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Brown v. State

Court of Appeals of Georgia

June 29, 2015

BROWN
v.
THE STATE

Aggravated assault, etc. Walton Superior Court. Before Judge Wynne.

S. Cindy Wang, for appellant.

Layla H. Zon, District Attorney, W. Cliff Howard, Assistant District Attorney, for appellee.

ELLINGTON, Presiding Judge. Dillard and McFadden, JJ., concur.

OPINION

Ellington, Presiding Judge.

A Walton County jury found Isaac Brown guilty of aggravated assault, OCGA § 16-5-21 (b) (2);

Page 709

possession of a firearm during the commission of a crime, OCGA § 16-11-106 (b) (1); and possession of a firearm by a convicted felon, OCGA § 16-11-131 (b). Brown appeals from the denial of his motion for a new trial, contending that the trial court erred in admitting hearsay evidence and that his trial counsel was ineffective. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury's verdict,[1] the record shows that, on November 14, 2011, Brown and his brother, Abraham, assaulted Mario Fambrough. Fambrough testified that he was standing outside his uncle's home with a friend, talking on his cell phone, when the Brown brothers walked up to him. Both Fambrough and his friend, Jarvaris Brake, testified that the brothers pulled out handguns and pointed them at Fambrough. Brake fled inside the house while the brothers pistol-whipped Fambrough until he surrendered his wallet.[2] Fambrough's uncle testified that he saw [332 Ga.App. 636] two men beating his nephew but that he did not see their faces. As a result of the assault, Fambrough suffered facial lacerations and a swollen eye. Brown, who elected to testify in his defense, contended that he and Fambrough had gotten into a fight over a drug deal and that he had been unarmed.

After Fambrough had been treated for his injuries, the responding police officers took him into custody on an outstanding warrant for a probation violation. The police put Fambrough in a holding cell that was also occupied by Brown's other brother, David, who had been arrested the day before and was not involved in the assault. Fambrough complained to David about what David's brothers had done to him. Fambrough testified that, after he had been released from jail, David called him from the jail and told him that his mother would pay him to tell the police that his brothers were not involved in the assault. A recording of that conversation was admitted in evidence and played for the jury.

The State also presented the testimony of Antonio Phillips, a person who had been incarcerated in the same cell block in the Walton County jail with Brown while Brown was awaiting trial. Phillips testified that he knew Fambrough and the Brown brothers. He said that Fambrough had once hit him with a brick, and that Brown was aware that he and Fambrough had fought. He testified that Brown had approached him while they were in jail and had spoken with him briefly about Brown's upcoming trial, telling Phillips that his lawyer would be contacting him. A few weeks later, a trustee handed Phillips a letter addressed to " Young Gun," which is Phillips' nickname. The trustee said the letter was from " Trip," which is Brown's nickname. The trustee also pointed toward Brown, who was standing a short distance away. A corrections officer took the letter from Phillips before he could finish reading it. In his unsigned letter, Brown urged Phillips to testify that he had witnessed an altercation and to testify that Brown and his brother had been unarmed. The letter contained all the details Phillips would need to fabricate his eyewitness testimony: the date and time of the incident, the location, the names of all those present, and how the altercation had allegedly occurred. In the letter, Brown pleaded: " I need your help bad. ... [The prosecution is] talking [a]bout a 30 do 18 [sentence]. ... I'll see if my lawyer will come see you soon[.]"

1. Brown contends the trial court erred in admitting the recorded telephone call between David and Fambrough, arguing that David's statements about his mother's offer to pay Fambrough to tell the police that his brothers were not involved in the assault constituted inadmissible hearsay. The transcript shows that Brown made a [332 Ga.App. 637] general hearsay objection to the recording, which the court summarily overruled. Because the statements were nonhearsay, we find no error in the court's ruling on the objection.

OCGA ยง 24-8-801 (c) provides: " 'Hearsay' means a statement, other than one made by the ...


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