Brown v. State

626 S.E.2d 128, 277 Ga. App. 169, 2006 Fulton County D. Rep. 210, 2006 Ga. App. LEXIS 19
CourtCourt of Appeals of Georgia
DecidedJanuary 9, 2006
DocketA05A2230
StatusPublished
Cited by6 cases

This text of 626 S.E.2d 128 (Brown v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 626 S.E.2d 128, 277 Ga. App. 169, 2006 Fulton County D. Rep. 210, 2006 Ga. App. LEXIS 19 (Ga. Ct. App. 2006).

Opinion

ANDREWS, Presiding Judge.

Hozie James Brown, convicted by a jury of armed robbery and possession of a firearm during commission of a felony, appeals from the trial court’s order denying his motion for new trial. Finding no error, we affirm.

1. We first consider Brown’s third enumeration, challenging the sufficiency of the evidence.

In evaluating the sufficiency of the evidence supporting a conviction, this court must view the evidence in the light most favorable to the verdict. The presumption of innocence no longer applies, and we do not weigh evidence or determine witness credibility. Rather, we decide only if there is enough evidence from which a rational trier of fact could have found the accused guilty of the crime charged beyond a reasonable doubt.

(Footnotes omitted.) Buckles v. State, 260 Ga. App. 638 (1) (580 SE2d 638) (2003).

So viewed, the evidence was that Zeb’s Zip-In, a convenience store in Perry, was robbed by a lone gunman on Halloween evening in 1998. Feagin, the clerk, had started his shift at 10:00 p.m. and shortly thereafter, a man entered wearing dark glasses and an unusual striped black and white shirt with the initials “FB” on it. He made a purchase and left, then returned shortly. Feagin was selling another customer lottery tickets, but came to wait on the man in the striped shirt, who told him to continue with the lottery customer. After that customer left, the man in the striped shirt made a small purchase, then started to leave. As he got almost to the door, however, he turned, lifted his shirt, and pulled a handgun. He returned to the register and ordered Feagin to give him the money. Feagin put the cash drawer on the counter and the man removed all the bills. Feagin was then ordered to the floor and the man left.

The security camera in the store recorded still photos of the incident, which Feagin stated were fair and accurate depictions of the events that evening. The photos printed from that tape were introduced into evidence as State’s Exhibits 2, 4, 5, and 3A through 3Z and 3AA through 3GG.

The Perry Police shift supervisor received a call regarding the robbery at 10:42 p.m. and dispatched officers, including the detective on duty, Roberts, who said he received the call at 10:50 p.m. Roberts arrived at the store at 11:15 p.m. As a result of receiving information from another agency that the man in the surveillance camera photos [170]*170appeared to be Brown, Roberts contacted Sharia Cooper, who was described as Brown’s girlfriend. Roberts met with Cooper and showed her the photos. When asked if she recognized the shirt worn by the robber, Cooper started crying. Roberts requested that, if Cooper had a shirt like that in the photo, she bring it to police. Cooper testified that, after looking at the photos, she knew which shirt to bring to police because she had bought it for Brown from a man selling them from his van. Kendrick, Cooper’s sister, later brought police a shirt from Cooper marked like the one the robber wore.

Cooper testified that Brown picked her up at her job at Cracker Barrel on Halloween around 10:00 p.m. to 10:30 p.m. It took approximately 15 minutes to get to their home. Upon arriving, she and Brown argued because he had not taken the children trick or treating. He then left and she did not see him again until early the next morning.

Detective Dodson interviewed Brown on February 8,1999. Asked where he had been on Halloween, Brown said he picked up Cooper at Cracker Barrel about 9:30 p.m. on Halloween, but otherwise could not say exactly where he was that evening. Asked whether he went in Zeb’s Zip-In that evening, Brown at times said he might have been in there. At other points in the interview, Brown said he did not go inside or did not recall doing so.

Brown’s argument here regarding time differentials among the witnesses’ recollections of that evening and the impossibility of his having committed the robbery under one scenario was thoroughly presented to and rejected by the jury. We will not reweigh this evidence.

Where there is conflicting evidence, it is solely within the purview of the jury to weigh the evidence and decide upon the credibility of the witnesses. As long as there is some competent evidence, even if contradicted, to support the facts necessary for the State’s case, the jury verdict will be upheld. Ellison v. State, 233 Ga. App. 637 (504 SE2d 779) (1998); Williams v. State, 231 Ga. App. 123, 125 (2) (497 SE2d 660) (1998).

(Emphasis supplied.) Brown v. State, 239 Ga. App. 794 (521 SE2d 925) (1999).

Further, Brown’s argument that his identity as the robber was inadequately proven was also for the jury, because identity is a question of fact for the jury’s resolution. Barner v. State, 271 Ga. App. 233, 235 (609 SE2d 385) (2005); see Smith v. State, 251 Ga. App. 452, 454 (1) (554 SE2d 596) (2001).

[171]*171The photos from the surveillance camera are before us and are very clear. The jury had the opportunity to see Brown during the three days of trial and compare his appearance with the photos.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Barner v. State, supra.

2. Brown’s first enumeration is that the trial court erred in denying his motion to dismiss the charges based on denial of his constitutional right to a speedy trial.

In reviewing the trial court’s finding that Brown was not denied his constitutional right to a speedy trial, the issue is whether the trial court abused its discretion in balancing the four factors set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001). “Those four factors are (1) the length of the delay; (2) the reason for the delay and whether this is attributable to the defendant or the state; (3) the timeliness of the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. These factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” (Citations and punctuation omitted.) Id.

Here, the crime occurred October 31, 1998, and Brown was arrested on February 8,1999. An indictment was returned on March 2,1999, 22 days following his arrest. On March 24,1999, Brown was sentenced on other theft charges by the Superior Court of Peach County. On April 15, 1999, an attorney from the office of the public defender filed a motion seeking bond for Brown on the armed robbery charge. No ruling on this motion is contained in the record, but the record does reflect that a transport order was issued by the court on May 12, 2000, directing the Georgia Department of Corrections to return Brown to Perry for arraignment on the pending charges. Apparently, Brown was in custody on another conviction, possibly the 1999 theft charges. Brown was arraigned on June 1, 2000.

Motions for discovery were filed on Brown’s behalf on March 20, 2001, followed by filing of a motion for continuance on March 28, 2001, based on the fact that Brown had not been brought back from the State system and counsel had only met with him once.

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Bluebook (online)
626 S.E.2d 128, 277 Ga. App. 169, 2006 Fulton County D. Rep. 210, 2006 Ga. App. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-gactapp-2006.