Burney v. State, S20A0216

• Court: Supreme Court of Georgia
• Citation: 845 S.E.2d 625,309 Ga. 273
• Decision Date: 29 June 2020
• Docket Number: S20A0216
• Parties: BURNEY v. The STATE.

309 Ga. 273
845 S.E.2d 625

BURNEY
v.
The STATE.

S20A0216

Supreme Court of Georgia.

Decided: June 29, 2020

845 S.E.2d 629

Brad Gardner, Georgia Capital Defender, 104 Marietta Street Suite 600, Atlanta, Georgia 30303, Emily J. Gilbert, Georgia Capital Defender, 225 Peachtree Street Suite 900, South Tower, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Michael Alexander Oldham, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Dawn Marie Baskin, Ocmulgee Judicial Circuit District Attorney's Office, Post Office Box 1209 Jones County Government Center, Gray, Georgia 31032, Stephen Andrew Bradley, Ocmulgee Judicial Circuit District Attorney's Office, 121 North Wilkinson Street Suite 305, Milledgeville, Georgia 31061, for Appellee.

Bethel, Justice.

309 Ga. 273

A Jones County jury found Terrence Sanchez Burney guilty of malice murder and other offenses in connection with the death of Joseph Kitchens. Burney appeals, arguing that the evidence presented against him was insufficient to support the jury's verdict on the malice murder charge, that the trial court erred by not conducting a hearing pursuant to Faretta v. California , 422 U.S. 806 (III) (A), 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that the trial court abused its discretion by admitting testimony from the medical

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examiner as to the cause of the victim's death, that he was denied his right to a speedy trial, and that he should be granted a new trial because a juror conducted internet research relevant to the case during deliberations. Finding no error, we affirm.¹

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1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. The victim, Kitchens, was a 76 year old retired man who lived alone. Burney and Tyrone Richardson both lived less than a mile from Kitchens.

In October 2008, Burney told several of his friends, including Richardson, that he needed money and was going to rob someone. On October 11, Burney saw Kitchens leave his house in his car. Burney told Richardson to come with him, and they walked to Kitchens’ house carrying a hammer and a roll of duct tape. Richardson also brought his pistol. Richardson testified at trial that they planned to steal guns from Kitchens and sell them.

Burney and Richardson pried the back door of Kitchens’ house open. Once inside, they took four rifles that belonged to Kitchens. They then ransacked Kitchens’ house for over 30 minutes until they noticed Kitchens arriving home. Burney and Richardson waited for Kitchens in the back of the house. Richardson gave his pistol to Burney, and as Kitchens walked around the house to the back door, Burney pulled the pistol on Kitchens and told him that he would shoot him if he was not quiet. Burney held Kitchens at gunpoint while Richardson taped Kitchens’ hands behind his back.

As Burney was taking Kitchens inside the house, Richardson left and did not return. Richardson next saw Burney two days later. Burney told Richardson that he had taped Kitchens to a chair, hit him "a few times," and then left with the rifles they had found in Kitchens’ house. Burney returned Richardson's pistol to him and gave him Kitchens’ rifles, which he instructed him to sell. Richardson put the pistol and rifles in his car.

309 Ga. 275

The next day, Richardson was driving when he was stopped by a police officer on suspicion of DUI. Richardson gave the officer permission to search his car, and the officer found a handgun and a shotgun in the car's cabin and four long guns in the trunk. Richardson initially said that the guns were not his but later told the officer that he got them from Burney. Richardson was arrested and brought to the sheriff's department where he gave a written statement to that effect. Richardson was released from jail the next morning. Richardson saw Burney the next day and told him that the police had seized the guns from his car.²

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Kitchens’ sister, Mattie Alexander, regularly called and visited Kitchens. On October 17, 2008, after not hearing from him for several days, she went to his house. He did not answer when she knocked on his front door, and he did not answer her calls. Alexander called her cousin, Louis Pounds, who contacted law enforcement officers and asked them to perform a welfare check on Kitchens.

Officers responded to the welfare check at Kitchens’ residence and upon inspecting the house noted that the back door had been pried open. One officer who went inside encountered flies and the "overpowering" smell of decomposition. The officers found Kitchens’ body inside the house. He was wrapped in duct tape, which attached him to an overturned dining room chair. The duct tape wrapped his hands behind his back and covered his body from his shoulders to his stomach. The officers found a mattress that had been overturned, a cash box that had been broken open, a broken file cabinet, and items from Kitchens’ wallet that had been dumped into a toilet. Investigators also found several bottles of various medications belonging to Kitchens throughout the house, including on the dining room table. Kitchens’ wallet, car keys, and cell phone were missing and were never located.

While the officers were searching Kitchens’ house, Pounds began driving there. On the way, he happened to encounter Burney, whom he knew, standing on the side of the road. Pounds offered Burney a ride, and the two drove toward Kitchens’ house. While in the car, Burney asked Pounds if anything had happened on the street where Kitchens lived. Pounds told Burney that he had learned that Kitchens had just been found in his home unresponsive. Burney responded that Pounds should get in touch with Richardson because he had been

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found with guns earlier in the week. As they neared Kitchens’ neighborhood, Burney said to Pounds, "I probably don't need to go down that road." Pounds then dropped off Burney near Burney's grandmother's house.

Kitchens suffered from hypertension and diabetes, for which he took prescribed medications. His physician testified that Kitchens would be at risk of severe health complications if he were to go several days without taking his diabetes medication. An October 18 autopsy of Kitchens revealed that he died due to prolonged physical restraint, and that the lack of access to food, water, and his prescribed medications complicated the hypertension and diabetes from which he suffered. The medical examiner testified that there were no signs that Kitchens suffered any gunshot wound, stab wound, or blunt force trauma. The medical examiner testified that the body's state of decomposition indicated that he had been dead for five to six days at the time of the October 18 autopsy. The medical examiner determined that the manner of death was homicide.

Burney and Richardson were arrested the day that Kitchens’ body was discovered. While incarcerated, they both discussed the incident at Kitchens’ house with cellmates. When asked whether he was guilty, Burney told one cellmate, "Let's just say the warrants are dead on." Burney told that cellmate that he and Richardson held Kitchens at gunpoint, "taped him up," and then took things from the house, including guns and about $80,000 in cash. In regard to Kitchens, Burney told the cellmate, "[H]e's just an old man. He get what he get."

Burney told another cellmate the following. He and Richardson had been watching Kitchens’ house and were planning to take guns and money from him to buy drugs. After they found four guns and some credit cards, Kitchens came home. Burney held Kitchens at gunpoint and said "shut up, before I shoot you." During the altercation, Kitchens "kept hollering about his medicine" but was told to "shut up." Burney and Richardson later returned to Kitchens’ house "to move the body" but ultimately did not go back into the house. Burney and Richardson also discussed burning the house down.

Burney told a third cellmate that he and Richardson planned "to go in and rob the old

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man" because they suspected he had money hidden in the house. Burney said that, a few days after they robbed Kitchens, he and Richardson returned to the house to take Kitchens out of the house, put him in the trunk of a car, and burn the car. They decided against doing so because Burney did not want to have anything to do with "touching a dead man." Burney and Richardson also considered burning Kitchens’ house but decided against it. Burney bragged about what he and Richardson did to Kitchens.

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Burney contends that the evidence presented against him was insufficient to support the jury's verdict on the malice murder count. In addition, although not raised as error, as is this Court's practice, we review the sufficiency of the evidence for the other crimes for which Burney was found guilty and...