Brown v. State ( 2008 )

HINES, Justice.

Richard Nelson Brown appeals his convictions for malice murder, aggravated assault, two counts of burglary, and possession of a firearm during the commission of a crime, all in connection with the death of Kenneth H. Crook. For the reasons that follow, we affirm.¹

Construed to support the verdicts, the evidence showed that Crook operated a family-owned tire store located four miles from his home; a grocery store, a convenience store, and a loan office owned by his family were near the tire store. Brown was a former employee of the tire store.

A friend went to Crook’s home at 8:55 p.m.; Crook’s vehicle was parked there, but he did not respond to repeated attempts to get him to answer the door. The friend left, returned at 10:30 p.m., and found the back door to Crook’s home open; it had not been open on her earlier visit. She entered and discovered Crook’s body in the bedroom. He had been struck twice in the head with a pistol, strangled with a thin ligature, and suffered two gunshots to the front of the head; one of the bullet wounds was the fatal wound. Blood impact stains and smears were on the wall, and next to the body was the bloody imprint of a shoe with a distinctive tread design. There were bindings around Crook’s wrists and arms, and pornographic pictures of women were scattered near the body; two spent cartridges from a .380 caliber pistol were also near. Crook’s wallet and keys were missing.

Both Crook’s residence and the tire store had security systems. A security alarm was set off at 4:35 p.m. on the rear door of Crook’s residence; the monitoring company successfully reached Crook at the tire store and cancelled the alarm. At 7:00 p.m., the alarm on the rear door of Crook’s residence was again activated, and a proper code was entered to turn off the alarm, but the monitoring company nevertheless telephoned the house; a male answered who did not give the proper password.* ² At 8:21 p.m., an alarm was activated at the tire store, and police were notified. The front door to the store was unlocked, and there was no sign of forced entry. A distinctive van identified as Brown’s was seen at Crook’s residence at 7:00 p.m. A surveillancecamera at the convenience store owned by Crook’s family, adjacent to the tire store, showed the van going through the parking lot of the convenience store at 8:37 p.m.

Brown told police that he had followed Crook home, and admitted shooting Crook twice in the head. He said that: Crook tried to hug and kiss him; things got “ugly”; the two men struggled; Brown took a pistol from a nearby dresser; he shot Crook once; Crook got back up; he shot him again; he used Crook’s key to enter the tire store. Brown told police where Crook’s wallet could be found, and his shoe matched the imprint found at the crime scene.

1. The evidence was sufficient to enable a rational trier of fact to find Brown guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The verdict form, as returned by the jury, showed:

COUNT ONE - MALICE MURDER:

We the jury find the Defendant: NOT GUILTY_ GUILTY X

We the jury find the Defendant: GUILTY OF FELONY MURDER_

We the jury find the Defendant: GUILTY OF VOLUNTARY MANSLAUGHTER_

COUNT TWO - AGGRAVATED ASSAULT:

We the jury find the Defendant: NOT GUILTY_ GUILTY X

COUNT THREE - BURGLARY:

We the jury find the Defendant: NOT GUILTY_ GUILTY X

COUNT FOUR - BURGLARY:

We the jury find the Defendant: NOT GUILTY___ GUILTY X

COUNT FIVE - POSSESSION OF AGUN OR KNIFE DURING THE COMMISSION OF A CRIME:

We the jury find the Defendant: NOT GUILTY_ GUILTY X

Brown contends that this verdict form was misleading. At trial, Brown specifically objected to the lack of blanks designating “not guilty” of felony murder and voluntary manslaughter, and the trial court noted that Brown was not indicted on such charges, those offenses were only being considered as lesser included crimes, and there was thus no need for the jury to specifically denote him “not guilty” of those charges.

What is at issue is whether “the form would mislead jurors of reasonable understanding, or the trial court erroneously instructed the jury on the presumption of innocence, the State’s burden of proof, the possible verdicts that could be returned, or how the verdict should be entered on the printed form.” Rucker v. State, 270 Ga. 431, 435 (5) (510 SE2d 816) (1999).³ The trial court properly instructed the jury on the presumption of innocence and the State’s burden of proof. The court also properly instructed the jury on the law of justification based upon self-defense, and the law on felony murder and voluntary manslaughter.

Regarding the verdict form, the court said:

In your verdict form, Count I will contain findings relating to malice murder, felony murder and voluntary manslaughter. If you do not believe beyond a reasonable doubt that the defendant is guilty of malice murder, then you would be authorized to find him guilty of felony murder or voluntary manslaughter. If you do find him guilty beyond a reasonable doubt of either of those offenses, you should specify the offenses in which you find him guilty. The form of your verdict would be we, the jury, find the defendant guilty of, and you would name the offense.

In the event you do find the defendant guilty of causing the death of the alleged victim, you would be authorized to find him guilty of only one of the homicide forms defined for you and set out in Count I.

If you find that the State has failed to prove the defendant’s guilt beyond a reasonable doubt as to all charges, then it would be your duty to acquit the defendant, and the form of your verdict would be we, the jury, find the defendant not guilty, and you would specify in your verdict each Count upon which you have found the defendant not guilty.

If you find the defendant guilty of some Counts and not guilty of some Counts, you should specify each Count upon which you find him guilty and each Count upon which you find him not guilty.

“Jury instructions are read and considered as a whole in determining whether there is error. [Cit.]” White v. State, 281 Ga. 276, 280 (4) (637 SE2d 645) (2006). Brown contends that it was not clear to the jury that marking “not guilty” next to “malice murder” would also apply as findings of “not guilty” to the crimes of “felony murder” and “voluntary manslaughter.” However, the trial court’s instruction was clear that a verdict of “guilty” or “not guilty” was to be entered on each Count, and that felony murder and voluntary manslaughter, as “homicide forms,” were to be considered in relation to Count I, and that, if guilt was found, only one crime under Count I should be indicated. Compare Laster v. State, 276 Ga. 645, 649-650 (5) (581 SE2d 522) (2003). The jury had ample guidance for its consideration of felony murder and voluntary manslaughter.⁴

Moreover, the jury’s actions during deliberations do not support the conclusion that the verdict form actually caused confusion. The jury sent a request to the court for a “time line” and transcripts of the testimony of three witnesses, which included a specific question as to whether the testimony of one of the witnesses included a certain fact.⁵ No questions were asked regarding the verdict form.

The verdict form used was not one that would mislead jurors of reasonable understanding, Rucker, supra, and there is no error.

Judgments affirmed.

All the Justices concur, except Sears, C. J., and Carley, J., who concur specially, and Hunstein, P. J., who dissents.

1 The crimes occurred on September 30, 2005. In the March 2006 term of court, a Coweta County grand jury indicted Brown for malice murder, aggravated assault, two counts of burglary, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Brown was tried before a jury November 27-29, 2006, and found guilty of malice murder, aggravated assault, two counts of burglary, and possession of a firearm during the commission of a crime; an order of nolle prosequi was entered on the charge of possession of a firearm by a convicted felon. On November 29, 2006, the trial court sentenced Brown to a term of life in prison for malice murder, a consecutive term of twenty years in prison for aggravated assault, terms of twenty years in prison for each of the burglary counts, to be served concurrently with each other and with the twenty-year term for aggravated assault, and a term of five years in prison for possession of a firearm during the commission of a crime, to he served consecutively to the term for aggravated assault. On December 7, 2006, Brown filed a motion for a new trial, which was denied on March 15, 2007. On April 26, 2007, Brown filed a motion for an out-of-time appeal, which was granted on May 1,2007. Brown filed a notice of appeal on May 11,2007, and his appeal was docketed in the Court of Appeals of Georgia on May 15, 2007; that Court transferred the appeal to this Court on May 21,2007; the appeal was docketed in this Court on May 23, 2007, and submitted for decision on July 16, 2007.

2 The telephone call was recorded, and the voice of the answering male was identified as Crook’s.

3 Although the jury found Brown guilty of malice murder, this does not render moot the question of whether the verdict form improperly affected the jury’s verdicts themselves. See Rucker, supra (addressing the verdict form after a finding of guilt on malice murder). Compare Roberts v. State, 276 Ga. 258, 260-261 (5) (577 SE2d 580) (2003) (challenge to jury charges on felony murder declared moot when jury found defendant guilty of malice murder).

4 Although not separately enumerated as error, Brown also asserts that the court’s instructions did not properly advise the jury regarding consideration of the defense of justification, but the court fully charged the jury on the law of justification based upon self-defense, and on the State’s burden of proof.

5 The court responded to these questions by allowing the jury to review exhibits that had been prepared by the State, informing the jury that no transcripts were available, and stating that the jury would have to recall the testimony concerning its specific question.