Kennebrew v. State
299 Ga. 864
| Ga. | 2016Background
- On Oct. 18, 2011, victim was found hogtied, beaten, and stabbed in his DeKalb County apartment; numerous electronics, firearms, and cash were stolen. Appellant Phillip Kennebrew was tried with co-defendants Babbage and Hall and convicted of malice murder, armed robbery, false imprisonment, and related offenses.
- Physical and circumstantial evidence tied all three to the scene: cell‑phone contacts, eyewitness sightings, blood/DNA on clothing linked to co‑defendant Babbage, Hall’s fingerprints on a vehicle, and a cigarette butt at the scene bearing Appellant’s DNA.
- Two days after the crimes police arrested Appellant at his girlfriend’s dorm room, seized two backpacks (after handcuffing and removing Appellant), and searched them six days later without a warrant; the search produced a knife and ammunition later used at trial.
- At trial the defense advanced a mere‑presence/association theory: Appellant went only to sell a PlayStation and did not participate in the murder or robbery.
- Trial counsel Maurice Kenner failed to (1) move to suppress the backpack evidence and (2) object when the prosecutor commented on Appellant’s pre‑arrest silence in closing. The trial court denied a motion for new trial; this Court reviews those ineffective‑assistance claims under Strickland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was deficient for failing to seek suppression of backpack evidence | Kennebrew: police search of backpacks wasn’t incident to arrest; suppression would have excluded knife and ammunition crucial to State’s theory | State: counsel could reasonably rely on existing Georgia precedent and a preliminary suppression motion; search incident‑to‑arrest might apply | Counsel was deficient; Gant/Chadwick principles show the backpacks were beyond reach and searched remote in time/place, so not incident to arrest |
| Whether counsel was deficient for not objecting to prosecutor’s comments on pre‑arrest silence | Kennebrew: prosecutor’s argument violated Mallory rule barring comment on pre‑arrest silence and was highly prejudicial to the mere‑presence defense | State: (implied) comments were fair argument about lack of 911 calls/communications; counsel may have strategically stayed silent | Counsel was deficient for failing to object; the prosecutor’s extended, direct Mallory violation was obvious and important to State’s case |
| Whether counsel’s errors prejudiced the defense under Strickland | Kennebrew: combined errors undermined confidence in outcome because the backpack evidence and silence‑argument were central to proving participation rather than mere presence | State: other evidence (DNA, phone contacts, testimony) was sufficient; errors were not reasonably likely to change the verdict | Prejudice shown: in combination the errors created a reasonable probability of a different result; reversal required though State may retry |
| Whether the evidence was legally sufficient to support convictions | State: viewed in light most favorable to verdicts, the record contained sufficient evidence of participation | Kennebrew: (implicit) suppression would have removed key inculpatory items and weakened sufficiency | Court: evidence was legally sufficient under Jackson v. Virginia, but reversal is warranted on Strickland grounds allowing retrial |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing legal sufficiency of evidence)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test)
- Arizona v. Gant, 556 U.S. 332 (limits search incident to arrest; remote searches of property not justified)
- United States v. Chadwick, 433 U.S. 1 (warrantless searches of seized luggage remote in time/place not incident to arrest)
- Robinson v. United States, 414 U.S. 218 (scope of search incident to arrest)
- Chimel v. California, 395 U.S. 752 (search incident to arrest limited to arrestee’s person and area within immediate control)
- Mallory v. State, 261 Ga. 625 (prohibition on prosecutor commenting on defendant’s pre‑arrest silence)
- Riley v. California, 573 U.S. 373 (discussion of digital searches and scope of search incident to arrest)