Burgess v. State, S02A1306.

• Decision Date: 10 February 2003
• Docket Number: No. S02A1306.,S02A1306.
• Citation: 576 S.E.2d 863,276 Ga. 185
• Parties: BURGESS v. The STATE.
• Court: Georgia Supreme Court

576 S.E.2d 863

276 Ga. 185

BURGESS v. The STATE.

No. S02A1306.

Supreme Court of Georgia.

February 10, 2003.

Bernard Stephen Brody, Atlanta, for appellant.

J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Ruth M. Pawlak, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Larry Cornelius Burgess appeals in this case from his convictions for malice murder, kidnapping, aggravated assault, and possession of a firearm by a convicted felon. He was indicted jointly with co-defendants Leviticus Swift and Charles Harris for the fatal shooting of Deanthony Denard Carter. Harris pled guilty to lesser charges and testified against the other two at their joint trial. The facts adduced at trial were succinctly stated in the opinion affirming Swift's conviction:

[T]he prosecution showed that Carter stole drugs belonging to [Swift]. Angry about the theft, Swift confronted him at gunpoint. With the assistance of Burgess, [Swift] bound the victim's hands and ankles with tape. They then put Carter into the trunk of Harris' car, and Harris drove to a remote area. Swift, Burgess and several others, including Desmond Diaz, followed in another vehicle. Carter was shot twice in the head. According to Diaz, Burgess shot the victim and then gave the gun to [Swift] who fired the second bullet. Harris testified that Burgess fired once and, almost a minute later, fired again. The medical examiner testified that either shot would have caused death. He also expressed an opinion that both bullets were fired in rapid succession, the implication being that there was only one shooter. In closing argument, the prosecutor acknowledged the discrepancy between Diaz's and Harris'[s] version of the homicide. He told the jury that, based upon the medical examiner's testimony, the State's theory was that Burgess fired both shots and, therefore, that Diaz was wrong when he attributed the second shot to Swift.

Swift v. State, 274 Ga. 807, 808, 560 S.E.2d 19 (2002).

1. The evidence adduced at trial was sufficient to authorize a rational trier of fact to find Burgess guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Swift v. State, supra.

2. Burgess contends the State's withholding until trial of a statement by Diaz that both Burgess and Swift shot Carter, and a statement by Harris that Swift asked Burgess not to shoot Carter violated both OCGA § 17-16-7 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Regarding Diaz's statement, there is no violation of OCGA § 17-16-7 because the statement at issue was oral and was neither recorded nor committed to writing other than in notes or summaries prepared by counsel. Phagan v. State, 268 Ga. 272(11), 486 S.E.2d 876 (1997). Regarding Harris's testimony that Swift asked Burgess not to shoot Carter, the testimony was elicited by Swift's counsel, not the prosecuting attorney, and since there is no evidence that the State had taken such a statement from Harris, there is no evidence that the State withheld it. Finally, there is no Brady violation where, as here, "the information sought becomes available to the accused at trial. [Cit.]" Burgeson v. State, 267 Ga. 102, 104(2), 475 S.E.2d 580 (1996).

3. Burgess contends his convictions are tainted by prosecutorial misconduct in that the State knowingly used perjured testimony. The alleged perjury was Diaz's testimony that both Burgess and Swift shot Carter, and Harris's testimony that he had not been indicted for murder and was not on probation at the time of the crimes involved here. These same contentions were raised by Swift on his appeal and were resolved adversely to him:

[ T]he record shows only an inconsistency between the testimony of the witnesses. Diaz testified that appellant fired the second shot, whereas Harris claimed that Burgess fired both. Harris testified that about a minute elapsed between shots, but the medical examiner offered an opinion that they were fired almost simultaneously. The prosecutor did not conceal any evidence, and was forthright in informing the jury that the State contended Burgess was the only shooter and appellant was a party to the crime of murder. Harris made certain claims on direct which Swift contends were false, but the witness was subject to a thorough and sifting cross-examination by the defense and every effort was made to impeach him. Under these circumstances, Swift's convictions are not based upon the State's knowing use of perjured testimony, "but upon that version of the events most unfavorable to (him), which version the jury accepted after hearing all of the evidence and resolving the credibility of all of the witnesses. [Cit.]"

Swift v. State, supra, 274 Ga. at 808-809, 560 S.E.2d 19.

4. The trial court denied Burgess's pretrial motion to sever his trial from Swift's, and enumerates as error that denial and the trial court's failure to order severance during the trial. The two bases on which Burgess rests his argument are that the defenses were antagonistic and that the evidence against Swift was stronger than that against Burgess.

Factors to be considered by the trial court in exercising its discretion concerning a request for severance are: "whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against another defendant despite cautionary instructions to the contrary; and whether the codefendants will press antagonistic defenses. [Cit.]" To be successful, a defendant seeking severance must clearly show that the joinder will result in prejudice to him or her and a consequent denial of due process.' [Cit.] The trial court's ruling as to a request for severance will only be overturned where an abuse of discretion on the part of the trial court can be demonstrated.' [Cit.]

Adams v. State, 264 Ga. 71(3), 440 S.E.2d 639 (1994). There was no likelihood of...