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Burgess v. Hall

Supreme Court of Georgia

April 15, 2019

BURGESS
v.
HALL.

          Peterson, Justice.

         Following a jury trial in October 2010, Jerome Burgess was convicted of felony murder, three counts of aggravated assault, and possession of a firearm during the commission of a crime, and we affirmed his convictions. Burgess v. State, 292 Ga. 821 (742 S.E.2d 821) (2013). Burgess later filed a petition for a writ of habeas corpus, alleging that appellate counsel was ineffective for failing to argue on appeal that (1) trial counsel was ineffective for failing to cross-examine effectively a testifying co-defendant and (2) the State committed a Brady[1] violation for failing to disclose impeachment evidence against that co-defendant. The habeas court denied Burgess relief. We granted Burgess's application for a certificate for probable cause, but we affirm because the habeas court correctly rejected Burgess's claims.[2]

         1. Relevant background

         The crimes for which Burgess has been convicted stem from a drive-by shooting of three teenagers, one of whom died. Burgess, 292 Ga. at 822 (1). The State's evidence showed that, in October 2008, Burgess drove fellow members of the Murk Mob gang, including his co-defendant Andre Weems, to a Clayton County neighborhood in search of the leader of a rival gang with whom they had had an altercation earlier that night. Id. at 821-822 (1). When that effort proved unsuccessful, the group instead decided to assault the three teenagers who happened to be in the vicinity, so that Weems could "get his stripes"; Weems opened fire as Burgess drove. Id. at 822 (1).

         Burgess and Weems were indicted together. Burgess pleaded not guilty, and Weems pleaded guilty and testified for the State at Burgess's October 2010 trial. Weems testified that everyone in the vehicle knew about the plan to commit the drive-by shooting and that he never pointed a gun at Burgess. Weems admitted during his trial testimony that he had pleaded guilty to the shooting, but the jury did not hear that he pleaded guilty but intellectually disabled.

         Burgess testified and presented a different version of events. Burgess testified that he did not know Weems intended to commit a drive-by shooting, he did not want to drive the vehicle, and Weems coerced him by pointing the gun or nudging him with it and directing him to drive. Burgess also called Felix Irving to testify in his defense. Irving testified that Weems had called him after the shooting to say that the shooting was not planned, Burgess did not have anything to do with it, and Weems was going to "straighten it out" so Burgess would not get punished for something he did not do. At the conclusion of Burgess's trial, the jury found him guilty of felony murder and other crimes, and we affirmed his convictions. Burgess, 292 Ga. 821.

         Burgess filed a habeas petition claiming that his appellate counsel was ineffective in his handling of issues regarding purported witness impeachment evidence that the State allegedly did not disclose and that trial counsel failed to uncover. The evidence Burgess cites as impeachment evidence relates to the testimony of two psychologists introduced at Weems's competency trial that occurred about a month before Burgess's criminal trial. The defense expert, Dr. James Powell, testified that Weems had a composite IQ of 53, a learning disability, a history of violent outbursts, and a seizure disorder. Dr. Powell also testified that Weems had given conflicting and incoherent accounts of the shooting and his prior criminal convictions, but Dr. Powell could not determine whether Weems was intentionally lying, confused, or simply could not remember.

         The State's expert, Dr. Don Hughey, also testified at Weems's competency trial that Weems scored low on an IQ test, but he did not consider the result to be valid because Weems had scored an 86 on a prior test and there was no evidence that Weems had an intervening factor, such as a serious head injury, to explain the drop in his IQ score. Dr. Hughey also performed a malingering test on Weems after Weems reported auditory hallucinations, and Dr. Hughey concluded that there was a 99.9% chance that Weems was malingering.

         Burgess argued that the experts' testimony provided information that would have affected the jury's assessment of Weems's credibility, including whether he acted alone or whether Burgess participated in the shooting. Following a hearing, the habeas court denied Burgess's habeas petition, concluding that Burgess failed to show that appellate counsel was deficient as to Weems's cross-examination or that any deficiency prejudiced him. The habeas court also denied relief on Burgess's claim that appellate counsel was ineffective for failing to raise a Brady claim on appeal, concluding that appellate counsel, despite being aware of Weems's guilty plea, made a considered choice to raise the issues that were most likely to lead to a reversal of Burgess's convictions; the habeas court also concluded that Burgess made no showing of prejudice.

         2. Burgess argues that the habeas court erred in denying his claim that appellate counsel was ineffective regarding trial counsel's failure to investigate Weems's competency and guilty pleas and then cross-examine Weems with the information introduced at Weems's competency trial. We disagree.

         For Burgess to prevail on an ineffective assistance of counsel claim, he must satisfy the familiar standard of Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). Under that standard, Burgess must prove that his lawyer's performance was constitutionally deficient and that he was prejudiced by the deficient performance. Id. at 687. To show deficient performance, Burgess must prove that his counsel acted or failed to act in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. "This is no easy showing, as the law recognizes a strong presumption that counsel performed reasonably," and to overcome this presumption, Burgess "must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not." Davis v. State, 299 Ga. 180, 183 (2) (787 S.E.2d 221) (2016) (citation and punctuation omitted).

         "Where the issue is the ineffective assistance of appellate counsel, the showing of prejudice calls for a demonstration that a reasonable probability exists that, but for appellate counsel's deficient performance, the outcome of the appeal would have been different." Gramiak v. Beasley, 304 Ga. 512, 513 (I) (820 S.E.2d 50) (2018) (citing Humphrey v. Lewis, 291 Ga. 202, 211 (IV) (728 S.E.2d 603) (2012)). When a defendant claims that his appellate counsel was ineffective for failing to raise a claim on direct appeal that trial counsel was ineffective, there are two layers of Strickland analysis. Gramiak, 304 Ga. at 513 (I). To show that appellate counsel was ineffective for failing to argue that trial counsel was ineffective, a defendant must show that trial counsel was deficient and the deficiency prejudiced the trial.

         Here, Burgess's appellate counsel did raise the issue of trial counsel's ineffectiveness in Burgess's motion for new trial and questioned trial counsel about his cross-examination of Weems during the motion for new trial hearing. Trial counsel testified at the motion for new trial hearing that prior to trying Burgess's case, he became aware that there had been a trial on Weems's competency and that Weems had pleaded guilty but intellectually disabled. Trial counsel stated that he did not believe Weems's guilty plea would have influenced the jury's credibility determination in any way, and that he had more effective points on which to cross-examine Weems, including Weems's statements to a detective.

         The transcript from Burgess's trial reflects that trial counsel indeed impeached Weems's credibility extensively. In particular, through cross-examination, Weems admitted that he first told the detective he did not know anything about the shooting, then said Burgess and a young woman "set[] everything up," claimed that Burgess was the shooter, and finally admitted that he was the shooter. Trial counsel also elicited testimony from Weems that he told the detective, "if I'm going down, everybody's going down," because he was mad that people had "ratted [him] out." While cross-examining the detective, trial counsel elicited testimony that the detective knew that Weems was lying when he claimed to not be ...


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