Browning v. State

• Decision Date: 19 May 2008
• Docket Number: No. S08A0541.,S08A0541.
• Citation: Browning v. State, 661 S.E.2d 552, 283 Ga. 528 (Ga. 2008)
• Parties: BROWNING v. The STATE.
• Court: Georgia Supreme Court

661 S.E.2d 552

283 Ga. 528

BROWNING v.The STATE.

No. S08A0541.

Supreme Court of Georgia.

May 19, 2008.

Harold W. Wallace III, Thomson, for appellant.

Thurbert E. Baker, Attorney General, Sara Kaur Sahni, Assistant Attorney General, Dennis C. Sanders, District Attorney, for appellee.

HINES, Justice.

A jury found Robert L. Browning guilty of felony murder while in the commission of aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony in connection with the fatal shooting of William Roger Bryant.Browning appeals his convictions, challenging the sufficiency of the evidence of his guilt and the effectiveness of his trial counsel.Finding the challenges to be without merit, we affirm.¹

The evidence construed in favor of the verdicts showed that on the evening of June 24, 1996, Browning shot and killed Bryant outside the home of Billy Luke("Luke"), an employee of Bryant and a neighbor of Browning.Bryant had come to the neighborhood to speak with his wife, with whom he was having marital problems and who had been visiting Luke's girlfriend at Luke's house.Moments after Bryant's wife left Luke's home, she saw Bryant driving behind her in his "old work truck."The truck was "loud," and when Bryant stopped it, the tires squealed.The couple exited their vehicles and spoke with each other briefly before deciding to continue their discussion at Luke's house rather than in the street.Shortly after the pair arrived at Luke's driveway, Browning approached.Browning was "walking in an angry manner," and was "shaking his finger" until he was "in [Bryant's] face."Browning stated, "Let me tell you one thing, boy."Bryant replied, "Let me tell you one thing.You need to get your ass off of this property."Following this brief verbal exchange, and without any physical contact between the two men, Browning fired a .22 caliber revolver at Bryant.Bryant was unarmed and had nothing in his hands.He threw his hands up in the air, walked four steps, dropped to his knees, and "fell over."Bryant had sustained a fatal gunshot wound to the head; the bullet pierced Bryant's eye and lodged in his brain.Browning returned to his house, told his wife that he had shot Bryant, and telephoned 911.

At trial, Browning claimed that he shot Bryant in self-defense.

1.Contrary to Browning's contention, the evidence was sufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt of the crimes of which he was convicted.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Browning contends that his trial counsel provided ineffective assistance in several respects.However,

[t]o prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different.A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.)Sanders v. State,283 Ga. 372, 374, 659 S.E.2d 376(2008).

(a) Browning first asserts that trial counsel was ineffective for failing to request a jury charge on voluntary manslaughter and for failing to request that the charge conference be recorded so that Browning could argue on appeal that the trial court erroneously refused to give such a charge.

First, the record discloses that trial counsel did file a written request to charge on voluntary manslaughter in the context of mutual combat.SeeWalker v. State,281 Ga. 521, 525, n.9, 640 S.E.2d 274(2007);Joyner v. State,212 Ga. 269, 270(2), 91 S.E.2d 607(1956).In any event, a jury instruction on voluntary manslaughter was not warranted.The record discloses that Browning's defense was that he shot Bryant in self-defense.

While jury charges on self-defense and voluntary manslaughter are not mutually exclusive, the provocation necessary to support a charge of voluntary manslaughter is different from that which will support a claim of self-defense.The distinguishing characteristic between the two claims is whether the accused was so influenced and excited that he reacted passionately rather than simply in an attempt to defend himself.Only where this is shown will a charge on voluntary manslaughter be warranted.

( Citations and punctuation omitted.)Walker v. State,supra at 524(6), 640 S.E.2d 274 Browning's own testimony belies the claim that he acted in the heat of passion; instead, it plainly attempted to portray that Browning shot Bryant in order to protect himself.Browning testified that at the time of the shooting, he was a part-time employee of the State Crime Lab and worked with the Georgia Bureau of Investigation; he routinely carried a gun in his pocket for "self-protection"; he witnessed the encounter between Bryant and his wife; he objected to the manner in which Bryant was driving on his street; he wanted to report Bryant to police for reckless driving; that as he approached Bryant, Bryant cursed at him; and that "something needed to be said to that boy."As to the final minutes of the fatal encounter, Browning testified,

I walked down to the edge of his driveway.I never left the street.He—When he got out of his truck and started towards me that scared me.I mean, the look on his face and he was coming toward me.He throwed out his hands.He was gonna get me.I knew it.This is why I carried this gun, for self-protection.

When Browning was asked "what was going through [his] mind as [Bryant] was coming at [him]," Browning responded,

To run or get out of there, which I can't run.When I got out of service I had disability on my feet.I can't run.But, I don't know, get away from there, get away from him which I couldn't do.Protect myself the best I could.I'm too old to fight.I can't fight.

When asked specifically what he then did, Browning replied, "Protect myself the best way I could."He further explained that at the time he fired the pistol, he knew that Bryant was close, was about to grab him and do him "great harm," that Bryant lunged at him, and that he was scared.Furthermore, when asked specifically whether he was angry after Bryant had cursed at him, Browning responded: "Not angry as such.I still wanted to talk to him, but he had done scared me then."Browning's version of events is unequivocal in its portrayal of the shooting as out of fear, and not because Browning was provoked.Inasmuch as the evidence at trial did not support any claim that the shooting was the result of provocation as will sustain voluntary manslaughter, a jury charge on voluntary manslaughter was not authorized.Nelson v. State,283 Ga. 119, 121(2)(b), 657 S.E.2d 201(2008).

Because a jury instruction on voluntary manslaughter was not warranted, any failure on the part of Browning's trial counsel to request and/or pursue its being given cannot constitute the deficient performance necessary to satisfy the first prong of the ineffective assistance of counsel test.Miller v. State,283 Ga. 412, 658 S.E.2d 765(2008).What is more, as this Court has determined that the evidence did not support a jury instruction on voluntary manslaughter, Browning's additional claim that trial counsel was ineffective for not requesting that the charge conference be recorded so that Browning could challenge the failure to give such instruction is moot.

(b) Browning also maintains that trial counsel was ineffective because despite leading Browning to believe that he was working on the case, counsel failed to set a hearing on Browning's motion for new trial and that the delay in the post-trial proceedings was tantamount to a denial of due process, warranting the grant of a new trial.²

This Court has addressed the proper resolution of claims...