Perera v. State

Decision Date22 September 2014
Docket NumberNos. S14A1109,S14A1110.,s. S14A1109
Citation295 Ga. 880,763 S.E.2d 687
CourtGeorgia Supreme Court
PartiesPERERA v. The STATE. Alma v. The State.

Miller & Key, Joseph Scott Key, McDonough, Henrickson & Sereebutra, Aaron S. Henrickson, for appellants.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Michael Alexander Oldham, Asst. Atty. Gen., Brian Keith Fortner, Atlanta, Emily K. Richardson, Asst. Dist. Attys., James David McDade, Dist. Atty., Douglasville for appellee.

Opinion

MELTON, Justice.

Following a joint jury trial regarding the murder of Robert Scott Burdette and the related arson committed by burning Burdette's car with his body inside, co-defendants Emily Margaret Perera1 and Miguel Angel Alma2 appeal their convictions, contending, among other things, that the evidence was insufficient to support their verdicts and that respective trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm in both cases.

In the light most favorable to the verdicts, the record shows that, on the night of May 1, 2006, police officers in Douglas County discovered Burdette's body in the back seat of his burning car. Burdette had been gagged with duct tape, and an electrical cord was wrapped around his neck. In addition, he showed signs of blunt force injuries to his head and bruising on his face. An investigator with the Georgia Insurance and Safety Fire Commissioner's Office concluded that the fire was intentionally set by dousing the interior of Burdette's car with gasoline and setting it ablaze.

The investigation next led to Burdette's house in Bartow County. There, officers found direct evidence of a violent struggle. Investigation showed that an attack began in the master bedroom and continued to the garage. The GBI determined that there was no evidence indicating whether Burdette was alive or dead when he was taken from his home. Bloody water was discovered in a sink, along with bloody mops and hazy floors indicative of cleaning with bleach. In the garage, there was more blood, bloody towels, bloody carpet remnants, and an electrical cord. In addition, a woman's bracelet was also found in a puddle of blood. One of the two garage bays was empty, and there was a Land Rover SUV in the other. Computer equipment and a TruTech DVD player were missing from the house. Nineteen days after Burdette's murder, Alma pawned a TruTech DVD player and attempted to pawn a Super 8 video camera. Perera admitted to her friend, Johnny Large, that she and Alma had tried to pawn some of the victim's possessions.

Continuing the investigation, police uncovered previous emails between Burdette and Perera, who was known on an Internet dating site as “Sexy Sophie.” The emails indicated that Burdette and Perera had a dating relationship, and in one communication, Perera asked if she could get her bracelet back that she had left at Burdette's house. Further investigation also showed that Perera's cell phone “pinged” off the cell phone tower closest to Burdette's house on the night of Sunday, April 30, 2006 and, on May 1, 2006, also pinged off the cell phone tower across the street from where Burdette's car was set on fire. When law enforcement questioned Perera about her whereabouts on the Sunday and Monday when Burdette was killed, Perera said she was in another part of town with Alma, who was her boyfriend.

Miguel Morales, a/k/a “Cheekie,” told investigators that, a week before the murder, Alma told him they should rob a wealthy man whom Perera was dating. Approximately a week later, Alma called Morales during the early morning hours, told Morales that he had killed a man, and offered Morales $2,000 to assist in disposal of the body. Later that day, Alma called Morales and asked if he knew someone who would want to purchase a Land Rover. Perera also called Morales and told him that Alma made a car explode. After Perera's call, Alma called Morales again and bragged that he was a specialist in making cars explode. A few days after these conversations, Alma met with Morales and showed him a number of items that he had stolen during the burglary, including watches, a camera, and a wooden box with a gun inside. Alma also informed Morales that he had computer equipment that he wanted to temporarily store in Morales's apartment. Alma also admitted to Morales that he had strangled the victim and that he and Perera had cleaned the house with bleach to erase fingerprints.

To further advance their investigation, police used a wiretap. During the span of the wiretap, police gathered only limited evidence. However, Perera did tell Alma that they needed to meet up because law enforcement had been “harassing” her. Perera also told Alma that she did not owe him more money because he had already received the watch, computers and prior compensation.

Law enforcement later obtained search warrants for Perera's house as well as Alma's apartment. The search of Perera's house uncovered a book bag containing two humidors, a loaded 9mm semi-automatic pistol inside one humidor, a Super 8 video camera, a digital camera, and a hand-drawn map of Burdette's residence containing written information on the plot to commit the crimes. A GBI forensic handwriting expert opined that both Perera and Alma created the map. Law enforcement also recovered a shipping box that was sent to Perera that contained a man's watch, as well as a police scanner and Alma's wallet. Burdette's ex-wife identified the two humidors and the watch as being the possessions of Burdette. The digital camera was also Burdette's, and the memory card in the camera contained photographs of Burdette while he was alive, as well as pictures of both Perera and Alma that they took after Burdette's death.

The day after the search of Perera's home, Perera and Alma were arrested. While Perera and Alma were incarcerated and awaiting trial, they continued to communicate in letters. After being tipped off by a fellow inmate, law enforcement obtained a search warrant for Perera's jail dormitory. They found letters from Perera to her husband, Charles Astfalk. In these letters, Perera describes her version of her alibi during the weekend that Burdette was murdered. Perera instructs her husband to memorize her story and tell the police he was with her the whole time. Perera states that, under her plan, Alma will plead guilty, take a lesser sentence, and exonerate her. Perera also writes that, if Alma does not go along with her plan, she will have to kill him. Perera also wrote letters to Alma, encouraging him to go along with her plan.

This evidence was sufficient to enable the jury to find Perera and Alma guilty of the crimes for which they were convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Case No. S14A1109

1. Nonetheless, Perera contends that the State failed to prove venue for the murder charge was proper in Douglas County, where her case was tried. She maintains that the only evidence available to the jury was that Burdette was murdered in his Bartow County home, and, as a result, venue had to be set in that county. The record belies this contention.

While there was some evidence that Burdette had been viciously attacked and possibly killed in his home, the State medical examiner testified that Burdette died of strangulation, not blood loss, and it could not be determined whether death occurred in his Bartow County residence. This situation is covered by OCGA § 17–2–2(c), which provides:

Criminal homicide shall be considered as having been committed in the county in which the cause of death was inflicted. If it cannot be readily determined in which county the cause of death was inflicted, it shall be considered that it was inflicted in the county in which the death occurred. If a dead body is discovered in this state and it cannot be determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.

Burdette's body was discovered in Douglas County, and the county in which the cause of death was inflicted could not be determined. Therefore, venue was appropriate in Douglas County. Id.

2. Perera argues that the trial court erred by failing to grant her motion to sever her trial from Alma, contending that her case was harmed by evidence that Alma pawned a DVD player taken from Burdette's home following the murder.

[A] trial court has broad discretion to grant or deny a motion for severance. See OCGA § 17–8–4. [Cit.] In ruling on a severance motion, the trial court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses.

Krause v. State, 286 Ga. 745, 749(5), 691 S.E.2d 211 (2010). “The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing [that a joint trial would lead to] prejudice and a consequent denial of due process.” (Footnote omitted.) Character v. State, 285 Ga. 112, 118(5), 674 S.E.2d 280 (2009) (punctuation and footnote omitted).

Perera argues only that the cases should have been severed due to the evidence of the pawned DVD player. Given the extensive nature of the evidence tying Perera to Burdette's murder, including all of the items found in Perera's home, she has wholly failed to show that her defense was prejudiced by this evidence and, as a result, has not shown that the trial court abused its discretion by denying her motion to sever. Krause, supra.

3. Perera contends that her trial counsel rendered ineffective assistance by failing to: (a) object to offensive racial remarks made by the prosecutor in opening statements; (b) object...

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16 cases
  • Daughtry v. State
    • United States
    • Georgia Supreme Court
    • March 27, 2015
    ...assistance by a trial attorney not to make an objection that would be overruled under prevailing law.” Perera v. State, 295 Ga. 880, 885–886(3)(d), 763 S.E.2d 687 (2014) (citation and punctuation omitted). We, however, need not decide if trial counsel should have argued against the charge b......
  • Smith v. State
    • United States
    • Georgia Supreme Court
    • October 21, 2019
    ...have failed to establish that their trial lawyers were deficient in failing to object to such testimony. See Perera v. State, 295 Ga. 880, 884-885 (3) (b), 763 S.E.2d 687 (2014) ("There is no deficient performance when an attorney fails to object to admissible evidence." (Citation and punct......
  • Heade v. State
    • United States
    • Georgia Supreme Court
    • June 21, 2021
    ...explained that "[t]here is no deficient performance when an attorney fails to object to admissible evidence." Perera v. State , 295 Ga. 880, 884-885 (3) (b), 763 S.E.2d 687 (2014) (citation and punctuation omitted). As discussed above, the Tate assault was admissible as intrinsic evidence, ......
  • Ferguson v. State
    • United States
    • Georgia Court of Appeals
    • March 1, 2016
    ...there would be changes in the law before the case was reviewed on appeal. (Citations and punctuation omitted.) Perera v. State, 295 Ga. 880, 885–886(3)(d), 763 S.E.2d 687 (2014), cert. denied, Perera v. Georgia, –––U.S. ––––, 136 S.Ct. 123, 193 L.Ed.2d 96 (2015). Moreover, at the hearing on......
  • Request a trial to view additional results
2 books & journal articles
  • C2 Jurisdiction and Venue
    • United States
    • State Bar of Georgia Georgia Benchbook 2022 edition
    • Invalid date
    ...where cause of death inflicted. If unknown, venue in county where death occurred; if unknown, where body found. [See Perera v. State, 295 Ga. 880, 763 S.E.2d 687 (2014). The victim's "body was discovered in Douglas County, and the county in which the cause of death was inflicted could not b......
  • C2 Jurisdiction and Venue
    • United States
    • State Bar of Georgia Georgia Benchbook 2023 edition
    • Invalid date
    ...where cause of death inflicted. If unknown, venue in county where death occurred; if unknown, where body found. [See Perera v. State, 295 Ga. 880, 763 S.E.2d 687 (2014). The victim's "body was discovered in Douglas County, and the county in which the cause of death was inflicted could not b......

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