In the Supreme Court of Georgia



                                                       Decided: November 3, 2014


                       S14A1689. BROWNER v. THE STATE.

       BENHAM, Justice.

       Appellant Antonio Browner was convicted of felony murder and other

related crimes associated with the shooting death of Gary Cole, the assistant

manager of a Family Dollar store, during an armed robbery of the store. He was

also convicted of armed robbery of Fran Meyer and attempted car-jacking of her

vehicle which occurred later in the same evening as the shooting of Mr. Cole.1

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           The crimes occurred April 12, 2011. On June 21, 2011, appellant and two others were
jointly indicted by a Bibb County grand jury on identical charges of malice murder with respect the
death of victim Gary Cole, felony murder (aggravated assault with a deadly weapon), armed robbery
with respect to the theft of property of the Family Dollar store, aggravated assault of Gary Cole,
aggravated assault of Cynthia Poole, armed robbery with respect to the theft of property of Fran
Meyer, criminal attempt to hijack a motor vehicle, and two counts of possession of a firearm during
the commission of a felony. Appellant was tried before a jury from November 7-10, 2011, and was
found guilty on all charges except malice murder. The aggravated assault conviction merged with
the conviction for felony murder for sentencing purposes, and appellant was sentenced as follows:
life without parole for the felony murder conviction; life for the armed robbery conviction relating
to the theft of property of the Family Dollar store to run concurrently with the sentence for the felony
murder conviction; twenty years for the aggravated assault of Cynthia Poole to run concurrently with
the life sentences; life for the armed robbery of Fran Meyer to run consecutively with the previous
sentences; ten years for criminal attempt to hijack a motor vehicle to run concurrently with the
previous sentences; and five years for each of the two convictions for possession of a firearm during
the commission of a crime to run consecutively with each other and consecutively to the previous
sentences. Appellant filed a timely motion for new trial which was twice amended. After a hearing,
the trial court denied the motion for new trial and appellant filed a timely notice of appeal on April
28, 2014. The appeal was docketed to the September 2014 term of this Court for a decision to be
Browner appeals, raising several grounds, and for the reasons set forth herein,

we affirm.

       Viewed in the light most favorable to the verdict, the trial evidence

showed that appellant entered the store armed with a gun with the intent to

commit robbery. He commanded the store manager to open the safe but while

the manager was attempting to do so, Browner shot him. The victim died as a

result of the shooting. After shooting the manager, appellant turned his gun on

another employee, Cynthia Poole, before running out of the store. Although

neither employee opened the store safe or registers, appellant testified and

admitted he took cash that was laying on the store counter. The robbery was

recorded by store security cameras which showed appellant wearing distinctive

cartoon-printed pajama-style pants. Video from a security camera at the

courthouse showed a man matching appellant’s description wearing the same

pajama-style pants earlier the same day. Appellant admitted he was the man

shown in both security camera videos. The store camera also showed one of

appellant’s co-indictees, Quartez Carter, standing at the door to the store. The

other co-indictee, Ron’Esha Smith, waited outside in a get-away car. During the

made on the briefs.

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robbery, the cell phone appellant was carrying made an apparently inadvertent

call to a friend who heard appellant tell the store manager to “shut the f*** up

and give it to me. Open the drawer.” The witness also heard another male voice

in the background saying, “Just beat his a**.” She also heard a gunshot. The

next day, appellant admitted to the friend who received the telephone call that

he and the others had robbed the store, but he denied killing anyone. When the

friend learned from an internet report that an employee had been killed in the

robbery, she notified law enforcement authorities and told them appellant and

Smith were on their way to her home, where they intended to hide out for a few

days.

        Acting on this tip, the police located Smith’s car en route to the friend’s

house and made a traffic stop. Appellant was taken into custody, after which he

gave two statements to police. A search of the stopped car revealed evidence

related to the armed robbery and attempted car-jacking of victim Fran Meyer.

That victim identified co-indictee Smith’s car as one she had seen nearby before

she was accosted. She testified that the purse taken from her contained several

hundred-dollar bills. Security cameras at a nearby store, as well as store records

of the transaction, captured video showing appellant making a purchase using

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a one-hundred-dollar bill shortly after the robbery of Meyer and the attempted

car-jacking. When Smith’s car was searched after Smith and appellant were

taken into custody, the victim’s checkbook was found in Smith’s vehicle. Two

of appellant’s younger relatives testified that appellant and his two co-indictees

had picked them up on the evening of these events and they had witnessed the

Meyer armed robbery and attempted car-jacking. Pajama-style pants matching

those that appellant admitted he was wearing at the scene of the store robbery

and shooting were recovered from a dumpster at Carter’s apartment complex.

      At trial, appellant testified he had committed the store armed robbery, had

fired the shot that killed the store manager, and took Meyer’s purse, but

appellant claimed Carter had threatened to kill him and Smith if he did not

comply. The witnesses to the attempted car-jacking, however, testified they

never saw Carter threaten appellant as they were driving around. In two

custodial statements given to the police, appellant did not mention that Carter

had threatened or coerced him.

      1. Appellant asserts the trial court erred in denying his motion for new

trial on the ground that the evidence was insufficient to convict. Quoting

Jackson v. Virginia, 443 U.S. 307, 317 (99 SCt 2781, 61 LE2d 560) (1979),

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appellant urges that the United States Supreme Court recognized that even “a

properly instructed jury may occasionally convict even when it can be said that

no rational trier of fact could find guilt beyond a reasonable doubt,” and that this

is such a case. Particularly with respect to what appellant refers to as “the

secondary charges,” presumably referring to the charges relating to the car-

jacking and armed robbery of Ms. Meyer, appellant claims the evidence was

vague, ambiguous, and conflicting, at best, with regard to him.

      When reviewing the sufficiency of the evidence this Court does not

reweigh the evidence or resolve conflicts in testimony. Caldwell v. State, 263

Ga. 560, 562 (1) (436 SE2d 488) (1993). Resolving evidentiary conflicts and

inconsistencies and assessing witness credibility are the province of the fact

finder, not the appellate court. Miller v. State, ___ Ga. ____ (1) (___ SE2d

___), 2014 WL 4958168 (Oct. 6, 2014). Appellant presented the affirmative

defense of coercion, but the jury was not required to believe him or accept that

defense. See, e.g., Murray v. State, 295 Ga. 289, 291 (1) (759 SE2d 525) (2014)

(jury entitled to disbelieve affirmative defense of self-defense); Engrisch v.

State, 293 Ga. App. 810, 812 (688 SE2d 319) (2008). Although appellant

denied he participated in the attempted car-jacking at the time he took Meyer’s

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purse, the evidence was at least sufficient to support his conviction as a party to

the crime. In determining the sufficiency of the evidence, this Court reviews the

evidence in the light most favorable to the verdict. Miller v. State, supra at (1).

Doing so, we find sufficient evidence was presented at trial to permit a rational

trier of fact to find appellant guilty of all the charges for which he was

convicted.

      2. After being taken into custody, appellant gave two separate statements

to police. The trial court conducted a hearing on appellant’s motion to suppress

the statements from being presented as evidence at the trial, after which the

court denied appellant’s motion. The evidence presented at the hearing showed

that before giving each statement, appellant executed a written waiver

acknowledging that he had been informed of his right to have counsel present

during any statement made to police, indicating that he understood his rights,

and declaring that he freely and voluntarily waived his right to have counsel

present. Nevertheless, appellant asserts the trial court erred in admitting the

statements because, he claims, the totality of the circumstances show that his

statements were not freely and voluntarily made. “[U]nless clearly erroneous,

a trial court’s credibility determinations and factual findings relating to the

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admissibility of a confession must be upheld on appeal.            However, we

independently apply the law to the facts.” (Citation omitted.) Smith v. State,

295 Ga. 283, 285 (1) (759 SE2d 520) (2014). Applying this standard, we find

no error in the trial court’s decision to admit the two custodial statements into

evidence.

      Appellant’s assertion that the statements should not have been admitted

into evidence is based in part on the fact that appellant was kept waiting in

isolation from others for over an hour before the interviewing officer first

informed him of his rights and took his first statement, during which time he

was under video surveillance. No evidence gleaned from the pre-interview

videotape, however, was admitted into evidence. Thus, the fact that a videotape

was made, unbeknownst to appellant, before he was advised of his right to

counsel and right to remain silent is irrelevant to the issue of whether the

statements admitted into evidence were freely and voluntarily given. Without

referencing any evidence in support, appellant claims that the period of isolation

imposed on him prior to the first statement he gave had an adverse

psychological effect upon him, noting that he was only nineteen years of age at

the time of the questioning. Physical or mental torture is the type of fear of

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injury that prevents a confession from being admissible pursuant to the former

OCGA § 24-3-50.2 See State v. Roberts, 273 Ga. 514 (4) (543 SE2d 725)

(2001), overruled on other grounds, Vergara v. State, 283 Ga. 175 (657 SE2d

863) (2008). The record, however, shows appellant was not a minor and was a

high school graduate who was enrolled in his second year of technical school at

the time of these events. Thus, we reject the suggestion that he was of such

tender years that being held in the interview room by himself prior to

commencement of the questioning, without more, constituted physical or mental

torture of the type to render an in-custody statement involuntary and

inadmissible. See id.

      Appellant further argues that his statements were made when he was tired

and under duress, and therefore his statements were not freely given. Appellant,

however, fails to point to any circumstances supporting the assertion that his

statements were made under duress, and a review of the videotape of his

statements reveals no such duress was applied.                 At no point during the

interviews did appellant assert his right to counsel or attempt to end the

interview. The videotape of the two interviews reveals no evidence of extreme

      2
          OCGA § 24-3-50 is now codified at OCGA § 24-8-824 as part of the new Evidence Code.

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tactics “such as lengthy interrogation, physical deprivation, brutality, or

deception” that would render the trial court’s decision regarding the

voluntariness of appellant’s statements erroneous. (Citation and punctuation

omitted.) Fennell v. State, 292 Ga. 834, 837 (4) (741 SE2d 877) (2013).

      Also, appellant claims the fact that he was offered water and a cigarette

after the first interview began, but not during the time he spent waiting for the

interview to begin, demonstrates an improper benefit was offered that renders

his statement involuntary and inadmissible. Appellant points to no evidence that

he asked for, but was denied, water or any other comfort accommodations while

he was waiting for the interview to begin. Providing them during the in-custody

interview does not rise to the level of a hope of benefit that will prevent a

confession from being admissible pursuant to OCGA § 24-3-50. “Generally, the

‘hope of benefit’ to which the statute refers has been construed as a hope of

lighter punishment.” Wilson v. State, 285 Ga. 224, 227 (3) (675 SE2d 11)

(2009); see also White v. State, 266 Ga. 134, 135 (3) (465 SE2d 277) (1996)

(“The promise of a benefit that will render a confession involuntary under

OCGA § 24-3-50 must relate to the charge or sentence facing the suspect.”)

      3. Appellant asserts the trial court erred in admitting into evidence, over

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his objection, four photographs of victim Cole’s body. Appellant asserts the

photographs were gruesome, have no independent probative value, and therefore

they served only to prejudice the jury by interjecting emotion into the case.

Further, he asserts the inflammatory effect of these photographs outweighs their

evidentiary worth where, as here, appellant did not contest the victim was shot

and died from his wounds. The first of these photographs showed the victim

lying in a body bag, covered by a sheet up to his shoulders with a breathing

apparatus on his face. At the hearing on the motion to suppress, in response to

appellant’s objection, the prosecutor countered that this photograph was relevant

in that it showed how the victim arrived at the medical examiner’s office and

also showed the medical examiner’s case number, by which the examiner was

able to identify the victim as she testified at trial. The second photograph

showed a close-up of the victim’s face once the breathing apparatus was

removed, which showed some blood in the victim’s mouth, but the prosecutor

countered that this was the only photograph showing an unobstructed view of

the victim’s face which was not a nude full-body photo. The third photograph

showed the gunshot entry wound in the victim’s side and the fourth was a close-

up of the entry wound.        As such, these photographs were relevant to

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demonstrating the cause of death and type of wound inflicted in the shooting.

      Generally, pre-incision autopsy photographs of the victim are admissible

if relevant and material to any issue, even if they are duplicative and may

inflame the jury. See Thomas v. State, 259 Ga. 202, 203 (4) (378 SE2d 686)

(1989). This Court has deemed pre-autopsy photographs to be relevant and

material, and therefore admissible, if they illustrate the nature and extent of the

victim’s wounds. See Oliver v. State, 276 Ga. 665, 668 (5) (581 SE2d 538)

(2003); Hayes v. State, 268 Ga. 809, 812 (5) (493 SE2d 169) (1997). That one

of the photographs depicted the victim with a breathing apparatus on his face

does not make it inadmissible. Compare Johnson v. State, 289 Ga. 106, 108 (2)

(709 SE2d 768) (2011) (the mere fact that metal probes illustrating the angle and

path of the victim’s wounds could be seen in photographs of the victim did not

render them inadmissible); Stewart v. State, 286 Ga. 669, 670 (3) (690 SE2d

811) (2010) (photographs that included medical devices with the victim’s body

were not unnecessarily gruesome to admit into evidence). Further, the fact that

the cause of death was not in dispute does not render the photographs

unnecessary and therefore inadmissible. See Johnson v. State, supra. “The

admission of photographic evidence is at the discretion of the trial court.”

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Stewart v. State, supra, at 107. In this case, we find no abuse of the trial court’s

discretion in admitting the disputed photographs into evidence.

      4. Appellant testified and admitted that he held a gun on the victim but

that he only meant to scare the victim into opening the safe and did not mean the

gun to go off. He urges that this testimony established an evidentiary issue for

jury determination regarding intent, and that since the credibility of his

testimony was up to the jury to determine, the trial court erred in failing to give

his requested charge on the affirmative defense of accident or misfortune. But

appellant’s own testimony negates any issue regarding accident or misfortune.

      Pursuant to OCGA § 16-2-2: “A person shall not be found guilty of any

crime committed by misfortune or accident where it satisfactorily appears there

was no criminal scheme or undertaking, intention, or criminal negligence.”

Even if an issue was presented for jury determination regarding whether

appellant had been coerced into engaging in the criminal scheme and

undertaking of armed robbery, the evidence did not support the requested jury

charge. Criminal negligence means “reckless and wanton negligence of such a

character as to show an utter disregard for the safety of others who might

reasonably be expected to be injured thereby.” (Citation omitted.) New v. State,

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260 Ga. 441(1) (396 SE2d 486) (1990) (a jury instruction on accident was not

appropriate in a case in which the defendant testified he cocked and aimed a gun

at the victim, because such conduct constitutes criminal negligence). Appellant

admitted he pulled back the hammer of the gun and pointed the gun at the victim

to scare him. Thus, appellant’s testimony established he was engaged in

conduct that constitutes criminal negligence. No evidence was presented at trial

to support an instruction on accident and misfortune, and, in fact, appellant’s

own testimony negates such a theory of the case. Consequently, the trial court

did not err in failing to give the requested charge.

      Judgment affirmed. All the Justices concur.




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