Murrell v. State

McFadden, Judge,

concurring in part and dissenting in part.

I respectfully dissent from the portion of Division 1 that reverses Murrell’s conviction for terroristic threats. I concur fully in the remainder of the majority opinion.

I would hold that “[t]he victim’s testimony in this regard was sufficiently corroborated by the evidence concerning the events which transpired immediately before and after the appellant made the asserted threats.” Steele v. State, 196 Ga. App. 330, 331 (3) (396 SE2d 4) (1990). “[Cjorroborating conduct includes the defendant’s commission of similar transactions which were clearly interwoven and linked (connected) with the facts of the crime charged.” (Citations omitted.) Alatise v. State, 291 Ga. 428, 432 (5) (728 SE2d 592) (2012). Here the “evidence of a clear crime spree committed by [Murrell] both before and after the [terroristic threat made to R. C.] corroborated [R. C.’s] testimony.” Id. And that evidence “showed a clear modus operandi” of targeting and isolating women. Id. His effort to discourage R. C. from calling for help was consequently sufficiently “interwoven and linked” with the rest of his crime spree for his other crimes to pro*321vide the slight corroboration necessary to sustain his conviction for terroristic threats.

Decided July 16, 2012 Reconsideration denied July 31, 2012

I note that Alatise involved corroboration of a co-defendant’s testimony and that we have found no cases in which similar transactions involving other victims have been recognized as the corroboration necessary to sustain a conviction for terroristic threats. Nevertheless, “[i]n order to interpret [the corroboration requirement of the terroristic threats statute], reference can be made to other corroboration requirements in Georgia law.” Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Georgia, Terroristic Threats and Acts, p. 1752 (2011 ed.).

In that regard, as the majority notes, Murrell also threatened another of his victims, J. L., if she told anyone about his attack. While the majority attempts to distinguish the instant case from Ellis v. State, 176 Ga. App. 384 (336 SE2d 281) (1985), that case sets forth the rule of law that controls this case.

[T]he corroboration requirement of OCGA § 16-11-37 has been analogized to the corroboration that was formerly required in rape cases and that is still required in statutory rape cases. In crimes involving sexual offenses, evidence of similar previous transactions is admissible to corroborate the testimony of the victim as to the act charged.

(Citations and punctuation omitted; emphasis in original.) Id. at 387 (3). Thus, J. L.’s testimony of a similar threat by Murrell during an assault was sufficient to corroborate R. C.’s testimony as to Murrell’s terroristic threat during his assault of her.

Indeed, “[sjlight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value.” (Citations and punctuation omitted.) Ellis, 176 Ga. App. at 386 (3). Because there is some evidence corroborating the victim’s testimony, Murrell’s terroristic threats conviction should be affirmed.

I am authorized to state that Presiding Judge Doyle and Judge Blackwell join in this dissent.

Robert C. Rutledge, for appellant. Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.