Burney v. State

• Decision Date: 17 October 2016
• Docket Number: S16A1042
• Citation: 792 S.E.2d 354,299 Ga. 813
• Parties: BURNEY v. The STATE.
• Court: Georgia Supreme Court

299 Ga. 813

792 S.E.2d 354

BURNEY

v.The STATE.

S16A1042

Supreme Court of Georgia.

Decided: October 17, 2016

Brian Steel, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Michael V. Snow, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Scott O. Teague, Asst. Atty. Gen., for Appellee.

NAHMIAS, Justice.

Appellant Octavious Burney challenges his convictions after a jury trial for malice murder and a firearm offense in connection with the shooting death of Leonard Young. Appellant contends that the trial court applied the wrong standard in denying his motion for new trial, abused its discretion in denying his motions to strike four potential jurors for cause, deprived him of his constitutional right to be present at all critical stages of the trial with respect to juror notes to the court, and violated OCGA § 17–8–57 by commenting on the evidence in front of the jury. Appellant also contends that he was denied the effective assistance of counsel. We affirm.¹

1. (a) Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On the afternoon of May 11, 2009, the victim walked with his girlfriend, Shaniqua Arrington, and a friend of hers to a bus stop in southeast Atlanta. Shortly after they got there, co-defendant Steven Stillwell approached the victim from a gas station behind the bus stop, saying, "Hey, I heard you ... was riding around looking for me." The victim replied, "If I wanted you, I know where your mother and your grandma stay." The two men then began arguing loudly and walking toward each other.

Meanwhile, Arrington saw a man wearing a black shirt, whom she knew as "Tay–Tay" and later identified as Appellant, walk from the gas station to the victim and attempt to punch him.² The victim ducked to avoid the punch, and as he rose he punched Appellant in the mouth, causing Appellant to bleed. Arrington heard Stillwell say, "I ought to bust this f**king n***a." Stillwell then walked to a car parked in front of the gas station, retrieved a gun, and walked back toward the victim and Appellant. Arrington said, "He got the gun," and the victim started to run away. Arrington then saw Stillwell hand the gun to Appellant, who fired multiple shots in the victim's direction before running from the scene. The victim was struck once in the back. After he was shot, he turned around and ran to Arrington, collapsing into her arms. Arrington's friend saw an ambulance driving by and flagged it down. The victim was taken to the hospital, but he died during surgery.³

Deidra Favors was stopped in her car at a traffic light in front of the gas station when she heard the first gunshot. She looked out her side window and saw a tall, dark-skinned man wearing a black shirt firing a gun. Favors saw the man fire about three more shots before he got into a car and drove away. She then saw another man with blood on his shirt fall to his knees across the street.

Favors called 911 to report the incident. When the police arrived at the scene, they found that Julius Ruffin, who lived across the street from the gas station, had also been shot. He was taken to the hospital where he received treatment for his wound. Ruffin testified at trial that prior to being shot, he saw two guys fighting and two girls trying to break them up.

Neither Appellant nor Stillwell testified at trial. Appellant presented two witnesses—a character witness and Sam Vinnie. Vinnie testified that he saw Stillwell and the victim arguing, after which Stillwell walked off. He then saw a "kind of short" man he knew as "Tay–Tay" fight with the victim, and shortly after, "Tay–Tay" started shooting at the victim. At that point, Vinnie ran away from the scene. Vinnie claimed that the "Tay–Tay" he saw that day was not Appellant.

(b) Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citations omitted)).

(c) Appellant does contend that the trial court failed to review his motion for new trial under the discretionary "thirteenth juror" standard codified at OCGA §§ 5–5–20 and 5–5–21.⁴ "In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence." White v. State, 293 Ga. 523, 524, 753 S.E.2d 115 (2013). As relevant here, the court's order denying the motion said:

After a review of the transcript, the Court finds that it is apparent the jury carefully weighed the evidence and considered the credibility of the witnesses in reaching its verdict. The Court thus approves the verdict that was rendered by the impaneled jury and declines to grant a new trial on general grounds.

Contrary to Appellant's argument, the import of this passage is that the court ruled on the motion based on its own independent review of the trial record and found no discrepancy between the jury's conclusions regarding the weight of the evidence and the credibility of the witnesses and the court's own views of those matters. Moreover, the transcript of the motion for new trial hearing shows clearly that the court understood its obligations as the so-called thirteenth juror. During the hearing, Appellant gave the court a decision from this Court outlining those obligations, and the court noted that it needed to decide the motion quickly because a successor judge was taking over in a month and the motion required a ruling under the thirteenth juror standard. This is not a case "where the trial court explicitly declined to consider the credibility of the witnesses in denying the defendant's motion for new trial" or "ma[d]e clear its belief that it had no discretion to grant a new trial despite disagreeing with the jury's verdict." Butts v. State, 297 Ga. 766, 772, 778 S.E.2d 205 (2015). Accordingly, this enumeration of error lacks merit.

2. Appellant asserts that the trial court abused its discretion in denying his motions to strike four prospective jurors. Each of the challenged jurors gave answers to some voir dire questions that could indicate bias against Appellant's case, but the jurors also all stated that they would try to set aside any personal feelings or bias and be fair and impartial. "Trial courts have considerable discretion to determine whether a juror can be impartial." Murdock v. State, 299 Ga. 177, 179, 787 S.E.2d 184 (2016). The trial court is " ‘uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge ... can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks.’ " Edenfield v. State, 293 Ga. 370, 379–380, 744 S.E.2d 738 (2013) (citation omitted). See also Ellington v. State, 292 Ga. 109, 127, 735 S.E.2d 736 (2012) ("[T]rial judges, who oversee voir dire on a regular basis, are more familiar with the details and nuances of their cases, and can observe the parties' and the prospective jurors' demeanor."). On the record in this case, we see no abuse of the trial court's considerable discretion with respect to the jurors at issue. See Edenfield, 293 Ga. at 386–387, 744 S.E.2d 738 (discussing rehabilitation of prospective jurors).

3. Appellant contends that his convictions must be reversed because the trial court violated his constitutional "right to be present, and see and hear, all the proceedings which [were] had against him on the trial before the [c]ourt." Wade v. State, 12 Ga. 25, 29 (1852) (emphasis omitted). Accord Wilson v. State, 212 Ga. 73, 74–75, 90 S.E.2d 557 (1955) (" ‘The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case.’ " (citation omitted)). We conclude that Appellant acquiesced in the error he asserts.

(a) Near the end of the first day of trial, after 41 prospective jurors had been questioned in a group and then individually about hardships in serving, bias or prejudice toward either party, and other grounds for striking prospective jurors, the parties selected 12 trial jurors and one alternate. At about 5:40 p.m., those chosen to serve were asked to collect their belongings and take a seat in the jury box as the clerk called their numbers, and the court then excused the other potential jurors. The court briefly addressed as a group the selected jurors, instructing them to assemble the next morning in the jury room, which the court said a deputy would show them on their way out. The court said to one of the jurors, "The deputy is going to speak with you, ma'am." The court then released the jury for the evening. After the jurors left, the court asked the parties to be in the courtroom the next morning at 8:45 a.m. to address motions in limine before preliminary instructions to the jury and opening statements. After answering a question from Appellant's co-defendant about a motion, the court said, "All right. We'll be in recess until we find out what this issue [with one of the jurors] is. But I think they had more than enough opportunity to bring up any hardships."

During the recess, five jurors sent notes to the court. Two jurors asked what time court...