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. Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial established as follows. Burrell periodically stayed with 66-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
On April 11, 2008, Ruth Griffith, Upshaw’s 83-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
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 pillowcase 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 lineup 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,
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,
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,
(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,
(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 lineup 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 made it.’ ” (Citation omitted.) Davis v. State,
Here, after trial counsel reviewed the pre-trial identification procedures, he concluded that a motion to suppress would not have been successful and therefore, decided not to challenge the identification in a motion to suppress. Because Burrell has failed to present any evidence or compelling authority showing that a motion to suppress Griffith’s pre-trial identification would have been successful, he cannot establish that counsel’s strategic decision not to file the same qualifies as deficient performance. See Bradshaw v. State,
3. Burrell alleges that the trial court erred in admitting a hearsay statement made by “the victim” as part of the res gestae.
4. Burrell next alleges that the State violated Brady v. Maryland and Giglio v. United States
5. Finally, Burrell contends that the trial court erred when it denied his motion for mistrial regarding Ruth Griffith’s “emotional outburst” during her testimony “A motion for mistrial must be promptly made as soon as the party is aware of the matter giving rise to the motion.” (Citation and punctuation omitted.) Ragan v. State,
Judgment affirmed.
Notes
On July 11, 2008, a Fulton County grand jury indicted Burrell for the malice murder of Upshaw (Count 1); felony murder of Upshaw predicated on aggravated assault (Count 2); aggravated assault of Upshaw (Count 3); kidnapping of Griffith (Count 4); robbery by force of Griffith (Count 5); burglary of Upshaw’s home (Count 6); theft by taking of Griffith’s car (Count 7); and, the battery of Griffith (Count 8).
Following a jury trial from June 15-19, 2009, the jury found Burrell guilty of malice murder, felony murder, aggravated assault, robbery, theft by taking and battery. The State nolle prossed the kidnapping and burglary counts prior to the jury’s deliberation. On June 23, 2009, the trial court sentenced Burrell to life imprisonment for malice murder (Count 1), 20 years consecutive for robbery (Count 5), 20 years consecutive for theft (Count 7), and 12 months consecutive for battery (Count 8). The felony murder was vacated by operation of law, and the aggravated assault charge merged into the malice murder for sentencing purposes.
Burrell moved the trial court for leave to file an out-of-time motion for new trial on February 17, 2011, which the trial court granted on February 3, 2015. Appellant filed an amended motion for new trial on February 6, 2015, amending it once on May 28, 2015; after a hearing, the trial court denied the motion as amended on February 22,2016. Burrell timely filed a notice of appeal to this Court. The appeal was docketed to the term of this Court beginning in December 2016 and was thereafter submitted for a decision on the briefs.
We note that this case was tried before the enactment of Georgia’s new Evidence Code.