Brooks’ 1977 malice murder conviction and death sentence were vacated on the appeal of his petition for federal habeas corpus in 1987 by the Eleventh Circuit due to a burden-shifting charge. (His convictions for rape, armed robbery and kidnapping were not vacated.) Brooks v. Kemp, 762 F2d 1383 (11th Cir. 1985) (en banc), reaff’d on remand, Brooks v. Kemp, 809 F2d 700 (11th Cir. 1987) (en banc). 1 Upon retrial in 1991 at a changed venue, the jury found Brooks guilty of murder and that the murder was committed while he was engaged in the commission of rape, OCGA § 17-10-30 (b) (2), but did not impose the death penalty.
The jury was authorized to find that Brooks kidnapped Carol Jeannine Galloway from her parents’ home in Muscogee County, took her to a secluded area where he raped her and shot her in the neck, and left with her car and pocketbook. The victim bled to death before her body was located the next day. A red shirt was found nearby.
The victim’s mother testified her daughter left the house at 8:15 a.m. to meet a friend for breakfast. When she looked outside a few minutes later, she saw the victim’s car door open, but did not see the victim. She searched for several minutes before her daughter called faintly from a utility closet in the carport, “I’m in here; go back inside.” Her mother went inside to call for help, but she heard the victim’s car start. She ran outside and saw a man she did not know, in a red shirt, in the car with her daughter. Several others saw the victim’s car near an elementary school that morning. Later, when Brooks realized he was being followed by the victim’s fiance, he abandoned the car and took the victim’s money from her pocketbook.
Brooks offered $5 to Morris Comer, who lived near the school, for a ride into the city. Brooks had on no shirt and was covered with dirt; a handgun was sticking out of his back pocket. He spent the entire ride lying down on the back seat and told Mr. Comer not to tell anybody he had seen him.
Brooks moved to suppress the in-court identifications of Mrs. *188 Galloway and Mr. Comer at his retrial, but the motions were denied.
While in custody, Brooks explained that after he made the victim undress, raped her, and made her redress, she began screaming:
She kept on screaming and would not shut up, so I pulled the hammer back on the pistol and pointed it at her so she would know I was serious when I told her to shut up. The pistol went off and it hit her and she fell to the ground and she kept on trying to scream but you could not hear her voice.
At trial, Brooks presented two experts, a forensic pathologist and a firearms expert, who testified to the indicia of accident in this case. The trial court refused to instruct the jury, as requested, on accident or felony involuntary manslaughter.
1. Having reviewed the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty of murder beyond a reasonable doubt.
Jackson v. Virginia,
2. Brooks complains that the trial court erred in admitting the eyewitness identifications of the victim’s mother and of Comer. He contends both identifications were tainted by outside influences after the witnesses had originally failed to identify him.
The state established, “under the totality of the circumstances,” that neither witness misidentified Brooks and that they recognized him from their observations at the time of the crime.
Neil v. Biggers,
3. Under OCGA § 16-5-3 (a), involuntary manslaughter occurs where an unintentional death is caused “by the commission of an unlawful act
other than a
felony.” (Emphasis supplied.) Giving Brooks the benefit of his own testimony, he was, at the very least, engaged in the commission of an aggravated assault when the gun fired. Therefore, the trial court did not err by refusing to charge on felony involuntary manslaughter.
Binns v. State,
Nor did the trial court err in refusing to charge on accident. While the evidence presented at trial may have supported a finding that the killing was not intentional, it did not support a theory of accident as it is defined in OCGA § 16-2-2:
A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.
(Emphasis supplied.)
Stewart v. State,
The jury was clearly charged that it had to find the killing intentional in order to convict the defendant of murder. We find no error.
Judgment affirmed.
Notes
Brooks was originally indicted on August 16, 1977, and a jury found him guilty on November 18, and sentenced him to death. This court affirmed,
Brooks v. State,