301 Ga. 21 FINAL COPY
S17A0358. BURRELL v. THE STATE.
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
1 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. 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 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 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
2 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). 2 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 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 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.
3 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, 443 U.
S. 307 (99 SCt 2781, 61 LE2d 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 4 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 SCt 2039, 80 LE2d 657) (1984) in
reviewing his claims of ineffective assistance. In order for Cronic to apply,
“[t]he ‘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 SE2d 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 SCt
2052, 80 LE2d 674) (1984). See Charleston v. State, 292 Ga. 678, 682-683 (4)
(a) (743 SE2d 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. “If the
5 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 SE2d 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-
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301 Ga. 21 FINAL COPY
S17A0358. BURRELL v. THE STATE.
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
1 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. 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 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 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
2 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). 2 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 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 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.
3 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, 443 U.
S. 307 (99 SCt 2781, 61 LE2d 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 4 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 SCt 2039, 80 LE2d 657) (1984) in
reviewing his claims of ineffective assistance. In order for Cronic to apply,
“[t]he ‘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 SE2d 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 SCt
2052, 80 LE2d 674) (1984). See Charleston v. State, 292 Ga. 678, 682-683 (4)
(a) (743 SE2d 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. “If the
5 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 SE2d 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 and punctuation omitted.)
McClendon v. State, 299 Ga. 611, 613-614 (2) (791 SE2d 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. 6 Because “what is said by the attorneys in opening statements is not
evidence,” Zackery v. State, 286 Ga. 399, 402 (3) (688 SE2d 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 SE2d 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
7 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, 290 Ga. 584, 585-586 (2) (723 SE2d 431) 8 (2012). Furthermore, “when trial counsel’s failure to file a motion to suppress
is the basis for a claim of ineffective assistance, the defendant must make a
strong showing that the damaging evidence would have been suppressed had
counsel made the motion.” (Citations and punctuation omitted.) Hayes v. State,
298 Ga. 98, 106 (779 SE2d 609) (2015).
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, 300 Ga.
1 (3) (a) (792 SE2d 672) (2016) (counsel cannot be deficient for failing to file
a meritless motion).
3. Burrell alleges that the trial court erred in admitting a hearsay
statement made by “the victim” as part of the res gestae.3 However, in making 3 We note that this case was tried before the enactment of Georgia’s new Evidence Code.
9 this argument, Burrell fails to specify what statement made by which victim
was improperly admitted. Further, he fails to show that trial counsel objected
to the alleged statement to preserve it for appellate review. “It is not this
Court’s job to cull the record on behalf of (Appellant) to find alleged errors[,]”
Smart v. State, 299 Ga. 414, 420 (788 SE2d 442) (2016), as appellate judges
“are not like pigs, hunting for truffles buried in briefs,” United States v.
Dunkel, 927 F2d 955, 956 (7th Cir. 1991). Accordingly, this Court need not
review this issue.
4. Burrell next alleges that the State violated Brady v. Maryland and
Giglio v. United States4 by failing to disclose evidence of a plea deal with
witnesses Kilpatrick and Ivery. However, the record is devoid of any evidence
showing that the State offered these two witnesses a plea deal in exchange for
their testimony. Indeed, Kilpatrick and Ivery provided extensive testimony on
both direct and cross-examination in which they repeatedly denied receiving
any deal from the State in exchange for their testimony. Consequently, this
claim is meritless.
4 405 U. S. 150 (92 SCt 763, 31 LE2d 104) (1972). 10 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, 299 Ga. 828, 833 (3) (792 SE2d 342)
(2016). Here, it appears Griffith became upset during her direct examination;
however, trial counsel did not move for a mistrial until after he completed his
cross-examination of the witness. Because counsel did not make a
contemporaneous objection, this issue is not properly preserved for review.
Nevertheless, “[t]he record does not contain any ‘evidence that (the witness)
became hysterical or made any prejudicial comments . . . . Under these
circumstances, the trial court did not abuse its discretion by denying the motion
for mistrial.’” (Citations omitted.) Williams v. State, 276 Ga. 384, 385 (2)
(578 SE2d 858) (2003).
Judgment affirmed. All the Justices concur.
Decided April 17, 2017.
11 Murder. Fulton Superior Court. Before Judge Shoob.
Brandon Lewis, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lyndsey H. Rudder, Michael v.
Snow, Sheila E. Gallow, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,
Michael A. Oldham, Assistant Attorney General, for appellee.