Broyard v. State
325 Ga. App. 794
Ga. Ct. App.2014Background
- On July 12, 2008, Nolan Welch entered a Burger King, displayed a pistol, assaulted the manager, and took >$700; Kevin Broyard was the driver of a red pickup that brought Welch to and waited for him at the scene.
- After the robbery Welch and Broyard fled in the pickup; a sergeant stopped the truck, both men exited and ran; officers apprehended Broyard and recovered a blue/black bag with $749, a handgun, and cell phones in the truck.
- Broyard was tried with Welch, convicted by a jury of armed robbery, two counts of aggravated assault (manager and cashier), possession of a firearm during the commission of a felony, and misdemeanor fleeing or attempting to elude an officer; he appealed the denial of his motion for new trial.
- Broyard argued (1) insufficiency of the evidence and (2) error in denying severance; he admitted driving Welch to the restaurant, accelerating when stopped, and fleeing on foot when ordered to stop.
- The Court reviewed whether (a) the evidence sufficed to convict Broyard as an accomplice/party, (b) one aggravated assault conviction merged with armed robbery, and (c) the trial court abused its discretion in refusing severance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for fleeing/attempting to elude | Broyard claimed evidence was insufficient to prove he willfully fled | Broyard admitted accelerating and running when ordered to stop | Evidence sufficient; misdemeanor fleeing conviction affirmed |
| Sufficiency for armed robbery, aggravated assault, firearm-possession | Broyard argued insufficient proof he participated in substantive crimes | State argued he was a party as getaway driver who aided/abetted before, during, after | Evidence sufficient to convict Broyard as a party on armed robbery, aggravated assault (cashier), and firearm possession; those convictions affirmed |
| Merger of armed robbery and aggravated assault (manager) | Broyard argued aggravated assault against manager merged with armed robbery | State maintained separate convictions appropriate | Court held aggravated assault (manager) arose from the same act/transaction as armed robbery and must merge; that conviction and sentence vacated; remanded for resentencing |
| Severance of joint trial | Broyard claimed prejudice from joint trial with Welch | State and record: no timely motion filed by Broyard; evidence showed concerted action; defenses not antagonistic | No abuse of discretion; claim waived and alternatively without merit; severance denial affirmed |
Key Cases Cited
- Westmoreland v. State, 287 Ga. 688 (definition and elements of fleeing to elude statute)
- Jackson v. Virginia, 443 U.S. 307 (standard for assessing sufficiency of evidence)
- Johnson v. State, 299 Ga. App. 706 (party liability and getaway-driver precedent)
- Bryson v. State, 316 Ga. App. 512 (accomplice liability for firearm possession during felony)
- Howze v. State, 201 Ga. App. 96 (permitting separate convictions for armed robbery and firearm possession)
- Washington v. State, 285 Ga. 541 (inferring criminal intent from conduct before/during/after crime)
- Bradley v. State, 292 Ga. 607 (merger of aggravated assault into armed robbery when arising from same act)
- Nazario v. State, 293 Ga. 480 (merger claims are reviewable and unwaivable; void convictions/sentences)
- Jones v. State, 315 Ga. App. 427 (severance factors and review of trial-court discretion)
- Strozier v. State, 277 Ga. 78 (strength of evidence against co-defendant does not compel severance if concerted action shown)