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BROWN v. STATE

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Supreme Court of Georgia.

BROWN v. The STATE.

No. S01A0651.

Decided: September 17, 2001

Ekonomou, Atkinson & Lambros, Michael G. Lambros, for appellant. W. Kendall Wynne, Jr., Dist. Atty., Alan A. Cook, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Ruth M. Bebko, Asst. Atty. Gen., for appellee.

This appeal is from James Eugene Brown's conviction for malice murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a felony, theft of services, and possession of a pistol by a person under the age of 18.1  Evidence adduced at trial supported a finding of the following as facts.   The body of cab driver Vickie Forrester was found on a dirt road.   She had been shot once in the head and once in the neck, both bullets traveling from right to left.   Forrester had not been heard from since she picked up a fare from the local hospital who asked to be taken to the street on which Brown lived.   Passing Forrester's taxi on the road shortly after that dispatch, another cab driver saw Forrester driving and a young man riding as a passenger in the taxi's front seat.   Brown, who was 16 years old at the time, had called for a taxi that morning from a hospital emergency room where he had been seen for chest pains.   Police found Brown that afternoon in the missing taxi in a Henry County high school parking lot.   In the vehicle with him were two handguns, one later determined to be the murder weapon, and the other identified as the gun Forrester carried with her while working.   Brown was carrying ammunition for the murder weapon.   In the trunk of the car were a prescription and emergency room instructions that were made out to J. Brown, and magnetic taxi signs that had been removed from the vehicle.   In a statement after his arrest, Brown said that he had “smoked” the taxi driver because she pointed a gun at him as he was preparing to pay his fare.   He pushed the driver out of the car afterward, he said, commenting that he would do anything to see his girlfriend, who was a student at the school where he was arrested.   He wanted “a ride” and told police he had planned this for a while.   Brown had only had telephone and correspondence contacts with the female student he called his girlfriend;  they had not met in person due to his lack of transportation.   At trial, the student and her sister testified that on the day before the murder, Brown phoned and told them he shot a woman, left her on a dirt road, and took her car in order to have transportation to meet the girl at school the next day. Brown's mother testified that Brown had threatened he would be doing “something really crazy” the week of the murder.

 1. The evidence set forth above would authorize a finding that Brown, at age 16, summoned a taxi to the hospital with the intent to kill the driver and steal the taxi rather than merely to hire transportation, and that he carried out his plan, using the gun he had brought with him to kill the taxi driver and steal her gun and the taxi.   The evidence was, therefore, sufficient to authorize a rational trier of fact to find Brown guilty beyond a reasonable doubt 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);  Corza v. State, 273 Ga. 164(1), 539 S.E.2d 149 (2000).   Contrary to Brown's argument regarding the sufficiency of the evidence, “[t]he State was not required to present the testimony of an eyewitness to the homicide in order to prove beyond a reasonable doubt that the defendant murdered the victim.  [Cits.]” Turner v. State, 273 Ga. 340(1), 541 S.E.2d 641 (2001).

 2. After a witness for the State testified regarding a telephone conversation she had with Brown after his arrest, Brown moved for a mistrial based on the State's failure to supply the defense with the witness's statement.   Brown's motion relied primarily on the reciprocal discovery provisions of OCGA § 17-16-1 et seq., and the trial court denied the motion because Brown had not opted in to those reciprocal discovery provisions.

Brown argues on appeal that he should be deemed to have opted in to the reciprocal discovery because the State's promise of an “open file” led trial counsel to believe he would not need to formally opt in.   At trial, however, defense counsel told the trial court that he accepted the State's offer because it would be better than the reciprocal discovery process in that he would be permitted to view evidence the State would not be required to provide under the reciprocal discovery statute.   Having chosen not to provide the written notice required by OCGA § 17-16-2(a), Brown was not entitled to have the other provisions of the reciprocal discovery process applied to his case.  Wright v. State, 226 Ga.App. 848(4), 487 S.E.2d 405 (1997).   The trial court did not err in ruling that Brown's failure to opt in to reciprocal discovery rendered inapplicable the sanctions provided for in OCGA § 17-16-6.  State v. Lucious, 271 Ga. 361(4), 518 S.E.2d 677 (1999).

Judgment affirmed.

All the Justices concur.

FOOTNOTES

1.   The crimes occurred on June 5, 1997, and Williams was arrested on August 4, 1997.   Williams was indicted on six different counts:  malice murder, two counts of felony murder (with underlying felonies of aggravated assault and possession of a firearm by a convicted felon), one count of aggravated assault, one count of felony theft by taking, and one count of possession of a firearm by a convicted felon.   A jury trial commenced on March 9, 1998.   Two days later, the jury returned a verdict finding Williams guilty on all counts, except possession of a firearm by a convicted felon which had been nolle prossed.   The trial court sentenced Williams to life for malice murder and a total of 40 years to run consecutive to the life sentence for the aggravated assault and theft by taking.   On July 30, 1999, the trial court granted Williams permission to file an out-of-time appeal, and Williams filed an out-of-time motion for new trial on August 16, 1999.   The new trial motion was denied on January 31, 2001, and Williams filed a notice of appeal on March 1, 2001.   The case was docketed in this Court on March 28, 2001, and submitted for a decision on briefs on June 11, 2001.

BENHAM, Justice.

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