Brown v. State

FINAL COPY


                 S20A0782. BROWN v. THE STATE.


      BLACKWELL, Justice.

      Melvin Louis Brown, Jr., was tried by an Athens-Clarke

County jury and convicted of murder and other crimes in connection

with the fatal shooting of Javious Tucker and wounding of Cyntrelis

Boggs. Brown appeals, claiming that the trial court plainly erred in

its jury charge on his justification defense and when it admitted in-

life photographs of Tucker and allowed Tucker’s mother to testify

about those photographs. Brown also contends that he was denied

the effective assistance of counsel. Upon our review of the record and

briefs, we see no reversible error and affirm.1


      1  The crimes were committed in February 2014. An Athens-Clarke
County grand jury indicted Brown in April 2014, charging him with murder
with malice aforethought, three counts of felony murder, two counts of
aggravated assault, three counts of the unlawful possession of a firearm during
the commission of a felony (under OCGA § 16-11-133 (b)), one count of
terroristic acts, and one count of the unlawful possession of a firearm by a
convicted felon. At Brown’s first trial, he was found guilty on all counts, but
his convictions were reversed by this Court because the trial court erroneously
      1. Viewed in the light most favorable to the verdict, the

evidence presented at trial shows that, on the afternoon of February

2, 2014, Brown was visiting the Athens house that his aunt shared

with Tucker’s father. It was Super Bowl Sunday, and Tucker also

dropped by the house, accompanied by his friend Boggs. Shortly

thereafter, Brown and Tucker got into an argument over a bag of

pork skins. After Brown eventually “grabbed [Tucker] by his shirt

and jacked him up on [a] car,” family members separated the two

men, and Brown walked away from his aunt’s house and down the

street toward another house. Tucker followed in his car—a Honda




admitted evidence of multiple aggravated assaults committed by Brown in
2005. See Brown v. State, 

 (

) (2018). Brown was
retried in November 2018, and he again was found guilty on all counts. The
trial court sentenced Brown to imprisonment for life without the possibility of
parole for malice murder, a consecutive term of imprisonment for 20 years for
aggravated assault upon Boggs, and a consecutive term of imprisonment for 15
years for the unlawful possession of a firearm during the commission of a
felony. The felony murder counts were vacated by operation of law, and the
trial court ruled that the remaining counts were vacated or merged, rulings
that have not been challenged on appeal and that we decline to address. See
Dixon v. State, 

 (4) (

) (2017). Brown timely filed
a motion for new trial in November 2018, which he amended in June 2019. The
trial court denied that motion in November 2019, and Brown timely filed a
notice of appeal. The case was docketed in this Court for the April 2020 term
and submitted for decision on the briefs.
Accord—with Boggs in the passenger seat. Brown tried to open the

door to the Honda and challenge Tucker to fight, but Tucker would

not unlock the door. When Brown began to walk away, Tucker

grabbed a tire iron from the trunk of the Honda. In response, Brown

ran off to get a semi-automatic handgun from the trunk of his

Oldsmobile. Brown returned as Tucker was driving down the street,

and Brown fired nine shots into Tucker’s Honda. Tucker was fatally

shot in his chest, and Boggs was injured.

     Brown fled in his Oldsmobile, which he eventually abandoned,

and he remained on the run for several days. A few days later,

Brown’s brother arranged for a nephew to drive Brown to Atlanta.

Brown—who was disguised in a “woman’s wig,” dress, and costume

jewelry—told the nephew that he regretted what he had done in

connection with the shooting, and Brown was arrested on his way to

Atlanta. At trial, Brown argued that he killed Tucker in self-defense,

and alternatively that he committed only voluntary manslaughter

and not murder.

     Brown does not dispute that the evidence is sufficient to
sustain his convictions. But consistent with our usual practice in

murder cases, we independently have reviewed the record to assess

the legal sufficiency of the evidence.2 We conclude that the evidence

presented at trial, when viewed in the light most favorable to the

verdict, was sufficient to authorize a rational trier of fact to find

beyond a reasonable doubt that Brown was guilty of the crimes of

which he was convicted. See Jackson v. Virginia, 

(III) (B) (

, 61 LE2d 560) (1979).

     2. Brown claims that the trial court plainly erred when it

instructed the jury about his justification defense because the

instruction was inconsistent with Johnson v. State, 

 (

) (2020). In Johnson, we held that, pursuant to OCGA § 16-

11-138, “circumstances sufficient to justify a threat or use of force in

defense of self that would otherwise be unlawful also may be

sufficient to justify the possession or carrying of a firearm [by a


     2 We remind litigants that this Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, ___ Ga.
___ (___ SE2d ___) (2020). This Court began assigning cases to the December
term on August 3, 2020.
convicted felon].” Id. at 144. Because the jury in his case was not

instructed that justification could be a defense to possession of a

firearm by a convicted felon, Brown speculates that the jury might

have rejected his justification defense based on a belief that he (as a

convicted felon) was not entitled to assert it. Brown acknowledges

that he did not object to the justification charge at his trial, but he

asserts that the charge was plainly erroneous. See OCGA § 17-8-58

(b).

       Our decision in Johnson was based upon our understanding of

“the rule of law produced by the combination of OCGA §§ 16-3-21

and 16-11-138.” Johnson, 

. But Brown shot Tucker in

February 2014, and the Safe Carry Protection Act of 2014 — of

which OCGA § 16-11-138 was a part — did not become law until July

2014. See Ga. L. 2014, p. 599. Consequently, the Safe Carry

Protection Act has no application in this case, and Brown was not

entitled to any instruction under Johnson about whether he might

have been justified in possessing a firearm in February 2014. The

jury instruction on justification was not clearly erroneous under
Johnson. See Anthony v. State, 

 (12) (

)

(2018).

     3. Brown also claims that the trial court plainly erred when it

allowed Tucker’s mother to testify about two in-life photographs of

Tucker and when it admitted the photographs into evidence.

Although Brown did not object to the mother’s testimony or the

admission of the photographs at trial, he now asserts that the trial

court plainly erred because the testimony and photographs were

irrelevant under OCGA § 24-4-401 and because any probative value

was “substantially outweighed by the danger of unfair prejudice”

under OCGA § 24-4-403.

     Even if Brown could show that the testimony or photographs

were admitted erroneously, that the error was not affirmatively

waived, and that the error was clear and obvious, he has not shown

that the testimony or photographs likely affected the outcome of his

trial. See, e.g., Davis v. State, 

 (2) (

)

(2019) (setting forth the test for plain error). The testimony that

Tucker’s mother provided about the photographs was limited; she
testified only that the photographs portrayed “[her] and [Tucker] at

[her] 40th birthday party,” and she answered in the affirmative

when the prosecuting attorney asked if the photographs depicted

Tucker “as he appeared in life” and if one of the photographs

depicted her and Tucker dancing at the birthday party.3 And Brown

has not shown (or alleged) that anything in particular about the

photographs themselves was likely to affect the outcome of his trial.

As a result, Brown has not established plain error. See Bozzie v.

State, 

 (2) (a) (

) (2017).

     4. Finally, Brown claims that he was denied the effective

assistance of counsel when his trial lawyer failed to impeach Boggs

with his prior testimony. To prevail on a claim of ineffective

assistance, Brown must prove both that the performance of his



     3 Tucker’s mother also testified that she did not know if Tucker spent

much time with his father, that she would occasionally drop Tucker off at the
Athens house that his father shared with Brown’s aunt (although she did not
know Brown or his aunt), that she had met Boggs on at least one occasion and
knew him to be a friend of Tucker, and that she “refused” to talk to
investigators when she found out that Tucker had been killed. To the extent
that Brown claims that the trial court plainly erred when it allowed this
testimony, he has not argued (or shown) that the testimony likely affected the
outcome of his trial.
lawyer was deficient and that he was prejudiced by this deficient

performance. See Strickland v. Washington, 

 (III)

(

, 80 LE2d 674) (1984). To prove that the performance

of his lawyer was deficient, Brown must show that his lawyer

performed his duties at trial in an objectively unreasonable way,

considering all the circumstances and in the light of prevailing

professional norms. See 

 (III) (A). See also Kimmelman

v. Morrison, 

 (II) (C) (

, 91 LE2d 305)

(1986). And to prove that he was prejudiced by the performance of

his lawyer, Brown must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 

 (III) (B). This burden is a heavy one, see Kimmelman,

 (II) (C), and Brown has failed to carry it.

     In response to a question from the prosecuting attorney about

what he “saw or heard” just before the shooting, Boggs testified that

he could not see the shooter because of the glare from the sun. As to
what he heard just before the shooting, Boggs testified that someone

said “Motherf***er, you done got — I ain’t playing,” and that the

voice was the same as the voice of the person “that was fussing over

the pork skins.”

     Brown now claims that he was denied the effective assistance

of counsel when his lawyer failed to impeach Boggs with

inconsistent testimony that Boggs provided at Brown’s first trial.

But at the hearing on Brown’s motion for new trial, Brown did not

question his trial lawyer about why he did not impeach Boggs with

any prior testimony,4 he did not present any evidence from Boggs

himself, and he did not offer any prior testimony into evidence to

show that it was inconsistent with the testimony that Boggs

provided at Brown’s second trial. As a result, Brown has failed to

establish that Boggs could have been successfully impeached with

any prior testimony or that the trial lawyer’s performance was




     4 As to his general strategy for cross-examining Boggs, the trial lawyer

noted that Boggs appeared to be “psychologically fragile” and “very frazzled
from the event.”
constitutionally deficient for not attempting such impeachment. See

Daughtry v. State, 

 (2) (j) (

) (2015)

(appellant failed to establish deficient performance based upon

failure to impeach witness where appellant “relied on hearsay

summaries as to the content of those allegedly inconsistent

statements”).

     Judgment affirmed. All the Justices concur.



                     DECIDED AUGUST 10, 2020.
     Murder. Clarke Superior Court. Before Judge Haggard.
     Barbara Mattes, for appellant.
     Brian V. Patterson, Acting District Attorney; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Eric C. Peters, Assistant Attorney General, for appellee.