Burrell v. State
| Decision Date | 15 March 2022 |
| Docket Number | A20A1973 |
| Citation | 870 S.E.2d 918 |
| Parties | BURRELL v. The STATE. |
| Court | Georgia Court of Appeals |
Cara Clark, for Appellant.
Suzanne Zgraggen Brookshire, Rosemary M. Greene, Cartersville, for Appellee.
Appellant Sherron Burrell was convicted of kidnapping with bodily injury, aggravated assault, terroristic threat, and battery; he was sentenced to life imprisonment.1 On appeal, Burrell argues that the superior court lacked jurisdiction over him absent a transfer order from juvenile court, that the evidence was insufficient to sustain his conviction for kidnapping with bodily injury, that the superior court erred by admitting other acts evidence under OCGA § 24-4-404 (b), and that trial counsel was ineffective. As more fully explained below, we see no basis for reversal and affirm the trial court.
When viewed in a light most favorable to the verdicts, see Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence adduced below established as follows. The victim, Katie Cook, testified that she first met Burrell – who was 15 years old at the time – in early July 2013 when he approached her in the front yard of her residence, asking for directions and to use her telephone. Cook found Burrell's behavior strange and asked why he needed to use a telephone given that he was already carrying one; Burrell responded that his cell phone had died, and Cook permitted Burrell into her home to use her son's phone. Once in the residence, Burrell encountered Cook's son, Dillon, and it was apparent that the two were acquainted from high school. Cook testified that, after encountering Dillon, Burrell claimed to be tired and "bolted out of [the] house and out the door."
Approximately two weeks later, Cook was again outside – sitting at the edge of her driveway enjoying the summer night – when someone approached her from behind and asked, "Ma'am, are you ok?" and then "Where's your son at?" Cook testified that she immediately recognized Burrell's voice. Before she could answer, Burrell pulled her to an upright position, pressed a knife to her side, and placed a hand over her mouth; he warned Cook that he would kill her if she screamed. Burrell dragged Cook five to ten feet toward her house, telling her that he was taking her inside. Cook attempted to free herself from Burrell and fought for control of the knife; she came face-to-face with Burrell and again recognized him. During the struggle, Burrell hit Cook and attempted to overpower her, but Cook screamed and was able to secure the knife. Cook fell face down on the ground, and Burrell landed on top of her; Burrell bit Cook twice on the face and then "took off running." Cook was left scraped and bloodied by the incident.
Law enforcement arrived on scene and discovered a knife lying in Cook's driveway. Because Cook was able to identify Burrell, officers made contact with his father, who lived just a block away. Burrell's father told to investigators that he had received a telephone call from his son reporting that "he had just done a very bad thing and [that] he was not coming home."
The jury also heard from A. O., whose testimony the superior court deemed admissible pursuant to OCGA § 24-4-404 (b). A. O., who was 16 years old at the time of trial, testified that she and Burrell attended school together and that they were in an on-again, off-again romantic relationship for years. A. O. testified that, in the early morning hours of April 7, 2013, – just three months before the incident with Cook – Burrell entered her residence without permission and appeared at her doorway with a knife, telling her to keep quiet. After entering her bedroom and locking the door, Burrell raped and sexually assaulted A. O. During the incident, Burrell pressed the knife to A. O.’s hip, bit A. O. on her face and neck, and threatened to kill her family if she reported the incident.
1. We first address the assertion that the superior court lacked jurisdiction to try Burrell because, he says, the charges in this case should have originated in the juvenile court. A brief review of the procedural history of this prosecution is necessary to address this claim.
All proceedings in this case occurred in the superior court. Burrell was arrested on July 14, 2013, the day after the attack on Cook. At that time, he was charged by warrants with offenses arising from two incidents: the first incident occurred on July 12, 2013, involving victim S. G., and the second incident occurred on July 13, 2013, involving victim Cook. With respect to the July 12 incident involving S. G., Burrell was charged with rape, aggravated sodomy, aggravated assault, and burglary. With respect to the July 13 incident involving Cook, Burrell was initially charged with battery, kidnapping, and aggravated assault. The record reflects that the arrest warrants for both cases reference the same offense tracking number. In October 2013, Burrell was indicted for both incidents in a single indictment; important to our later discussion , the indicted offenses were not identical to the charges on which he was initially arrested.
The October 2013 indictment charged Burrell with rape, aggravated sodomy, aggravated sexual battery, burglary in the first degree, false imprisonment, and three counts of aggravated assault with respect to the July 12 incident involving S. G. With respect to the July 13 incident involving Cook, the indictment charged Burrell with kidnapping with bodily injury , aggravated assault, battery, and terroristic threat. The charges related to the July 12 incident were eventually nolle prosequied, and Burrell was tried in the superior court on the charges stemming from the July 13 incident involving Cook.
However, the superior court retains exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed certain enumerated offenses, including rape. See OCGA § 15-11-28 (b) (A) (2) (2013). That said, we keep in mind that "[t]he superior court is not divested of jurisdiction merely because some, but not all, evidence of criminal acts is beyond the scope of the superior court's jurisdiction, so long as that evidence stems from the same criminal transaction which vests the superior court with jurisdiction." (Citation and punctuation omitted.) Seabolt v. State , 279 Ga. 518, 519 (1), 616 S.E.2d 448 (2005).
Burrell acknowledges that the superior court may have had exclusive original jurisdiction over the July 12 offenses as a result of the rape charge. He contends, though, that the superior court lacked jurisdiction over the crimes set out in the arrest warrant stemming from the July 13 incident because, he says, they were not connected to the offenses arising out of the July 12 incident and because they were not punishable by loss of life, imprisonment for life without the possibility of parole, or confinement for life.3 We note that Burrell's argument turns on his position that the July 12 and July 13 incidents are unrelated, but that Burrell never argued below that the charges here did not stem from the same criminal transaction or that the two incidents should have been considered separately for the purposes of jurisdiction. Indeed, Burrell conceded below that the superior court retained exclusive jurisdiction over the entirety of the case against him.
Nevertheless, even if we were to consider the merits of this enumeration, Burrell has failed to demonstrate error by the record on appeal that the superior court erroneously retained jurisdiction here. See Hornbuckle v. State , 300 Ga. 750, 753 (2), 797 S.E.2d 113 (2017) () (citation and punctuation omitted).
As an initial matter, the details of the July 12 incident involving S. G. are not developed in the record because those charges were nolle prosequied shortly before Burrell's trial; consequently, this Court is unable to compare the two incidents at issue here to evaluate possible error. While Burrell argues that the "July 13 incident was a separate incident involving a different victim and occurred on a different day," these factors alone are not dispositive and do not establish error. See Seabolt , 279 Ga. 518, 616 S.E.2d at 449-450 (1) (). Instead, for all that appears before us, the incidents occurred within 48 hours of each other, in close geographical proximity, and involved similar violent offenses accomplished with a knife. In short, there is nothing in the record before this Court to demonstrate that the superior court erred by exercising jurisdiction over Burrell.
Finally, we note that the juvenile court never assumed jurisdiction over any of the offenses. Thus, even if the July 13 offenses did not initially fall within the jurisdiction of the superior court, once the State indicted Burrell on kidnapping with bodily injury – which carries a mandatory sentence of life imprisonment, see OCGA § 16-5-40 (d) (4) – the superior court gained concurrent jurisdiction over the kidnapping charge and the accompanying offenses.4 See In re K.C. , 290 Ga. App. 416, 417, 659 S.E.2d 821 (2008) (). Accordingly, there is no merit to this enumeration of error.
2. Burrell asserts that the evidence was insufficient to sustain his conviction for...
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