Brooks v. State

309 Ga. 630

847 S.E.2d 555

BROOKS

v.The STATE.

S20A0895

Supreme Court of Georgia.

Decided: August 24, 2020

Matthew K. Winchester, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Juliana Sleeper, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant General, Eric C. Peters, Assistant Attorney General, for appellee.

Boggs, Justice.

Deontae Tremayne Brooks was convicted of malice murder, aggravated assault, and possession of a firearm by a convicted felon under OCGA § 16-11-133 (b) in connection with the shooting death of Branden "Big B" Tinch and the aggravated assault of Lenard Gay. He was sentenced to life without the possibility of parole. He appeals, asserting three enumerations of error: insufficiency of the evidence to support his conviction under OCGA § 16-11-133 (b), ineffective assistance of counsel, and trial court error in failing to grant his motion for mistrial. For the reasons stated below, we reverse Brooks’ conviction under OCGA § 16-11-133 (b), affirm his convictions for malice murder and the aggravated assault of Gay, and remand the case to the trial court with direction to enter a judgment of conviction and sentence on the guilty verdicts for possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon under OCGA § 16-11-131, which the trial court originally merged into the conviction under OCGA § 16-11-133 (b).¹

1. Construed in the light most favorable to the jury's verdicts, the evidence presented at Brooks’ trial showed that on July 22, 2015, Tinch, who was a drug dealer, lived with his father and stepmother in a subdivision in College Park. Tinch and his friend Gay were riding around the area in Tinch's car, a Toyota Camry, with Gay driving. Tinch received several calls from someone known as "Black Boy," who said he was looking for a ride to cash a check and gave Tinch the address of a nearby house.² Gay did not really know "Black Boy" but recalled seeing him around the neighborhood. Tinch and Gay drove to the address, and Brooks walked out of the house, got into the rear passenger seat, and, without saying anything, pulled out a revolver. As Gay grabbed a gun from under the dashboard and rolled out of the car, he heard a gunshot and saw Tinch trying to crawl over toward the driver's door, so he fired a shot at Brooks. Tinch, wounded and bleeding, managed to crawl out of the car with Gay's help, and several witnesses in the neighborhood saw Brooks shooting at Tinch and Gay as they fled. Brooks then ran from the scene, and Tinch and Gay sought assistance from a neighbor, who drove Tinch to his parents’ house nearby. Police and EMTs arrived, and Tinch was taken to the hospital, where he was pronounced dead. The medical examiner testified that Tinch was shot twice from behind, in the head and in the lower body, and that the cause of death was a gunshot wound to the head. Gay identified Brooks from a photo lineup, and Brooks was arrested in Ohio approximately one month later.

(a) Brooks argues that the evidence was insufficient to support his conviction on Count 9, possession of a firearm by a convicted felon during the commission of another felony enumerated under OCGA § 16-11-133 (b). Both the District Attorney and the Attorney General concede that the evidence adduced at trial was insufficient, and we agree.

As part of the proof of a violation of OCGA § 16-11-133 (b), the State must present evidence that the defendant possessed a firearm in the commission of certain crimes after having been convicted of one of nine enumerated felonies or "any felony involving the use or possession of a firearm." OCGA § 16-11-133 (b).³ Count 9 of the indictment charged Brooks with possessing a handgun during the commission of a felony against the person of another, see OCGA § 16-11-133 (b) (1), "said accused having been previously convicted of a felony involving the possession or use of a firearm on indictment number 06SC51346 in the Superior Court of Fulton County, on October 1, 2007."

At Brooks’ trial, the State tendered an exhibit consisting of the indictment, plea, charge disposition report, and judgment of conviction and sentence in Brooks’ 2007 conviction, showing that while Brooks was originally charged with armed robbery, hijacking a motor vehicle, aggravated assault with intent to rob, and possession of a firearm during the commission of a felony, he entered a guilty plea and was sentenced only for the lesser included offense of theft by taking, aggravated assault with intent to rob, and possession of a firearm during the commission of a felony; the charge of hijacking a motor vehicle was dead-docketed. The trial court excluded the exhibit as unduly prejudicial.⁴ Instead, a stipulation was read to the jury as part of the trial court's charge:

The parties have entered into a stipulation that has been approved by the court about the following facts: this defendant was convicted ... of aggravated assault with intent to rob on October 1, 2007.

The stipulation does not state that the aggravated assault involved the use of a firearm, and the title of the crime – aggravated assault with intent to rob – does not suggest the use of a firearm. See OCGA §§ 16-5-20, 16-5-21.⁵ Indeed, aggravated assault with intent to rob may be committed without the use of a firearm. See, e.g., Mathis v. State , 328 Ga. App. 292, 293 (1), 761 S.E.2d 836 (2014) (defendant attacked victim with hands, feet, a battery charger, and gasoline, and then took victim's wallet). Moreover, here the State presented no witnesses from the 2007 case. The evidence presented at trial therefore was insufficient to authorize the jury to convict Brooks under OCGA § 16-11-133 (b). See Tiller v. State , 286 Ga. App. 230, 232, 648 S.E.2d 738 (2007) (reversing conviction for possession of firearm by convicted felon when prior conviction could have been for felony or for misdemeanor and evidence at trial did not specify). Cf. McKie v. State , 306 Ga. 111, 114, 829 S.E.2d 376 (2019) (distinguishing Tiller ).

Accordingly, we reverse the conviction on Count 9 and remand to the trial court to enter convictions and sentences on the two firearm possession counts that were merged with Count 9 for sentencing. See Blackmon v. State , 300 Ga. 35, 36-37 (2), 793 S.E.2d 69 (2016) ; Chester v. State , 284 Ga. 152, 162 (1), 664 S.E.2d 220 (2008).

(b) Brooks has not challenged the sufficiency of the evidence to support his remaining convictions. However, as is this Court's practice in murder cases, we have reviewed the record to determine the legal sufficiency of the evidence supporting his convictions for malice murder and aggravated assault.⁶ And, in light of the remand, we also have reviewed the record to determine the sufficiency of the evidence supporting the charges of possession of a firearm by a convicted felon and possession of a firearm during the commission of a felony. We conclude that the evidence presented at trial and summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Brooks was guilty of these other crimes. See Jackson v. Virginia , 443 U. S. 307, 319 (III) (B) 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Brooks contends that his trial counsel was constitutionally ineffective in his choice of a theory of defense. Relying on Swanson v. State , 306 Ga. 153, 156 (2), 829 S.E.2d 312 (2019), Brooks asserts that his trial counsel was ineffective in pursuing a defense of justification by self-defense,⁷ contending it was a legally unsupportable theory, and that trial counsel instead should have asserted the "viable" defense of justification by defense of habitation.⁸ We conclude that Brooks has failed to show ineffective assistance.

To prevail on his claim of ineffective assistance, Brooks must prove both that the performance of his lawyer was professionally deficient and that he was prejudiced by this deficient performance. See Strickland v. Washington , 466 U. S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, Brooks must show that his attorney "performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Romer v. State , 293 Ga. 339, 344 (3), 745 S.E.2d 637 (2013). This requires a defendant to "overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct." (Citation and punctuation omitted.) Marshall v. State , 297 Ga. 445, 448 (2), 774 S.E.2d 675 (2015). And to prove prejudice, Brooks "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U. S. at 694 (III) (B), 104 S.Ct. 2052. If there is no showing of deficient performance, we need not address the prejudice prong. See Romer , 293 Ga. at 344 (3), 745 S.E.2d 637 (citing Strickland , 466 U. S. at 697 (IV), 104 S.Ct. 2052 ).

Brooks contends that trial counsel was constitutionally deficient in choosing to assert justification by self-defense instead of by defense of habitation. He contends that self-defense was foreclosed because, Brooks asserts for the first time on appeal, he was engaged in a felony, criminal attempt to purchase marijuana, at the time of the fatal shooting. See OCGA §§ 16-3-21 (b) (2) ; 16-13-30 (j). He contends that trial counsel instead should have relied upon defense of habitation. Brooks points to Swanson , 306 Ga. at 156 (2), 829 S.E.2d 312, in which appellant's trial counsel asserted self-defense but not defense of habitation. There, Swanson testified at trial that he shot the victim in self-defense, but also admitted that he was engaged in the sale of marijuana, a felony, when the...