Burney v. State, 299 Ga. 813

Background

On May 11, 2009 Leonard Young was shot and later died; Octavious Burney (Appellant) was tried with co-defendant Steven Stillwell and convicted of malice murder and a firearm offense after a March 2013 jury trial.
Eyewitness Shaniqua Arrington identified "Tay-Tay" (later identified in a photo lineup as Burney) as the shooter; other witnesses described a tall, dark-skinned man in a black shirt firing multiple shots.
Stillwell allegedly retrieved a gun and either fired or handed it to "Tay-Tay"; Stillwell was acquitted at trial.
Post-conviction, Burney moved for a new trial raising multiple claims: trial court failed to apply the thirteenth-juror standard; erroneous denial of challenges for cause to prospective jurors; denial of the defendant’s right to be present when juror notes were reviewed; judge commented on the evidence in front of the jury (OCGA § 17-8-57); and ineffective assistance of counsel.
The trial court denied the motion; on appeal the Georgia Supreme Court affirmed, rejecting each claim and holding that Burney had acquiesced to the handling of juror notes and that no reversible error or ineffective assistance was shown.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Whether trial court applied thirteenth-juror standard in denying new trial	Burney: court used wrong standard (did not independently weigh credibility/weight)	State: court’s written order and hearing show independent review under OCGA §§ 5-5-20/5-5-21	Court: No error — record shows court acted as thirteenth juror and applied proper discretion
2. Denial of motions to strike four prospective jurors for cause	Burney: jurors' voir dire answers indicated bias requiring strikes	State: jurors said they could be impartial; trial court’s demeanor-based assessment was proper	Court: No abuse of discretion in denying strikes; trial court appropriately evaluated impartiality
3. Right to be present re: juror notes reviewed off-record	Burney: court handled juror notes in his absence and did not read them aloud or show him, violating right to be present	State: court and counsel discussed notes; court informed parties next day; issues were scheduling/disclosures; appellant did not object	Court: Burney acquiesced (knew notes existed, heard description, did not request to view or object); no entitlement to new trial
4. Judge’s in-court remark about having heard eyewitness testimony (OCGA § 17-8-57)	Burney: judge commented on evidence in front of jury, violating statute prohibiting judicial comment on proof/guilt	State: remark was part of a colloquy about admissibility and not an opinion on guilt or identification	Court: No violation — comment explaining ruling on evidentiary procedure is not a prohibited comment on evidence or guilt
5. Ineffective assistance for failing to object to admission of detective’s recounting of Arrington’s statement	Burney: counsel should have objected to portion as improper prior consistent statement (bolstering)	State: statement was admissible as a prior inconsistent statement; objection would have been meritless	Court: No ineffective assistance — failure to raise meritless objection not deficient performance

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
White v. State, 293 Ga. 523 (2013) (explaining thirteenth-juror duties)
Edenfield v. State, 293 Ga. 370 (2013) (trial court’s advantage in assessing juror demeanor; voir dire discretion)
Murphy v. State, 299 Ga. 238 (2016) (acquiescence to absence from bench conferences can waive presence right)
Zamora v. State, 291 Ga. 512 (2012) (defendant’s right to be present when juror matters are discussed)
Butts v. State, 297 Ga. 766 (2015) (discussing when denial of new trial reflects failure to act as thirteenth juror)
Heywood v. State, 292 Ga. 771 (2013) (distinguishing logistical jury communications from those implicating right to be present)