Burger v. State

323 Ga.App. 787

748 S.E.2d 462

BURGER

v.The STATE.

No. A13A0900.

Court of Appeals of Georgia.

Sept. 4, 2013.

Joseph Scott Key, McDonough, for Appellant.

Tommy Kenneth Floyd, James Luther Wright III, Alicia C. Gant, for Appellee.

RAY, Judge.

A jury convicted Rafael Radcliffe Burger of six counts each of armed robbery (OCGA § 16–8–41(a)), false imprisonment (OCGA § 16–5–41(a)), and possession of a firearm during the commission of a felony (OCGA § 16–11–106(b)). He appeals, contending that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 319(III), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that Burger and three other perpetrators robbed several victims in an apartment complex. Burger gained access to the victims' apartment by offering to bring a woman, Yasmein Spillman, to have sex with the victims. The perpetrators, armed with a rifle and a pistol, bound the victims' hands and ankles, and hit or kicked them. Burger and the other perpetrators then took money, a television, DVD players, a suitcase, and cell phones. Some of these items were found pursuant to a search of the residence of some of the perpetrators who were with Burger.

A police detective who interviewed Burger testified that Burger told him he agreed to “set up a date” between Spillman and one of the victims, Juan Andrade, in exchange for money. The detective testified that Burger told him that when two of the other perpetrators, who were armed, came into the apartment, Burger initially got down on the ground and then got up and began helping the perpetrators search the victims and bind their hands and feet. Burger also admitted to holding a handgun while standing guard over the victims.Another police detective who also interviewed Burger testified that Burger told him he was present during the incident, that he knew of the robbery just before it occurred and before he entered the apartment, and that he received money from the other perpetrators.

Burger testified at trial that he was setting up a date for sex between Andrade and Spillman. He indicated that when another perpetrator entered with a gun, “I was looking at him like, what? ... I was scared at that point.... I knew what was going on; they was robbing the place, but I didn't know if I was in any immediate danger at that time because, like I said, they were my friends.” He initially got down on the floor, but when one of the other perpetrators pointed a gun at him and told him to get up, he did. When a perpetrator told him to search the apartment, he did, locating cash and other items, including a gun and something that appeared to be cocaine. He gave these items to the other perpetrators. He admitted to holding a gun handed to him by one of the perpetrators and to guarding the victims. He then fled with the other perpetrators. He also testified that the other perpetrators later divided up the proceeds of the robbery and gave him a share.

The victims who testified at trial identified Burger as one of the assailants who participated in the armed robbery. Burger and three other perpetrators were charged with seven counts each of armed robbery, false imprisonment, and possession of a firearm during the commission of a felony. Burger was found guilty of six counts each of the aforementioned crimes and was acquitted of the remaining counts; his co-defendants pled guilty to all counts prior to trial.

On appeal, Burger contends that he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel's performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel's errors, the outcome of trial would have been different. Strickland v. Washington, 466 U.S. 668, 694(III)(B), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164(4), 728 S.E.2d 225 (2012). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697(IV), 104 S.Ct. 2052. Further, “we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill, supra.

[323 Ga.App. 789]1. Burger argues on appeal that Spillman told trial counsel in two interviews that he had no knowledge of any plan to commit armed robbery. However, at trial, Spillman testified that Burger knew about the robbery beforehand, told her that he was using her as “bait,” helped another perpetrator tie up victims, held a weapon during the crime, fled with the other perpetrators, and split the money with them. Burger now contends that his trial counsel was ineffective because he did not take the steps necessary to impeach Spillman: he did not record or otherwise preserve his interviews with her, nor did he make any provisions to have...