302 Ga. 813 FINAL COPY
S17A1755. BROWN v. THE STATE.
HUNSTEIN, Justice.
Appellant Patricia Ann Brown was convicted of murder and related
offenses in connection with the beating death of Eugene Clark. On appeal,
Brown contends that trial counsel was constitutionally ineffective. Though we
conclude that Brown was erroneously sentenced, we otherwise affirm.1
We begin by examining the evidence adduced during Brown’s trial,
reviewing the evidence in a light most favorable to the verdicts. Brown and her
1 In January 2008, a Sumter County grand jury indicted Patricia Ann Brown on the charges of malice murder, felony murder predicated on robbery, and robbery. Following a trial conducted July 16-18, 2008, a jury acquitted Brown of malice murder but found her guilty of felony murder and robbery; the trial court sentenced Brown to life imprisonment for felony murder and to twenty years’ probation for robbery (to run concurrent with the life sentence). Brown filed a motion for new trial in August 2008 and then filed an amended motion in September 2016. Following a hearing, the trial court denied the amended motion in April 2017; Brown subsequently filed a timely notice of appeal. This case was docketed to the August 2017 term and was thereafter submitted on the briefs. friend, Gussie Moore, met the victim, Eugene Clark, at a Sumter County bar.
Clark was flush with cash from his tax refund, which he was flashing around the
bar, and purchasing drinks for bar patrons. Brown attempted to engage Clark,
but he was not interested; Clark was, however, interested in Moore, and, much
to Brown’s dismay, the pair left the bar for Moore’s house. Several hours later,
Brown visited her boyfriend, Fred Hoston, and advised him that someone had
tried to rape her; at the time she made the accusation, Brown was observed —
apparently uninjured — dancing in the street with a drink in her hand. The pair
proceeded to Moore’s house where Brown reignited an earlier argument with
Moore and identified Clark as her assailant; Clark subsequently left Moore’s
house on foot. According to Hoston, he and Brown followed Clark to a nearby
community center where they physically assaulted Clark, took his wallet, and
then left him to die. Hoston testified that it was Brown who took Clark’s wallet,
and a number of witnesses later observed Brown with a large amount of cash.
1. Though Brown does not challenge the legal sufficiency of the evidence
supporting her conviction, we have reviewed the record and conclude that the
evidence as summarized above was sufficient to enable a rational trier of fact to
conclude beyond a reasonable doubt that she was guilty of the crimes of which
2 she was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61
LE2d 560) (1979).
2. In her sole enumeration of error, Brown alleges that trial counsel
rendered constitutionally ineffective assistance by failing to voice his concern
regarding Brown’s mental competency and seek a continuance to secure a
mental evaluation.
In order to prevail on a claim that trial counsel was ineffective, Brown
must show both that counsel’s performance was deficient and that the deficient
performance was prejudicial. See Terry v. State, 284 Ga. 119, 120 (2) (663
SE2d 704) (2008). To prove deficient performance, one 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 SE2d 637) (2013). With respect to the second
Strickland2 prong, “to show that he was prejudiced by the performance of his
lawyer, [Appellant] must prove ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
2 Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). 3 A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Arnold v. State, 292 Ga. 268, 269 (737 SE2d 98) (2013)
(quoting Strickland, 466 U. S. at 694). Here, Brown has failed to satisfy either
prong.
In September 2007, the trial court ordered that Brown undergo a mental
evaluation, specifically requesting that her competency to stand trial be
evaluated. Brown was subsequently evaluated at West Central Georgia
Regional Hospital in February 2008, less than five months before trial; a
forensic psychologist determined that Brown was competent to stand trial,
noting that Brown exhibited no “symptoms or deficits that would preclude a
productive working relationship with an attorney . . . [or] that would prevent her
from following the course of a trial and participating meaningfully in the
process.” Trial counsel testified at the hearing on the motion for new trial that,
in the months leading up to trial, Brown displayed no indication that she was
impaired or unable to assist in her defense but that, on the first day of trial,
Brown’s mental state seemed to change. According to trial counsel, Brown was
unable to assist with trial, and, as a consequence, he “sailed through [the trial]
without much help from [her].” Trial counsel testified that, in his opinion,
4 Brown was not competent to stand trial and that he should have requested an
additional evaluation. Though Brown did not testify at the hearing on the
motion for new trial, the trial court engaged with her on the record. The trial
court’s colloquy with Brown reveals that she was able to recall specific dates
and events and, further, that she was able to articulate her understanding of the
proceedings and the individuals involved.
Though trial counsel opined that he should have sought an additional
mental examination, Strickland “calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s subjective state of
mind.” Harrington v. Richter, 562 U. S. 86, 110 (131 SCt 770, 178 LE2d 624)
(2011). Here, in light of the results of the mental evaluation conducted just
months prior to trial, trial counsel’s observations of Brown leading up to trial,
and the curious timing of the alleged change in Brown’s mental status, it was not
objectively unreasonable for trial counsel to decide not to seek a second mental
evaluation. See Whitus v. State, 287 Ga. 801 (2) (700 SE2d 377) (2010)
(ordinarily in a non-capital case the decision to forego or curtail an investigation
of the accused’s mental health is reasonable when an expert has determined that
the defendant is fit to stand trial).
5 Moreover, Brown has not demonstrated prejudice. “The burden is on the
defendant to show that [her] attorney’s omissions have prejudiced [her] case.”
(Citations and punctuation omitted.) Jennings v. State, 282 Ga. 679, 680 (653
SE2d 17) (2007). “If a defendant wishes to claim ineffectiveness based on trial
counsel’s failure to request a psychiatric evaluation . . . [s]he must show a
likelihood that such an evaluation would have affected the outcome at trial.”
(Citations and punctuation omitted.) Haygood v. State, 289 Ga. App. 187, 193
(656 SE2d 541) (2008). Strickland requires “more than speculation to establish
prejudice.” Hambrick v. Brannen, 289 Ga. 682, 684 (715 SE2d 89) (2011).
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302 Ga. 813 FINAL COPY
S17A1755. BROWN v. THE STATE.
HUNSTEIN, Justice.
Appellant Patricia Ann Brown was convicted of murder and related
offenses in connection with the beating death of Eugene Clark. On appeal,
Brown contends that trial counsel was constitutionally ineffective. Though we
conclude that Brown was erroneously sentenced, we otherwise affirm.1
We begin by examining the evidence adduced during Brown’s trial,
reviewing the evidence in a light most favorable to the verdicts. Brown and her
1 In January 2008, a Sumter County grand jury indicted Patricia Ann Brown on the charges of malice murder, felony murder predicated on robbery, and robbery. Following a trial conducted July 16-18, 2008, a jury acquitted Brown of malice murder but found her guilty of felony murder and robbery; the trial court sentenced Brown to life imprisonment for felony murder and to twenty years’ probation for robbery (to run concurrent with the life sentence). Brown filed a motion for new trial in August 2008 and then filed an amended motion in September 2016. Following a hearing, the trial court denied the amended motion in April 2017; Brown subsequently filed a timely notice of appeal. This case was docketed to the August 2017 term and was thereafter submitted on the briefs. friend, Gussie Moore, met the victim, Eugene Clark, at a Sumter County bar.
Clark was flush with cash from his tax refund, which he was flashing around the
bar, and purchasing drinks for bar patrons. Brown attempted to engage Clark,
but he was not interested; Clark was, however, interested in Moore, and, much
to Brown’s dismay, the pair left the bar for Moore’s house. Several hours later,
Brown visited her boyfriend, Fred Hoston, and advised him that someone had
tried to rape her; at the time she made the accusation, Brown was observed —
apparently uninjured — dancing in the street with a drink in her hand. The pair
proceeded to Moore’s house where Brown reignited an earlier argument with
Moore and identified Clark as her assailant; Clark subsequently left Moore’s
house on foot. According to Hoston, he and Brown followed Clark to a nearby
community center where they physically assaulted Clark, took his wallet, and
then left him to die. Hoston testified that it was Brown who took Clark’s wallet,
and a number of witnesses later observed Brown with a large amount of cash.
1. Though Brown does not challenge the legal sufficiency of the evidence
supporting her conviction, we have reviewed the record and conclude that the
evidence as summarized above was sufficient to enable a rational trier of fact to
conclude beyond a reasonable doubt that she was guilty of the crimes of which
2 she was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61
LE2d 560) (1979).
2. In her sole enumeration of error, Brown alleges that trial counsel
rendered constitutionally ineffective assistance by failing to voice his concern
regarding Brown’s mental competency and seek a continuance to secure a
mental evaluation.
In order to prevail on a claim that trial counsel was ineffective, Brown
must show both that counsel’s performance was deficient and that the deficient
performance was prejudicial. See Terry v. State, 284 Ga. 119, 120 (2) (663
SE2d 704) (2008). To prove deficient performance, one 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 SE2d 637) (2013). With respect to the second
Strickland2 prong, “to show that he was prejudiced by the performance of his
lawyer, [Appellant] must prove ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
2 Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). 3 A reasonable probability is a probability sufficient to undermine confidence in
the outcome.’” Arnold v. State, 292 Ga. 268, 269 (737 SE2d 98) (2013)
(quoting Strickland, 466 U. S. at 694). Here, Brown has failed to satisfy either
prong.
In September 2007, the trial court ordered that Brown undergo a mental
evaluation, specifically requesting that her competency to stand trial be
evaluated. Brown was subsequently evaluated at West Central Georgia
Regional Hospital in February 2008, less than five months before trial; a
forensic psychologist determined that Brown was competent to stand trial,
noting that Brown exhibited no “symptoms or deficits that would preclude a
productive working relationship with an attorney . . . [or] that would prevent her
from following the course of a trial and participating meaningfully in the
process.” Trial counsel testified at the hearing on the motion for new trial that,
in the months leading up to trial, Brown displayed no indication that she was
impaired or unable to assist in her defense but that, on the first day of trial,
Brown’s mental state seemed to change. According to trial counsel, Brown was
unable to assist with trial, and, as a consequence, he “sailed through [the trial]
without much help from [her].” Trial counsel testified that, in his opinion,
4 Brown was not competent to stand trial and that he should have requested an
additional evaluation. Though Brown did not testify at the hearing on the
motion for new trial, the trial court engaged with her on the record. The trial
court’s colloquy with Brown reveals that she was able to recall specific dates
and events and, further, that she was able to articulate her understanding of the
proceedings and the individuals involved.
Though trial counsel opined that he should have sought an additional
mental examination, Strickland “calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s subjective state of
mind.” Harrington v. Richter, 562 U. S. 86, 110 (131 SCt 770, 178 LE2d 624)
(2011). Here, in light of the results of the mental evaluation conducted just
months prior to trial, trial counsel’s observations of Brown leading up to trial,
and the curious timing of the alleged change in Brown’s mental status, it was not
objectively unreasonable for trial counsel to decide not to seek a second mental
evaluation. See Whitus v. State, 287 Ga. 801 (2) (700 SE2d 377) (2010)
(ordinarily in a non-capital case the decision to forego or curtail an investigation
of the accused’s mental health is reasonable when an expert has determined that
the defendant is fit to stand trial).
5 Moreover, Brown has not demonstrated prejudice. “The burden is on the
defendant to show that [her] attorney’s omissions have prejudiced [her] case.”
(Citations and punctuation omitted.) Jennings v. State, 282 Ga. 679, 680 (653
SE2d 17) (2007). “If a defendant wishes to claim ineffectiveness based on trial
counsel’s failure to request a psychiatric evaluation . . . [s]he must show a
likelihood that such an evaluation would have affected the outcome at trial.”
(Citations and punctuation omitted.) Haygood v. State, 289 Ga. App. 187, 193
(656 SE2d 541) (2008). Strickland requires “more than speculation to establish
prejudice.” Hambrick v. Brannen, 289 Ga. 682, 684 (715 SE2d 89) (2011).
Here, other than the original mental evaluation, the record fails to include
any medical records, expert testimony, or other evidence of diagnosis or
treatment that would cast light on the question of Brown’s competency.
“‘Accordingly, we conclude that [Brown] has failed to carry [her] burden to
prove the prejudice prong of [her] claim that trial counsel was ineffective for
failing to request an [additional] psychiatric examination.” Bergeson v. State,
272 Ga. 382, 383 (530 SE2d 190) (2000). Compare Martin v. Barrett, 279 Ga.
593, 595-596 (619 SE2d 656) (2005) (expert testimony supported habeas court
finding of reasonable probability that defendant might have been found
6 incompetent to stand trial, legally insane, or guilty but mentally ill if counsel had
adequately investigated his mental illness). Accordingly, this argument is
without merit.
3. Though not raised by either party, our review of the record reveals
that the trial court erred in sentencing Brown. Brown was indicted on the
charges of malice murder, felony murder predicated on robbery, and robbery;
though Brown was acquitted of malice murder, guilty verdicts were returned on
the remaining charges and she was sentenced for each offense. This was error.
“When the only murder conviction is for felony murder and a defendant
is convicted of both felony murder and the predicate felony of the felony murder
charge, the conviction for the predicate felony merges into the felony murder
conviction.” Culpepper v. State, 289 Ga. 736, 737 (715 SE2d 155) (2011).
Because Brown’s “robbery conviction was the underlying felony for [her]
conviction of felony murder, it merged into the felony murder conviction. The
conviction and sentence for . . . robbery must, therefore, be vacated.” Hawkins
v. State, 267 Ga. 124, 124 (475 SE2d 625) (1996).
Judgment affirmed in part and vacated in part. All the Justices concur.
7 Decided January 29, 2018.
Murder. Sumter Superior Court. Before Judge Smith.
David T. Winheim, for appellant.
Plez H. Hardin, District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Aimee F. Sobhani, Assistant Attorney General, for
appellee.