302 Ga. 6
Ga.2017Background
- Early morning August 6, 2014: an armed home invasion at Adam Schrier’s house; Schrier was killed, two others wounded; victims robbed and bound.
- Crime tied to meth trafficking: five kilos originally taken from a Chevy Blazer, concealed with Schrier, and largely sold; motive was to recover drugs/money.
- Evidence connected Brewner to planning and orchestration: testimony that he met repeatedly with co-defendant Staples to plan the recovery, prior similar 2013 robbery he masterminded, hotel and vehicle surveillance placing associates near the scene, recorded phone calls with Detective Johnson, and post-crime movements.
- At trial Brewner denied being present but admitted introducing Staples to alleged perpetrators and admitted prior robbery of Staples; Roberts (girlfriend) initially implicated planning but testified differently at trial; recordings of her pretrial interview were admitted as prior inconsistent statements.
- Procedural posture: convicted after eight-day jury trial on 18 counts (including malice and felony murder, armed robbery, home invasion, conspiracy, etc.); sentenced to life without parole plus consecutive terms; appeal challenges presence violations, admission of other-acts and prior statements, counsel effectiveness, and sufficiency of evidence. Court affirms.
Issues
| Issue | Brewner's Argument | State's Argument | Held |
|---|---|---|---|
| Right to be present for trial-court ruling on admissibility of OCGA § 24-4-404(b) evidence | Court denied him presence when it ruled on 404(b) evidence outside his presence | Ruling on a legal motion is not a “critical stage” requiring defendant’s presence; Brewner was present when evidence was actually introduced | No violation; no constitutional right to be present when a court issues a legal ruling outside open court |
| Right to be present when prospective juror excused during lunch break | Denied presence when juror excused in his absence | Defense counsel and Brewner (present) later approved the excusal in open court; right can be waived by counsel with subsequent acquiescence | Waived — counsel had no objection in open court and Brewner did not object thereafter |
| Admission of other-acts (404(b)) evidence (prior drug dealings and 2013 Staples home invasion) | Evidence was unfairly prejudicial and admission required on-the-record 404(b) findings | Evidence was relevant to intent, plan, context; probative value outweighed prejudice; no on-the-record finding required under analogous federal authority | No plain error; admission proper under 404(b) and 403 balancing and no abuse of discretion |
| Ineffective assistance of counsel (failing to request contemporaneous limiting instruction; failing to object to authentication of recorded calls) | Counsel deficient for not requesting immediate limiting instruction and not objecting to voice-authentication; prejudice ensued | Court gave comprehensive limiting instruction at close of evidence; recordings were sufficiently authenticated by content and counsel believed voice was Brewner’s | No ineffective assistance: no prejudice shown and objections would likely fail |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes sufficiency-of-evidence standard)
- Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard)
- Old Chief v. United States, 519 U.S. 172 (weighing probative value vs. unfair prejudice)
- State v. Kelly, 290 Ga. 29 (plain-error four-part test)
- Hood v. State, 299 Ga. 95 (application of 404(b) three-part test)
- Olds v. State, 299 Ga. 65 (intent as 404(b) issue when defendant pleads not guilty)
- Jones v. State, 299 Ga. 40 (abuse-of-discretion review for admission rulings)
- Ward v. State, 288 Ga. 641 (constitutional right to be present)
- Sammons v. State, 279 Ga. 386 (right to be present; waiver and prejudice presumption)