Lead Opinion
Appellant Scottie Propst appeals his convictions and sentences for robbery and other related offenses. In his seven enumerations of error, Propst challenges, among other things, the constitutionality of OCGA§ 16-3-24.2.Propstclaims,ashedidbelow,thatOCGA § 16-3-24.2 violates his right to equal protection under the Georgia and United
1. In two enumerations of error, Propst contends that the evidence presented at trial was insufficient to support his convictions. Viewed in a light most favorable to the jury’s verdict, the evidence at trial established as follows. In October 2011, Propst’s co-defendant, Adam Hacker, arranged to purchase roxycodone pills from Yvonne Parker and Ronya Crankshaw at the ladies’ residence in Monroe, Georgia. Hacker, Propst, and a third party drove from North Carolina to Monroe to complete the transaction.
Hacker testified that he and Propst, who was in need of money, devised a plan to steal the pills and money from Parker and Crank-shaw. Upon their arrival at the residence, Hacker handed Propst a .45 Taurus pistol and told him to remain in the car and “stay out of sight.” Despite not having enough money to buy the requested amount of pills, Hacker went inside to conduct the drug transaction. Eventually, Hacker left the residence and returned to the vehicle under the pretense of retrieving additional cash. Once at the vehicle, Hacker and Propst reviewed their plan to rob Parker and Crankshaw; both men returned to the residence where, Hacker testified, he grabbed the pills and the money
The men drove off and, on their way back to North Carolina, they discarded the gun in a creek and agreed to tell law enforcement that Crankshaw shot at them as they were driving away.
Hacker and Propst were identified from photo lineups by Crank-shaw and Smith. A .45 caliber shell casing was located at the intersection where the shooting occurred, and law enforcement recovered a large sum of money and the stolen pill bottles from Hacker’s girlfriend. After his arrest, Hacker led law enforcement to the gun, which was later matched to both the shell casing found in the street and the bullet that struck Smith. Law enforcement subsequently searched the vehicle Hacker drove on the night of the incident and located a muzzle flash powder burn on the top passenger’s side of the car.
Ronya Crankshaw corroborated many portions of Hacker’s testimony According to Crankshaw, Hacker initially entered the residence alone for a drug transaction with Parker; he exited the residence to go back to his car; and Propst and Hacker returned, stole the pills and cash, fled the scene and then shot at Crankshaw and Smith before leaving the neighborhood.
Finally, the jury also heard Propst’s custodial statement wherein he told law enforcement that: he and Hacker drove from North Carolina to Georgia for a pill buy; he stayed in the car at Hacker’s advice while Hacker entered the residence to conduct the drug transaction; Hacker came back to the car to get Propst; the pair entered the house together; Propst grabbed the pills and cash; the pair ran to the car and fled the scene; they got lost in the subdivision; and Crankshaw gave chase in her car. Initially, Propst denied having a gun in his possession, but he later admitted to having a gun, pulling the trigger from the passenger’s side of the car, plotting with Hacker to dispose of the weapon, and then confirming their stories in case they were contacted by police.
(a) Sufficiency of the Evidence for the Robbery Convictions
Propst first argues that his two convictions for robbery as lesser included offenses of armed robbery are not supported by sufficient evidence. Propst contends that the convictions are based solely on
The testimony of a single witness is generally sufficient to establish a fact. However, in . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness ....
Id. Furthermore, we have previously held that
sufficient corroborating evidence may be circumstantial, it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged. It must, however, be independent of the accomplice testimony and must directly connect the defendant with the crime, or lead to the inference that he is guilty. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. [Cits.] Corroboration of only the chronology and details of the crimes is not sufficient, and there must be some independent evidence tending to show that the defendant himself was a participant in the crimes. [Cits.]
(Citations and punctuation omitted.) Taylor v. State,
Hacker’s testimony that Propst knowingly participated in the robberies was corroborated by Crankshaw’s testimony, Propst’s own post-incident statement, and the physical evidence gathered by law enforcement. Although the jury may have discredited the portion of Crankshaw’s testimony regarding Propst brandishing a weapon during the robbery, the weight to be given to her testimony as a whole was a matter for the jury to decide. Taylor,
(b) Sufficiency of the Evidence as to Venue
Propst also argues that his aggravated assault, aggravated battery and weapons convictions cannot stand because the State failed to prove venue for these charges beyond a reasonable doubt.
Similar to reviewing a challenge to the sufficiency of the evidence, we view the evidence of venue “in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.” Chapman v. State,
Here, while many witnesses testified that the initial robberies of Crankshaw and Parker occurred at 1422 Virginia Way, Monroe, Walton County, Georgia, the evidence established that the actual shooting occurred at the intersection of Virginia Way and Shadwell Lane, “just down the street” from, and in the same neighborhood as, that residence. Establishing the venue of a nearby site, in this case the residence where the robberies occurred, does not establish the venue for the remainder of the crimes. See Chapman,
2. Propst filed a pre-trial motion to dismiss his indictment, claiming that he was immune from prosecution pursuant to former OCGA § 16-3-24.2
Propst argues now, as he did below, that the trial court erred in upholding the former immunity statute as constitutional. Namely, Propst claims that the trial court should have reviewed his equal protection claims under a strict scrutiny standard because former OCGA § 16-3-24.2 infringed upon his fundamental right of self-defense pursuant to McDonald v. City of Chicago,
“ ‘Because the protection provided in the Equal Protection Clause of the United States Constitution is coextensive with that provided in Art. I, Sec. I, Par. II of the Georgia Constitution of 1983, we apply them as one.’ ” (Citation omitted.) Favorito v. Handel,
The United States Supreme Court’s decisions in District of Columbia v. Heller,
The extent to which Second Amendment protections apply outside the home, and whether some or all convicted felons are unprotected by the Second Amendment, are unsettled questions. See, e.g., Amos v. State,
Further, Propst’s status as a convicted felon does not make him a member of a suspect class triggering strict scrutiny analysis. See Quarterman v. State,
Further, Propst failed to show that the immunity statute did not meet the rational basis test. As we have previously explained:
There are two prongs to an evaluation of legislation under an equal protection claim . . . and, as the legislation is presumptively valid, the claimant has the burden of proof as to both prongs. Initially, the claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimant must establish that there is no rational basis for such different, treatment.
(Citation omitted.) Reed v. State,
Former OCGA § 16-3-24.2 did not preclude only convicted felons from asserting pre-trial immunity. Rather, it precluded anyone, convicted felons and non-felons alike, from asserting pre-trial immunity who unlawfully carried or possessed a weapon in violation of either Part 2 or 3 of Chapter 11 Article 4 when an incident occurred. This included violations of OCGA §§ 16-11-127 and 16-11-130.2 (prohibiting carrying a weapon in unauthorized locations); 16-11-132 (prohibiting possession of a handgun by a person under 18); and 16-11-134 (making it unlawful to discharge a firearm while under the influence). See Amos,
3. In two enumerations of error, Propst contends that his trial counsel rendered ineffective assistance for failing to challenge the
(a) Failure to Challenge OCGA § 16-3-21 (b) (2)
Propst first alleges that trial counsel was ineffective for failing to challenge the constitutionality of OCGA § 16-3-21 (b) (2) as overly broad and vague in violation of the Due Process Clauses of the Georgia and United States Constitutions. We disagree.
To prove deficient performance, one must show that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State,
As Propst fails to present any compelling authority questioning the constitutionality of OCGA § 16-3-21 (b) (2), he cannot establish deficient performance by trial counsel for failing to challenge the same. See, e.g., Rickman v. State,
(b) Failure to Request a Jury Charge of Impeachment by Prior Inconsistent Statements
We are also not persuaded by Propst’s claim that trial counsel was ineffective for failing to submit a written request to charge the jury on impeachment of a witness by a prior inconsistent statement. The record shows that trial counsel requested the following charges: credibility of witnesses; impeachment of witnesses by proof of crime of dishonesty or moral turpitude; impeachment of witnesses based upon evidence of character for untruthfulness; and, an instruction that: “To impeach a witness is to show that the witness is unworthy of belief. The credibility of a witness may be attacked by disproving the facts to which the witness testified.” The trial court subsequently gave these instructions to the jury. Moreover, trial counsel emphasized throughout his closing argument that the testimony of Hacker and Crankshaw should not be afforded any weight because they had both given prior conflicting and inconsistent statements.
Reading the jury charge as a whole, we find no reasonable probability that the outcome of the trial would have been different, had the additional impeachment charge been requested. Accordingly, this ineffectiveness claim is without merit.
4. Propst further alleges that the trial court committed plain error by failing to charge the jury on impeachment of a witness by prior inconsistent statements. Again, we disagree.
Because counsel did not object to the trial court not giving the impeachment charge, we review for plain error, “meaning that we will reverse the trial court only ‘if the instructional error was not affirmatively waived . . . , was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.’ ” (Citation omitted.) Brown v. State,
5. Finally, Propst contends that the State violated Brady v. Maryland,
To prevail on a Brady claim, a defendant must show that the State possessed evidence favorable to the defendant; defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different,.
Blackshear v. State,
Pretermitting whether the 911 call actually qualifies as Brady material, Propst’s Brady claim fails for several reasons. First, trial counsel admitted at the motion for new trial hearing that, at the time of trial, he was already aware of the facts in the phone call. See, e.g., Waldrip v. Head,
Judgment affirmed.
Notes
In December 2011, a Walton County grand jury indicted Propst on the following thirteen charges: Count 1, armed robbery (Crankshaw); Count 2, armed robbery (Parker); Count 3, aggravated battery (Smith); Count 4, aggravated assault (Smith); Count 5, aggravated assault (Crankshaw); Count 6, aggravated assault (Parker); Count 7, possession of a firearm by a convicted felon; Count 8, possession of a firearm during the commission of a felony (armed robbery of Crankshaw); Count 9, possession of a firearm during the commission of a felony (armed robbery of Parker); Count 10, possession of a firearm during the commission of a felony (aggravated battery of Smith); Count 11, possession of a firearm during the commission of a felony (aggravated assault of Smith); Count 12, possession of a firearm during the commission of a felony (aggravated assault of Crankshaw); and Count 13, possession of a firearm during the commission of a felony (aggravated assault of Parker).
F ollowing a trial conducted F ebruary 2 4-26,2014,a jury found Propst guilty of two counts of robbery (as lesser included offenses of armed robbery in Counts 1 and 2) and found him guilty as charged with respect to Counts 3, 4, 5, 10, 11, and 12. On March 7, 2014, the trial court sentenced Propst as follows: Count 1, twenty years confinement; Count 2, twenty years confinement concurrent with Count 1; Count 3, twenty years confinement concurrent with Count 1; Count 5, ten years probation consecutive to Count 1; Count 7, five years confinement concurrent with Count 3; Count 10, five years probation, consecutive to Count 5; and Count 12, five years probation, consecutive to Count 10. The trial court merged all other remaining offenses.
Propst filed a motion for new trial on March 10, 2014, which was subsequently amended four times on January 26, 2015, February 6, 2015, April 28, 2015, and May 11, 2015. The trial court held two hearings on Propst’s motion for new trial on April 28, 2015 and June 30, 2015, and denied the motion in an order filed September 8, 2015. Propst filed a notice of appeal to this Court on September 24, 2015. The case was docketed to the January 2016 term and was thereafter submitted for decision on the briefs.
Because Propst’s trial was held after January 1, 2013, Georgia’s new Evidence Code is applicable. See Ga. L. 2011, p. 99, § 1. We note, however, that the provisions of former OCGA § 24-4-8 were carried forward into the new Evidence Code, and our decisions interpreting that provision remain good law. See Bradshaw v. State,
Because this case was tried prior to the legislature’s amendment of the immunity statute on July 1, 2014, the 2006 version of the statute applies. That Code section provides in pertinent part:
A person who uses threats or force in accordance with Code Section 16-3-21 [in defense of self or others] shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 or 3 of Article 4 of Chapter 11 of [Title 16 of the Georgia Code].
OCGA § 16-3-24.2 (2011). In 2014, the immunity statute was amended as part of the Safe Carry Protection Act to delete the “or 3” from the phrase “Part 2 or 3” within the exception for unlawful carrying or possession of a weapon. See Ga. L. 2014, pp. 599, 602-603, § 1-3.
Because Propst failed to satisfy the first prong of his equal protection challenge, we do not need to address whether he met the second. See Reed,
OCGA § 16-3-21 (b) (2) states: “(b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he . . . (2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony Id.
Concurrence Opinion
concurring.
I join the Court’s opinion in full, but I add another point to the discussion in Division 1 (b) regarding the sufficiency of the evidence as to venue. As I see it, the jury could quite reasonably infer that the shooting occurred in Walton County from the testimony that it occurred “just down the street” from and in the same neighborhood as a residence in Walton County and the absence of any indication that either site was close to a county line. See O’Donnell v. Smith,