Brown v. State

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

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she was convicted. See Jackson v. Virginia, 

 (

, 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, 

 (2) (

) (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, 

 (3) (

) (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, 

 (

, 80 LE2d 674)
(1984).
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A reasonable probability is a probability sufficient to undermine confidence in

the outcome.’” Arnold v. State, 

 (

) (2013)

(quoting Strickland, 

). 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,

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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, 

 (

, 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, 

 (2) (

) (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).

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      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, 

 (

) (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, 

(

) (2008). Strickland requires “more than speculation to establish

prejudice.” Hambrick v. Brannen, 

 (

) (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,

 (

) (2000). Compare Martin v. Barrett, 

 (

) (2005) (expert testimony supported habeas court

finding of reasonable probability that defendant might have been found

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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, 

 (

) (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, 

 (

) (1996).

      Judgment affirmed in part and vacated in part. All the Justices concur.



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                         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.




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