Brown v. the State.

• Decision Date: 25 March 2011
• Docket Number: No. S10A1709.,S10A1709.
• Citation: 708 S.E.2d 294,288 Ga. 902
• Parties: BROWNv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 902

708 S.E.2d 294

BROWN

v.The STATE.

No. S10A1709.

Supreme Court of Georgia.

March 25, 2011.

Rodney Samuel Zell, Zell & Zell, P.C., Atlanta, for Appellant.Thurbert E. Baker, Attorney General, Department of Law, Paul L. Howard Jr., District Attorney, Marc A. Mallon, Senior Asst. Dist. Atty., Paula Khristian Smith, Senior Assistant Attorney General, David Allan Zisook, Assistant Attorney General, Department of Law, for Appellee.NAHMIAS, Justice.

Rasheed Brown appeals his convictions for felony murder and other crimes in connection with the shooting death of Antonio Moore. We affirm.¹

1. The evidence at trial, viewed in the light most favorable to the verdict, showed the following. Around 10:30 p.m. on the evening of July 10, 1998, Brown and his best friend D'Antonius Owens were at the victim's apartment smoking marijuana with the victim. The mother of the victim's girlfriend stopped by and offered to pay Brown and Owens to help her move a piece of furniture. Owens agreed to help, and Brown said that he would go along to keep Owens company.

Brown and Owens got into the woman's van, and she drove to a gas station a couple blocks away. In the van, either Brown or Owens said that he needed to get some money. As the woman was preparing to leave the gas station, the two men jumped out of the van without a word and ran back toward the victim's apartment. The woman could see that Brown had a large gun tucked under his t-shirt as he ran away.

Back at the victim's apartment, Brown knocked on the door while Owens sat on the steps a few feet away. The victim's girlfriend looked out the peephole, saw Brown, and opened the door, but she did not unlock the burglar bar door. Owens asked if they had found his pager, which he claimed to have lost. The victim's girlfriend looked around the apartment but did not find the pager, and when she asked if Owens wanted her to call it so that it would ring or vibrate to help him find it, Owens declined. Brown and Owens then walked away but waited near the apartment. A minute or two later, at 11:15 p.m., the victim came outside. Brown and Owens asked him for a ride, which he agreed to give them.

The victim drove to a dark street a little over a mile away. He then stopped the car in the middle of the street and walked behind some bushes at the edge of Brandon Robbins's back yard. Robbins heard someone arguing with the victim. Seconds later, Robbins heard multiple gunshots in rapid succession. Robbins ducked for cover, but he looked up in time to see a man run back to the victim's car and jump in before the car sped off. Robbins later identified that man as Brown in a photographic lineup. Robbins went to check on the victim, while Robbins's relatives placed a call to 911 at 11:23 p.m. Brown was dead by the time Robbins reached him. He had been shot ten times, including five shots to the head, any one of which would have killed him.

The police questioned Brown three days after the shooting. Brown admitted that the victim had given him and Owens a ride that night but claimed that they were dropped off a couple hours before the victim was killed. Brown pointed the finger at a third man that he and Owens knew, saying that when the victim stopped for gas, the man pulled up in his car with a couple of friends and, when the victim indicated that he was headed to a nightclub, said that he and his friends would follow the victim there.

The police questioned Owens's girlfriend eight days after the shooting. Shortly before the police talked to her, Brown and Owens convinced her to lie and tell the police that they were with her at her apartment from 10:30 to 11:00 p.m. on the night of the shooting, leaving insufficient time for them to have killed the victim at approximately 11:23 p.m. Brown supplied her with details to make the story more credible. Owens's girlfriend followed the plan at first, but on further questioning, she admitted that she had been lying, that Brown and Owens were not with her that night, and that they had told her what to say to the police.

After arrest warrants were issued for Brown and Owens, Brown, accompanied by counsel, gave a second statement to the police. Brown admitted that he had lied in his first statement and made up the story about the man at the gas station who said he was going to follow the victim to a club. Brown claimed that Owens had told him what to say to the police to provide both of them with an alibi. Brown now claimed that while he was in the victim's car, Owens unexpectedly pulled out a gun and forced him to drive to where the victim was killed. Brown said that he waited in the car while Owens marched the victim behind the bushes at gunpoint before shooting him repeatedly and running back to the car. Brown maintained that he had no prior knowledge of Owens's plan to rob and murder the victim.

When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Brown guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also OCGA § 16–2–20 (defining parties to a crime); 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. Brown contends that even if the evidence was sufficient to satisfy due process under Jackson v. Virginia, it did not satisfy OCGA § 24–4–6, which provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Brown claims that the evidence against him was all circumstantial and that it equally supported the reasonable alternative hypothesis that he was merely present when Owens alone committed the crimes. This argument is not persuasive.

While “mere presence” at a crime scene does not make a bystander criminally liable absent “special circumstances or relations [that] create a duty to interfere, ... presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.” Thornton v. State, 119 Ga. 437, 439, 46 S.E. 640 (1904). When deciding whether the evidence was sufficient to satisfy OCGA § 24–4–6, we again view the evidence in the light most favorable to the verdict. See, e.g., Mullins v. State, 269 Ga. 157, 157–158, 496 S.E.2d 252 (1998); Brown v. State, 260 Ga. 153, 154–155, 391 S.E.2d 108 (1990). So viewed, the evidence showed that Brown set out with his best friend Owens to get some money. Brown, carrying a handgun, returned with Owens to the victim's apartment, but their ruse to gain entry failed. Brown then waited outside with Owens and got a ride from the victim. Brown was the person that the witness saw running back to the car just after the fatal shots were fired. Afterwards, Brown lied to the police, concocted a false alibi, and fabricated a story to implicate someone else in the crimes. This evidence was more than sufficient to allow a rational jury to find that the State had excluded every reasonable hypothesis other than Brown's guilt. Accordingly, there was no violation of OCGA § 24–4–6.

3. Brown contends that the evidence was insufficient to prove the “asportation” element of the kidnapping statute, OCGA § 16–5–40, as we interpreted it in Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008). In Garza, this Court adopted a four-factor test to differentiate movement that satisfies this element of the kidnapping statute from movement that is “merely a ‘criminologically insignificant circumstance’ attendant to some other crime.” Id. at 702, 670 S.E.2d 73 (citation omitted). The four factors are: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense. See id.²

Only the second Garza factor suggests that the movement of the victim was merely incidental to Brown's other crimes, because it occurred during the course of the armed robbery and aggravated assault. On the other hand, the duration of the movement was not brief or momentary—approximately eight minutes passed between the time the victim was directed at gunpoint to move, first by car and then on foot, to the place where Brown shot him. The movement was not an inherent part of the separate offenses; it was not necessary to move the victim in this fashion to steal his car, assault him with the handgun, and kill him. And the obvious purpose of the movement was to isolate the victim from his friends and other potential witnesses, which significantly increased the risk of harm to the victim and indeed enabled Brown to kill him with no eyewitnesses. See Henderson v. State, 285 Ga. 240, 245, 675 S.E.2d 28 (2009) (noting that the kidnapping statute is “intended to address ‘movement serving to substantially isolate the victim from protection or rescue’ ”). We therefore have no difficulty concluding that the evidence was sufficient for the jury to find that the asportation element of kidnapping, as interpreted in Garza, was proven in this case.

4. Relying on Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Brown contends that the trial court violated his due process right to present a defense by excluding as hearsay a statement that Owens, who did not testify at trial, made to the police in which he admitted that he drove the victim's car from the crime scene and that Brown...