Cordado Burrell was tried and convicted of murder and related
offenses in connection with crimes he committed against
Herman Upshaw and Ruth Griffith. Burrell appeals, claiming
that the evidence was insufficient to 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. Finding no error, we affirm.
Viewed in the light most favorable to the jury's verdict,
the evidence adduced at trial established as follows. Burrell
periodically stayed with sixty-six-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.
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 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
April 11, 2008, Ruth Griffith, Upshaw's
eighty-three-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.
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 pillow case 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.
enforcement presented Griffith with a photo line-up 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.
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 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
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, 466
U.S. 648 (104 S.Ct. 2039, 80 L.Ed.2d 657) (1984) in reviewing
his claims of ineffective assistance. In order for
Cronic to apply, "the '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 S.E.2d 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 S.Ct.
2052, 80 L.Ed.2d 674) (1984). See Charleston v.
State, 292 Ga. 678, 682-683 (4) (a) (743 S.E.2d 1)
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 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 S.E.2d 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 omitted.) McClendon
v. State, 299 Ga. 611, 613-614 (791 S.E.2d 69) (2016).
With these principles in mind, we review Burrell's
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.
"what is said by the attorneys in opening statements is
not evidence, " Zackery v. State, 286 Ga. 399,
402 (688 S.E.2d 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 S.E.2d 62) (2012) (trial
counsel cannot be deficient for failing to lodge a meritless