Brown v. the State , 337 Ga. App. 36 ( 2016 )

THIRD DIVISION
MILLER, P. J.,
MCFADDEN and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 3, 2016
In the Court of Appeals of Georgia
A16A0390. BROWN v. THE STATE.
MCMILLIAN, Judge.
Johnny Jerome Brown was convicted following a bench trial of felony and
misdemeanor theft by taking. Brown filed a motion for new trial asserting the general
grounds, and after he was appointed new appellate counsel, amended his motion to
also raise a challenge to the sufficiency of the evidence. The trial court denied
Brown’s motion following a hearing, and Brown filed a notice of appeal to this
Court.1 As more fully set forth below, we now affirm.
1
We note that the notice of appeal was filed on Brown’s behalf by his appellate
counsel. During the pendency of this appeal, Brown also filed a separate pro se
enumeration of errors and brief in the trial court, which was then forwarded to this
Court, in which, among other things, Brown takes issue with the way the proceedings
below were conducted and expresses dissatisfaction with both his trial and post-trial
counsel. However, it does not appear that Brown has ever waived his right to
appellate counsel or filed any petition to pursue his appeal pro se. Accordingly, we
1. Brown first contends that his waiver of jury trial was not knowingly and
intelligently made and that the trial court erred by refusing to allow him to revoke his
waiver. The record shows that following a hearing during which Brown was placed
under oath and examined by the trial court concerning his desire to waive his right to
a jury trial, Brown executed a “Consent Order Granting Waiver of Jury Trial,” which
set out that Brown had waived his right to be tried by a jury in open court after the
trial court had conducted a “thorough inquiry” into his request. However, on the
morning of trial, Brown’s counsel informed the trial court that Brown had indicated
to her that he wished to revoke his jury trial waiver, and Brown then informed the
trial court that he signed the jury trial waiver because his previous counsel had
assured him that the State was only seeking restitution and that it was in his best
interest to sign the waiver so they could “waive having people in a jury.” Brown’s
current trial attorney stated that she did not have any personal knowledge of the
discussions between Brown and his previous attorney, but that she agreed with the
advice that it would be in Brown’s best interests to waive his right to a jury trial.
will not consider the contentions raised in Brown’s separate pro se filings in this
appeal. Merriweather v. Chatman, 285 Ga. 765, 766 (684 SE2d 237) (2009) (“A
defendant has a right to pursue an appeal pro se if preceded by an appropriate waiver
of the right to appellate counsel.”) (citation and punctuation omitted); Costello v.
State, 240 Ga. App. 87, 87-88 (522 SE2d 572) (1999) (same).
2
Noting that the case was four years old and that all the witnesses were present, the
trial court found that it would thwart the work of the court to allow Brown to
withdraw his waiver of jury trial and denied Brown’s motion.
Following trial, Brown filed a motion for new trial, as amended, but did not
raise any issue concerning whether his jury trial waiver had been knowingly and
intelligently made and never raised any contention concerning the trial court’s denial
of his request to withdraw his waiver. During the hearing on the motion, Brown’s
post-trial counsel, who also represents Brown on appeal, informed the trial court that
he had “nothing in need of hearing. I have no facts,” and that he wanted to proceed
with an appeal based on the contention raised in his amended motion that the
evidence was insufficient. The State’s attorney clarified for the record that the only
issue preserved for appeal was the issue of sufficiency of the evidence. In light of
these circumstances, and considering that the issue of waiver could not be further
developed without an evidentiary hearing at which Brown’s former counsel could
testify, we agree with the State that Brown has waived the right to raise this issue on
appeal. See Lloyd v. State, 259 Ga. App. 636, 641 (4) (577 SE2d 854) (2003) (issue
of voluntariness waived when raised for first time on appeal); see generally Allison
3
v. State, 288 Ga. App. 482 (654 SE2d 628) (2007) (extrinsic evidence concerning
waiver of jury trial may be presented at hearing on motion for new trial).
Moreover, we note that the record reflects that his waiver was valid. The trial
court engaged in an extensive colloquy with Brown prior to the execution of his
waiver and informed Brown of his rights and the effect of the waiver of those rights.
Contrary to Brown’s statement that his then counsel had assured him the State was
seeking only restitution, the trial court informed Brown of the possible punishments
he was facing, and Brown acknowledged his understanding of those possible
punishments. Brown stated clearly that he understood that he was waiving the right
to have his case heard by a jury and that a judge would try his case, and that he also
understood that there was a possibility he could be sentenced to a maximum of 12
years if he were convicted, after which he reaffirmed he wanted to waive a jury trial.
The trial court also asked Brown if he had been promised anything, threatened or
coerced into waiving his rights, and Brown responded “No, sir.” Brown signed a
consent waiver form following the hearing, in which he reaffirmed his knowledge of
the rights he was waiving and that the judge would impose sentence on him if he was
found guilty. Accordingly, the record demonstrates that Brown voluntarily,
knowingly, and intelligently waived his right to a jury trial.
4
Likewise, there is no merit to Brown’s contention that the trial court erred by
denying his request to revoke his waiver on the morning of the scheduled bench trial.
A defendant may revoke a prior waiver of trial by jury as long as the defendant
exercises his right to revoke the waiver in a timely manner and “in such season as not
substantially to delay or impede the cause of justice.” Cain v. State, 102 Ga. 610, 612
(29 SE 426) (1897).
As the trial court noted in denying the motion, Brown’s case had been pending
for four years by the time of trial, and Brown had waited until the morning of trial
when witnesses were present to seek to revoke his waiver. Additionally, the record
reflects that Brown’s bond had been revoked and bench warrants issued on four
occasions between the time Brown was indicted and his case was called for trial.
Although it appears that on two of those occasions the bench warrants were dismissed
when valid reasons for Brown’s failure to appear were revealed, the other two remain
unexplained.2 In view of Brown’s repeated failures to appear in court, the timing of
2
On appeal, Brown suggests that “[f]rom the circumstances surrounding” one
of the unexplained bench warrants, “it can be inferred [that] Brown’s change of
address may have contributed to him missing court. . . .” But Brown’s failure to raise
this issue in his motion for new trial court prevents this Court from giving full
consideration to this issue, illustrating why failing to raise issues at the motion for
new trial phase where they could be fully explored may result in waiver.
5
the requested revocation, and the fact that his purported reasons for seeking to revoke
his waiver, including that he had not understood that a judge, rather than a jury would
be deciding his case, are at odds with his acknowledgments at the waiver hearing and
on the waiver consent form, the trial court was authorized to deny his request to
revoke his waiver and proceed with a bench trial. E.g., Coursey v. State, 281 Ga. App.
494, 495 (1) (636 SE2d 669) (2006); Bennett v. State, 262 Ga. App. 800, 800-01 (586
SE2d 704) (2003).
2. Brown also argues the evidence was insufficient to support his conviction
for theft by taking because the State failed to prove the value of the motor vehicle
parts taken exceeded $100.
Brown was charged in Count 1 of the indictment with taking four car engines
with a value exceeding $100. At the time of the theft,3 the trial court had the
discretion under OCGA § 16-8-12 (a) (5) (A) to impose a felony sentence against a
3
“[I]n general, a crime is to be construed and punished according to the
provisions of the law existing at the time of its commission.” (Citation and
punctuation omitted.) Collymore v. State, 298 Ga. 335, 337 (3) (782 SE2d 7) (2016).
The theft of the motor vehicle parts occurred in August 2010, and thus the version of
OCGA § 16-8-12 (a) (5) (A) effective from July 1, 2009 to June 30, 2012 was
properly applied. Id. Effective July 1, 2012, the reference to motor vehicles was
removed from the statute. Id. at 338, n.3.
6
person convicted of the theft of a motor vehicle or motor vehicle parts or components
which exceeded $100 in value.
The proper measure of value “is the fair cash market value either at the time
and place of the theft or at any time during the receipt or concealment of the
property.” (Citation and punctuation omitted.) Porter v. State, 308 Ga. App. 121, 123
(2) (706 SE2d 620) (2011). The State sought to prove the value of the car engines
through the testimony of Donald P. Letteer, Jr., who witnessed Brown take the
engines from the repair business he operated with his mother.4 Letteer testified that
his family had been in the automobile parts business since 1969, that he started
working in the business around 1973, and that he had a great deal of experience in
dealing with automobile parts. He identified the parts stolen as vintage Volkswagen
engines manufactured in the 1960’s and said they were “irreplaceable” and valuable
in the car restoration business. He testified it would cost $2500 or more for him to
replace the engines and based his opinion on internet research, speaking with other
people, his own knowledge about the value of the parts from his long experience in
the automobile parts industry, and his knowledge that the parts were now
4
Brown’s defense was that he had permission to take the engines. However,
he does not challenge the sufficiency of the evidence as to the wrongful taking of the
property on appeal.
7
unobtainable. This evidence was sufficient to authorize the trial court to exercise its
discretion to sentence Brown to felony theft by taking.
Judgment affirmed. Miller, P. J., and McFadden, J., concur.
8