307 Ga. 444 FINAL COPY
S19A1201. MORRALL v. THE STATE.
BOGGS, Justice.
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 The shooting occurred on the night of October 6, 2011. On June 12,
2012, a Bibb County grand jury indicted Appellant and his younger brother, Devin Freeman, for malice murder, felony murder predicated on aggravated assault, and possession of a firearm during the commission of a felony. At the State’s request, the trial court granted Freeman immunity and ordered him to testify at Appellant’s trial, which took place from April 15 to 18, 2013. The jury found Appellant guilty of all charges. On April 24, 2013, the trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder and a consecutive term of five years for the firearm conviction; the felony murder verdict was vacated by operation of law. Appellant’s trial counsel filed a timely motion for new trial. New counsel was appointed for Appellant, but Appellant requested that new counsel be removed and that he be allowed to represent himself at the motion for new trial hearing and on 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-
appeal. The trial court held a hearing at which the court questioned Appellant and warned him of the risks and responsibilities of self-representation, see Faretta v. California, 422 U. S. 806, 818-821 (95 SCt 2525, 45 LE2d 562) (1975), and on September 28, 2018, the court granted Appellant’s request to proceed pro se. On October 9, 2018, Appellant, acting pro se, filed an amended motion for new trial. On February 20, 2019, the trial court held a hearing on the motion at which Appellant’s trial counsel testified. On March 4, 2019, before the court entered an order on the new trial motion, Appellant filed a premature notice of appeal. On April 18, 2019, the trial court entered an order denying the motion, and at that point, Appellant’s notice of appeal ripened. See Southall v. State, 300 Ga. 462, 467 (796 SE2d 261) (2017) (holding that “a prematurely filed motion for new trial that sufficiently identifies the judgment involved becomes fully effective upon entry of that judgment”). The case was docketed in this Court to the August 2019 term and submitted for decision on the briefs. 2 47 was his gun and had been stolen. Appellant tried to take the AK-
47 from Warren, but Warren had brought a .45-caliber handgun
with him, which he produced. Appellant grabbed the handgun, and
in the ensuing struggle, both Appellant and Warren were shot;
Warren was hit in the foot, and Appellant was hit in the hand.
Jackson and Warren then left the apartment, taking Warren’s .45
and the AK-47 with them. Jackson told his aunt about the
confrontation, and in the following months, he told her on three
different occasions that he had run into Appellant and that
Appellant had threatened to kill him.
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
3 him. When Appellant, Freeman, and Bell got ready to leave Nauer’s
house, Bell saw that Freeman was carrying a Hi-Point .45-caliber
pistol. Bell was upset and asked why they were bringing a gun if
Appellant only wanted to fight Jackson. Bell decided to follow
Appellant and Freeman to make sure that they did not shoot
Jackson.
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
2 The testimony at trial described the bootleg house as a place where
people played cards and alcohol was served. 4 Jackson to go with Bell inside the bootleg house for a drink, but
Jackson declined. Bell went to the bootleg house, and Jackson
continued talking to Willis and Brown.
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.
5 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
Free access — add to your briefcase to read the full text and ask questions with AI
307 Ga. 444 FINAL COPY
S19A1201. MORRALL v. THE STATE.
BOGGS, Justice.
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 The shooting occurred on the night of October 6, 2011. On June 12,
2012, a Bibb County grand jury indicted Appellant and his younger brother, Devin Freeman, for malice murder, felony murder predicated on aggravated assault, and possession of a firearm during the commission of a felony. At the State’s request, the trial court granted Freeman immunity and ordered him to testify at Appellant’s trial, which took place from April 15 to 18, 2013. The jury found Appellant guilty of all charges. On April 24, 2013, the trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder and a consecutive term of five years for the firearm conviction; the felony murder verdict was vacated by operation of law. Appellant’s trial counsel filed a timely motion for new trial. New counsel was appointed for Appellant, but Appellant requested that new counsel be removed and that he be allowed to represent himself at the motion for new trial hearing and on 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-
appeal. The trial court held a hearing at which the court questioned Appellant and warned him of the risks and responsibilities of self-representation, see Faretta v. California, 422 U. S. 806, 818-821 (95 SCt 2525, 45 LE2d 562) (1975), and on September 28, 2018, the court granted Appellant’s request to proceed pro se. On October 9, 2018, Appellant, acting pro se, filed an amended motion for new trial. On February 20, 2019, the trial court held a hearing on the motion at which Appellant’s trial counsel testified. On March 4, 2019, before the court entered an order on the new trial motion, Appellant filed a premature notice of appeal. On April 18, 2019, the trial court entered an order denying the motion, and at that point, Appellant’s notice of appeal ripened. See Southall v. State, 300 Ga. 462, 467 (796 SE2d 261) (2017) (holding that “a prematurely filed motion for new trial that sufficiently identifies the judgment involved becomes fully effective upon entry of that judgment”). The case was docketed in this Court to the August 2019 term and submitted for decision on the briefs. 2 47 was his gun and had been stolen. Appellant tried to take the AK-
47 from Warren, but Warren had brought a .45-caliber handgun
with him, which he produced. Appellant grabbed the handgun, and
in the ensuing struggle, both Appellant and Warren were shot;
Warren was hit in the foot, and Appellant was hit in the hand.
Jackson and Warren then left the apartment, taking Warren’s .45
and the AK-47 with them. Jackson told his aunt about the
confrontation, and in the following months, he told her on three
different occasions that he had run into Appellant and that
Appellant had threatened to kill him.
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
3 him. When Appellant, Freeman, and Bell got ready to leave Nauer’s
house, Bell saw that Freeman was carrying a Hi-Point .45-caliber
pistol. Bell was upset and asked why they were bringing a gun if
Appellant only wanted to fight Jackson. Bell decided to follow
Appellant and Freeman to make sure that they did not shoot
Jackson.
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
2 The testimony at trial described the bootleg house as a place where
people played cards and alcohol was served. 4 Jackson to go with Bell inside the bootleg house for a drink, but
Jackson declined. Bell went to the bootleg house, and Jackson
continued talking to Willis and Brown.
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.
5 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
6 started, testified that Appellant said that he was “coming to court
for a body,” that he confronted Jackson at a bootlegger’s house with
a .45-caliber gun, that he had argued over “some kind of AK weapon”
with one of the people who was going to testify against him, and that
“he was confident that he was gonna beat the case in trial” because
the State did not have any physical evidence connecting him to the
shooting. A firearms examiner testified that four shell casings found
between Jackson’s body and the SUV, two bullets found inside the
SUV, and one bullet found on the street, as well as a bullet that the
medical examiner recovered from Jackson’s body during the
autopsy, were all fired from the same gun, and that the marks he
found on the bullets and shells were consistent with being fired from
a Hi-Point .45 pistol. The State also introduced into evidence a letter
that Appellant wrote to Freeman from jail telling Freeman to offer
Bell $1,500 to sign a statement saying: “I did not see Brandon
Morrall with a gun or heard [sic] him rap about killing Stephen
Tucker Jackson on October 6, 2011. I was mistaken.”
Appellant testified at trial, claiming that he was asleep at his
7 sister’s house when the shooting occurred. His sister testified that
he came to her house on the night of the shooting around dusk,
talked to her and her children for a while, and then took a pain pill
and went to bed. She said that she could see the front door from the
living room where she was watching television and that Appellant
did not leave the house from the time that he went to bed until after
the shooting, when someone came to her house to tell her about it.
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
8 inconsistencies in the evidence.” (citation and punctuation omitted)).
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
9 inquiry if the defendant makes an insufficient showing on one.” Id.
at 697.
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
10 photographic identifications). Appellant does not claim that Brown’s
statement on March 14, 2013, was accompanied by a viewing of
Appellant either in person or in a photograph. The fact that Brown
knew that Appellant had been arrested for the shooting before
Brown gave a statement identifying Appellant as the shooter does
not implicate the due process concerns addressed by Neil and other
decisions in the same line.
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
11 States Supreme Court rejected this exact argument in Perry v. New
Hampshire, 565 U. S. 228 (132 SCt 716, 181 LE2d 694) (2012). In
Perry, the Court said:
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
12 as the shooter on due process grounds would have failed. It follows
that Appellant cannot show that Fluker was constitutionally
deficient in not filing such a motion. See Premo v. Moore, 562 U. S.
115, 124 (131 SCt 733, 178 LE2d 649) (2011) (stating that in
determining whether counsel was constitutionally deficient for
failing to file motion to suppress allegedly improperly obtained
confession, “the relevant question under Strickland” is whether “no
competent attorney would think a motion to suppress would have
failed”). See also Sexton v. Beaudreaux, 585 U. S. ___ (138 SCt 2555,
2559, 201 LE2d 986) (2018) (citing Premo in context of claim of
ineffective assistance of counsel for failure to file motion to suppress
allegedly tainted identification testimony). Accordingly, Appellant’s
ineffective assistance of counsel claim fails.
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 18, 2019. Murder. Bibb Superior Court. Before Judge Simms. Brandon D. Morrall, pro se.
13 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.