Burrell v. State

• Decision Date: 17 April 2017
• Docket Number: S17A0358
• Citation: 799 S.E.2d 181
• Parties: Cordado BURRELL v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 21

799 S.E.2d 181

Cordado BURRELL

v.The STATE.

S17A0358

Supreme Court of Georgia.

Decided: April 17, 2017

Brandon Lewis, Law Office of Brandon Lewis, P.O. Box 931326, Norcross, Georgia 30003, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W. Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Fulton County District Attorney's Office, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Sheila Elizabeth Gallow, General Counsel, U.S. Department of Homeland Security, Office of the Chief Counsel, 180 Ted Turner Drive S.W., Suite 332, Atlanta, Georgia 30303, Michael V. Snow, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30306, for Appellee.

HUNSTEIN, Justice.

Appellant Cordado Burrell was tried and convicted of murder and related offenses in connection with crimes he committed against

Herman Upshaw and Ruth Griffith.¹ Burrell appeals, claiming that the evidence was insufficient to support his convictions, that he received ineffective assistance of counsel, that the trial court committed reversible error during trial, and that the State failed to disclose exculpatory evidence in violation of Brady v. Maryland .² Finding no error, we affirm.

1. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. Burrell periodically stayed with sixty-six-year-old Herman Upshaw at his home, as Upshaw was paralyzed and needed assistance with daily chores. On the evening of April 8, 2008, Cassandra Gear, Upshaw's neighbor, saw a young man, whom she later identified as Burrell, inside the victim's home. Upshaw was yelling at Burrell to leave his house.

Sometime thereafter, Burrell called his friends Desmond Ivery and Clifton Kilpatrick to request that they come to Upshaw's house. Upon their arrival, Ivery and Kilpatrick saw Burrell sitting on top of Upshaw, strangling him with his hands; after a period of time, Burrell stood and stepped on the victim's neck. They then observed Burrell bind Upshaw's hands with a cord and drag him into a closet. Thereafter, Burrell invited more friends over to Upshaw's house. The group proceeded to eat, watch television and smoke marijuana; Burrell would spray air freshener throughout the house in order to hide the smell of Upshaw's decomposing body.

On April 11, 2008, Ruth Griffith, Upshaw's eighty-three-year-old aunt, drove to his house for her routine check-in with her nephew. Once at the house, Griffith was met by Burrell and informed that Upshaw was not at home. Griffith became concerned and, as she attempted to leave, Burrell grabbed her from behind, threw her to the floor, and struck her repeatedly. Burrell again contacted Kilpatrick and Ivery, asking them to return to Upshaw's residence, where Burrell planned to kill Griffith and bury both bodies in the back yard. Burrell bound Griffith's feet with an extension cord, placed a sock in her mouth, and dragged her into a different closet. When Kilpatrick and Ivery arrived, Burrell told them he put Griffith in a closet then proceeded to rummage through her purse, taking her photo identification, several credit cards, and approximately $150 to $200. The three men then left in Griffith's Mercedes and headed to the local bus station.

Eventually, a bloodied Griffith managed to escape and get the attention of a passerby who called 911. Officers responded and found Upshaw's home in complete disarray. They located Upshaw's body in a closet; he had a pillow case over his head and his hands were bound in front. The Fulton County Medical Examiner found significant trauma to Upshaw's neck, and opined that his cause of death was strangulation. He further concluded that, based upon the state of decomposition, Upshaw likely died between April 9 and 10.

Law enforcement presented Griffith with a photo line-up in which she identified Burrell as her attacker. Burrell was apprehended by law enforcement in Chicago and was in possession of Griffith's cell phone.

Based on the foregoing, we find that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Burrell was guilty of the crimes for which he was convicted. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Burrell alleges four instances of ineffective assistance of counsel, claiming that his attorney failed to: a) object to "testimony" that, he alleges, placed his character into evidence; b) object to the in-court identification made by Upshaw's neighbor Cassandra Gear; c) object to speculative testimony; and, d) file a motion to suppress Griffith's pre-trial identification. As an initial matter, we reject Burrell's argument that we presume prejudice pursuant to United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) in reviewing his claims of ineffective assistance. In order for Cronic to apply, "the ‘attorney's failure must be complete’ and must occur throughout the proceeding and not merely at specific points." (Citation omitted.) Turpin v. Curtis , 278 Ga. 698, 699 (1), 606 S.E.2d 244 (2004). Burrell's allegations that his counsel was ineffective at specific points of his trial do not meet this stringent standard. We therefore evaluate these claims pursuant to the two-prong test as required in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Charleston v. State , 292 Ga. 678, 682-683 (4) (a), 743 S.E.2d 1 (2013).

In order to establish ineffective assistance of counsel, a defendant must show that his counsel's performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different. Strickland , 466 U.S. at 687, 104 S.Ct. 2052. "If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other." (Citation omitted.) Propst v. State , 299 Ga. 557, 565 (3), 788 S.E.2d 484 (2016). Although the trial court failed to make any specific factual findings regarding Burrell's claims of ineffectiveness, "remand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland ." (Citation omitted.) McClendon v. State , 299 Ga. 611, 613-614, 791 S.E.2d 69 (2016). With these principles in mind, we review Burrell's alleged errors.

a) Character Evidence

During opening statements, the prosecutor summarized the evidence for the jury, which included a description of the relationship between Burrell, Ivery, and Kilpatrick. Specifically, the prosecutor told the jury that he expected Kilpatrick to say, "Mr. Burrell is my friend. We used to work together. We hang out together. We party together. We used drugs together—marijuana mostly." Burrell alleges, as he did below, that counsel was ineffective for failing to object to this statement, arguing that the prosecutor's statement placed Burrell's character into evidence. We disagree.

Because "what is said by the attorneys in opening statements is not evidence," Zackery v. State , 286 Ga. 399, 402, 688 S.E.2d 354 (2010), and because the prosecutor's statement was supported by the evidence, any objection would have had no merit. Indeed, trial counsel explained at the motion for new trial hearing that he did not object to the State's opening statement because he believed it would have been a meritless objection. Accordingly, Burrell has failed to establish deficient performance. See Duvall v. State , 290 Ga. 475 (2) (b), 722 S.E.2d 62 (2012) (trial counsel cannot be deficient for failing to lodge a meritless objection).

b) In-Court identification

Burrell next alleges that trial counsel was ineffective for failing to object to Cassandra Gear's in-court identification. Counsel recalled that Gear was Upshaw's neighbor who had seen Burrell numerous times prior to Upshaw's death; based on this, counsel explained that he did not object to her identification "because it would have been obvious that she would have been able to identify Mr. Burrell." The record clearly supports counsel's conclusion. Because lodging an objection to Gear's in-court identification would have been meritless, see Duvall , supra, Burrell has failed to establish that his counsel acted deficiently.

c) Speculative Testimony

Burrell alleges that trial counsel was ineffective for failing to object to a law enforcement officer's speculative testimony. However, this claim was withdrawn at the motion for new trial hearing. Because Burrell failed to raise this issue at the earliest practicable moment and obtain a ruling on this claim from the trial court, it is waived.

d) Motion to Suppress

We are also not swayed by Burrell's allegation that trial counsel was ineffective for failing to file a motion to suppress Ruth Griffith's pre-trial photo line-up identification. Burrell avers now, as he did below, that because identification was his sole defense, a failure to challenge Griffith's pre-trial identification was ineffective. Yet, he concedes that trial counsel's decision not to file this motion was strategic in nature and, "[a] defendant who contends a strategic decision constitutes deficient performance, must show ‘that no competent attorney, under similar circumstances, would have...