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Burns v. State

Court of Appeals of Georgia, Fifth Division

June 27, 2017

BURNS
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         Following a jury trial, Willie Lewis Burns was convicted in DeKalb County Superior Court of aggravated assault and theft by receiving stolen property. Burns now appeals from the denial of his motion for a new trial, asserting that his lawyer's failure to request an instruction regarding the requirement that accomplice testimony be corroborated constituted ineffective assistance of counsel. Burns further contends that the trial court committed plain error when, after instructing the jury that the testimony of a single witness was sufficient to support a conviction, it failed to further instruct jurors that the testimony of an accomplice must be corroborated. We agree with Burns that he received ineffective assistance of counsel, and we therefore reverse the order denying Burns's motion for new trial.

          Viewed in the light most favorable to the jury's verdict, Martinez v. State, 306 Ga.App. 512, 514 (702 S.E.2d 747) (2010), the record shows that this case arises out of the efforts of Burns and his co-defendant, Jarvorris Palmer, to sell a car. Burns and Palmer were tried together and at trial both stipulated that the car, a white Dodge Charger, was a stolen vehicle to which they did not hold title. On the morning of August 16, 2011, Burns and Palmer drove the car to meet with the victim, who had expressed an interest in buying it. After some negotiations, Burns and Palmer drove the victim in the Dodge Charger to the victim's bank so that he could withdraw cash for the purchase of the vehicle. The victim went into the bank first, and Burns and Palmer followed a short time later. All three men were observed in the bank by a loan officer and the bank manager, and images of all three men were captured by the bank's video recording system and were introduced into evidence at trial. After the victim completed his cash withdrawal, the men left the bank and returned to the car, which was parked in front of the manager's office window. Both the bank manager and the loan officer then witnessed the men engaging in what appeared to be a heated argument regarding paperwork that either Burns or Palmer was holding.[1] All three men then got into the car, with the victim getting into the backseat, and drove to a parking lot a short distance away. Approximately five minutes later, the bank manager left the bank and was walking towards her car when she heard what she believed was a gunshot. When the manager looked towards the sound of the shot, she saw the victim running and being pursued by the man who had been seated on the front passenger side of the car. The manager heard an additional three or four gunshots, and it appeared to her that the man pursuing the victim was shooting at him. As the manager watched, she saw the victim jump into oncoming traffic, saw the man pursuing him leave the scene and jump the fence surrounding a nearby apartment complex, and observed that the Dodge Charger had been driven away from the area.

         The only other witness to the shooting was a repairman who had been working on an air-conditioning unit located on the roof of a nearby restaurant. After hearing a gunshot, the repairman looked towards the sound and saw a man exiting a white Dodge Charger holding a pistol and shooting at a second man. The repairman describe the shooter as dark-skinned with dreadlocks, and wearing a white shirt and baggy jeans.[2] According to the repairman, the car and driver fled the scene as the shooter ran away on foot.

         Emergency personnel responded to the scene and discovered the victim suffering from a gunshot wound to the abdomen. Less than an hour after the incident, police located Burns and Palmer at an apartment complex within walking distance of the area where the shooting occurred. The Dodge Charger was found parked in the lot at the same apartment complex. Police then conducted a show-up with both the bank manager and the loan officer, each of whom positively identified Burns and Palmer as the men they had seen in the bank with the victim. The victim subsequently identified Burns and Palmer from two photographic lineups as the men who had assaulted and attempted to rob him.

         After Burns and Palmer were taken into police custody, Palmer gave officers a statement in which he identified Burns as the shooter. The police obtained arrest warrants for both men based on Palmer's statement, and Burns and Palmer were thereafter indicted jointly on charges of kidnapping with bodily injury, armed robbery, aggravated assault, aggravated battery, and theft by receiving stolen property. With respect to the charge of aggravated assault, the indictment alleged that Burns and Palmer "individually and as parties [to] the commission of a crime . . . did make an assault upon [the victim] with a handgun, a deadly weapon."

         At trial, there was conflicting evidence as to the identity of the shooter. According to the victim, both Burns and Palmer shot at him at some point. Although the victim's testimony on this issue was confusing and at times self-contradictory, parts of that testimony indicated that Palmer was the man shooting at the victim as he attempted to flee from the car. Additionally, the bank manager positively identified Palmer as the shooter. The bank manager also noted that the shooter had been on the passenger side of the car, and in his testimony the victim stated that Burns was the driver. Furthermore, both the bank manager and the repairman described the shooter as wearing a white T-shirt and baggy blue pants or jeans, and the still photo taken from the video of the men inside the bank shows Burns wearing clothes matching that description.

         Palmer testified in his own defense and stated that he had agreed to help Burns sell a car both men knew was stolen, identified Burns as the shooter, and denied participating in the aggravated assault. Palmer acknowledged that when the incident began, Burns was driving the car and he was the person seated in the front passenger seat. But Palmer insisted that despite the bank manager's unequivocal identification of the front seat passenger as the shooter (and despite her identification of Palmer as both the front seat passenger and the shooter), it was Burns who had committed the assault against the victim. Specifically, Palmer stated that when the victim decided not to purchase the car, Burns pulled a gun from underneath the driver's seat and fired a shot towards the victim. Palmer further explained that when the victim escaped from the car, Burns ran from the scene on foot, and Palmer then moved to the driver's seat and drove the car to the nearby apartment complex.

         In charging the jury, the trial court instructed the jurors that, "[t]he testimony of a single witness, if believed, is sufficient to establish a fact. Generally there is no legal requirement of corroboration of a witness provided that you find . . . the evidence to be sufficient." Burns's trial counsel did not object to this charge, and he did not request a corresponding charge that the uncorroborated testimony of an accomplice is insufficient to support a conviction. The jury found both Burns and Palmer not guilty of kidnapping with bodily injury, armed robbery, and aggravated battery, [3] and found both guilty of theft by receiving stolen property. With respect to the charge of aggravated assault, the jury found Burns guilty, but found Palmer not guilty.

         Following his conviction, Burns filed a motion for a new trial, alleging that his trial counsel's failure to request a jury charge on the requirement that accomplice testimony be corroborated constituted ineffective assistance of counsel. The trial court held a hearing on that motion, at which trial counsel testified that the theory of defense was that Palmer did the shooting and that Burns "just happened to be there." Defense counsel further testified that he was aware of the requirement that an accomplice's testimony must be corroborated, but he could not recall a reason for his failure to request a jury charge on that requirement. The trial court subsequently denied the new trial motion, and Burns now appeals from that order.

         1. OCGA § 24-14-8 provides, in relevant part,

[t]he testimony of a single witness is generally sufficient to establish a fact. However, in . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness [in felony cases].

         Under this rule, where an accomplice testifies at trial, a jury may not rely solely on that testimony to find any "fact necessary to [sustain the defendant's felony] conviction." Johnson v. State, 288 Ga. 803, 805 (2) (708 S.E.2d 331) (2011) (applying former OCGA § 24-4-8, now codified as OCGA § 24-14-8). See also Ramirez v. State, 294 Ga. 440, 442 (754 S.E.2d 325) (2014) (same). Instead, the existence of any such fact must also be supported either by the testimony of an additional witness or by other, independent evidence that corroborates the accomplice's testimony. And in a relatively recent case, our Supreme Court held that it is error for a trial court to refuse a request to charge on the requirement that accomplice testimony be corroborated even "where the ...


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