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Brewner v. State

Supreme Court of Georgia

August 14, 2017

BREWNER
v.
THE STATE.

          GRANT, Justice.

         Appellant Brian Joseph Brewner was convicted of murder and numerous other crimes in connection with an August 2014 home invasion in which victim Adam Schrier was shot and killed and two other victims were injured. Brewner now appeals, asserting that he was denied his constitutional right to be present at certain stages of the proceedings; that the trial court erred in admitting certain evidence; that his trial counsel provided constitutionally ineffective assistance; and that the evidence was insufficient to support his convictions. Finding no error, we affirm.[1]

         I.

         Viewed in the light most favorable to the jury's verdicts, the evidence shows that in the early morning hours of August 6, 2014, a group of men forcibly entered Adam Schrier's home. Schrier's girlfriend, Jami Smith, had arisen around 5:30 a.m. and gone to the basement-level garage to smoke a cigarette. Hearing strange noises on the main floor, Smith went back up the stairs and was confronted by a man who hit her in the head with a gun and demanded to know where "the money" was. When Smith responded that she did not know, he shot her in the leg and dragged her upstairs to the main floor. Another man with a gun confronted Smith's daughter Madison on the second floor of the home and dragged her downstairs. Mother and daughter were forced to lie on the living room floor, where Schrier, who had also been shot, was also lying. The men again asked where the money was; one stated that he had been told that there was $40, 000 in the home. Smith told the men she had money in her purse upstairs, which the men took. The assailants bound Smith and Madison's arms and legs with duct tape, and one fired a gun; the bullet traversed Smith's shoulder and struck Madison's arm. The men then left, and Smith was able to unbind Madison's legs so that Madison could retrieve a phone for Smith to call 911. Police and paramedics responded, but Schrier died at the scene of a gunshot wound to the chest.

         The State presented evidence showing that the home invasion arose from a complicated web of drug-related transactions. In mid-July 2014, law enforcement conducted a drug bust at the apartment of Becky Banner, who was involved in a methamphetamine trafficking operation supplied by a Mexican drug cartel. While the bust was in progress, Becky's son Bryan drove up to his mother's apartment, realized what was happening, and drove to Becky's other residence. Parked outside this house was a Chevy Blazer in which Becky was storing five kilos of methamphetamine-Becky's "last drop"-which Bryan retrieved. Bryan then got his friend, victim Schrier, to hide the drugs for him in a storage unit near Schrier's home. Within a week, Bryan had sold most of the drugs.

         Jamie Staples, who was also connected with the drug operation, knew that Bryan had taken the drugs from the Chevy Blazer, but believed that they were being stored at Schrier's home. Staples testified at trial that, during the week prior to the crimes, he met with Appellant Brewner several times to discuss recovering the drugs, and any money from the sale of the drugs, from Schrier's home. Staples had been acquainted with Brewner since 2010 and often purchased drugs from him. In 2013, to recover a debt owed by Staples, Brewner had dispatched a crew of men to invade Staples' home, where Staples was bound, beaten, and robbed of $5, 500 and 3 ounces of meth. Brewner later apologized to Staples over the incident.

         At the time he and Staples were devising the Schrier home invasion, Brewner was staying at a La Quinta hotel with his girlfriend, Charlice Roberts. Roberts testified that Staples visited their hotel room several times during the week before the crimes and that Staples and Brewner were discussing a plot to recover drugs and money from Schrier's home. Roberts also testified that during the night before the early-morning crimes, co-indictees Devon Jenkins and Pierrer Scott visited Brewner. Roberts testified that Jenkins expressed excitement at the prospect of making money and was carrying a gun.

         Neighbors of Schrier reported seeing a white Dodge truck parked outside Schrier's home with its engine running that morning around the time of the crimes. One of these witnesses, whose suspicions were aroused, recorded the Tennessee tag number of the vehicle, and investigators later determined that on the afternoon following the crimes a truck with that tag number had been parked outside the Congress hotel, which was adjacent to the La Quinta hotel. Video surveillance footage from the Congress hotel at 6:35 a.m. on the morning of the crimes showed a white Dodge Ram truck pulling in followed by a white Toyota Camry with tinted windows; three males exited the truck and got into the Camry, which drove away. Testimony established that Roberts owned a white Toyota Camry with tinted windows, which Brewner often drove and had access to at the time of the crimes. A vehicle matching this description was observed making a sudden U-turn on Schrier's street around the time of the crimes. Roberts told police that a female in Tennessee had rented the white truck for Brewner, and investigators matched the truck's tag number to a vehicle that had gone missing in mid-July from a Chattanooga rental car company.

         A few weeks after the crimes, Staples was arrested on drug trafficking charges, and in subsequent police interviews he implicated Brewner in the crimes. With assistance from Staples, Police Detective Bobby Johnson located Brewner in a vehicle in a motel parking lot. When the detective approached him on foot, Brewner drove the vehicle at the officer and then fled. Roberts, who was left behind in the parking lot, submitted to police questioning and confirmed Brewner's knowledge of the robbery plot, though she claimed he had disavowed any participation in it. Ultimately, at the urging of Roberts, Brewner telephoned Detective Johnson to discuss the crimes; these conversations were recorded. Though Brewner consistently denied being present for the crimes at Schrier's home, he admitted introducing Staples to Jenkins to help Staples recover the five kilos of meth, and he also admitted to previously robbing Staples over a drug debt.

         The evidence described above was clearly sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Brewner was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). Though Brewner may not have been present for the home invasion, there was ample evidence of his knowledge of and participation in the planning of the crimes, and his contact with and assistance to the perpetrators before and after the crimes occurred. See OCGA § 16-2-20 (one may be culpable for commission of a crime if he "[i]ntentionally aids or abets in the commission of the crime" or "[i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime").

         II.

         Brewner contends that he was denied his right under the Georgia Constitution to be present at certain "critical stages" of his trial proceedings. "Embodied within the constitutional right to the courts is a criminal defendant's right to be present and see and hear all the proceedings which are had against him on the trial before the Court." Ward v. State, 288 Ga. 641, 645 (4) (706 S.E.2d 430) (2011) (internal citations and punctuation omitted). Violations of this due process right are presumed prejudicial, and, absent a waiver by the defendant, require a new trial. Sammons v. State, 279 Ga. 386, 387 (2) (612 S.E.2d 785) (2005). Here, however, there was no violation of Brewner's right to be present.

         "The right to be present attaches 'at any stage of a criminal proceeding that is critical to its outcome if the defendant's presence would contribute to the fairness of the procedure.'" Huff v. State, 274 Ga. 110, 111 (2) (549 S.E.2d 370) (2001) (punctuation omitted). Thus, a "critical stage" of a criminal proceeding is defined as "one in which the defendant's rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way." Fortson v. State, 272 Ga. 457, 458 (1) (532 S.E.2d 102) (2000) (punctuation omitted); accord Campbell v. State, 292 Ga. 766, 770 (4) (740 S.E.2d 115) (2013) (right to be present exists where "a fair and just hearing would be thwarted by the defendant's absence"). Proceedings during which the jury is selected or modified, for example, are a critical stage at which the right to be present attaches. Sammons, 279 Ga. at 387; Hanifa v. State, 269 Ga. 797 (6) (505 S.E.2d 731) (1998). On the other hand, pre-trial hearings and bench conferences pertaining to purely legal issues, such as the admissibility of evidence or jury instructions, ordinarily do not implicate the right to be present. See, e.g., Campbell, 292 Ga. at 770 (pre-trial discussion of motions regarding the scope of cross-examination and suppression of the defendant's statement were not critical stages at which right to be present attached); Huff, 274 Ga. at 111-112 (jury charge conference and in-chambers discussion of legal matters were not critical stages).

         Brewner contends that he was denied his constitutional right to be present when the trial court ruled on the State's motion to admit evidence pursuant to OCGA § 24-4-404 (b) and when the court, in his absence, excused a ...


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