Burnette v. State
| Decision Date | 13 May 2008 |
| Docket Number | No. A08A0587.,A08A0587. |
| Citation | 662 S.E.2d 272,291 Ga. App. 504 |
| Parties | BURNETTE v. The STATE. |
| Court | Georgia Court of Appeals |
Kelli Alana Devaney-Jackson, for Appellant.
Louie Craig Fraser, Dist. Atty., Cheryl Ann Banks, Asst. Atty. Dist., for Appellee.
Jeanette Denise Burnette was convicted of aggravated assault and criminal trespass and was sentenced to fourteen years and twelve months, consisting of four years to serve and ten years on probation. On appeal, Burnette contends that the trial court erred by denying her claim of ineffective assistance of counsel, by refusing to charge the jury on self-defense, and by denying her motion to reopen the evidence. We affirm.
On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence.1 The evidence is viewed in a light most favorable to the jury's verdict.2 We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty of the crimes charged beyond a reasonable doubt.3
So viewed, the evidence shows that Burnette was Gerry Wayne Rouse's live-in girlfriend. Rouse was separated from his wife, Betty J. Rouse. On May 21, 2006, Ms. Rouse went to her husband's house. She testified that he did not want her inside the house, although he denied that anyone else was there. The two of them went outside and talked for 15 to 20 minutes. Ms. Rouse was sitting in her car. Then Burnette came outside with a pipe in her hand, threatening Ms. Rouse. Rouse tried to get the pipe away from Burnette, but she grabbed it from him, swung it against the car window, which shattered the glass, and then struck Ms. Rouse in the head. Ms. Rouse suffered a broken jaw bone, requiring surgery; a gash in her temple that needed stitches; a permanent scar; and a blood spot in her eye that was visible at the time of trial, nearly a year later.
After the incident, Ms. Rouse drove herself to the sheriff's office. She relayed the incident to Deputy Anthony Watson, who proceeded to Rouse's residence and spoke with Burnette. Burnette told Watson that while in the bedroom, she had heard Ms. Rouse calling her names; that Burnette got dressed and saw Ms. Rouse outside in her car; and that Ms. Rouse "yelled at her ... something like, I've got something for you ... come on out here." Burnette also told Watson that Ms. Rouse "looked like she may have been reaching for something, but [Burnette] went anyway." According to Watson, Burnette also admitted that she grabbed the pipe, went to the car, "drew back and swung and busted the window and hit the woman in the face." Watson then arrested Burnette for aggravated assault, and when he placed her in handcuffs, she said, "[T]hat's fine, because it's worth spending the night in jail if I hit her."
Rouse, who testified for the defense, stated that his wife was angry when she came over that day; she called Burnette names and threw Burnette's hairpiece and shoes out in the yard. Rouse recounted three prior incidents in which Ms. Rouse had tried to attack Burnette, including once with a razor. On cross-examination, Rouse denied that he saw Burnette hit Ms. Rouse with the pipe. However, he admitted that Burnette had a pipe in her hand; that he saw the window shatter; that he saw the hole in Ms. Rouse's head; and that he saw her bleeding. On redirect, Rouse testified that Burnette hit Ms. Rouse because Burnette was afraid of her; that he had seen someone coming out from a nearby mobile home, was embarrassed, and told the women he was not going to be between them in the yard; that when he "turned loose, ... they kind of tussled a little bit"; that Burnette grabbed a piece of wood with a metal tip; and that she swung and hit the glass with the wood. Rouse testified that his wife said that she was going to get a gun, and he thought she would shoot him and Burnette. But he never saw a gun.
During the charge conference, defense counsel orally requested a charge on self-defense. The trial court declined such a charge, reasoning that there had been no evidence from the defense that the act even occurred. Rather, Rouse had testified that he did not know whether Burnette struck his wife; he only saw the damage done. The court determined that Rouse's speculation that Burnette "did whatever she did" because she was afraid of Ms. Rouse was insufficient to raise the defense. The court commented that if Burnette had taken the stand and testified that she did it but was only protecting herself, then the court would give the charge. Thereafter, defense counsel made a motion to reopen the defense case to permit the defendant to testify on the issue of self-defense. The court denied the request, noting that it had been made only after the court decided not to charge the jury on self-defense. The court noted counsel's exception to this ruling. Counsel argued in closing, as he had in his opening statement, that Burnette had acted "reasonably based on her past experience" with the victim.
The jury found Burnette guilty of aggravated assault and criminal trespass. Following a hearing, the trial court denied her motion for new trial.
1. Burnette asserts that the trial court erred in rejecting her claim that trial counsel rendered ineffective assistance.
To establish ineffectiveness, a defendant must prove that his trial counsel's performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel's unprofessional deficiencies.4
The "reviewing court need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order."5 An ineffective assistance claim presents a mixed question of law and fact; therefore, we accept the trial court's factual findings and credibility determinations unless they are clearly erroneous, but we independently apply the law to the facts.6 The defendant must overcome the "strong presumption ... that trial counsel performed within the wide range of reasonable professional assistance."7 "Finally, we will not reverse on the basis of ineffective assistance of counsel unless trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result."8
(a) Voir dire. The trial court failed to ask the qualifying voir dire questions that are required by OCGA § 15-12-164(a)9 in all felony cases, and trial counsel failed to object. By failing to object or to request additional voir dire, trial counsel waived appellate review of this issue.10 Burnette contends that such failure constitutes ineffective assistance. Counsel testified at the new trial hearing that he was unaware that the trial court was required to ask the statutory questions.
Assuming counsel's performance was deficient, Burnette cannot show that the outcome of her trial would have been different had the court asked the statutory questions. The prosecutor asked the potential jurors whether they were acquainted with the defendant or the victim, and if so, whether they could remain impartial. The potential jurors indicated that they had no bias. Further, there is no evidence, and defendant does not contend, that any of the jurors were, in fact, biased or prejudiced against her.11 Accordingly, this claim of ineffectiveness fails.12
(b) Hearsay testimony. Burnette also claims that trial counsel did not object to Deputy Watson's testimony as allegedly improper bolstering of the victim's testimony. This claim is not supported by argument or authority and is deemed abandoned.13
(c) Plea offer. Burnette claims that trial counsel did not communicate to her the state's plea offer, but the trial court found otherwise based on counsel's testimony at the new trial hearing. "[I]t was the function of the trial court hearing the evidence presented to determine witness credibility."14 This claim of ineffectiveness fails.
(d) Failure of defendant to testify. Burnette claims that trial counsel did not discuss with her the need for her to testify. She also asserts that counsel should have called her to testify to establish a justification defense. But counsel testified that he and Burnette did converse on this issue, and they weighed the benefits and disadvantages of her testifying. Based on Burnette's history with the victim, counsel initially advised her not to take the stand. The trial court credited counsel's testimony. "The decision whether or not to testify is a tactical one, made by a defendant with the advice of counsel."15 "Such advice is trial strategy and generally not subject to challenge for ineffectiveness."16 Further, counsel testified that he believed that he could introduce evidence of self-defense through Rouse. Finally, Burnette did not testify at the hearing and made no proffer as to what her testimony would have been at trial. In the absence of a proffer, Burnette cannot show that her testimony would have affected the outcome of the case.17
(e) Trial preparation.
(i) Burnette complains that trial counsel did not communicate or meet with her prior to trial. Counsel testified that he was unable to communicate with Burnette until the day before trial despite multiple attempts to telephone her at every number she provided on her intake sheet. Rouse testified that he believed he received a message from a different public defender on his parents' answering machine, and he and Burnette receive mail at his parents' address. Again, the trial court credited trial counsel's testimony and determined that he could not be faulted for Burnette's failure to provide him with adequate contact information. Burnette "cannot now complain of counsel's alleged deficiencies that were caused by [her] own failure to communicate and fully cooperate with counsel."18
(ii) Burnette claims that trial counsel...
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