Sherrell v. State

Supreme Court of Georgia

Sherrell v. State

554 S.E.2d 726, 274 Ga. 431, 2001 Fulton County D. Rep. 3175, 2001 Ga. LEXIS 831

CourtSupreme Court of Georgia

DecidedOctober 22, 2001

DocketS01A1590

StatusPublished

Cited by2 cases

This text of 554 S.E.2d 726 (Sherrell v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherrell v. State, 554 S.E.2d 726, 274 Ga. 431, 2001 Fulton County D. Rep. 3175, 2001 Ga. LEXIS 831 (Ga. 2001).

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Opinion

Carley, Justice.

A jury found Steve Sherrell guilty of felony murder, aggravated assault, five counts of armed robbery, and six counts of possession of a firearm during the commission of a crime. The trial court correctly recognized that the underlying felony of aggravated assault had “merged, as a matter of law, into the felony murder and [that] a separate sentence for that underlying felony [was] not . . . authorized. [Cit.]” Malcolm v. State, 263 Ga. 369, 372 (5) (434 SE2d 479) (1993). Therefore, the trial court entered judgments of conviction and sentenced Sherrell to life imprisonment on the felony murder count, to consecutive terms of years on the firearm possession counts and two of the armed robbery counts, and to concurrent terms of years on the remaining armed robbery counts. Sherrell appeals pro se.¹

1. Construed so as to support the verdict, the evidence shows that, on several occasions, Sherrell and his co-indictees used firearms to steal automobiles from their owners and to shoot one of the vic[432]*432tims, resulting in his death. The evidence was sufficient to authorize a rational trier of fact to find Sherrell guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Walker v. State, 271 Ga. 328, 329 (1) (519 SE2d 670) (1999); Chambers v. State, 266 Ga. 39, 40 (1) (463 SE2d 887) (1995).

Decided October 22, 2001. Steve Sherrell, pro se. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Tammie J. Philbrick, Assistant Attorney General, for appellee.

2. Sherrell contends that the superior court did not have jurisdiction because the indictment failed to allege any criminal offense under Georgia law, but rather specifically referred to the federal carjacking statute. To the contrary, the indictment does not refer to that federal statute at any point. The indictment sets forth the elements of the state offenses which it charged and did not allege the differing elements of the federal crime of carjacking. See Torres v. State, 270 Ga. 79, 80 (1) (508 SE2d 171) (1998). This enumeration is wholly without merit. See Catchings v. State, 256 Ga. 241, 244 (5) (c) (347 SE2d 572) (1986).

3. Sherrell also urges that, in the absence of confrontation and cross-examination of the State’s witnesses, he was deprived of adequate procedural safeguards and a meaningful opportunity to be heard. However, Sherrell’s three attorneys were always given the opportunity to cross-examine the State’s witnesses. Those attorneys cross-examined all of the co-indictees and several others. In every other instance, “defense counsel expressly declined to question the witness. . . . By refusing to cross examine, defense counsel waived any right to object based on a denial of cross examination.” Lively v. State, 237 Ga. 35-36 (226 SE2d 581) (1976). See also Isaac v. State, 269 Ga. 875, 876 (2) (505 SE2d 480) (1998).

Judgments affirmed.

All the Justices concur.

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Carley, Justice.

A jury found Steve Sherrell guilty of felony murder, aggravated assault, five counts of armed robbery, and six counts of possession of a firearm during the commission of a crime. The trial court correctly recognized that the underlying felony of aggravated assault had “merged, as a matter of law, into the felony murder and [that] a separate sentence for that underlying felony [was] not . . . authorized. [Cit.]” Malcolm v. State, 263 Ga. 369, 372 (5) (434 SE2d 479) (1993). Therefore, the trial court entered judgments of conviction and sentenced Sherrell to life imprisonment on the felony murder count, to consecutive terms of years on the firearm possession counts and two of the armed robbery counts, and to concurrent terms of years on the remaining armed robbery counts. Sherrell appeals pro se.¹

1. Construed so as to support the verdict, the evidence shows that, on several occasions, Sherrell and his co-indictees used firearms to steal automobiles from their owners and to shoot one of the vic[432]*432tims, resulting in his death. The evidence was sufficient to authorize a rational trier of fact to find Sherrell guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Walker v. State, 271 Ga. 328, 329 (1) (519 SE2d 670) (1999); Chambers v. State, 266 Ga. 39, 40 (1) (463 SE2d 887) (1995).

Decided October 22, 2001. Steve Sherrell, pro se. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, Thurbert E. Baker, Attorney General, Tammie J. Philbrick, Assistant Attorney General, for appellee.

2. Sherrell contends that the superior court did not have jurisdiction because the indictment failed to allege any criminal offense under Georgia law, but rather specifically referred to the federal carjacking statute. To the contrary, the indictment does not refer to that federal statute at any point. The indictment sets forth the elements of the state offenses which it charged and did not allege the differing elements of the federal crime of carjacking. See Torres v. State, 270 Ga. 79, 80 (1) (508 SE2d 171) (1998). This enumeration is wholly without merit. See Catchings v. State, 256 Ga. 241, 244 (5) (c) (347 SE2d 572) (1986).

3. Sherrell also urges that, in the absence of confrontation and cross-examination of the State’s witnesses, he was deprived of adequate procedural safeguards and a meaningful opportunity to be heard. However, Sherrell’s three attorneys were always given the opportunity to cross-examine the State’s witnesses. Those attorneys cross-examined all of the co-indictees and several others. In every other instance, “defense counsel expressly declined to question the witness. . . . By refusing to cross examine, defense counsel waived any right to object based on a denial of cross examination.” Lively v. State, 237 Ga. 35-36 (226 SE2d 581) (1976). See also Isaac v. State, 269 Ga. 875, 876 (2) (505 SE2d 480) (1998).

Judgments affirmed.

All the Justices concur.

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554 S.E.2d 726, 274 Ga. 431, 2001 Fulton County D. Rep. 3175, 2001 Ga. LEXIS 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherrell-v-state-ga-2001.

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