Jоhnny Mack Brown was tried for aggravated assault with intent to murder, hijacking a motor vehicle, two counts of armed robbery and two counts of aggravated assault. He was convicted of armed robbery, two counts of aggravated assault, aggravated battery, hijacking a motor vehicle and the lesser offense of theft by taking; he was acquitted of one сount of aggravated assault. He appeals, raising four enumerations of error. For the following reasons, we vacate one conviction of aggravated assault; we affirm the remainder of the judgment.
Evidence at trial showed that around 11:00 a.m. on December 22, 1997, Brown shot Ricky Eberhardt, who was a courier guard, in the parking lot of a large shopрing center. Brown came up behind Eberhardt as he was loading a money deposit into the armored truck. Without saying a word, Brown shot Eberhardt three times with a .45 caliber semi-automatic handgun. Two shots hit Eberhardt in the back of his body, while the third struck him in the front. Eberhardt fell to the ground next to the armored vehicle, and Brown grabbed the moneybag, which contained more than $146,000, and rаn across the busy parking lot. James Pearce, Eberhardt’s co-worker, who was inside the armored vehicle, came out of it when he heard the shots. He followed Brown across the parking lot. Officer Bobby Tribble, an off-duty instructor at the Northeast Georgia Police Academy, was inside the Wal-Mart store and also heard the gunshots. He went outside and saw Brown hоlding a large canvas bag in one hand and a weapon in the other.
*61 Both Tribble and Pearce followed Brown toward the exit of the shopping center. In front of the Upton’s store, Brown confronted Raymond Davenport, who was waiting in his car for his wife. Brown pointed his weapon at Davenport and stated several times that he wanted the car.
At about this time, Pearce (the co-worker of wounded Eberhardt) saw a police car and fired his revolver in the air to alert the police to Brown’s location. Brown then turned and pointed his gun in Pearce and Tribble’s direction. Brown opened fire on the two, and, as Tribble ducked behind the tire of a vehicle, Brown impaled the tire with a shot. Tribble then pulled his gun and rеturned fire. He fired three shots, grazing Brown once and striking Davenport’s vehicle twice.
Although Davenport was in his vehicle when the shooting began, he jumped out of his car when he heard the shots. Brown then jumped into Davenport’s car with his gun and the money and headed to the exit. Brown left behind his car which was parked back-end first in the parking lot of an adjoining restaurant. Brown then drove across the highway to Georgia Square Mall where he was apprehended in the common area. A police officer told Brown to stop several times at which point Brown raised his hands and eventually, as instructed, lay down on the ground. When apprehended, Brown was carrying a pistol and plastic pouches containing the stolen money.
After his arrest and after being read his rights, Brown confessed to all of the acts; he stated that he committed the crimes because he was trying to be killed by a police officer. He gave a statement to the police in which he explained that he had wanted to kill himself the night before, but had been unable to do so. Accordingly, Brown had gonе to the mall with the specific purpose of doing something that would prompt a law enforcement officer to shoot him. He stated that he assumed that Eberhardt was wearing a bulletproof vest and he tried to shoot him where he would be protected by the vest.
In September 1998, about nine months after committing the crimes outlined above, Brown escaрed from jail. Brown was picked up by the police in November 1998, in Florida.
At trial, Brown presented an insanity defense. In this regard, he presented the testimony of a psychologist who testified that Brown was suffering from severe recurrent depression and a borderline personality. Nevertheless, this expert also testified that, in his opinion, Brown could distinguish right from wrong at the time of the crimes and that he was not acting under a delusional compulsion. Furthermore, testimony from the two mental health experts called by the State and by the court was also that Brown could distinguish right from wrong at the time of the crimes and that he was not acting under a delusional compulsion which, if true, would have justified his acts.
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1. Brown argues that the court erred by failing tо merge the conviction and sentence for aggravated assault with intent to murder with the aggravated battery.
1
Citing
Lowe v. State,
The State, citing
Grace v. State,
Evidence at trial was that Brown shot Eberhardt three times in quick succession. With regard to the gunshots, Eberhardt testified: “[t]o me the duration was pretty much like bam, bam, bam.” Eberhardt dropped his moneybag and fell to the ground. Eberhardt’s coworker stated: “I heard something like a fire pop, and I seen Rick turn around and looking. And I’rn like Rick, you okay. You okay. And then I heard rapid firе pop, pop like that. Then I heard him saying Oh, Lord, have mercy.” In Brown’s statement in which he confessed the crime, he stated that he did not know how many times he shot Eberhardt.
The issue of whether the firing of multiple gunshots may serve as the basis for separate charges has been addressed several times. In
Lowe v. State,
Lowe argued that the aggravated assault merged into malice murder as a matter of fact. Our Supreme Court rejected his argument, concluding that the separate convictions and sentences were authorized because Lowe committed the aggravated assault independently of the act which caused the victim’s death. Because the aggravated assault was proven by evidence that was not used to prove the murder itself and because the aggravated assault was completed before the murder was committed, the court concluded that the crimes did not merge.
Lowe v. State,
Similarly, in
Grace v. State,
On the other hand, in
Montes v. State,
Applying the “actual evidence” test of the substantive double jeopardy provisions, OCGA §§ 16-1-6 and 16-1-7 (a), the
Montes
court concluded that the evidence used to prove the aggravated assault — that the defendant fired a deadly weapon and wounded the deceased victim — was also used to prove that defendant had committed malice murder. Accordingly, the court set aside the conviction and sentence for the aggravated assault. In doing so, the court stated: “[w]e
*64
take this opportunity to disapprove the language in
Pryor v. State,
A review of the cases concerning factual merger when multiple gunshots are fired illustrates the complexity of this issue. As with any factual mеrger question, the dispositive issue is whether the State “used up” its evidence in proving the crime: “The ‘actual evidence’ test, in effect, means that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6 (1).” (Citations and punctuation omittеd.)
Montes v. State,
In this case the еvidence showed only that Brown’s actions were the result of a “single act of firing a series of shots in quick succession at the victim,”
Lowe v. State,
2. Next Brown claims that the court below erred in denying his motion to strike for cause prospective juror Keith Hill. We disagree.
Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and dеcide the case based upon the evidence or the court’s charge upon the evidence. [Cits.]
Johnson v. State,
During voir dire, juror Hill indicated that he had seen newspaper articles regarding the case. He also indicated that he worked at the same Dupont plant with Eberhardt’s brother, although at the time of trial they were working different shifts. Hill also stated that he knew Eberhardt, as an acquaintance. Hill stated that he knew the district attorney because of his job as a groundskeeper at Athens Country Club. Nevertheless, Hill stated without hesitation that hе would be able to judge the case solely on the evidence presented, and he gave no indication that he would be prejudiced against Brown. ‘When ruling on a potential juror’s qualifications, the trial court must make a factual determination based on all the circumstances known to the court, including, but not limited to, the juror’s own opinion of his impartiality.”
Lively v. State,
In this case, the record as a whole shows no abuse of the trial court’s discretion in its failure to remove Hill for cause. See
Fuller v. State,
3. Brown argues that the court erred in denying his pre-trial motion for change of venue because the extensive newspaper and radio coverage and the nature of the offenses created an inherently prеjudicial environment.
A motion for change of venue based upon excessive pretrial publicity invokes the trial court’s discretion, and its ruling *66 will not be disturbed absent an abuse of that discretion. As the movant, [Brown] had the burden of showing (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degrеe that rendered a fair trial impossible.
(Citations and punctuation omitted.)
Dixson v. State,
Brown does not argue that actual prejudice resulted from the jury selection process; he contends that inherent prejudice arose from pre-trial publicity. He does not specifically argue here how that inherent prejudice manifested itself. In any case, we have considered the variоus factors regarding whether inherent prejudice existed, see, e.g.,
Chancey v. State,
we observe that courts will generally be less likely to closely scrutinize the prejudicial effect of publicity upon a defendant’s trial in cases where that publicity is created by the defendant’s escape attempt than in cases where the publicity stems from other sources.
For the additional reasons set forth in Goodman, we reject Brown’s contentions.
4. Finally, Brown contends that the evidence showed that he was insane at the time of the crimes and that the guilty verdicts are insupportable.
The defendant may be found “not guilty by reason of insanity at the time of the crime” if he meets the criteria of Code Section 16-3-2 (lacked mentаl capacity to distinguish between right and wrong in relation to the crime) or 16-3-3 (acted because of a delusional compulsion which overmastered defendant’s will to resist committing the crime) at the time of the commission of the crime. OCGA § 17-7-131 (c) (1). The appropriate standard of appellate review ... is whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that appellant failed to prove by a preponderance *67 of the evidence that [he] was insane at the time of the (crimes). [Cits.]
Rodriguez v. State,
While there was expert evidence from three mental health рrofessionals that Brown suffered from a severe recurrent depression and borderline personality, there was also expert evidence that Brown was able to differentiate between right and wrong, that he was not suffering any delusions that would have justified his acts, and that he was not legally insane at the time of the crimes. We conclude that the evidenсe was sufficient to support the jury’s finding that Brown was not legally insane at the time of his crimes. Furthermore, we find that a rational trier of fact could find from the evidence adduced at trial proof of Brown’s guilt of the crimes beyond a reasonable doubt.
Jackson v. Virginia,
Judgment affirmed in part and vacated in part.
Notes
Count 2 of the indictment charges Brown with aggravated assault with intent to murder, stating that Brown “did unlawfully make an assault upоn the person of Ricky Eberhardt with intent to murder by shooting him” with a semi-automatic pistol. Count 3 accuses Brown of aggravated battery, charging that Brown “did maliciously cause bodily harm to Rick Eberhardt by depriving him of a member of his body by shooting Ricky Eberhardt” with a semi-automatic pistol. Assault is defined in OCGA § 16-5-20, and the provisions under which an assault becomes an aggravated assault, inсluding intent to murder, are set forth in OCGA § 16-5-21 (a). An aggravated assault is defined as an assault with the intent to murder. OCGA § 16-5-24 provides the definition for aggravated battery, stating:
[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.
Brown does not argue that there was a legal merger.