Burgess v. The State (Nos. 63476, 63477) — Summary of Opinion

Factual and Procedural Background

Appellants, brothers Joe W. Burgess and Billy D. Burgess, were co-indictees and co-defendants in a Greene County case tried in Greene Superior Court before Judge Duke. They were charged with attempted armed robbery and aggravated assault arising from an incident at a liquor store. At trial the evidence showed that two armed men wearing hoods entered the liquor store, pointed weapons at the two victims, and one weapon fired. The hood of one assailant came off during the incident, and both victims positively identified Joe W. Burgess as one of the perpetrators; one victim identified Billy D. Burgess as the other. Both appellants were found guilty. They filed identical appeals raising the general grounds, challenging the denial of a motion for a new trial, and contesting the jury charge on their sole defense of alibi. The Court of Appeals, with Presiding Judge Shulman writing, affirmed the convictions. Attorneys of record included James L. Cline, Jr., for appellants and Joseph H. Briley, District Attorney, for appellee.

Legal Issues Presented

Whether the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that appellants committed aggravated assault and attempted armed robbery.
Whether the trial court erred in denying appellants' motion for a new trial based on the general grounds.
Whether the jury charge on the appellants' defense of alibi was erroneous, and if so, whether any such error was preserved for appeal.

Arguments of the Parties

Appellants' Arguments

Appellants challenged their convictions on the general grounds and contended that the jury charge on alibi was erroneous.
Appellants contended that Code Ann. § 70-207(a) allows a criminal defendant to appeal an erroneous charge even without objecting at trial.

Appellee's / State's Position

The State relied on authority holding that a defendant waives the right to complain about a jury charge when defense counsel states on the record that there are no objections to the charge.
The State posited that, because defense counsel in this case stated there were no objections to the charge, any complaint about the alibi charge was waived.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560)	Standard for sufficiency of the evidence: whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.	The court applied this standard and concluded that the identification and other trial evidence were sufficient for a rational trier of fact to find appellants guilty beyond a reasonable doubt.
White v. State, 243 Ga. 250, 251 (253 S.E.2d 694)	Principle that failure to object to a jury charge when asked waives the right to later raise that charge as error.	The court held appellants waived any complaint about the alibi charge because defense counsel stated he had no objections, citing White for the waiver rule.
Hill v. State, 246 Ga. 402, 408 (271 S.E.2d 802)	Support for the rule that failure to object to a jury charge waives appellate review of that charge.	The court cited Hill alongside White to support the conclusion that appellants had waived any objection to the charge by declining to state objections at trial.
Jackson v. State, 246 Ga. 459 (271 S.E.2d 855)	Reconciliation of Code Ann. § 70-207(a) with the waiver rule: rights under § 70-207(a) are waived when defense counsel states he has no objections to the charge.	The court relied on Jackson v. State to reject appellants' argument under § 70-207(a), holding that the statute's protections are waived when counsel affirmatively states there are no objections to the charge.

Court's Reasoning and Analysis

The court's analysis proceeded in three parts corresponding to the raised issues. First, on sufficiency of the evidence, the court recited the trial evidence: two armed, hooded assailants entered a liquor store, one weapon discharged, a hood came off, and victims made positive identifications of Joe W. Burgess and, by one victim, Billy D. Burgess. Applying the Jackson v. Virginia standard, the court concluded that a rational trier of fact could find appellants guilty beyond a reasonable doubt.

Second, because the general grounds were found to be without merit, the court reasoned that the trial court did not err in denying the motion for new trial that was based on those general grounds.

Third, regarding the jury charge on alibi, the court observed that when the trial court asked if there were objections to the charge, defense counsel expressly stated there were none. Citing White v. State and Hill v. State, the court concluded that appellants waived their right to raise the charge as error by failing to object at trial. The opinion acknowledged appellants' reliance on Code Ann. § 70-207(a) but noted that the Georgia Supreme Court in Jackson v. State reconciled that statute with the waiver rule and held that any rights under § 70-207(a) are waived when defense counsel states he has no objections to the charge. The Court of Appeals accepted and applied that rule.

Holding and Implications

Judgment affirmed.

Direct effect: The convictions of Joe W. Burgess and Billy D. Burgess for aggravated assault and attempted armed robbery were affirmed by the Court of Appeals. The court rejected appellants' general grounds and found that any complaint regarding the alibi charge was waived when defense counsel stated there were no objections to the charge.

Broader implications: The opinion follows existing Georgia precedent (White, Hill, and Jackson v. State) regarding waiver of objections to jury charges and expressly states the court is neither inclined nor empowered to change that rule. The opinion does not announce a new rule of law beyond applying the cited authorities.

Opinion by Presiding Judge Shulman; Quillian, C.J., and Carley, J., concur. Decided April 29, 1982.

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BURGESS v. THE STATE (two cases).

SHULMAN, Presiding Judge.

Appellants are brothers who were co-indictees and co-defendants in an attempted armed robbery and aggravated assault case in which they were both found guilty. They now present identical appeals, raising the general grounds and taking issue with the denial of their motion for a new trial and the charge on alibi given the jury. Finding no merit to appellants' enumerations, we affirm their convictions.

1. There was evidence presented at trial from which the jury could conclude that appellants, armed and wearing hoods, entered a liquor store and pointed their weapons, one of which fired, at the two victims. The hood of one of the assailants came off, and both victims positively identified Joe W. Burgess as one of the perpetrators. One of the victims identified Billy D. Burgess as the other perpetrator. Thus, there was evidence from which a rational trier of fact could conclude beyond a reasonable doubt that appellants committed aggravated assault and attempted armed robbery. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560).

2. Since the enumerations asserting the general grounds are without merit, it follows that the denial of a motion for new trial based on the general grounds was not error.

3. Appellants also take issue with the jury charge given on their sole defense, alibi. However, when asked by the trial court if there were any objections to the charge given, defense counsel responded in the negative. Thus, appellants "[have] waived [their] right to enumerate error by failing to respond to the court's inquiry on any objections to the charge." White v. State, 243 Ga. 250, 251 ( 253 S.E.2d 694); Hill v. State, 246 Ga. 402, 408 ( 271 S.E.2d 802). Appellants, mindful of the Supreme Court's decision in White, supra, maintain that Code Ann. § 70-207 (a) specifically allows a criminal defendant the right to appeal an erroneous charge without objection to the charge at trial. The Supreme Court, in Jackson v. State, 246 Ga. 459 ( 271 S.E.2d 855), reconciled § 70-207 (a) with the White and Hill rulings and held that any rights available to a criminal defendant under § 70-207 (a) are waived when defense counsel states he has no objections to the charge. Such is the rule in this state, and we are neither inclined nor empowered to change it.

Judgment affirmed. Quillian, C. J., and Carley, J., concur.

DECIDED APRIL 29, 1982.

BURGESS v. STATE