firm, P.C., Marietta, for appellant.

Daniel J. Porter, Dist. Atty., John Arthur Warr, Asst. Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Katherine Ruth Thrower, Asst. Atty. Gen., Department of Law, for appellee.

HINES, Justice.

Following the denial of his motion for new trial, as amended, Christopher Brown appeals his convictions for malice murder and armed robbery in connection with the fatal shooting of Robert Lovelace. Brown challenges the sufficiency of the evidence of his guilt, the admission of certain evidence at trial, and the effectiveness of his trial counsel. Finding the challenges to be without merit, we affirm.¹

The evidence construed in favor of the verdicts showed the following. In 2008, Lovelace, a car salesman, was having serious financial difficulties, including massive debt and the impending foreclosures of real property, and he devised a plan to liquidate his 401(k) and use the proceeds to purchase a large quantity of cocaine, which he planned to sell for profit. A check for the 401(k) proceeds in the amount of $21,346.91 was issued to Lovelace. Through his friend and customer, Charles Dixon, Lovelace was introduced to Brown, who was known by the nickname “Show.” Brown arranged to purchase a kilogram of cocaine for Lovelace for between $18,000 and $19,500, and Brown expected to receive a car in exchange for brokering the drug deal. The purchase price of the drugs increased, and the deal began to fall through. Lovelace was fatally shot at a Holiday Inn Express in Gwinnett County on August 27, 2008.

Cell phone records indicated that both Brown and Lovelace were in Gwinnett County on the day of the shooting; the two were supposed to meet to discuss the drug deal. On August 27th, Brown met his girlfriend, Charlotte McDaniel, at a restaurant. When he arrived, he borrowed McDaniel's vehicle, a white Jaguar, and left the restaurant. He returned to the restaurant twenty to thirty minutes later only to leave again almost immediately. Brown explained that he had to leave because “something came up.” Phone records showed that, during his twenty-to-thirty minute absence, Brown was in contact with Lovelace and was in the immediate vicinity of the Holiday Inn Express near Highway 78. Several witnesses who were near the hotel at the relevant time testified to seeing three dark-skinned males arguing and to hearing gunshots. One witness saw a white Jaguar flee the scene, after which the witness walked to the parking lot where he found Lovelace lying on the ground. Also, one of the men who ultimately fled the scene in the Jaguar returned to the front of the car to pick up what appeared to be a plastic grocery bag from the ground near where Lovelace was lying. When law enforcement officers arrived on the scene, Lovelace stated “I've been shot, two black guys, white four-door Jaguar, nine millimeter”; Lovelace also related a license tag number, which phonetically resembled McDaniel's license tag. Lovelace told the responding emergency medical personnel that they should just “let him die.” The money that Lovelace cashed out from his retirement account was never recovered or located. Lovelace died at the hospital as a result of multiple gunshot wounds.

Telephone records showed that Brown, Lovelace, and Dixon were in contact with each other during the time preceding the shooting. The records also indicated that Brown's phone was located in the coverage area that includes the Holiday Inn Express near the time of the shooting. Law enforcement recovered a handwritten note from Lovelace's apartment that bore Brown's nickname, “Show,” Brown's telephone number, and the names of two streets near the hotel. Investigators discovered that the check Lovelace had received in exchange for withdrawal of the money from his 401(k) was cashed by him two weeks before the murder. On the day of the shooting Brown told Dixon “We had to do what we had to do” and that “Robbie bucked ... and [we] started shooting.”

1. Brown contends that the verdict of guilt for malice murder was not supported by the evidence at trial and actually contradicts “credible” evidence that he was not involved in the shooting. He also maintains that there was no evidence that there was any money taken from or attempted to be taken from Lovelace, and therefore, that the trial court erred by failing to grant a directed verdict of acquittal on the armed robbery charge. But, the contentions of insufficiency are unavailing.

It is the role of the jury and not this Court to resolve conflicts in the evidence at trial and to make determinations about the credibility of witnesses; Whitaker v. State, 291 Ga. 139, 140(1), 728 S.E.2d 209 (2012). Rather, the appellate court is to review the evidence cast in the light most favorable to the verdict or verdicts, deferring to the jury's determinations on the proper weight and credibility to be given the evidence. Farris v. State, 290 Ga. 323, 324(1), 720 S.E.2d 604 (2012). And, merely because the jury resolves any conflicts in the evidence adversely to the defendant does not render the evidence of the defendant's guilt insufficient as a matter of law. Whitaker v. State, supra at 140(1), 728 S.E.2d 209.

As noted in regard to the malice murder charge, multiple witnesses saw an individual matching Brown's description in an argument prior to hearing multiple gunshots; Brown admitted to Dixon that he shot the victim; phone records show that Brown and the victim were communicating prior to the shooting and that Brown was in the vicinity of the hotel during that time; Brown was acting as a middle man for the victim's drug deal gone bad; a note found in the victim's apartment bore Brown's name; and the same kind of car owned by Brown's girlfriend and borrowed by Brown shortly before the shooting was seen fleeing the scene of the crimes.

As for the denial of Brown's motion for a directed verdict of acquittal on the count charging him with armed robbery, this Court in review must apply the same test as it does in assessing a challenge to the sufficiency of the evidence, that is, the test set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Smith v. State, 290 Ga. 428, 429(1), 721 S.E.2d 892 (2012). The offense of armed robbery is committed when a person “with intent to commit theft, ... takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16–8–41(a). The presented evidence and reasonable inferences therefrom showed that gunshots were heard in the area of the shooting; prior to the gunshots, loud male voices were heard and three African American men were seen engaged in animated conversation before the victim fell by a tree as a result of being shot; the victim died of multiple gunshot wounds; Brown owned a firearm and admitted to another to shooting the victim; the fatal attack occurred after a drug deal which Brown was brokering for the victim went bad; the victim had obtained a large sum of cash to accomplish the drug buy, and became upset when the price of the drugs increased; there was an arranged encounter between Brown and the victim in furtherance of the drug deal; Brown or one of his cohorts was seen retrieving a plastic grocery bag, which could hold a significant amount of cash, near where the victim lay dying; the victim pleaded to the emergency personnel to “let him die,” evidencing despondency possibly, if not probably, over his situation of losing his life savings; the $21,346.91 in cash obtained by the victim to be used to accomplish the drug deal was never recovered or located.

In order to base a conviction upon circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but have to exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24–4–6. Generally, the question of the reasonableness of a hypothesis is to be determined by the jury which heard the evidence, and when the jury is authorized to find that the evidence, albeit circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law. Abston v. State, 291 Ga. 531, 732 S.E.2d 50 (2012); Brooks v. State, 281 Ga. 514, 515–516(1), 640 S.E.2d 280 (2007). Certainly, as to the armed robbery, a reasonable hypothesis was that when it appeared that there were problems with the drug deal, i.e., that the victim would not agree to the increased price for the cocaine, Brown decided instead to rob and shoot the victim. Here, the jury, based on the evidence presented, chose to believe the State's theory of the case, as it was authorized to do. The evidence was sufficient to authorize a rational trier of fact to find Brown guilty beyond a reasonable doubt of both the malice murder and armed robbery of Lovelace. Jackson v. Virginia, supra.

2. Brown next contends that the trial court erred by admitting, over his objection, Dixon's testimony about statements made by victim Lovelace because the statements lacked sufficient indicia of reliability, and thus, constituted inadmissible hearsay.

At trial, the State asked Dixon whether he had any conversations directly with Lovelace about any deals or meetings with Brown on the day of the crimes or the previous day. Brown made a hearsay objection on the basis that “the proper foundation [had not] been laid,” in that there was not a showing of “a significant or sufficient relationship between the deceased and anyone to whom he made a statement.” The objection was overruled and Dixon testified that Lovelace told...