Burgeson v. State

Decision Date09 September 1996
Docket NumberNo. S96A1214,S96A1214
Citation475 S.E.2d 580,267 Ga. 102
PartiesBURGESON v. The STATE.
CourtGeorgia Supreme Court

Phillip Benson Ham, Ham, Jenkins, Wilson & Wangerin, Forsyth, Thomas Howell Wilson, Forsyth, for Melissa Leslie Burgeson.

Tommy K. Floyd, Dist. Atty., McDonough, Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, Marie R. Banks, Asst. Dist. Atty., McDonough, for the State.

Wesley Scott Horney, Asst. Atty. Gen., Department of Law, Atlanta.

HINES, Justice.

Melissa Leslie Burgeson was found guilty of malice murder, felony murder while in the commission of armed robbery, armed robbery, and theft of a motor vehicle in connection with the fatal stabbing and beating of Keith Patrick Young. 1 Burgeson challenges the indictment, discovery, the evidence, the lack of a jury poll, and the State's opening statement and closing argument. We affirm.

The State's evidence established that the day before the killing, Burgeson, her boyfriend Timothy Carr, seventeen-year-old Young, and others were at a residence, smoking marijuana, drinking alcohol, and ingesting boiled hallucinogenic mushrooms. Burgeson learned that Young had cashed his paycheck. During the evening, Burgeson and Carr discussed robbing and killing Young and taking his car. At some point, Burgeson obtained the keys to the car Young was driving. Young became uncomfortable and attempted to reclaim his keys but was unsuccessful. He telephoned a cousin asking for a ride home but could not get assistance. Burgeson unplugged the telephone following the call. Burgeson and Carr decided that the group would ride out to the country in Young's car. Burgeson drove and Carr sat in the backseat. Carr showed the woman sitting next to him a large knife and whispered to her that he was going to kill Young. Burgeson drove to a deserted area and stopped the car, presumably to let Young get more drugs from the trunk. As Young bent over the trunk, Burgeson mouthed to Carr "[d]o it now." Carr slashed Young's throat but Burgeson told Carr "[t]hat ain't good enough." Carr again slit Young's throat and began stabbing him. Carr retrieved a baseball bat and struck Young several times in the head. Burgeson took Young's money and Young was dragged to the side of the road.

Burgeson, Carr and one of the others fled to Tennessee in Young's car after they became aware that Young's body had been found. A lookout was issued for the vehicle and Tennessee police spotted it. After police attempted to stop the vehicle, a high speed chase ensued and Carr crashed the car into a utility pole. Carr and Burgeson attempted to flee on foot but were apprehended and taken to a hospital. The blood-caked knife used in the stabbing was found in Burgeson's purse inside the car.

After receiving medical treatment, Burgeson and Carr were placed in the back of a patrol car where the police had activated a hidden tape recording device. The recording of the conversation between Burgeson and Carr was introduced at trial. In it, Carr admitted stabbing and beating Young, and he and Burgeson discussed that they should have disposed of the knife as they had the baseball bat, and the possibility of telling the police the fabrication that the killing was the result of defending Burgeson from the victim's attempted rape.

1. The contention that the trial court erred in not granting Burgeson's motion for new trial because the indictment did not adequately set out the charges against her is without merit. Burgeson fails to demonstrate how the indictment is deficient. In fact, examination of the document reveals that it charges the offenses in the language of the Code and is clearly and easily understood. OCGA § 17-7-54; Stewart v. State, 246 Ga. 70, 72(2), 268 S.E.2d 906 (1980).

2. It was not error for the trial court to deny Burgeson's motion for new trial based upon the State's alleged failure to disclose exculpatory material in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Burgeson asserts three violations: (1) an August 6, 1993, exchange between Carr and the district attorney which was disclosed to Burgeson ten days before the start of trial; (2) statements by Carr in a conversation with the district attorney during Burgeson's trial on February 1, 1994, of which there was no written record; and (3) statements made by another of the defendants, a juvenile, A. D., to the district attorney concerning a conversation A.D. had with Carr about robbing the victim.

In order to demonstrate a Brady violation a defendant must show that the State possessed evidence favorable to the defendant; the 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. Zant v. Moon, 264 Ga. 93, 100(3), 440 S.E.2d 657 (1994).

The State did not run afoul of Brady in regard to the August 6, 1993, statements because there is no violation when the information sought becomes available to the accused at trial. Stephens v. State, 264 Ga. 761, 762(3), 450 S.E.2d 192 (1994). Burgeson has not shown that earlier disclosure would have benefited her and that any delay deprived her of a fair trial. Dennard v. State, 263 Ga. 453, 454(4), 435 S.E.2d 26 (1993). Burgeson likewise fails to demonstrate a Brady violation with regard to the mid-trial conversation between Carr and the district attorney. The uncontradicted evidence is that Carr's portion of the unrecorded exchange was no different than his August 6, 1993, statements. As to statements by A.D. regarding a conversation with Carr, the district attorney informed the court that there was nothing said which was exculpatory to Burgeson. Even accepting Burgeson's premise that the mere fact that Carr and A.D. discussed robbing the victim was evidence that Burgeson did not herself participate in the robbing or the killing, the pre-trial lack of disclosure does not provide recourse under Brady. The information was revealed on direct examination of A.D. and Burgeson had the opportunity to cross-examine A.D. and assert her position to the jury. See Marshall v. State, 266 Ga. 304, 307(9), 466 S.E.2d 567 (1996). Here again, Burgeson has failed to show any positive effect from earlier disclosure or that the lack of it resulted in her harm. Dennard supra at 454(4), 435 S.E.2d 26.

3. Burgeson contends that the trial court erred in refusing to suppress evidence, including the bloody knife and the taped conversation with Carr, because the evidence was illegally obtained. The contention fails.

a) She maintains that she was unlawfully seized and that her arrest was illegal because it was without probable cause. First, while probable cause is necessary for an arrest, it is not for an investigative stop. An officer may make a brief investigative stop of a vehicle if it is justified by "specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct." State v. Canidate, 220 Ga.App. 276, 277, 469 S.E.2d 710 (1996), citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, the authorities were able to positively identify the body of the victim, get a description of the victim's car including the license plate, learn that the victim was last seen with Burgeson and three others, and that certain of the individuals were hiding out in Tennessee. Based upon this information a nationwide lookout was issued for the victim's car, and three of the individuals last seen with the victim including Burgeson. The Tennessee police stopped the car after observing that it along with the three individuals inside matched the descriptions given in the lookout. Clearly, this provided the basis for reasonable and articulable suspicion justifying the stop. McGhee v. State, 253 Ga. 278, 279(1), 319 S.E.2d 836 (1984).

But then the police had more, they had probable cause, which can rest upon the collective knowledge of the police when there is some degree of communication between them, instead of the knowledge of the arresting officer alone. Goodman v. State, 255 Ga. 226, 229(13), 336 S.E.2d 757 (1985). Burgeson and her cohorts fled the police after the attempted stop. Flight can be a significant factor in determining probable cause. See Howie v. State, 218 Ga.App. 45, 46(1), 459 S.E.2d 179 (1995); Manley v. State, 217 Ga.App. 556(1), 458 S.E.2d 179 (1995). This coupled with the other knowledge that Burgeson was one of the last people seen with the victim, that she had left the state after the murder occurred, and that she was in the victim's car amounted to circumstances sufficient to warrant a prudent person in believing that Burgeson had committed or was committing an offense. Callaway v. State, 257 Ga. 12, 13(2), 354 S.E.2d 118 (1987).

b) She maintains that the warrantless searches of the victim's vehicle were in violation of the Federal Constitution because they flowed from her arrest which was illegal as without probable cause and because there was no exigency which would have obviated the need for a warrant. However, Burgeson cannot assert a violation of her Fourth Amendment rights in regard to the search of the car because she had no proprietary interest in it or legitimate expectation of privacy regarding the vehicle or its contents. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). On the contrary, as one knowingly using a stolen vehicle on a public roadway, Burgeson probably was in constant expectation of intrusion by the authorities. Brisbane v. State, 233 Ga. 339, 344, 211 S.E.2d 294 (1974). Moreover, it is clear that following the attempted police stop, Burgeson abandoned, for Fourth Amendment purposes, the stolen vehicle and her personal belongings inside. See Bloodworth v....

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