Browner v. State

• Decision Date: 03 November 2014
• Docket Number: No. S14A1689.,S14A1689.
• Citation: 765 S.E.2d 348,296 Ga. 138
• Court: Georgia Supreme Court
• Parties: BROWNER v. The STATE.

296 Ga. 138

765 S.E.2d 348

BROWNER

v.The STATE.

No. S14A1689.

Supreme Court of Georgia.

Nov. 3, 2014.

Jonathan Perry Waters, Macon, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Atlanta, Karl David Cooke, Jr., Dist. Atty., Macon, Dorothy V. Hull, Shelley T. Multon, Asst. Dist. Attys. Samuel S. Olens, Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Jason M. Rea, Asst. Atty. Gen., for appellee.

Opinion

BENHAM, Justice.

Appellant Antonio Browner was convicted of felony murder and other related crimes associated with the shooting death of Gary Cole, the assistant manager of a Family Dollar store, during an armed robbery of the store. He was also convicted of armed robbery of Fran Meyer and attempted car-jacking of her vehicle which occurred later in the same evening as the shooting of Mr. Cole.¹ Browner appeals, raising several grounds, and for the reasons set forth herein, we affirm.

Viewed in the light most favorable to the verdict, the trial evidence showed that appellant entered the store armed with a gun with the intent to commit robbery. He commanded the store manager to open the safe but while the manager was attempting to do so, Browner shot him. The victim died as a result of the shooting. After shooting the manager, appellant turned his gun on another employee, Cynthia Poole, before running out of the store. Although neither employee opened the store safe or registers, appellant testified and admitted he took cash that was laying on the store counter. The robbery was recorded by store security cameras which showed appellant wearing distinctive cartoon-printed pajama-style pants. Video from a security camera at the courthouse showed a man matching appellant's description wearing the same pajama-style pants earlier the same day. Appellant admitted he was the man shown in both security camera videos. The store camera also showed one of appellant's co-indictees, Quartez Carter, standing at the door to the store. The other co-indictee, Ron'Esha Smith, waited outside in a get-away car. During the robbery, the cell phone appellant was carrying made an apparently inadvertent call to a friend who heard appellant tell the store manager to “ shut the f* * * up and give it to me. Open the drawer.” The witness also heard another male voice in the background saying, “Just beat his a* *.” She also heard a gunshot. The next day, appellant admitted to the friend who received the telephone call that he and the others had robbed the store, but he denied killing anyone. When the friend learned from an internet report that an employee had been killed in the robbery, she notified law enforcement authorities and told them appellant and Smith were on their way to her home, where they intended to hide out for a few days.

Acting on this tip, the police located Smith's car en route to the friend's house and made a traffic stop. Appellant was taken into custody, after which he gave two statements to police. A search of the stopped car revealed evidence related to the armed robbery and attempted car-jacking of victim Fran Meyer. That victim identified co-indictee Smith's car as one she had seen nearby before she was accosted. She testified that the purse taken from her contained several hundred-dollar bills. Security cameras at a nearby store, as well as store records of the transaction, captured video showing appellant making a purchase using a one-hundred-dollar bill shortly after the robbery of Meyer and the attempted car-jacking. When Smith's car was searched after Smith and appellant were taken into custody, the victim's checkbook was found in Smith's vehicle. Two of appellant's younger relatives testified that appellant and his two co-indictees had picked them up on the evening of these events and they had witnessed the Meyer armed robbery and attempted car-jacking. Pajama-style pants matching those that appellant admitted he was wearing at the scene of the store robbery and shooting were recovered from a dumpster at Carter's apartment complex.

At trial, appellant testified he had committed the store armed robbery, had fired the shot that killed the store manager, and took Meyer's purse, but appellant claimed Carter had threatened to kill him and Smith if he did not comply. The witnesses to the attempted car-jacking, however, testified they never saw Carter threaten appellant as they were driving around. In two custodial statements given to the police, appellant did not mention that Carter had threatened or coerced him.

1. Appellant asserts the trial court erred in denying his motion for new trial on the ground that the evidence was insufficient to convict. Quoting Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), appellant urges that the United States Supreme Court recognized that even “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt,” and that this is such a case. Particularly with respect to what appellant refers to as “the secondary charges,” presumably referring to the charges relating to the car-jacking and armed robbery of Meyer, appellant claims the evidence was vague, ambiguous, and conflicting, at best, with regard to him.

When reviewing the sufficiency of the evidence this Court does not reweigh the evidence or resolve conflicts in testimony. Caldwell v. State,

263 Ga. 560, 562(1), 436 S.E.2d 488 (1993). Resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court. Miller v. State, 295 Ga. 769, 771 (1), 764 S.E.2d 135 (2014). Appellant presented the affirmative defense of coercion, but the jury was not required to believe him or accept that defense. See, e.g., Murray v. State, 295 Ga. 289, 291(1), 759 S.E.2d 525 (2014) (jury entitled to disbelieve affirmative defense of self-defense); Engrisch v. State, 293 Ga.App. 810, 812, 668 S.E.2d 319 (2008). Although appellant denied he participated in the attempted car-jacking at the time he took Meyer's purse, the evidence was at least sufficient to support his conviction as a party to the crime. In determining the sufficiency of the evidence, this Court reviews the evidence in the light most favorable to the verdict.Miller v. State, supra at 771(1), 764 S.E.2d 135. Doing so, we find sufficient evidence was presented at trial to permit a rational trier of fact to find appellant guilty of all the charges for which he was convicted.

2. After being taken into custody, appellant gave two separate statements to police. The trial court conducted a hearing on appellant's motion to suppress the statements from being presented as evidence at the trial, after which the court denied appellant's motion. The evidence presented at the hearing showed that before giving each statement, appellant executed a written waiver acknowledging that he had been informed of his right to have counsel present during any statement made to police, indicating that he understood his rights, and declaring that he freely and voluntarily waived his right to have counsel present. Nevertheless, appellant asserts the trial court erred in admitting the statements because, he claims, the totality of the circumstances show that his statements were not freely and voluntarily made. “[U]nless clearly erroneous, a trial court's credibility determinations and factual findings relating to the admissibility of a confession must be upheld on appeal. However, we independently apply the law to the facts.” (Citation and punctuation omitted.) Smith v. State, 295 Ga. 283, 285(1), 759 S.E.2d 520 (2014). Applying this standard, we find no error in the trial court's decision to admit the two custodial statements into evidence.

Appellant's assertion that the statements should not have been admitted into evidence is based in part on the fact that appellant was kept waiting in isolation from others for over an hour before the interviewing officer first informed him of his rights and took his first statement, during which time he was under video surveillance. No evidence gleaned from the pre-interview videotape, however, was admitted into evidence. Thus, the fact that a videotape was made, unbeknownst to appellant, before he was advised of his right to counsel and right to remain silent is irrelevant to the issue of whether the statements admitted into evidence were freely and voluntarily given. Without referencing any evidence in support, appellant claims that the period of isolation imposed on him prior to the first statement he gave had an adverse psychological effect upon him, noting that he was only nineteen years of age at the time of the questioning. Physical or mental torture is the type of fear of injury that prevents a confession from being admissible pursuant to former OCGA § 24–3–50.² See State v. Roberts, 273 Ga. 514(4), 543 S.E.2d 725 (2001), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008). The record, however, shows appellant was not a minor and was a high school graduate who was enrolled in his second year of technical school at the time of these events. Thus, we reject the suggestion that he was of such tender years that being held in the interview room by himself prior to commencement of the questioning, without more, constituted physical or mental torture of the type to render an in-custody statement involuntary and inadmissible. See id.

Appellant further argues that his statements were made when he was tired and under duress, and therefore his statements were not freely given. Appellant, however, fails to point to any circumstances supporting the assertion that his statements were made under duress, and a review of the videotape of his statements reveals no such duress was applied. At no point during the interviews did appellant assert his right to counsel or attempt to end the interview. The videotape of the two interviews reveals no evidence of extreme tactics ...