Burger v. State

• Decision Date: 05 September 1978
• Docket Number: No. 33807,33807
• Citation: 247 S.E.2d 834,242 Ga. 28
• Court: Georgia Supreme Court
• Parties: BURGER v. The STATE.

Page 834

247 S.E.2d 834

242 Ga. 28

BURGER v. The STATE.

No. 33807.

Supreme Court of Georgia.

Argued July 10, 1978.

Decided Sept. 5, 1978.

Gibbs, Leaphart & Smith, T. Alvin Leaphart, Jesup, for appellant.

Glenn Thomas, Jr., Dist. Atty., John B. Johnson, III, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Jr., Staff Asst. Atty. Gen., for appellee.

JORDAN, Justice.

Christopher A. Burger and Thomas D. Stevens were indicted for the murder of Roger E. Honeycutt. Tried separately, both were convicted and sentenced to death. For Stevens' appeal and additional facts, see Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978).

The evidence produced on Burger's trial established the following facts:

On the evening of Sept. 4, 1977, Burger and Stevens, both soldiers in the U. S. Army stationed at Ft. Stewart, Georgia, were drinking beer in the club on the reservation when they decided to rob a cab. They procured a butcher knife and a sharpening tool from the mess hall and called a cab. Meanwhile they talked to another soldier, James Botsford, and agreed to come to the Savannah Airport to pick him up and bring him back to the base.

Thereafter, around 10 p. m., a cab driven by the victim Honeycutt, also a soldier driving a cab part-time, arrived at the base and picked up Burger and Stevens. Enroute to the airport they threatened the driver with their weapons, forced him off the road and robbed him of his money (sixteen dollars). Honeycutt was put in the back seat and they resumed the trip to the airport with Burger driving the vehicle.

Stevens then made Honeycutt disrobe, his clothes being thrown from the vehicle after being searched for more money. The victim's hands were then tied and he was forced to commit acts of sodomy with Stevens. Honeycutt was then placed nude in the trunk of the cab with his hands still tied behind him.

Burger and Stevens proceeded to the airport, picked up Private Botsford and returned him to the base. Enroute they told Botsford what they had done. Botsford asked them not to kill Honeycutt and they agreed that they would not. They drove back to Jesup, stopped for milk and sandwiches, later ran a stop sign and were followed by police for a short while. They then drove to a "borrow pit" filled with water which Burger knew about. They wiped their fingerprints from the car and threw the C.B. radio into some bushes. Burger then raised the trunk lid and asked Honeycutt if he was all right. Honeycutt indicated that he was and Burger closed the trunk. Burger then started the car and drove it into the pond, jumping for safety as it entered the water. The victim was still alive at this time and the autopsy showed drowning as the cause of death. The victim was later found nude in the trunk of the car when it was pulled from the pond.

Burger and Stevens then returned to the army base. They contacted Botsford the next day to see if he had told anyone about the night before. He told them he had not.

On September 12, 1977, Botsford, after learning that the soldier-cab driver was still missing, voluntarily went to the state patrol and the Army CID and related what he knew to them. Burger and Stevens were picked up by military police. Burger initially denied any knowledge of the missing cab but later agreed to tell about the whole affair and signed a confession.

1. We have examined the voir dire transcript and find no error in the qualification of the jurors empaneled to try the appellant.

2. Appellant claims error because the trial court refused his motion for continuance on grounds that a supplemental list of three rebuttal witnesses was furnished defense counsel just prior to trial.

The record shows that in response to a demand for a list of witnesses on November 28, 1977, the state furnished a list of some 30 witnesses on November 30, 1977, and a supplemental list on December 1, and December 9, 1977. On January 23, 1978, just prior to trial the state filed a supplemental list of 3 rebuttal witnesses. Of a total of 36 witnesses on the lists, 15 were subpoenaed and 11 testified. The rebuttal witnesses were not called and did not testify. Under these circumstances no possible harm has been shown and the trial court did not abuse its discretion in overruling the motion for continuance. See Chenault v. State, 234 Ga. 216, 220, 215 S.E.2d 223 (1975); Nunnally v. State, 235 Ga. 693(13), 221 S.E.2d 547 (1975).

3. Appellant insists that the trial court erred in allowing into evidence the statement by appellant to investigating officers on the ground that it was not freely and voluntarily made due to his age (17), limited education, low intelligence quota, being held in communicado; and insufficient Miranda warning.

The evidence developed at the Jackson-Denno hearing showed that before interrogation the appellant was advised by a special agent of the United States Army that he was investigating the missing cab and had received information that he had been seen driving the cab. He then informed the appellant of his rights under Article XXXI, Uniform Code of Military Justice, and under Miranda. The agent then testified that: "I informed him that he had a right to talk with a lawyer, before or after questioning, or have a lawyer present with him during questioning. I informed him that this lawyer could be a civilian lawyer at his own expense, or a military lawyer appointed for him at no expense to him."

The agent testified that Burger replied that he understood his rights, that he did not want a lawyer, and that he would discuss the offense under investigation. Burger then signed a written waiver on the form submitted to him and made a statement which was later reduced to writing and signed by him.

Appellant strongly contends a violation of the Miranda rule because appellant was not informed that he had a right to appointed Civilian counsel, as opposed to appointed Military counsel. We do not agree with this contention. A reading of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) shows an accused has a right to the presence of an attorney, either retained or appointed. This requirement was met when the appellant was clearly informed of his right to counsel, either appointed or retained, prior to questioning. The fact that the proffered attorney was military did not vitiate this right. At the time of the investigation it was not clear whether military or civilian jurisdiction was involved. All personnel involved were members of the military and the situs of the crime, if any, had not been determined at that time. As soon as he was turned over to civilian authorities he was again given a full Miranda warning and he again signed a waiver.

While appellant presented the testimony of Dr. Joseph O'Haire in support of his low mental capacity (I.Q. of 82), the doctor testified that appellant knew right from wrong and was able to appreciate the ramifications of his confession. Other evidence indicated that the appellant had been married twice, scored 99 on his army entrance examination, had completed basic training and Armored Tank Training School and qualified as a tank driver.

We have carefully examined the entire transcript of the Jackson-Denno hearing and...