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Brown v. State

Supreme Court of Georgia

August 14, 2017

BROWN
v.
THE STATE.

          Hines, Chief Justice.

         Following the denial of her motion for new trial, as amended, Jessica Lee Brown appeals her conviction for malice murder in connection with the fatal shooting of Joshua Gallimore. She challenges the sufficiency of the evidence and the effectiveness of her trial counsel, and she further complains that the trial court deprived her of a fair trial and failed to provide her with counsel for this appeal. Finding the challenges to be unavailing, we affirm.[1]

         1. We first address Brown's contention that she has been denied her right to the appointment of appellate counsel. Brown asserts that her last attorney works for the public defender's office but abandoned the case without notification, and she alleges that, after this appeal was docketed, she submitted to that office an application for an attorney which has not yet been acted on. The record shows, however, that Brown retained trial counsel and paid him out of her personal funds, and both attorneys who represented her on motion for new trial were from the same private law firm. In one of her filings in this Court, Brown admits that she was represented on motion for new trial by retained counsel. The trial court explicitly informed Brown that she had the right to counsel for her motion for new trial and for her appeal and that if she could not afford an attorney, she must notify the court so that it could provide her with sufficient counsel. But the record does not contain any request for leave to proceed as a pauper, any attempt to establish Brown's indigency, or any request for the appointment of counsel. See Uniform Superior Court Rule 29.2.

         It is true that "an indigent has the right to appointed counsel to assist him on direct appeal and an individual desiring an appeal need not, once a responsible state authority knows of the desire to appeal and knows of the status of indigency, specifically request appointment of appellate counsel." Trauth v. State, 295 Ga. 874, 875-876 (1) (763 S.E.2d 854) (2014) (citations and punctuation omitted). Nevertheless, where, as here, a defendant is represented by retained counsel at trial and on motion for new trial,

it must be made known to the trial court or some responsible state official that the defendant is indigent and cannot afford retained counsel to pursue an appeal. If the trial court has no reason to believe that the defendant is indigent and cannot afford the services of retained counsel for the purpose of appeal, it is under no duty to inquire as to the defendant's indigency and may presume that his retained counsel will protect his appellate rights.

Hopkins v. Hopper, 234 Ga. 236, 238 (3) (215 S.E.2d 241) (1975). See also Watkins v. State, 340 Ga.App. 218, 221 (1) (797 S.E.2d 144) (2017). Moreover, the trial court specifically informed Brown of her right to appointed counsel in the event of indigence for her appeal as well as her motion for new trial. Cf. Watkins, 340 Ga.App. at 221-222 (1). In these circumstances, and in the absence of any proof of indigency or request in the trial court for appointed counsel, the trial court had no reason to make a determination as to whether Brown was indigent and entitled to appointed counsel on appeal, and we cannot conclude that Brown has been deprived of her right to appellate counsel or that a remand for appointment of such counsel is either necessary or appropriate.

         2. Construed to support the verdict, the evidence showed the following. Brown dated Gallimore for about a year and a half, she lived with him in his trailer for most of that time, and they separated about three months before Gallimore was killed. After the separation, Brown continued to see Gallimore periodically and do things for him, and she told his father that if she could not have him, nobody would have him. On May 19, 2010, Brown loaned her car to Gallimore for him to use to handle some business that afternoon. Instead, Gallimore and his friend Charles Webb drove to see Gallimore's new girlfriend. Brown became upset after hearing a woman in the background during a phone call with Gallimore, and Brown texted him that he had "f***ed up" and that she hated him for what he did. She called the police to report that Gallimore would not bring her car back. Gallimore and Webb finally returned to Gallimore's trailer about 1:00 a.m. on May 20, which was the last time that Gallimore was seen alive. His last phone contact with Brown occurred at 6:11 a.m. that morning, and his last communication with anyone occurred at 1:54 p.m. that afternoon. Brown's car was returned to her around noon on the same day at the nursing home where she worked, and she left her job at 2:10 p.m.

         Webb testified that, although it was not unusual to see Gallimore infrequently, Brown asked Webb, on May 21, to check on Gallimore because she thought something was wrong, and no one else ever expressed a similar concern to Webb about Gallimore. Brown never asked police to do any sort of welfare check on Gallimore, but, on May 25, she finally convinced Gallimore's cousin to go with her to check on him. Another friend of Gallimore's met them there, entered his trailer, and then screamed for Brown to call 911. Gallimore was dead, and his body was in a "moderate to marked" state of decomposition. The medical examiner concluded that Gallimore had suffered eight gunshot wounds to his head in rapid succession and had been deceased for three to ten days. Police found no evidence of any weapons, drugs, burglary, or robbery, and Brown was the only person known to have conflict with Gallimore.

         Law enforcement officials interviewed Brown on three consecutive days. The first interview occurred on May 25, soon after the discovery of Gallimore's body. At that time, the bodily decomposition was "so bad" that police did not know that Gallimore had been shot, and no one had mentioned that possibility. Indeed, police did not even know whether Gallimore had died of natural causes, an accident, or a homicide. Yet Brown asked if he had been shot. On May 26, she explained that she had done "everything" for Gallimore, felt "underappreciated, " burned and bleached his clothes after they broke up, and felt disrespected when he took her car to see another woman. On May 27, Brown admitted that she was at Gallimore's residence on May 20, that she was upset with him, and that things "went bad." At trial, Brown testified that she went straight home after work on May 20 and that her brother then took her to her cousin's house, where she stayed until late that evening when her brother gave her a ride home.

         Brown argues that the circumstantial evidence was not sufficient to support her conviction for murder, and she specifically complains that no murder weapon was found, that there is no proof of motive or of malice, and that someone else could have killed Gallimore. Under former OCGA § 24-4-6, [2] "in order to warrant a conviction based solely upon circumstantial evidence, the proven facts must be consistent with the hypothesis of guilt and must exclude every reasonable theory other than the guilt of the accused." Roberts v. State, 296 Ga. 719, 721 (1) (770 S.E.2d 589) (2015) (citation omitted).

But not every hypothesis is a reasonable one, and the evidence need not exclude every conceivable inference or hypothesis - only those that are reasonable. Whether an alternative hypothesis raised by the defendant is "reasonable" is a question committed principally to the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law.

Gibson v. State, 300 Ga. 494, 495 (1) (796 S.E.2d 712) (2017) (citations and punctuation omitted). See also Nichols v. State, 292 Ga. 290, 291 (736 S.E.2d 407) (2013) ("Questions about the reasonableness of hypotheses, which would include the possibility of another perpetrator, are for the jury to decide in cases predicated on circumstantial evidence." (citations omitted)).

         In this case, the evidence showed that Brown wanted to prevent Gallimore from being with any other woman, that she was angry with him for using her car to see another woman, that she admitted going to Gallimore's house where things "went bad, " that he was shot eight times, and that Brown attempted to have persons other than the police check on him. Thus, the circumstantial evidence included proof of Brown's motive, her opportunity for the killing, her malicious intent, her subsequent belief, which was unique to her, that something was wrong with Gallimore, and her failure to inform the police of that belief. See Benson v. State, 294 Ga. 618, 621 (1) (754 S.E.2d 23) (2014); Walden v. State, 289 Ga. 845, 846 (1) (717 S.E.2d 159) (2011); Bryant v. State, 282 Ga. 631, 634 (1) (651 S.E.2d 718) (2007). Moreover, although Brown questions the exact time of death, she appeared to know specific information about the death before police knew it, and she made incriminating admissions, which she contradicted at trial, that placed her in Gallimore's home when things "went bad" near the probable time of death. See Walden, 289 Ga. at 846 (1); Phillips v. State, 287 Ga. 560, 561 (1) (697 S.E.2d 818) (2010). Cf. Carter v. State, 239 Ga. 509, 515-516 (238 S.E.2d 57) (1977). Under the evidence presented in this case, the jury was not required to accept Brown's theory that someone else committed the murder. See Grissom v. State, 296 Ga. 406, 408 (1) (768 S.E.2d 494) (2015). As for the absence of the murder weapon, "the State need not admit into evidence the weapon used by the defendant in order for the defendant to be found guilty of the crime involving the weapon." Allen v. State, 297 Ga. 702, 703-704 (2) (777 S.E.2d 680) (2015) (citation and punctuation omitted). "Although the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence." Plez v. State, 300 Ga. 505, 506 (1) (796 S.E.2d 704) (2017). The evidence that was admitted at trial, though circumstantial, was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Brown was guilty of the malice murder of Gallimore and to find that the State excluded every reasonable hypothesis other than Brown's guilt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct.. 2781, 61 L.Ed.2d 560) (1979); former OCGA § 24-4-6. See also McKinney v. State, 300 Ga. 562, 566-567 (2) (797 S.E.2d 484) (2017); Mullinax v. State, 273 Ga. 756, 757 (1) (a) (545 S.E.2d 891) (2001).

         3. Many of Brown's enumerations of error cannot be reached in this appeal. She complains that, although the indictment alleges that she shot Gallimore, she was not indicted for the offense of possession of a firearm or aggravated assault, and neither of those crimes was proved. To the extent that Brown is further arguing that the evidence is not sufficient, her argument is fully answered in Division 2, supra, with respect to malice murder, and she presents nothing for review with respect to aggravated assault or possession of a firearm because she was not convicted or sentenced for either of those offenses. See Wallin v. State, 270 Ga. 889, 890 (514 S.E.2d 828) (1999). To the extent that Brown challenges the indictment itself, her challenge is waived due to her failure to raise it in the trial court. See Bigha ...


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