305 Ga. 600
FINAL COPY
S18A1282. BROOKS v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Nicholas Brooks was convicted of felony murder and other
crimes in connection with the shooting death of Jason Blount. Appellant
contends that the evidence presented at his trial was legally insufficient to
overcome his defense of coercion; that the prosecutor committed misconduct by
introducing into evidence an edited version of Appellant’s video-recorded police
interview; and that his trial counsel provided ineffective assistance by failing to
object to the admission of the recording and by inadequately informing him of
his right to testify. Appellant’s claims are meritless, so we affirm.1
1
The victim was killed on April 6, 2010. About two months later, a Houston County grand
jury indicted Appellant, Michael Cossette, and Kelly Williamson for three counts of felony murder
(predicated on burglary, attempted armed robbery, and aggravated assault), burglary, attempted
armed robbery, aggravated assault, and three counts of possession of a firearm during the
commission of a crime based on the three predicate felonies. Appellant’s case was severed for trial,
which began on April 25, 2011. Several months before the trial, Cossette pled guilty to felony
murder based on burglary and burglary and was sentenced to serve life in prison. A few days after
the trial ended, Williamson pled guilty to burglary, aggravated assault, and one firearm offense.
Both co-defendants testified for the State. On April 29, the jury found Appellant guilty of all
charges, and the trial court sentenced him to serve life in prison for felony murder based on burglary,
five consecutive years for the firearm count based on burglary, and a five-year concurrent term for
1. Viewed in the light most favorable to the verdicts, the evidence
presented at trial showed the following. On the afternoon of April 5, 2010,
Appellant did some flooring work at a trailer owned by David Colleps. After
leaving Colleps’s trailer, Appellant hung out and smoked methamphetamine
with his acquaintance Kelly Williamson and her friend Michael Cossette, whom
Appellant had met earlier that day, at a nearby trailer that belonged to a mutual
friend identified only as “Carlos.” Around 2:00 a.m., Appellant left briefly to
the firearm count based on attempted armed robbery. See State v. Marlowe, 277 Ga. 383, 385-386
(
589 SE2d 69) (2003). The court purported to merge the remaining verdicts; those rulings have not
been challenged on appeal. See Dixon v. State,
302 Ga. 691, 698 (
808 SE2d 696) (2017).
Through new counsel, Appellant filed a timely motion for new trial on May 6, 2011. About
six months later, Appellant retained different appellate counsel, who filed a motion on April 2, 2012,
requesting that Appellant be declared indigent. The trial court did not immediately rule on that
motion. On August 4, 2014, counsel filed an amended motion for new trial. After an evidentiary
hearing, the court denied that motion on December 19, 2014. Appellant filed a notice of appeal on
January 12, 2015, which was incorrectly directed to the Court of Appeals. On March 18, 2015, the
trial court denied the April 2012 motion requesting that Appellant be declared indigent, finding that
it was “no longer timely” because it was three years old and that it “lack[ed] information necessary
for consideration of the requested relief.” On May 19, 2017, Appellant’s second appellate counsel
filed an amended notice of appeal properly directed to this Court. Three days later, Appellant, acting
pro se, purported to file in the trial court a motion for an out-of-time appeal and a “Notice of
Withdrawal of Counsel” requesting that his attorney be removed from the case.
Appellant’s January 2015 appeal was docketed in this Court on October 17, 2017, but no
brief was filed for Appellant. On January 16, 2018, we issued an order striking the case from our
docket and remanding it to the trial court with direction to determine whether Appellant was in fact
indigent and in need of new appointed counsel and whether he validly chose to proceed pro se in his
appeal. On April 9, 2018, the trial court held a hearing on the matter, at which Appellant was
represented by third appellate counsel whom his family had retained. That same day, the court
entered an order holding that Appellant was indigent but was not in need of new appointed counsel
because his retained attorney planned to continue representing him. The court also found that
Appellant had not validly chosen to proceed pro se, noting that he had now been informed of his
right to appointed counsel for his appeal. The appeal was then redocketed in this Court for the
August 2018 term and orally argued on September 11, 2018.
2
get his pickup truck, returning to Carlos’s with Williamson’s sister Carrie. At
some point, Appellant, Williamson, and Cossette went into a bedroom and
began talking about how they needed money.
When Appellant and Williamson told Cossette that Colleps kept a lot of
money and meth in his trailer, Cossette suggested that they rob Colleps, and
Appellant told Cossette that he had just gotten out of prison and could be
trusted. Appellant and Williamson, who also had been in Colleps’s trailer, drew
a diagram of the trailer on a piece of cardboard.2 The three planned that
Williamson would be the getaway driver and Appellant would make sure that
everyone in the trailer stayed on the floor while Cossette searched for money
and meth. Appellant, Cossette, and Williamson then went to Williamson’s
house, where Cossette made a mask out of a pair of green sweatpants and
Appellant made his own mask out of a black shirt.
Around 4:30 a.m., Williamson drove Appellant and Cossette to Colleps’s
trailer in Appellant’s truck. Appellant and Cossette put on their masks, and after
2
As discussed in footnote 1 above, Cossette and Williamson were indicted with Appellant
and testified for the State at his trial pursuant to plea agreements. While Cossette testified that
Appellant and Williamson drew the diagram of Colleps’s trailer, Williamson told the jury that she
and Cossette, not Appellant, made the drawing.
3
Cossette knocked loudly on the door of the trailer, Appellant kicked in the door,
entered, and stood in the living room as Cossette followed him in brandishing
a 9mm pistol. Colleps and his cousin fled through a bedroom window when
they heard the assailants. His friend Jason Blount and Blount’s fiancée were
also staying in the trailer that night. Cossette ordered them to get down on the
floor, and Blount’s fiancée, who was in a hallway, complied. When Blount
remained standing in the kitchen, Cossette hit him on the head with the pistol
and began searching the trailer for money and meth. Blount then threw some
tools that were strewn around the kitchen at Appellant, who was still standing
in the living room. Cossette fired several rounds toward Blount, who was hit
once in the chest. Cossette and Appellant then fled from the trailer.
Blount died moments later from his gunshot wound. His autopsy later
showed that he had been shot by a 9mm pistol from a distance of several feet.
Blount’s fiancée was not injured; she could not identify the two intruders, but
said that both were men wearing masks, one of which was green, and both men
were armed with handguns.3
3
Colleps’s neighbor also testified that she saw both assailants carrying guns; Cossette and
Williamson said that Appellant was unarmed.
4
As Williamson drove Appellant and Cossette back to Carlos’s trailer,
Cossette took the two remaining bullets out of his pistol and threw them into the
woods. Appellant and Williamson discussed parking Appellant’s truck behind
Carlos’s trailer so no one would see it. Once in the trailer, Appellant told
Cossette that he would burn both of the masks, and he ripped up the diagram of
Colleps’s trailer and put the pieces of the diagram and the two masks in a plastic
bag. Cossette and Williamson then went to sleep while Appellant hung out in
the living room with Carrie and Carlos.
Later that day, Williamson met with investigators, and she eventually gave
them Appellant’s and Cossette’s names. Cossette was then arrested at a friend’s
house, where investigators found two firearms, one of which was Cossette’s
empty 9mm pistol. That evening, the investigators spotted Appellant driving his
truck, but moments later, they found the truck abandoned. The next day,
Appellant called an investigator and said that he was scared and hiding out in
the Atlanta area with his stepmother; after he failed to turn himself in as
requested, officers located and arrested him and his stepmother as they were
leaving a motel in Locust Grove.
After his arrest, Appellant was interviewed; the State played a redacted
5
version of the video recording of the interview for the jury. Appellant told the
following story. In the bedroom of Carlos’s trailer, Cossette pulled out a 9mm
pistol and told Appellant and Williamson that “they [were] going to go rob
somebody.” When Appellant said he did not want to get involved, Cossette
pointed his pistol at Appellant and told him that he “was going to f**king do it
or [Cossette] was going to f**king kill [him]” and that Cossette knew where
Appellant’s kids lived. Appellant “didn’t say nothing” because he “didn’t know
what to do; [he] was scared.” Cossette wanted him to wear a green mask, but
he decided to make a black mask for himself. When they arrived at Colleps’s
trailer, Cossette kicked in the door and hit Blount with his pistol, and Appellant,
who was standing in the living room, told Blount, “I’m not going to do
anything.” Blount then threw a drill at Cossette, and Cossette fired a few rounds
and shot Blount. Back at Carlos’s, Cossette examined his pistol, which still had
two bullets left in it, and told Appellant to get rid of the masks. Appellant put
them in a plastic bag, along with a diagram of Colleps’s trailer that Cossette and
Williamson had drawn. When everyone fell asleep, Appellant left Carlos’s and
threw the plastic bag in a trash can outside of a friend’s house. (Investigators
later found the bag containing the green mask, the black mask, and the torn
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diagram in the trash can.) Appellant then hid from law enforcement because he
was scared of what Cossette would do to him or his family.
Appellant did not testify at trial. Relying primarily on his interview, the
defense theory was that Cossette had coerced Appellant into participating in the
crimes. Cossette and Williamson both testified, however, that Cossette never
threatened Appellant and never pointed his pistol at Appellant. Williamson
testified that Appellant initially said that he did not want to get involved with the
burglary, but after Cossette said he needed Appellant’s help, Appellant “just
went along with it.” Williamson’s sister Carrie testified that she overheard
Appellant, Cossette, and Williamson planning the burglary and that Appellant
acted “like he was up for it.” In addition, Appellant’s friend testified that
several hours after the murder, Appellant told her that he had been in a house
while it was robbed but never mentioned that he had been forced at gunpoint to
participate in the crimes.
2. Appellant contends that the evidence presented at trial was legally
insufficient to overcome his affirmative defense of coercion. As discussed
above, when viewed in the light most favorable to the jury’s verdicts, the
evidence showed that Appellant, who had been in Colleps’s trailer on the
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afternoon before the shooting, told Cossette that there was money and meth in
the trailer; he then planned the burglary of the trailer with Cossette and
Williamson, telling them that he could be trusted, drew a diagram of the trailer
with Williamson, and as Appellant later admitted in his statement to
investigators, made his own mask so that no one in the trailer would recognize
him. After the co-defendants arrived at the trailer in Appellant’s truck, he
kicked in the door and entered the trailer, armed with a handgun; and when
Cossette shot Blount after Blount threw tools at Appellant, Appellant fled the
trailer with Cossette and Williamson. Appellant then stayed to hang out at
Carlos’s trailer after Cossette and Williamson went to sleep; as he later admitted,
he voluntarily disposed of the diagram and two masks. He also fled from
investigators after they spotted him driving his truck on the evening after the
shooting.
At trial, Cossette, Williamson, and Carrie testified that Appellant was a
willing participant in the crimes, and Appellant’s friend testified that he had told
her about being in a house during a robbery but never mentioned that he had
been forced at gunpoint to commit the crimes. This evidence was sufficient to
authorize a rational jury to reject Appellant’s coercion defense and find him
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guilty beyond a reasonable doubt of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (
99 SCt 2781, 61 LE2d 560) (1979);
Vega v. State,
285 Ga. 32, 33 (
673 SE2d 223) (2009) (“It was for the jury to
determine the credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.” (citation and punctuation omitted)); Conaway
v. State,
277 Ga. 422, 423 (
589 SE2d 108) (2003) (concluding that the evidence
supporting the appellant’s convictions was legally sufficient, notwithstanding
his testimony that he was coerced to commit the crimes, which “at most created
a conflict with other evidence that showed his participation in the crimes was
voluntary”). See also OCGA § 16-2-20 (defining parties to a crime); Butts v.
State,
297 Ga. 766, 770 (
778 SE2d 205) (2015) (explaining that under OCGA
§ 16-2-20, a jury may infer a common criminal intent from the defendant’s
presence, companionship, and conduct with another perpetrator before, during,
and after the crimes).4
4
We therefore need not decide in this case whether the defense of coercion was even
available as to Appellant’s felony murder charges, particularly as the jury was charged on that
defense using the statutory language, without objection by the State. See OCGA § 16-3-26 (“A
person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability
is based is performed under such coercion that the person reasonably believes that performing the
act is the only way to prevent his imminent death or great bodily injury.”). See also Kelly v. State,
266 Ga. 709, 711 (
469 SE2d 653) (1996) (reserving the question).
9
3. During direct examination of one of the police investigators who
interviewed Appellant, the State tendered the original, over-two-hour-long video
recording of the interview, which was admitted into evidence without objection.
When the prosecutor asked the trial court’s permission to play the recording for
the jury, the court called the attorneys to the bench, and the prosecutor explained
that he planned to play an edited version of the video that was about an hour and
15 minutes long. The prosecutor told the court that the State had redacted parts
of the recording that referenced Appellant’s prior criminal record, probation
status, and other “objectionable” content. When Appellant’s counsel told the
court that she had not seen the redacted video, the prosecutor explained that the
State was not able to get the recording redacted and to the defense before the
trial began. Appellant’s counsel agreed to watch the edited recording over a
lunch recess. After lunch, the prosecutor played the redacted version of the
interview for the jury, and Appellant’s attorney did not object. Neither the
original nor the redacted recording was given to the jury during its deliberations.
Appellant now contends that the prosecutor committed misconduct by
using the edited version of the interview recording. Specifically, Appellant
argues that the State removed “crucial” statements in the interview that provided
10
important context; that the State edited Appellant’s statement, “If I had a pistol
I would have shot that motherf**ker [Cossette] for pointing a gun at me and
telling me I had to do something,” so that the jury heard “If I had a pistol I
would have shot that” before a “blackout” transition to another segment of the
recording; and that the various “jumping” and “fading” transitions between
sections of the recording highlighted changes in Appellant’s mood during the
interview.
Because Appellant did not raise this claim of prosecutorial misconduct at
trial, it was not preserved for appeal. See Cushenberry v. State, 300 Ga. 190,
195 (
794 SE2d 165) (2016). Indeed, Appellant failed to raise this claim in his
motion for new trial or during the hearing on the motion, so the trial court never
ruled on it. See McClendon v. State,
299 Ga. 611, 616 (
791 SE2d 69) (2016)
(“Because [appellant] raises an issue on appeal that was not presented [to] or
ruled upon by the trial court, his argument is not preserved for review by this
Court.”).
In any event, “‘when a defendant alleges a factually specific claim of
prosecutorial misconduct, the defendant must show actual misconduct and
demonstrable prejudice to his right to a fair trial in order to reverse his
11
conviction.’” Cushenberry, 300 Ga. at 195 (citation omitted). Pretermitting
whether the prosecutor acted altogether properly, Appellant has not
demonstrated prejudice. A comparison of the original recording of his interview
and the edited version shows that many of the edits omitted references to other
bad acts or crimes that Appellant had committed. Additional edits cut several
minutes during which Appellant sat quietly alone in the interview room or brief
periods of time when the interview was interrupted while investigators
addressed unrelated matters. And although it is less clear why the State redacted
other sections of the recording, the omitted statements and reactions by
Appellant that were relevant to his defense were repeated in other parts of the
recording.
For example, the edited version omits a few brief segments during which
Appellant cried and said that he was afraid. But the jury saw numerous other
instances during the recording in which Appellant repeatedly cried and said that
he was afraid of Cossette. And although the State unaccountably edited
Appellant’s statement, “If I had a pistol I would have shot that motherf**ker for
pointing a gun at me and telling me I had to do something,” in such a way that
the jury heard “If I had a pistol I would have shot that,” the jurors surely
12
inferred that Appellant was talking about shooting Cossette for allegedly
coercing him. Minutes earlier in the recording, the jury heard Appellant tell
investigators, “If I had a pistol, I would have f**king shot [Cossette]. I don’t
know whether that’s incriminating or not, but I would have, just because
[Cossette] forced me to do something I didn’t want to do.” As for Appellant’s
assertion that the various transitions between edited sections of the recording
highlighted his shifts in mood, the original recording of the interview shows that
Appellant’s demeanor quickly changed from angry to depressed to relieved as
he recounted his story that Cossette forced him at gunpoint to commit the
crimes.
Under these circumstances, Appellant has not proved his claim of
prosecutorial misconduct. See id. He also has not demonstrated that the State
violated his right to due process through the knowing presentation of material
false evidence, see Napue v. Illinois,
360 U.S. 264, 269 (
79 SCt 1173, 3 LE2d
1217) (1959), or the concealment of material exculpatory evidence, see Brady
v. Maryland,
373 U.S. 83, 87 (
83 SCt 1194, 10 LE2d 215) (1963).
4. Appellant also asserts that his trial counsel provided ineffective
assistance by failing to adequately review and object to the edited recording of
13
his police interview. To prove ineffective assistance, Appellant must show both
that his counsel’s performance was professionally deficient and that, but for the
unprofessional performance, there is a reasonable probability that the outcome
of the proceeding would have been different. See Strickland v. Washington,
466 U.S. 668, 687, 694 (
104 SCt 2052, 80 LE2d 674) (1984). We need not
review both parts of this test if Appellant fails to prove one of them. See
Stripling v. State,
304 Ga. 131, 138 (
816 SE2d 663) (2018).
Pretermitting whether Appellant preserved this claim for review, he cannot
establish that any deficiency in trial counsel’s failure to object to the edited
recording of the interview likely affected the outcome of his trial. As discussed
in Division 3 above in relation to Appellant’s prosecutorial misconduct claim,
although the State omitted from the recording moments that were relevant to his
defense, those brief snippets were cumulative of other portions that were played
for the jury. Accordingly, Appellant’s ineffective assistance claim is without
merit. See Eller v. State, 303 Ga. 373, 384 (
811 SE2d 299) (2018) (concluding
that the appellant could not show prejudice from any deficiency in trial
counsel’s failure to introduce evidence that may have supported the appellant’s
defense, because the evidence was cumulative of other evidence that was
14
presented to the jury).
5. Finally, Appellant contends that his trial counsel provided
ineffective assistance by failing to adequately inform him of his right to testify.
In its order denying Appellant’s motion for new trial, however, the trial court
found credible counsel’s testimony at the motion hearing that she had advised
Appellant of his right to testify; that it was not in his best interest to testify
because his account of the crimes could be presented to the jury through the
recorded interview without exposing him to cross-examination, while if he
testified, the prosecutor would impeach him with his two prior burglary
convictions; and that the decision to testify was ultimately his to make.
Appellant has therefore failed to show that his trial counsel performed
deficiently. See, e.g., Turner v. State, 300 Ga. 513, 515 (
796 SE2d 698) (2017)
(rejecting an ineffective assistance claim based on trial counsel’s purported
failure to inform the appellant of his right to testify, where counsel testified that
he had discussed the appellant’s right to testify with him, told him that it was his
decision to make, and advised him that the prosecutor could cross-examine him
about his criminal history); Hamilton v. State,
274 Ga. 582, 589 (
555 SE2d 701)
(2001) (concluding that counsel’s strategic decision to advise the appellant not
15
to testify was reasonable because the State would cross-examine him about his
prior similar crimes). In addition, although Appellant testified at the motion for
new trial hearing that he would have testified at trial if his attorney had informed
him that it was his decision to make, he failed to present evidence to show what
his trial testimony would have been or that it would have differed from the story
that had already been presented to the jury through his recorded interview.
Thus, he has not established Strickland prejudice. See, e.g., Sims v. State, 278
Ga. 587, 591 (
604 SE2d 799) (2004).
Judgment affirmed. All the Justices concur.
16
Decided March 11, 2019 — Reconsideration denied March 27, 2019.
Murder. Houston Superior Court. Before Judge Lukemire.
Francis R. Dixson III, for appellant.
George H. Hartwig III, District Attorney, Daniel P. Bibler, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Elizabeth H. Brock, Matthew B. Crowder, Assistant Attorneys General,
for appellee.
17
