MORRALL v. THE STATE.
S19A1201
Supreme Court of Georgia
NOVEMBER 18, 2019
307 Ga. 444
BOGGS, Justice.
FINAL COPY. Murder. Bibb Superior Court. Before Judge Simms.
Appellant Brandon Dewayne Morrall challenges his 2013 convictions for malice murder and a firearm offense in connection with the shooting death of Stephen “Tucker” Jackson. Appellant chose to represent himself on appeal, and his sole enumeration of error is that he was denied the effective assistance of counsel due to his trial counsel‘s failure to file a motion to prevent an eyewitness from identifying him at trial as the shooter. We affirm.1
1.
Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. In June 2011, two AK-47 rifles, a pump-action Mossberg shotgun, and a two-shooter derringer were stolen from Michael Warren‘s house in Macon. Warren reported them stolen to the police. Jackson told Warren that Appellant had one of the stolen AK-47s and took Warren to an apartment in the Bowden Homes housing project where Appellant was living with his girlfriend and young children. Warren pretended to be interested in buying the AK-47, and after examining the markings and serial numbers, Warren told Appellant that the AK-
On the night of October 6, 2011, Appellant, his brother Devin Freeman, and Demonquez Bell were drinking at Frank Nauer‘s house, where Freeman lived. Appellant was still angry at Jackson for bringing Warren to retrieve the stolen AK-47, and Appellant was rapping about wanting to kill Jackson, whom Bell had known his whole life. Bell tried to calm the situation down, telling Appellant that he needed to let go of his anger at Jackson, and Appellant started talking about fighting Jackson that night instead of shooting
Bell went with Appellant and Freeman across the street to Bowden Homes, where Appellant and Freeman looked for Jackson but did not find him. Appellant got a phone call, after which Bell noticed that Appellant and Freeman were smiling and Appellant was “amped up.” Appellant and Freeman walked to a “bootleg house,” where a crowd had gathered outside.2 Bell followed and saw Jackson before Appellant and Freeman did. Jackson was standing at the driver‘s side window of an SUV parked under a streetlight, leaning into the SUV and talking to the occupants, Linda Willis and Travis Brown. Bell walked over to Jackson and tried to convince
Appellant then came up behind Jackson and shot him once in the head and three times in the back with the Hi-Point .45, killing him. Willis and Brown scrambled out of the passenger side door of the SUV and ran. As the crowd scattered, Appellant and Freeman fled back to Nauer‘s house, and Bell went home. Appellant called Bell later that night, admitted that he shot Jackson, and asked Bell, “[S]o who you love? Us or you love [Jackson]?”
Willis and Brown waited at the scene for law enforcement to arrive. Willis gave the police a description of the shooter that matched Appellant, and at the police station, she picked Appellant‘s photo out of a six-man photo lineup as the man who shot Jackson. Brown lived around the corner from Appellant and had known him for ten years, and Brown saw that Appellant was the shooter. But because Brown was afraid for his life, he told the police that night that he did not see who the shooter was.
On October 18, 2011, Appellant bought a one-way bus ticket to Tampa, Florida, under a fake name. He stayed in Florida until October 21, 2011, when he came back to his sister‘s house in Macon. The fugitive squad arrested Appellant there later that day.
More than a year after the shooting, Brown was in jail serving a sentence for simple battery and awaiting trial on other charges when he contacted his attorney and said that he needed to speak with the District Attorney‘s office. On March 14, 2013, Brown told a detective and an investigator from the District Attorney‘s office that, contrary to his statement to the police on the night of the shooting, he did see who shot Jackson, and that Appellant was the shooter.
At trial, Warren testified about his confrontation with Appellant over the AK-47, and Bell testified about the events leading up to the shooting. Willis and Brown identified Appellant in court as the person who came up behind Jackson and shot Jackson repeatedly. Jackson‘s aunt testified that Appellant threatened to kill Jackson on three different occasions. Billy Alan West, who was in a holding cell at the courthouse with Appellant before the trial
Appellant testified at trial, claiming that he was asleep at his
Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court‘s usual practice in murder cases, we have reviewed the record and conclude that, when properly viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Brown v. State, 302 Ga. 454, 456 (807 SE2d 369) (2017) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or
2.
Appellant contends that he was denied the effective assistance of counsel due to his trial counsel‘s failure to file a motion to prevent Brown from identifying Appellant as the shooter at trial. To prevail on this claim, Appellant must prove both that his counsel‘s performance was constitutionally deficient and that the deficiency resulted in prejudice to his case. See Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To establish deficient performance, Appellant must show that his counsel‘s acts or omissions were objectively unreasonable, considering all the circumstances at the time and in the light of prevailing professional norms. See id. at 687-690. To establish prejudice, Appellant must show that there is “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. We need not “address both components of the
Appellant claims that his trial counsel, Tamika Fluker, was constitutionally deficient in failing to file a motion to suppress an in-court identification by Brown of Appellant as the shooter. Appellant cites Neil v. Biggers, 409 U. S. 188 (93 SCt 375, 34 LE2d 401) (1972), and argues that Brown‘s in-court identification of him as the shooter violated his right to due process because Brown knew that Appellant had been arrested for the shooting before Brown made his statement on March 14, 2013, in which he identified Appellant as the shooter. But Neil and other decisions in the same line, beginning with Stovall v. Denno, 388 U. S. 293 (87 SCt 1967, 18 LE2d 1199) (1967), address the due process concerns that can arise from an arranged pretrial viewing of a defendant for purposes of identification by a victim or witness, either in person (a corporeal identification) or in a photograph or set of photographs (a photographic identification). See Simmons v. United States, 390 U. S. 377, 386 n.6 (88 SCt 967, 19 LE2d 1247) (1968) (discussing pretrial corporeal and
Appellant also claims that Brown‘s in-court identification of him as the shooter violated his right to due process because he and Brown were in jail at the same time, encountered each other twice, and talked about the shooting both times. Appellant acknowledges that the encounters, which he calls “suggestive,” were not orchestrated by the police and instead were “inadvertent[,] accidental encounters.” But he argues that the due process focus in the identification context is on the fairness of the trial and not exclusively on police deterrence, and that courts therefore should scrutinize all suggestive pretrial identification procedures, not just those that were orchestrated by the police. However, the United
We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice. Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post-indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.
Id. at 232-233 (footnote omitted). Fluker cross-examined Brown about his conflicting statements regarding whether he saw the shooter and his belated identification of Appellant as the shooter in his March 14, 2013 statement and at trial.
In short, Fluker reasonably could have determined that a motion to suppress an in-court identification by Brown of Appellant
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 18, 2019.
Brandon D. Morrall, pro se.
K. David Cooke, Jr., District Attorney, Sandra G. Matson, Dorothy V. Hull, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.