Brown v. State

• Decision Date: 15 September 1997
• Docket Number: Nos. S97A0646,S97A0647,s. S97A0646
• Citation: 268 Ga. 354,490 S.E.2d 75
• Parties: , 97 FCDR 3435 BROWN v. The STATE. JAMESWHITE v. The STATE.
• Court: Georgia Supreme Court

Page 75

490 S.E.2d 75

268 Ga. 354, 97 FCDR 3435

BROWN v. The STATE.

JAMESWHITE v. The STATE.

Nos. S97A0646, S97A0647.

Supreme Court of Georgia.

Sept. 15, 1997.

M. Muffy Blue, for appellant (case no. S97A0646).

Bruce S. Harvey, William S. Callahan, for appellant (case no. S97A0647).

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.

HINES, Justice.

Devon Brown and Richard Jameswhite were tried together for the murder of Anthony Maclin. ¹ The evidence viewed in favor of the verdicts showed that Brown and Jameswhite were involved in a minor car collision with Maclin and his fiancee in the parking lot of a restaurant. Brown, Jameswhite, and Maclin argued over the extent of damage to the vehicles. Because Brown and Jameswhite were fugitives from another state, Brown repeatedly asked Maclin and his fiancee not to call the police and promised that he and Jameswhite would pay for the damage. Jameswhite left the scene for a period of time to try to find sufficient funds to satisfy Maclin and his fiancee. Maclin's fiancee tried on one occasion to leave the scene and call police but Maclin summoned her back. While she was momentarily turned away from the men, she heard a popping sound and turned to see Jameswhite holding Maclin from the side and Brown pointing a pistol at Maclin. Brown then got into his car, Maclin fell, and Jameswhite shot Maclin. Maclin's fiancee hid behind a car, Jameswhite got into the car with Brown, and the two men fled. Maclin later died of his wounds.

Police chased the two men to a nearby apartment complex where Jameswhite was apprehended and the police recovered two firearms he was carrying. Brown eluded police by removing his shirt and cap and posing as a resident on an apartment balcony. He was arrested the next day following the fiancee's photo identification of him as one of the men who shot Maclin. Police officer Gaddis also identified Brown as being at the apartment complex during the chase, noting a prominent scar on Brown's abdomen. Bullets and shell casings found at the scene of the crime were identified as fired from one of the guns Jameswhite was carrying when he was apprehended.

1. Brown argues the evidence was insufficient to prove he committed the murder, arguing only that it did not establish his guilt beyond a reasonable doubt. At trial he urged that the evidence did not sufficiently identify him as one of the shooters, but an eyewitness so identified him. This, along with the remainder of the State's evidence, authorized the jury to find him guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Jameswhite also challenges the sufficiency of the evidence, arguing that ballistics evidence and inconsistencies in testimony showed that only Brown shot Maclin. Any inconsistency in the evidence was for the jury's resolution. Clifford v. State, 266 Ga. 620, 621(1), 469 S.E.2d 155 (1996). The eyewitness testimony, together with the ballistics evidence connecting the handgun Jameswhite was carrying to the murder, authorized the jury to find him guilty of malice murder beyond a reasonable doubt. Jackson, supra.

2. Both men unsuccessfully moved to sever their trials. When the State does not seek the death penalty for a capital felony, whether to try defendants jointly or separately is in the discretion of the trial court. OCGA § 17-8-4. The defendant requesting severance must make a clear showing of prejudice and a consequent denial of due process. The trial court is to consider whether: 1) a joint trial will create confusion of the evidence and law; 2) there is a danger that evidence implicating one defendant will be considered against the other even if cautionary instructions are given; and 3) the co-defendants will assert antagonistic defenses. Dennard v. State, 263 Ga. 453, 455(5), 435 S.E.2d 26 (1993).

Both men argue the defenses were antagonistic. Even if this is so, theoretically antagonistic defenses without harm do not warrant reversal. Davis v. State, 266 Ga. 801, 802(3), 471 S.E.2d 191 (1996). Neither man testified and the State did not introduce a statement of either defendant. Although Jameswhite's cross-examination of Maclin's fiancee attempted to show that only Brown shot Maclin, she did not so testify, merely repeating that when she first turned around Brown held a gun but not Jameswhite. This was cumulative of her direct testimony and created no prejudice. Further, there was sufficient evidence to convict each man as a party to the crime even if only one had actually shot Maclin. See Linares v. State, 266 Ga. 812, 815(4), 471 S.E.2d 208 (1996).

Nor is there merit to Jameswhite's claim that there was a danger that evidence admitted for use against Brown would be used against him, specifically Brown's flight and the fact that firearms and money were found on Brown's person and at his residence after Jameswhite's arrest. The court gave sufficient cautionary instructions as to these matters, which in any event clearly pertained only to Brown.

3. Jameswhite challenges the court's refusal to strike for cause certain potential jurors. During general voir dire, four jurors expressed that they would give more credibility to the testimony of a police officer than to the testimony of another witness and Jameswhite moved that three of them be excused for cause. Whether to strike a juror for cause lies within the sound discretion of the trial court, Garland v. State, 263 Ga. 495, 496(1), 435 S.E.2d 431 (1993), and the fact that a juror has expressed a belief in the credibility of a witness does not require that he be excused for cause. Foster v. State, 248 Ga. 409, 411(3), 283 S.E.2d 873 (1981). See also Taylor v. State, 243 Ga. 222 224(2), 253 S.E.2d 191 (1979). The jurors in question testified they could put aside any biases or prejudices and decide the case based upon the evidence, see Johnson v. State, 262 Ga. 652, 653(2), 424 S.E.2d 271 (1993), and the court did not abuse its discretion in denying the motion to strike them for cause.

Jameswhite also moved to strike for cause three potential jurors who acknowledged they had been exposed to media accounts of the beginning of the trial. One had seen television news the previous night, one had heard radio news that morning, and one had seen Jameswhite's picture in the newspaper that morning. But, before a potential juror can be disqualified for cause, it must be shown that the juror holds an opinion "so fixed and definite" that the juror is unable to set it aside and decide the case based on the evidence and the court's charge on the evidence and law. Garland, supra. The jurors had only brief exposure to news accounts and all testified they had formed no opinion because of the media accounts and could put aside any information thus gained and decide the case based on the evidence and the court's instructions. There is no basis to conclude the court abused its discretion in refusing to strike these jurors for cause.

4. Brown contends his motion for new trial should have been granted because trial counsel was ineffective in failing to introduce exculpatory scientific evidence, failing to enforce the scope of a stipulation regarding scientific evidence, and inadequately cross-examining Officer Gaddis. In order to prevail on a claim of ineffective assistance of counsel he must show that his counsel's performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To meet the first prong of this test, a defendant must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct" and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the circumstances of the case. Id. at 784, 325 S.E.2d 362. The second prong requires the defendant to show there is a reasonable probability that, absent counsel's unprofessional errors, the result of the trial would have been different. Id. at 783, 325 S.E.2d 362.

The trial court ruled that Brown had not overcome the presumption of the reasonableness of counsel's actions nor shown there was a reasonable probability the result of the trial would have been different if counsel's decisions had been otherwise.

a) Brown claims counsel should have introduced evidence concerning the shirt and hat found on the apartment balcony where Gaddis encountered Brown, specifically that no blood was found on the shirt despite the close range of the shooting and that the single hair that was found in the cap and was suitable for analysis did not match hair taken from his head. He also contends counsel should have introduced the fact that his fingerprints were not found in the car. Counsel testified at the hearing on the motion for new trial that she did not present this evidence because the State could easily show on cross-examination that the absence of fingerprints, blood, and matching hair did not rule out the possibility that Brown was nonetheless at the murder scene. Moreover, the evidence's value did not outweigh the benefit of having first and last closing argument, which would be lost if she presented evidence. See OCGA § 17-8-71. Preserving such argument is a decision involving trial strategy. See Boone v. State, 224 Ga.App. 563(1), 481 S.E.2d 569 (1997); Maner v. State, 221 Ga.App. 826, 827(1b), 472 S.E.2d 716 (1996); Avans v. State, 207 Ga.App. 329, 330(2), 427 S.E.2d 826 (1993). Further, counsel emphasized in closing that the State presented no scientific...