Brown v. State

• Decision Date: 06 October 2014
• Docket Number: Nos. S14A0800,S14A0801.,s. S14A0800
• Court: Georgia Supreme Court
• Parties: Rickey BROWN v. The STATE. Mecco McKinney v. The State.

295 Ga. 804

764 S.E.2d 376

Rickey BROWN

v.The STATE.

Mecco McKinney

v.The State.

Nos. S14A0800

S14A0801.

Supreme Court of Georgia.

Oct. 6, 2014.

Chaunda Brock, for appellant (case no. S14A0800).

Sanford A. Wallack, for appellant (case no. S14A0801).

Patricia B. Attaway Burton, Deputy Atty. Gen., Samuel S. Olens, Atty. Gen., Andrew George Sims, Asst. Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Sheila Elizabeth Gallow, Arthur C. Walton, Asst. Dist. Attys., Atlanta, for appellee.

Opinion

NAHMIAS, Justice.

Rickey Brown and Mecco McKinney appeal their convictions for murder and a firearm offense related to a gun fight between them and co-indictee Teon Richardson that resulted in the death of an innocent bystander, four-year-old Sedriana Rosser. Finding no reversible error as to any of the many claims raised by one or both of the Appellants, we affirm in both cases.¹

1. Viewed in the light most favorable to their verdicts, the evidence presented at trial showed the following. About three weeks before the shooting at issue here, Brown, McKinney, and Richardson got into a physical fight because Brown and McKinney believed Richardson had stolen something from them. Richardson also left a voice-mail on another person's phone threatening to kill Brown and McKinney with his TEC–9 gun. On March 17, 2004, Richardson was walking around the Jonesboro South apartment complex trying to sell a TEC–9, which he had attached to a string around his neck. When Brown and McKinney, who were giving two women a ride to the apartment complex, arrived in the parking lot, the three men spotted each other, drew their guns, and opened fire. Brown and McKinney got out of the car, and Richardson ran toward an occupied area of the complex and took cover in Cheryl Jackson's apartment. One of the shots struck and killed the victim child, who was outside playing. Brown and McKinney then drove away; when Richardson left Jackson's apartment, he was apprehended by Jonesboro South residents and held until the police arrived.

At Appellants' trial, eight eyewitnesses testified about the exchange between Brown, McKinney, and Richardson. The accounts varied considerably, both from witness to witness and within some of the witnesses' testimony, regarding which of the three men had guns, who drew his gun first, and who actually fired his gun. Some of the testimony indicated that Brown and McKinney both had guns and both fired, and three of the witnesses testified that Brown and McKinney drew their guns first. The other five witnesses said that Richardson pointed his gun first, but only two of them believed that Richardson was actually able to shoot his gun. The police also found unfired bullets from a TEC–9 at the crime scene, which indicated that although he tried to shoot, Richardson's gun would not fire. Brown, McKinney, and Richardson did not testify. The jury was charged on self-defense justification, but rejected that defense and found Brown and McKinney guilty.

Neither Appellant challenges the legal sufficiency of the evidence. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Brown and McKinney guilty beyond a reasonable doubt of the crimes for which they were convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)).

2. Before trial, McKinney filed a special demurrer to the indictment, arguing that it contained prejudicial surplusage in Counts 2, 6, and 7 and that its reference to his alleged alias was impermissible bad character evidence. The trial court denied the special demurrer, and we see no error in that ruling.

Count 2 of the indictment, which charged felony murder based on possession of a firearm by a convicted felon, alleged that McKinney, Brown, and Richardson caused the death of the victim “by engaging in a gun battle with each other which caused Sedriana Rosser to be shot and killed in the crossfire.” Count 6, which charged felony murder based on aggravated assault, alleged that the victim was killed “in the crossfire.” And Count 7, which charged aggravated assault, included another allegation that there was a “gun battle.” McKinney contends that these allegations were prejudicial surplusage. However, “mere surplusage does not vitiate an otherwise valid indictment.” Malloy v. State, 293 Ga. 350, 360, 744 S.E.2d 778 (2013). The language to which McKinney objects was permissible because the references to the “gun battle” and “crossfire” “accurately described the offenses charged and made the charges more easily understood” by the defendants and the jury. Id.

The caption of the indictment referred to McKinney as “Mecco McKinney aka Jesse Chester,” but during the trial, no witness identified McKinney by that alias, and there was no other evidence presented that he had used that name. Nevertheless, this Court explained long ago that while

the appearance of an alias in an indictment might reflect unfavorably on the accused, it is the settled law of this State that the grand jury may so indict the accused, either when he is known by different names or when the grand jury is uncertain as to which of a number of names is his true name. The purpose of giving the name is to identify the accused. If this law is abused by an unjustifiable resort thereto by the grand jury, the accused has opportunity upon the trial to prove that he has never had an assumed name, and that he has never been known by the names given in the indictment aside from that which he admits is his true name.

Andrews v. State, 196 Ga. 84, 110–111, 26 S.E.2d 263 (1943), overruled in part on other grounds, Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955). See also Allen v. State, 231 Ga. 17, 18, 200 S.E.2d 106 (1973).

A claim that the indictment has misidentified the defendant should be challenged by a special plea of misnomer, which will be sustained only when the defendant has never been known by any of the names listed in the indictment. See OCGA § 17–7–112 ; Andrews, 196 Ga. at 110–111, 26 S.E.2d 263. Moreover, there is no reason to believe that the mere mention of an innocuous-sounding alias in the caption of the indictment caused McKinney any harm. Cf. Hawes v. State, 266 Ga. 731, 732–733, 470 S.E.2d 664 (1996) (holding that the inclusion of the alias “Stomper” in the indictment was proper where the defendant was known by that nickname, even though the victim “literally was beaten and stomped to death”).

3. McKinney also contends that the trial court erred in denying his pretrial motion to sever the count of the indictment charging possession of a firearm by a convicted felon (Count 10) and the related felony murder count (Count 2) for trial separately from the other charges, on the ground that evidence of his prior felony conviction for possession of cocaine was otherwise inadmissible as bad character evidence under former OCGA § 24–2–2.² This Court has held that, in cases where a felon-in-possession firearm charge “is unrelated to another count for which the defendant is to be tried,” the proceedings should be bifurcated so that the jury will hear and decide the more serious charge(s) before learning about the firearm charge and the defendant's prior conviction. Head v. State, 253 Ga. 429, 431–432, 322 S.E.2d 228 (1984), overruled on other grounds by Ross v. State, 279 Ga. 365, 614 S.E.2d 31 (2005). However, “a motion to bifurcate should be denied where the count charging possession of a firearm by a convicted felon might serve as the underlying felony supporting a felony murder conviction.” Poole v. State, 291 Ga. 848, 850, 734 S.E.2d 1 (2012). See also Head, 253 Ga. at 432, 322 S.E.2d 228 ; Jones v. State, 265 Ga. 138, 139–140, 454 S.E.2d 482 (1995) (holding that bifurcation is not appropriate whenever there is a malice murder charge, because felony murder based on the felon-in-possession firearm charge could be a lesser included offense). Because in this case one of the counts of felony murder was based on the felon-in-possession firearm charge (and the indictment also charged malice murder), the trial court did not err when it denied McKinney's motion to bifurcate the trial.

4. Brown contends that the trial court erred during jury selection when it failed to grant his request to strike Juror 69 for cause. Juror 69 was a pediatrician who said during voir dire that “someone needed to pay” for what happened to the child victim, that she did not like guns, that it would be difficult for her to sit and listen to the evidence, and that she did not want to see the mother of the child cry. However, Juror 69 also testified that she would be “willing to hear the facts” and confirmed that she had not presumed that Brown was guilty. She also said:

I think I can be impartial, I mean, I deal with a lot of emotions in my position as a physician, and I can separate myself from these emotions and come to a logical decision. So I think I would be able to hear the evidence and come to a logical decision.

She added she “would do [her] best to set aside [her] emotions” and reiterated, “I think I can separate my emotions and look at the facts in the case.” When the court asked if she could reach an impartial verdict, she answered: “I'm a human being with a lot of history, and I will do the best I can to be impartial. That's all I can say. I mean that's all I can really do.”

Whether to strike a juror for cause lies within the sound discretion of the trial judge, and the trial court's exercise of that discretion will not be set aside absent a manifest abuse of discretion.... The law presumes that potential jurors are

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