Brown v. State

• Decision Date: 07 October 2019
• Docket Number: S19A0820
• Citation: 834 S.E.2d 40,307 Ga. 24
• Court: Georgia Supreme Court
• Parties: BROWN v. The STATE.

307 Ga. 24

834 S.E.2d 40

BROWN

v.The STATE.

S19A0820

Supreme Court of Georgia.

Decided: October 7, 2019

Steven L. Sparger, for appellant. Meg E. Heap, District Attorney, Christine S. Barker, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Scott O. Teague, Assistant Attorney General, for appellee.

Benham, Justice.

Appellant LaQuan Brown appeals her convictions for the murder of Ivory Carter, the armed robbery and aggravated assault of George Jackson, and the attempted murder and attempted armed robbery of Frederick Knight.¹ Appellant contends that the evidence was insufficient to sustain her convictions, that the trial court erroneously ruled on a number of evidentiary matters, that the rule of lenity should be applied to her sentences, and that trial counsel was ineffective in eight different ways. Finding no reversible error, we affirm.

Reviewing the facts in a light most favorable to the verdicts, the evidence adduced at trial established as follows. On July 27, 2014, Appellant contacted Prince Owens for a ride, asking to be picked up near an apartment complex. Owens arrived at the location and waited for Appellant, but she never appeared and never answered his telephone calls. When Owens returned to his home, he discovered that it had been burglarized.

On July 30, the same telephone number that Appellant had used to contact Owens was used to contact Ivory Carter, a sales manager at a local car lot who drove a dealership-owned Nissan Murano. Numerous telephone calls occurred between Appellant and Carter that day, including one just minutes before a witness observed three individuals surround an SUV and then heard a number of "pops." That witness then observed a man, later identified as Carter, run toward him for help; Carter, who had been shot, collapsed in front of the witness and subsequently died of his injuries. Days later, Appellant and one of her co-indictees, Rashard Mosley, went to stay with Appellant’s cousin, Mary Singleton. The pair arrived at Singleton’s residence driving a Nissan Murano, and Appellant later confided in Singleton about Carter’s shooting. Singleton ultimately learned that the murder occurred because a planned robbery had gone awry.

On August 3, Appellant used Singleton’s telephone number to contact George Jackson, who was driving in the area of Singleton’s residence. According to Jackson, he heard someone call out his name and then saw people on bicycles steer in front of his vehicle; when he stopped, two individuals jumped into his SUV. One of the individuals, a woman, brandished a weapon and demanded that Jackson turn over his keys. Following a struggle for the firearm, Jackson escaped on foot; his cellular telephone and car keys were taken from the vehicle. Jackson would later point out Appellant in a photo array, indicating that she "favored" the woman from the incident.

The next day, Appellant used Singleton’s telephone to arrange a meeting with Frederick Knight, who was acquainted with Appellant from a previous romantic encounter. Knight drove to a location near Singleton’s residence, and Appellant met him on the street, positioning herself halfway into the vehicle. As the pair were talking, Mosley walked up to Knight and pointed a gun at him, telling Knight not to do anything. In response, Knight pressed the accelerator; Appellant jumped out of the truck, and Mosley fired numerous shots at Knight’s fleeing vehicle. Singleton would testify at trial that, after this incident, she overheard Appellant and Mosley remark that they "didn’t get anything" from the incident.

After Knight reported the shooting to police, Appellant and Mosley were arrested at Singleton’s residence. A Nissan Murano with a shattered windshield was recovered in an adjacent lot, and a subsequent search of Singleton’s residence yielded the firearm used against Knight, as well as vehicle keys for both the Murano and Jackson’s vehicle. The jury learned that Appellant’s DNA was found on the key to the Murano; that Appellant had sent inculpatory letters from jail acknowledging her involvement in the crimes and comparing herself and Mosley to "Bonnie and Clyde"; and that Appellant ultimately gave a statement to police admitting her involvement in Carter’s murder, which, she explained, resulted from a botched robbery.

1. Appellant first contends that the State failed to adequately prove Count 25 – criminal attempt to commit a felony (attempted armed robbery of Knight) – as that crime was alleged in the indictment and, thus, that there was a fatal variance between the indictment and the proof at trial. This claim has no merit.

Criminal attempt is accomplished "when, with intent to commit a specific crime, [a person] performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. Armed robbery, in relevant part, is accomplished "when, with intent to commit theft, [a person] takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]" OCGA § 16-8-41 (a). Here, Count 25 charged that Appellant and Mosley "individually and as parties concerned in the commission of a crime ... knowingly and intentionally attempted to commit the crime of armed robbery ... in that the said accused pointed a gun at Mr. Knight and demanded his property, acts which constitute a substantial step toward the commission of said crime."

Appellant argues that the evidence at trial unequivocally established that, though a gun was pointed at Knight, there was never a demand for property, and, thus, that the State failed to prove "an essential element of the crime it alleged." Appellant’s argument, though, hinges on Knight’s testimony that there was no verbal demand for property. As the jury was instructed, however, the facts of the case could be established by both direct and circumstantial evidence.

The evidence, as presented to the jury, showed that Appellant arranged a meeting with Knight; that, when Knight arrived at the rendezvous point, Appellant strategically arranged herself halfway in his vehicle (preventing him from moving the vehicle); that she distracted Knight while Mosley approached the vehicle with a firearm; that, while holding Knight at gunpoint, Mosley instructed Knight not to do anything; and that, after the incident, Appellant and Mosley lamented that the robbery was unsuccessful. Knight testified that he perceived that he was being robbed, and the evidence permitted the jury to similarly conclude that, though there was no verbal request for property, the actions of and circumstances created by Appellant and Mosley amounted to a demand for Knight’s property. See, e.g., Worthen v. State , 304 Ga. 862, 868, 823 S.E.2d 291 (2019) ("Jurors are normally entitled to make reasonable inferences from circumstantial evidence regarding all sorts of facts, including the facts necessary to find defendants guilty beyond a reasonable doubt of capital crimes.").

Moreover, even if there were a deviation between the allegations in the indictment and the evidence adduced at trial, there was no fatal variance.

Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

Delacruz v. State , 280 Ga. 392, 396, 627 S.E.2d 579 (2006).

Appellant was not subjected to either of these dangers. Count 25, which tracks the language of the relevant statutes, sufficiently informed Appellant of the nature and substance of the criminal attempt charge, and Appellant "has not shown that [s]he was unable to present a viable defense to such charges or that [s]he was surprised or misled at trial by" the State’s failure to present evidence of a verbal demand for property. Roscoe v. State , 288 Ga. 775, 776-777, 707 S.E.2d 90 (2011). Moreover, "there is no danger that [s]he could be prosecuted again for the same offense," as the indictment in this case specifically describes the incident for which Appellant was charged and ultimately convicted. Cooper v. State , 286 Ga. 66, 68, 685 S.E.2d 285 (2009). There was no fatal variance. See Roscoe , 288 Ga. at 776, 707 S.E.2d 90 (no fatal variance where proof of prior felony offense presented at trial differed from that alleged in the indictment); Cooper , 286 Ga. at 68, 685 S.E.2d 285 (no fatal variance where the evidence of cause of death presented at trial differed from the cause of death alleged in the indictment); Murray v. State , 328 Ga. App. 192, 193, 761 S.E.2d 590 (2014) (no fatal variance where indictment alleged burglary victim owned dwelling but evidence at trial established that the victim did not finalize the purchase of the residence until after the date of the burglary). See also Lebis v. State , 302 Ga. 750, 759-760, 808 S.E.2d 724 (2017). Irrespective of whether there was an explicit demand for property, significant evidence established that Appellant, both individually and as a party to the crime, took substantial steps toward the commission of an armed robbery against Knight as alleged in the indictment.

Finally, we conclude that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crimes of which she was convicted. See Jackson v. Virginia, 443 U. S. 307, 99 S.Ct....