Christopher Burger

Case background

Christopher Burger was a soldier stationed at Fort Stewart, Georgia.

The offence

On the night of September 4, 1977, Christopher Burger and Thomas Stevens were drinking beer in the enlisted men's club at Fort Stewart. Burger and Stevens ran out of money and decided to rob a cab driver. They called a Shuman Company cab, but they decided not to use it after finding that the driver was accompanied by a friend. They later received a call from James Botsford, their squad leader, who asked to be picked up at the Savannah airport.

Burger and Stevens took a knife sharpener and a 14-inch butcher knife from the dining facility and then called a D & M cab. When the driver, Roger E. Honeycutt, arrived alone, Burger and Stevens entered the cab. At an agreed signal, they drew the two weapons, forced Honeycutt to the curb, and robbed him of less than $20. Burger then ordered Honeycutt to remove all of his clothes. Stevens rifled the victim’s clothes and threw them out of the cab window as Burger drove the cab.

Honeycutt was pleading for his life. Stevens forced Honeycutt to commit an act of oral sodomy, followed by an act of anal sodomy. Stevens then bound Honeycutt with the microphone cord from the cab’s CB radio and placed him in the trunk of the cab. From time to time, Burger and Stevens shouted to Honeycutt, “Are you still back there?” Botsford heard Honeycutt reply from the trunk, “Yes, sir.”

Burger and Stevens drove to the airport to pick up Botsford. Burger and Stevens admitted to Botsford that the cab was stolen and that the driver had been robbed, sodomized, and placed in the trunk. Burger showed Botsford the weapons. Botsford testified at trial that Stevens said he thought they should kill Honeycutt, but Burger disagreed. Botsford tried to talk Stevens out of it and thought he had succeeded.

When they arrived back at Fort Stewart to deposit Botsford, Burger and Stevens appeared to Botsford to have agreed to let Honeycutt go and leave the cab beside the road. After dropping Botsford off, Burger and Stevens went to Jack’s Mini Mart in Jesup for milk and sandwiches.

Later, when a police car appeared to be following them, Burger and Stevens decided they had to get out of the car. Burger drove to a pond in a wooded area. They wiped their fingerprints off the car, and Stevens removed the CB radio. This radio was later recovered by police from the automobile of Burger’s mother-in-law. Burger drove the automobile into the pond and leaped free before it went in. Burger and Stevens looked back and saw the automobile sinking. Honeycutt, bound in the trunk, drowned.

Burger and Stevens returned to Fort Stewart and paid another taxi $11 for the return trip. The next day they asked Botsford whether he had said anything to authorities, and Botsford said he had not. Burger and Stevens told Botsford they had freed the driver. A few days later, amid reports of the missing driver, Botsford went to authorities and gave a statement of what he knew. Burger confessed. Stevens, who was aware of Burger’s confession, confessed. In his handwritten confession, Stevens stated that he had advised against killing the driver and had not known Burger was planning to drive the automobile into the pond. The car was pulled from the pond, and Honeycutt was found in the trunk. Numerous pieces of Honeycutt’s clothes were recovered from the route Burger and Stevens had driven. The two weapons were found in the cab. Honeycutt’s identification was found above the sun visor of the cab, and the cab was identified by its owner as the one driven by Honeycutt.

Investigation and evidence

The state’s evidence included Thomas Stevens’s confession. Burger also confessed, and Stevens confessed and was aware of Burger’s confession. Police recovered the CB radio from the automobile of Burger’s mother-in-law. The car was pulled from a pond, and Honeycutt was found in the trunk. Numerous pieces of Honeycutt’s clothes were recovered along the route Burger and Stevens had driven. Honeycutt’s identification was recovered above the sun visor of the cab, and the cab was identified by its owner as the one Honeycutt had driven.

Arrest

After Botsford contacted law enforcement authorities, Burger and Stevens were arrested. After the arrest, Burger and Stevens made complete confessions and Burger led law enforcement officers to Honeycutt’s body.

Trial

Burger and Stevens were indicted for the murder of Roger Honeycutt. In federal habeas proceedings, it was described that Burger and Stevens were both indicted, and that their trials were separate.

Burger was convicted of murder and sentenced to death. Stevens was tried separately, convicted, and also sentenced to death.

Sentencing

Burger was sentenced to death. On direct appeal to the Georgia Supreme Court, Burger’s conviction was affirmed but his death sentence was vacated and the case remanded for resentencing. On remand, Burger was once again sentenced to death and the sentence was affirmed by the Supreme Court of Georgia.

A sentencing jury found the death sentence based on three statutory aggravating circumstances:

• the “offense of murder was committed while the offender was engaged in the commission of another capital felony, kidnapping”
• the “offense of murder was committed while the offender was engaged in the commission of another capital felony, armed robbery”
• the offense of murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture and depravity of mind.”

On direct review, the Georgia Supreme Court held that the trial court had erroneously failed to instruct the jury on the definitions of kidnapping and robbery. The Georgia Supreme Court upheld the death sentence, however, based on the single remaining aggravating circumstance.

Appeals and habeas proceedings

Direct appeal (Georgia)

On remand, the death sentence was again affirmed by the Supreme Court of Georgia.

United States Supreme Court

The United States Supreme Court denied certiorari after the Georgia Supreme Court affirmed the death sentence following resentencing.

Federal habeas and remand proceedings (Eleventh Circuit)

Appeal reported at 718 F.2d 979 (11th Cir. 1983)

The Eleventh Circuit stated that the state of Georgia appealed the district court’s grant of a petition for a writ of habeas corpus setting aside the death sentence of Christopher Burger. The facts were described and the court addressed issues including whether Burger was denied effective assistance of counsel; whether jury instructions shifted the burden of proof; whether Miranda violations occurred; whether the district court properly vacated Burger’s death sentence where jury instructions concerning aggravating circumstances were insufficient; and whether a jury instruction on an aggravating circumstance sufficiently channeled discretion.

The court discussed two key issues:

1. The “Stephens issue” addressed invalidity of two aggravating circumstances and concluded that the invalidity of one of a plurality of statutory aggravating circumstances did not require the entire death sentence to be vacated, because at least one aggravating circumstance remained valid.
2. The “Godfrey issue” addressed the adequacy of the trial court’s charge on the sole remaining aggravating circumstance applied in Burger’s case, relating to Ga. Code Ann. Sec. 17-10-30(b)(7).

The court concluded that Burger’s contentions must be rejected, reverse the district court’s order, and remand with instructions that the writ be denied. The decision included a dissent by JOHNSON, Circuit Judge, which stated concurrence in the majority’s opinion except for adopting the district court’s denial on effective assistance of counsel grounds.

Remand opinion at 741 F.2d 1274 (11th Cir. 1984) and appended district court order

The Supreme Court vacated the Eleventh Circuit’s opinion and remanded for reconsideration, particularly in light of Strickland v. Washington, and the Eleventh Circuit instructed the district court to extend or revise its findings. On remand, the district court held that the claim was without merit and that the petition should be denied. The Eleventh Circuit again adopted the district court’s order as its own opinion and remanded with instructions that the writ be denied. The appended district court order focused on ineffective assistance of counsel at Burger’s second capital sentencing trial.

The district court described the second sentencing transcript issue and reviewed the standards from Washington and related cases. It concluded that counsel’s strategy in not directing the jury’s attention to character-oriented mitigation evidence was a reasonable professional judgment and that Burger failed to show ineffective assistance. The district court denied relief on the mitigating evidence claim and also concluded that no conflict of interest had been shown.

A dissent by JOHNSON, Circuit Judge, stated that Burger had been denied effective assistance of counsel based on failure to present mitigating evidence and that a conflict of interest existed.

Successive petition and procedural default (11th Cir. 1993)

In 1993, the Eleventh Circuit affirmed the district court’s ruling that all of the appellant’s claims were barred due to abuse of the writ, successive petition, or procedural default doctrines. The court stated that it affirmed the district court’s denial of Burger’s second federal habeas corpus relief application.

The Eleventh Circuit described Burger’s Ake claim regarding a 1977 mental health examination. Burger argued the examination conducted by Dr. Joseph O’Haire was inadequate and unreliable, including claims that the doctor was not licensed or qualified, that social and medical history was undiscovered or undeveloped, and that the examination was based on erroneous information, incorrect data interpretations, and abnormal diagnostic studies. Burger also argued that a proper examination would have revealed that he was severely mentally ill and mentally impaired. The Eleventh Circuit concluded that presentation of this issue in Burger’s second federal habeas petition constituted an abuse of the writ, because Burger did not include the claim in the first federal habeas petition and failed to demonstrate cause for omitting it.

The Eleventh Circuit concluded that Ake did not require relief on the merits because the state provided Burger with the psychiatrist of his choice, complying with the Ake standard. It also concluded that O.C.G.A. § 9-14-51 would lead to procedural default of this claim in state court because Burger did not raise it in earlier state habeas petitions. The court held that procedural default and abuse of the writ served as a procedural bar.

The court further rejected the request to reach the merits under the “ends of justice” exception, concluding that the factors required to excuse procedural barriers were not present. It held that no relief based on the Ake issue was warranted and that the district court properly found the other claims barred because of procedural default or successive and abusive petition rules. The court affirmed the district court.

Outcome

Christopher Burger’s death sentence was affirmed, and his execution proceeded.

Execution

Christopher Burger was executed by electrocution in Georgia on December 7, 1993. The execution happened at 9:51 P.M. on that date, about an hour after the United States Supreme Court unanimously rejected a request for a stay. The Court had reviewed the case and all nine Justices voted to allow the execution to continue.