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Brown v. State

Supreme Court of Georgia

October 6, 2014

BROWN
v.
THE STATE. McKINNEY
v.
THE STATE

Page 377

[Copyrighted Material Omitted]

Page 378

Murder. Fulton Superior Court. Before Judge Campbell.

Chaunda Brock, for appellant (case no. S14A0800).

Sanford A. Wallack, for appellant (case no. S14A0801).

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Sheila E. Gallow, Arthur C. Walton, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Andrew G. Sims, Assistant Attorney General, for appellee.

NAHMIAS, Justice. All the Justices concur.

OPINION

Page 379

Nahmias, Justice.

Rickey Brown and Mecco McKinney appeal their convictions for murder and a firearm offense related to a gun fight between them and co-indictee Teon Richardson that resulted in the death of an innocent bystander, four-year-old Sedriana Rosser. Finding no reversible error as to any of the many claims raised by one or both of the Appellants, we affirm in both cases.[1]

Page 380

[295 Ga. 805] 1. Viewed in the light most favorable to their verdicts, the evidence presented at trial showed the following. About three weeks before the shooting at issue here, Brown, McKinney, and Richardson got into a physical fight because Brown and McKinney believed Richardson had stolen something from them. Richardson also left a voice-mail on another person's phone threatening to kill Brown and McKinney with his TEC-9 gun. On March 17, 2004, Richardson was walking around the Jonesboro South apartment complex trying to sell a TEC-9, which he had attached to a string around his neck. When Brown and McKinney, who were giving two women a ride to the apartment complex, arrived in the parking lot, the three men spotted each other, drew their guns, and opened fire. Brown and McKinney got out of the car, and Richardson ran toward an occupied area of the complex and took cover in Cheryl Jackson's apartment. One of the shots struck and killed the victim child, who was outside playing. Brown and McKinney then drove away; when Richardson left Jackson's apartment, he was apprehended by Jonesboro South residents and held until the police arrived.

At Appellants' trial, eight eyewitnesses testified about the exchange between Brown, McKinney, and Richardson. The accounts varied considerably, both from witness to witness and within some of the witnesses' testimony, regarding which of the three men had guns, who drew his gun first, and who actually fired his gun. Some of the testimony indicated that Brown and McKinney both had guns and both fired, and three of the witnesses testified that Brown and McKinney drew their guns first. The other five witnesses said that Richardson pointed his gun first, but only two of them believed that Richardson was actually able to shoot his gun. The police also found unfired bullets from a TEC-9 at the crime scene, which indicated that although he tried to shoot, Richardson's gun would not fire. Brown, McKinney, and Richardson did not testify. The jury was charged on self-defense justification, but rejected that defense and found Brown and McKinney guilty.

Neither Appellant challenges the legal sufficiency of the evidence. Nevertheless, in accordance with this Court's practice in [295 Ga. 806] murder cases, we have reviewed the record and conclude that the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Brown and McKinney guilty beyond a reasonable doubt of the crimes for which they were convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also 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. Before trial, McKinney filed a special demurrer to the indictment, arguing that it contained prejudicial surplusage in Counts 2, 6, and 7 and that its reference to his alleged alias was impermissible bad character evidence. The trial court denied the special demurrer, and we see no error in that ruling.

Count 2 of the indictment, which charged felony murder based on possession of a firearm by a convicted felon, alleged that McKinney, Brown, and Richardson caused the death of the victim " by engaging in a gun battle with each other which caused Sedriana Rosser to be shot and killed in the crossfire." Count 6, which charged felony murder based on aggravated assault, alleged that the victim was killed " in the crossfire." And Count 7, which charged aggravated assault, included another allegation that there was a " gun battle." McKinney contends that these allegations were prejudicial surplusage. However, " mere surplusage does not vitiate an otherwise valid indictment." Malloy v. State, 293 Ga. 350, 360 (744 S.E.2d 778) (2013). The language to which McKinney objects was permissible because the references to the " gun battle" and " crossfire" " accurately described the offenses charged and made the

Page 381

charges more easily understood" by the defendants and the jury. Id.

The caption of the indictment referred to McKinney as " Mecco McKinney aka Jesse Chester," but during the trial, no witness identified McKinney by that alias, and there was no other evidence presented that he had used that name. Nevertheless, this Court explained long ago that while

the appearance of an alias in an indictment might reflect unfavorably on the accused, it is the settled law of this State that the grand jury may so indict the accused, either when he is known by different names or when the grand jury is uncertain as to which of a number of names is his true name. The purpose of giving the name is to identify the accused. If this law is abused by an unjustifiable resort thereto by the grand jury, the accused has opportunity upon the trial to prove that he has never had an assumed name, ...

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