A jury convicted Andrew Howard Brannan of the murder of Kyle Dinkheller and sentenced him to death, and this Court unanimously affirmed on direct appeal. Brannan v. State , 275 Ga. 70 561 SE2d 414 2002. Brannan filed a petition for writ of habeas corpus on May 2, 2003, which he amended on August 4, 2005. An evidentiary hearing was held on August 21-23, 2006. The habeas court filed a final order on March 17, 2008. The order clearly vacates Brannan’s death sentence; however, it is unclear whether it also vacates Brannan’s conviction. The warden appeals in Case No.S08A1211, and Brannan cross-appeals in Case No. S08X1212. For the reasons set forth below, we reinstate Brannan’s death sentence and, to the extent that it is necessary to do so, we also reinstate his conviction. I. Factual Background
On January 12, 1998, Brannan was stopped for driving his truck at 98 miles per hour by Kyle Dinkheller, a Laurens County Deputy Sheriff. Dinkheller’s patrol cruiser was equipped with a video recorder, and Dinkheller was wearing a microphone. The recording shows that Brannan exited his truck and addressed Dinkheller with relative cordiality. However, Brannan became angry with Dinkheller when he ordered Brannan to take his hands out of his pockets. Brannan shouted, “Fuck you, goddamn it, here I am. Shoot my fucking ass.” Brannan then began dancing around in the street, yelling, “Here I am, here I am . . . shoot me.” When Dinkheller placed a call on his radio for assistance, Brannan yelled, “Who are you calling, motherfucker” Brannan then charged at Dinkheller repeatedly as Dinkheller ordered him to get back and drew his baton. Brannan yelled, “Fuck you,” repeatedly, and he then yelled, “I am a goddamn Vietnam combat veteran.” Brannan then began rummaging behind the driver’s seat of his truck, ignoring Dinkheller’s orders for him to stop. Brannan yelled that he was in fear for his life, and Dinkheller replied that he was in fear for his own life. Brannan took a .30 caliber carbine rifle from his truck, crouched at the door of his truck, and pointed the rifle at Dinkheller. After Dinkheller repeatedly ordered Brannan to put the rifle down, shots were fired by both men. Dinkheller was hit, and he attempted to retreat and take cover behind the patrol cruiser. Brannan pursued Dinkheller, firing repeatedly and reloading. Brannan was shot once in the abdomen. Dinkheller had been shot nine times and had likely lost consciousness when Brannan took careful aim, said, “Die fucker,” and fired a final shot. Brannan then fled in his truck. He was discovered hiding in the woods outside his home and was arrested. He gave statements to GBI agents indicating that he regretted what had happened but that he believed Dinkheller had provoked him with an aggressive and disrespectful approach.
