Burrell v. State
| Decision Date | 22 October 2015 |
| Docket Number | No. 2014–KA–00670–SCT.,2014–KA–00670–SCT. |
| Citation | 183 So.3d 19 |
| Parties | Tyrone BURRELL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Office of State Public Defender by Erin Elizabeth Pridgen, George T. Holmes, attorneys for appellant.
Office of the Attorney General by Scott Stuart, attorney for appellee.
EN BANC.
¶ 1. Tyrone Burrell was indicted for kidnapping. Burrell maintained that he merely tricked an elderly man into driving him to Memphis, but the jury found him guilty of kidnapping. The trial court sentenced Burrell to thirty years without parole. Burrell appeals.
¶ 2. On the morning of November 5, 2012, Charles and Fredna Jeter left their home in Horn Lake and headed to Bally's Casino in Tunica. Fredna drove, as Charlie had stopped driving several years earlier after a stroke and a heart attack. Inside Bally's, Fredna played the slot machines at the front of the casino, and Charlie played machines in the back.
¶ 3. Tyrone Burrell approached Charlie and struck up a conversation. Burrell saw that Charlie smoked Pall Mall cigarettes and told Charlie that he could sell him Pall Malls for $1 per carton. Charlie testified that he thought Burrell's proposal made for a great deal, and he gave Burrell $20 for the cigarettes. Burrell said the cigarettes were in his car, so Charlie followed him to the parking lot. Charlie got his own car keys from Fredna on the way out. Charlie testified that Burrell said he was parked near Charlie and, when they got to Charlie's car, Burrell pulled out a gun and demanded that Charlie drive him to Memphis. Charlie testified that they did not make any stops along the way. When they got to Burrell's neighborhood, Burrell demanded more money and Charlie gave him $65 that he had in his pocket. Burrell then told Charlie to "take off." Charlie went straight back to the casino. He had been gone for about two hours and, by the time he returned, his wife had notified the police.
¶ 4. Burrell claims that he just needed a ride home to Memphis. He testified that he merely conned Charlie to get a ride; he did not intend to rob him or kidnap him. Burrell testified that he did not have a gun and that he got only $40 from Charlie. Burrell admitted that he got Charlie to the parking lot by telling him he could get him a carton of cigarettes for $1. Burrell testified that, once they were in the parking lot, he told Charlie they needed to go down the road to Exxon to get the cigarettes. Burrell testified that Charlie let him in the car and willingly drove him to Exxon. According to Burrell, they stopped at the Exxon, but Burrell came back to the car and told Charlie that they needed to go to Memphis to get the cigarettes. Burrell said that when they got to Memphis, they stopped at a barbecue restaurant and Burrell went inside, again under the guise of checking on the cigarettes. Burrell then had Charlie drive him a few more blocks to his neighborhood. Burrell claims that he told Charlie to meet him back at the barbecue place, but he had no intention of returning and he does not know where Charlie went after that.
¶ 5. Security personnel from Bally's Casino pulled the surveillance footage and saw Charlie and Burrell walk out of the casino and get into Charlie's car. Several security officers and officers from the Tunica County Sheriff's Department testified that a gun was not visible in the surveillance footage, but they all testified that a gun would not be visible from that distance. The officers also testified that Charlie was shaken up when he returned; they said he was disheveled, worried, and nervous. Fredna testified that Charlie was shaking so badly that he could not get his driver's license out of his wallet. DNA was taken from Charlie's car, and swabs from the passenger side matched Burrell. Burrell did not deny being in the car.
¶ 6. Burrell was charged with kidnapping under Mississippi Code Section 97–3–53. Because Charlie was more than sixty-five years old, the charge was enhanced under Section 99–19–351. The firearm enhancement from Section 97–37–37 was included because Burrell allegedly had used a gun. Finally, Burrell was indicted as a habitual offender under Section 99–19–83. At trial, the jury heard testimony from several officers from the Tunica County Sheriff's Department, security personnel from Bally's Casino, analysts from the Mississippi Crime Laboratory, Fredna Jeter, Charlie Jeter, and Tyrone Burrell. The jury found Burrell guilty of kidnapping. The judge sentenced him to thirty years without parole. Burrell filed a motion for judgment notwithstanding the verdict (JNOV) or for a new trial, which the trial court denied. Burrell appeals.
¶ 7. Counsel for Burrell filed a brief on his behalf asserting two issues; Burrell then filed two pro se supplemental briefs raising two additional issues. The assignments of error at issue are:
The issues have been restated and reorganized for the purpose of discussion.
¶ 8. Burrell asserts that Judge Webster abused his discretion by ignoring the rules for selecting alternate jurors and, instead, drawing their names out of a paper cup.2 We hold that Burrell waived his claim about the judge's method of selecting alternate jurors because he did not lodge a timely objection.
¶ 9. At the beginning of voir dire, Judge Webster explained that fourteen jurors would be selected. Rather than selecting twelve jurors and then two alternates, all fourteen would be selected at one time. He gave each attorney seven peremptory challenges; rather than allowing six challenges for the regular jurors followed by an additional one for alternates, he gave them seven without distinction between the regular and alternate jurors. Judge Webster explained that, at the end of the trial, he would pull two names out of a hat to determine who the alternates would be. Judge Webster commented that he "liked doing it that way." The attorneys did not object when he announced the method. After voir dire, fourteen jurors were selected; alternates were not designated.
¶ 10. At the end of the trial, Judge Webster put all of the jurors' names into a paper cup. The deputy clerk drew out two names, and Judge Webster designated the individuals as the alternate jurors. Burrell's attorney objected to the judge's method at that point, citing Rule 4.05.3 He acknowledged that Judge Webster usually employed the method, but he wanted to make his objection for the record. Judge Webster overruled the objection, saying he found the rules regarding jury selection to be "directory only, not mandatory." At that point, the jury retired to deliberate, and Judge Webster told the newly designated alternates they could leave.
¶ 11. When Judge Webster announced his intention to select the jury in his usual manner, neither side objected. Burrell's attorney did not object until after trial, when Judge Webster said he would draw names from a cup to decide who the alternates would be. Burrell waived the claim by not objecting at the beginning of voir dire when the judge could have changed his proposed method. Vaughn v. State, 712 So.2d 721, 725 (¶ 15) (Miss.1998) (citing Myers v. State, 565 So.2d 554, 557 (Miss.1990) ) ("a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter").
¶ 12. "[A] motion for a new trial challenges the weight of the evidence."
Jones v. State, 154 So.3d 872, 880 (¶ 24) (Miss.2014) (citing Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) ). "When reviewing a challenge to the weight of the evidence, the Court will disturb a jury verdict only 'when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.' " Jones, 154 So.3d at 880 (¶ 24) (quoting Bush, 895 So.2d at 844 (¶ 18) ). Burrell was charged with kidnapping under Mississippi Code Section 97–3–53, which provides:
Any person who, without lawful authority and with or without intent to secretly confine, shall forcibly seize and confine any other person, or shall inveigle or kidnap any other person with intent to cause such person to be confined or imprisoned against his or her will, or without lawful authority shall forcibly seize, inveigle or kidnap any vulnerable person as defined in Section 43–47–5 or any child under the age of sixteen (16) years against the will of the parents or guardian or person having the lawful custody of the child, upon conviction, shall be imprisoned for life in the custody of the Department of Corrections if the punishment is so fixed by the jury in its verdict. If the jury fails to agree on fixing the penalty at imprisonment for life, the court shall fix the penalty at not less than one (1) year nor more than thirty (30) years in the custody of the Department of Corrections.
Miss.Code Ann. § 97–3–53 (Rev.2014) (emphasis added). Kidnapping can be proven in three ways. To be convicted of kidnapping, the State must prove that the defendant:
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