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Burgess v. State

The codefendant's testimony that another accomplice told the defendant not to shoot the victim was admissible as part of the res gestae.

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The appellant, Larry Burgess, and co-defendants Charles Harris and Leviticus Swift were indicted jointly for numerous crimes, including murder, stemming from the shooting of Deanthony Carter. Harris pled guilty to lesser charges than murder, and agreed to testify against Swift and Burgess. Burgess and Swift were tried together, and both were convicted of murder and other crimes. We have previously affirmed Swift’s1 and Burgess’s convictions.2 In Burgess’s first appeal, we addressed six of Burgess’s seven enumerations of error, and resolved them adversely to Burgess. However, we remanded the case to the trial court for a hearing on Burgess’s claim that he received ineffective assistance of trial counsel.3 In November 2003, the trial court held a hearing on the ineffectiveness claim, and on January 5, 2004, the trial court ruled that the claim was without merit and denied Burgess’s motion for new trial. Burgess has now filed this appeal. For the reasons that follow, we affirm. 1. Burgess claims that trial counsel provided ineffective assistance by failing to raise a Bruton 4 objection when Charles Harris testified that, at the crime scene, Leviticus Swift told Burgess not to shoot the victim. We disagree with this contention.

To prevail on his claim of ineffective assistance of counsel, Burgess had the burden to ” ‘show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.’ “ 5 With regard to Burgess’s claim that trial counsel was ineffective for failing to raise a Bruton objection, we conclude that Burgess has failed to prove either deficient performance or prejudice.

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