Brown v. State, s. S94A1099

• Decision Date: 28 November 1994
• Docket Number: Nos. S94A1099,S94A1100,s. S94A1099
• Citation: 264 Ga. 803,450 S.E.2d 821
• Parties: BROWN v. STATE. BROWN v. STATE.
• Court: Georgia Supreme Court

Page 821

450 S.E.2d 821

264 Ga. 803

BROWN v. STATE.

BROWN v. STATE.

Nos. S94A1099, S94A1100.

Supreme Court of Georgia.

Nov. 28, 1994.

Reconsideration Denied Dec. 20, 1994.

David V. Weber, Martinez, Martin C. Puetz, Augusta, for Jamie Brown.

Daniel J. Craig, Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Atlanta, Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Atlanta, for the State in No. S94A1099.

Marla Deen Brooks, Asst. Atty. Gen., Dept. of Law, Atlanta.

Charles R. Sheppard, Asst. Dist. Atty., Augusta.

Daniel J. Craig, Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Atlanta, Charles R. Sheppard, Asst. Dist. Atty., Augusta, for the State in No. S94A1100.

HUNSTEIN, Justice.

Jamie Kenmont Kerien Brown was convicted of malice murder, felony murder, two counts of attempted armed robbery, five counts of possession of a firearm during the commission of a crime, five counts of armed robbery, and two counts of aggravated assault. ¹ He appeals from the denial of his motion to dismiss for failure to grant a speedy trial in Case No. S94A1100 and from the guilty verdicts and sentences entered thereon in Case No. S94A1099.

Evidence at trial established that on April 20, 1991, appellant and his co-defendant, Darreyl Tutt, robbed at gun point three members of the Chastain family in the parking lot of an Augusta restaurant. Around 4:30 p.m. that same day, Kenneth Cone was in an Augusta high school parking lot when he was approached by Tutt and another man and was robbed of his wallet at gun point. Less than two hours later, Franklin Staulcup was at an Augusta service station when he was approached by appellant, who held a gun to Staulcup's head, demanded his money, and threatened to kill him. Staulcup fought back and was hit in the head with the gun before he managed to escape.

On April 22, 1991, Philip Gettle was at a convenience store when he was approached by appellant and Tutt, both of whom were armed. Gettle ran and was shot in the shoulder by appellant. Later that day, Henry Bagby saw a taxi cross the street in front of him and roll into a tree. Bagby saw one man exit the back of the taxi and run away, apparently behind another fleeing figure. Bagby went to the assistance of the driver of the taxi, Wilbert Victor Hall, whom he found slumped in the vehicle with a bullet wound in his back. After an ambulance removed Hall to a local hospital (where he died from his injury), Bagby, who knew appellant from school, noticed appellant was at the scene and was wearing clothing similar to that worn by the man he had observed exiting the taxi.

The following evening police stopped a car matching the description of the one used in some of the armed robberies. Appellant was the owner and driver of the car; Tutt was one of the passengers. A pistol identified as similar to the one used in the armed robberies was found in the car. The weapon used to kill Hall was found in Tutt's apartment. In statements made to police, appellant admitted that the pistol in his car belonged to him and that he was in the taxi with Tutt, that he and Tutt had planned to rob the taxi driver, but that it was Tutt who shot Hall.

1. We find this evidence sufficient to support appellant's convictions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends his constitutional right to a speedy trial was violated ² under the four-part standard of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33

L.Ed.2d 101 (1972), considering (1) the length of delay (2) the reason for the delay (3) the defendant's assertion of his right, and (4) the prejudice to the defendant. See Treadwell v. State, 233 Ga. 468, 469, 211 S.E.2d 760 (1975). The fourth Barker factor is assessed in light of three interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Id. at 470, 211 S.E.2d 760. "[T]hese factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (Footnote omitted.) Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193.

The facts of this case bear a marked similarity to those in Boseman v. State, 263 Ga. 730, 438 S.E.2d 626 (1994). As in Boseman, there was a 27 month delay between appellant's arrest and the date he filed his motion to dismiss, raising a threshold presumption of prejudice, id. at (1)(a); the State's primary reason for the delay was its desire to wait for several significant appellate court decisions to be rendered, ³ but there were other unexplained delays in the record which must be attributed to the negligence of the State, id. at (1)(b); appellant asserted neither his statutory, see OCGA § 17-7-71, nor his constitutional right to a speedy trial for the 27 months between his arrest and the filing of his motion, a delay that must be weighted against appellant, id. at (1)(c); and, as to the three factors involved in determining prejudice to a defendant, even assuming under factor (i) that the delay was oppressive, see id. at (1)(d), appellant has not demonstrated under factor (ii) any isolated or distinct oppressiveness, anxiety, or concern he may have suffered due to his lengthy incarceration, see Glidewell v. State, 169 Ga.App. 858, 861, 314 S.E.2d 924 (1984), and as to factor (iii), the record reflects that the sole example of impairment of evidence adduced by appellant, the memory lapses of various police officers, has worked to appellant's advantage. See Div. 3, infra; see generally Barker, supra, 407 U.S. at 521, 92 S.Ct. 2182.

Considering the record carefully, we find that the trial court did not abuse its discretion in denying appellant's motion to dismiss for lack of a speedy trial. Boseman, supra 263 Ga. at 734, 438 S.E.2d 626.

3. The State does not challenge appellant's assertion that the trial court committed successive errors by admitting during trial certain portions of appellant's testimony from a pretrial suppression hearing, ⁴ cf. Simmons v. U.S., 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); U.S. v. Dollard, 780 F.2d 1118 (III) (4th Cir.1985), and refusing appellant's request to admit his entire suppression hearing testimony, see OCGA § 24-3-38; West v. State, 200 Ga. 566(1), 37 S.E.2d 799 (1946), on the basis that appellant was present to testify. See U.S. Const., Amend. 5; Art. 1, § 1, Par. 16, Const. of Ga. 1983; OCGA § 24-9-20(a). The State argues, however, that the testimony admitted was cumulative of other evidence and thus the errors were harmless. We do not agree and reverse.

The State introduced the testimony of several police officers regarding the circumstances surrounding appellant's arrest and his subsequent incriminating statements. During cross-examination, defense counsel was able to use lapses in the officers' memories to elicit responses that made it appear that appellant was forcibly taken into custody and held against his will in order to elicit his statements. It was in response to the damaging impact of this cross-examination, see Brief of the District Attorney, p. 21, that the State asked to introduce those portions of appellant's suppression hearing testimony which gave the impression that appellant voluntarily cooperated with the police. ⁵ Thus, the challenged testimony positively reinforced the officers' direct testimony and offset the doubt created by the cross-examination.

"Cumulative evidence" is loosely defined by OCGA § 24-1-1(2) as that "which is additional to other evidence already obtained."

[T]he true test as to whether evidence is cumulative depends not only on whether it tends to establish the same fact, but it may depend on whether the new evidence is of the same or different grade. It is only when newly discovered evidence either relates to a particular material issue concerning which no witness has previously testified, or is of a higher and different grade from that previously had on the same material point, that it will ordinarily be taken outside the definition of cumulative evidence.

Johnson v. State, 196 Ga. 806(2), 27 S.E.2d 749 (1943). Further, "evidence which removes all doubt upon a material point which was before doubtful is not in a legal sense cumulative." Dougherty v. State, 7 Ga.App. 91, 94, 66 S.E. 276 (1909). Given that the challenged testimony could reasonably have been interpreted by the jury as eliminating all doubt created by the cross-examination of the officers as to the voluntariness of appellant's incriminating statements and the greater weight the jury could have accorded such evidence, coming as it did from appellant himself, we cannot agree with the State that it was harmless error to admit those selected portions of appellant's suppression hearing testimony.

Judgment affirmed in Case No. S94A1100.

Judgment reversed in Case...