FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 27, 2017
In the Court of Appeals of Georgia
A17A0333. BURNS v. THE STATE.
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 on the charge of aggravated
assault, 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 as to the aggravated assault charge.1
Viewed in the light most favorable to the jury’s verdict, Martinez v. State, 306
Ga. App. 512, 514 (702 SE2d 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
1
Burns has not challenged his conviction on the charge of theft by receiving,
and we therefore affirm his conviction on that count of the indictment.
2
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.2 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 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
2
During his testimony at trial, Palmer acknowledged that the papers were fake
documents (including a fake car title) he “had . . . drawn up” to help facilitate the sale
of the stolen vehicle.
3
describe the shooter as dark-skinned with dreadlocks, and wearing a white shirt and
baggy jeans.3 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. Additionally, 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 police 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
3
The record shows that neither Burns nor Palmer had dreadlocks at the time
of the crime, and at trial, the repairman could not identify either Burns or Palmer at
trial as the shooter.
4
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
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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
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battery,4 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 on the charge of
aggravated assault, 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,
4
The only evidence of kidnapping with bodily injury, armed robbery, and
aggravated battery was the testimony of the victim. That testimony, however, was
confusing and at times self-contradictory. Additionally, elements of that testimony
were in direct conflict with both the physical evidence and the testimony of other
witnesses. And viewing the jury’s verdict in light of the evidence, it appears jurors
rejected the victim’s testimony almost entirely.
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[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 SE2d 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 SE2d 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 accomplice’s testimony is in fact corroborated by
independent evidence.” Hamm v. State, 294 Ga. 791, 795 (2) (756 SE2d 507) (2014)
(expressly overruling a line of cases to the contrary) (citations omitted).
Burns contends that in light of the foregoing law, and given the trial court’s
instruction that the testimony of a single witness is sufficient to sustain a conviction,
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trial counsel’s failure to request a jury instruction that the testimony of an accomplice
must be corroborated constituted ineffective assistance of counsel. To prevail on this
claim, Burns bears the burden of proving both that the performance of his lawyer was
deficient and that he suffered prejudice as a result of this deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
To demonstrate deficient performance, Burns must prove that his lawyer’s failure to
request such a jury instruction was objectively unreasonable, considering all of the
circumstances and in light of prevailing professional norms. Id. at 687-690. And to
show that prejudice resulted from this deficient performance, Burns must prove that
there is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
Here, the trial court found that counsel’s failure to request an instruction
regarding the corroboration of accomplice testimony constituted deficient
performance. In its brief, the State concedes that trial counsel’s performance was
deficient in this regard, and we agree with this conclusion. See Fisher v. State, 299
Ga. 478, 485 (2) (a) (788 SE2d 757) (2016) (finding deficient performance where “it
would have been entirely unreasonable for [defense counsel] to make a ‘strategic
9
decision’ to approve the trial court’s instruction to the jury that ‘generally, the
testimony of a single witness . . . is sufficient to establish a fact,’ without insisting
that the court also instruct the jury that this general rule did not apply to [an
accomplice’s] testimony”). See also Hamm, 294 Ga. at 796-797 (2). The question
before us, therefore, is whether, based on the record in this case, Burns has shown he
was prejudiced by this deficient performance – i.e., whether counsel’s failure to
request a jury instruction on the corroboration of accomplice testimony undermines
confidence in the outcome of the trial. Fisher, 299 Ga. at 486 (2) (b).
When determining prejudice in the context of an ineffective assistance claim,
“we review the record de novo [and] we weigh the evidence as we
would expect reasonable jurors to have done so, as opposed to assuming
that they took the most pro-guilt view possible of every bit of evidence
in the case.” Boothe v. State, 293 Ga. 285, 289-290 & n.8 (745 SE2d
594) (2013) (citation and punctuation omitted) (explaining the
difference between the way courts review the harm caused by errors and
the way courts conduct due process review of the sufficiency of the
evidence). See also Strickland, 466 U. S. at 695, 104 SCt. 2052 (“In
making the prejudice determination, a court hearing an [ineffective
assistance] claim must consider the totality of the evidence before the
judge or jury.”); Humphrey v. Morrow, 289 Ga. 864, 870 (717 SE2d
168) (2011) (explaining that when the court assesses the effect of
evidence that not presented to the jury at trial due to defense counsel’s
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deficient performance . . . “our assessment of how a jury might have
reacted to the additional evidence is an assessment of the legal question
of prejudice, which we perform de novo”).
Woodard v. State, 296 Ga. 803, 810, n. 5 (771 SE2d 362) (2015).
In denying Burns’s motion for a new trial, the trial court found that Burns
could not demonstrate prejudice because he had been charged as a party to the crime
“which mean[t] that the jury could convict if they found that [Burns] was either a
party to the crime [of aggravated assault] or the actual perpetrator of the crime.” The
trial court then found that the evidence at trial established “beyond a reasonable
doubt” that Burns was a party to the crime, as it showed that Burns “was at the scene
of the crime and participated in it.” Thus, the court reasoned that because evidence
independent of Palmer’s testimony supported Burns’s conviction as a party to the
crime of aggravated assault, Burns was not prejudiced by his lawyer’s failure to
request the jury charge at issue. The flaw in this reasoning is that it fails to
acknowledge that the same jury that convicted Burns of aggravated assault acquitted
Palmer of that crime. Thus, the jury found that Burns alone perpetrated the crime of
aggravated assault against the victim, and that Palmer was not even a participant in
that crime. Accordingly, the jury’s verdict forecloses the possibility that it convicted
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Burns as a party to the crime of aggravated assault committed by Palmer.5 See OCGA
§ 16-2-21 (a party to the crime is one “who did not directly commit the crime”).
Furthermore, the mere fact that there was some evidence corroborating
Palmer’s testimony does not prevent Burns from proving he suffered prejudice as a
result of counsel’s failure to request the jury instruction at issue. With respect to
prejudice resulting from the absence of this jury instruction, the question is not
whether there was sufficient corroboration of the accomplice testimony to allow the
jury to rely on that testimony when determining the defendant’s guilt. Rather, as
noted above, the question is whether, under the circumstances of this case, the
5
We recognize that the acquittal of one claimed to have directly committed the
crime “does not bar the prosecution and conviction of another party to the crime in
a separate and distinct trial of the issues.” Eades v. State, 232 Ga. 735, 737 (4) (208
SE2d 791) (1974) (emphasis supplied). See also OCGA § 16-2-21 (a person may be
convicted as a party to a crime “although the person claimed to have directly
committed the crime has not been prosecuted or convicted, has been convicted of a
different crime or degree of crime, or . . . has been acquitted”); White v. State, 257 Ga.
236 (356 SE2d 875) (1987); Rhines v. State, 288 Ga. App. 128, 130 (1) (653 SE2d
500) (2007). Thus, had Palmer been acquitted of aggravated assault in a separate trial,
by a jury other than the one that convicted Burns, Palmer’s acquittal would not
prevent Burns from being convicted as a party to aggravated assault. See White, 257
Ga. at 236 (acquittal of principal is relevant evidence in subsequent trial of an
accomplice charged as a party to the crime, but it does not bar the accomplice’s
conviction as a party); Rhines, 288 Ga. App. at 130 (1) (same). But given that Burns
and Palmer were tried jointly before the same jury, the only way to interpret the
verdict on the charge of aggravated assault is that Burns was convicted as the
principal, not as a party to the crime.
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absence of an instruction on the necessity for corroboration of accomplice testimony
undermines confidence in the outcome of trial. See Fisher, 299 Ga. at 487 (2) (b)
(finding that trial counsel’s failure to request an instruction on the requirement that
accomplice testimony must be corroborated resulted in prejudice to the defendant,
despite the fact that corroborating evidence was introduced at trial). See also Stanbury
v. State, 299 Ga. 125, 131 (2) (786 SE2d 672) (2016) (although other evidence
corroborated accomplice’s testimony, the “trial court’s failure to give an accomplice
corroboration instruction . . . when coupled with the express authorization by the
court for the jury to establish critical facts based solely on this testimony” constituted
plain error, as it raised the possibility that the defendant’s conviction was secured
through impermissible means). Here, viewing the record – including the charge to the
jury – as a whole, and weighing the evidence “as we would expect reasonable jurors
to do,” we find that Burns has demonstrated prejudice resulting from trial counsel’s
deficient performance.
Palmer’s identification of Burns as the sole shooter was directly contradicted
by the testimony of the bank manager, who affirmatively identified Palmer as the
shooter. Additionally, other circumstantial evidence pointed to Palmer as the
assailant, including the eyewitness description of the clothing worn by the shooter,
13
which matched the clothing Palmer was wearing at the time of the crime. And the
bank manager’s testimony that the shooter had been seated in the front passenger seat
of the car, in conjunction with Palmer’s admission that he had been the front seat
passenger, also served to undermine Palmer’s claim that Burns alone committed the
aggravated assault. Moreover, although the victim stated that both defendants shot
him, that testimony also indicated that Burns never left the car and implied that
Palmer was the man who pursued the victim and delivered the shot that injured him.
Given the evidence, the absence of an instruction on the requirement that Palmer’s
testimony be corroborated, when coupled with the trial court’s instruction that the
testimony of a single witness is sufficient to establish a fact,”impermissibly
empowered the jury” to disregard any conflicting testimony and “ to find [Burns]
guilty [of aggravated assault] based solely on [Palmer’s] accomplice testimony.”
Stanbury, 299 Ga. at 130 (2). And “[b]ecause jury instructions are the lamp to guide
the jury’s feet and journeying through the testimony in search of a legal verdict, we
must presume the jury accepted the authorization to establish a fact based solely on
[Palmer’s] accomplice testimony.” Id. at 130-131 (2) (citation and punctuation
omitted). Accordingly, we must conclude that the outcome of trial “was ‘likely
affected’ by the trial court’s failure to provide an accomplice corroboration charge to
14
the jury.” Id. (citation omitted). See also Martin v. State, 298 Ga. 259, 277-278 (6)
(c) (779 SE2d 342) (2015), cert. denied, ___ U. S. ___ (137 SCt 62, 196 LEd2d 60)
(2016) (noting that the “test for harm under plain error review is equivalent to the test
in ineffective assistance of counsel cases for whether an attorney’s deficient
performance has resulted in prejudice of constitutional proportions”).
Thus, we find that under the circumstances of this case, trial counsel’s failure
to request a jury instruction regarding the requirement that accomplice testimony be
corroborated constituted ineffective assistance of counsel. Fisher, 299 Ga. at 486-487
(2) (b); Stanbury, 299 Ga. at 131.
2. In light of our holding in Division 1, we need not address Burns’s remaining
enumeration of error.
For the reasons set forth above, we reverse the trial court’s denial of Burns’s
motion for a new trial on the charge of aggravated assault.
Judgment reversed. McFadden, P. J., and Bethel, J., concur.
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