303 Ga. 491
FINAL COPY
S18A0193. MITCHELL v. THE STATE.
BOGGS, Justice.
Lewis Mitchell, Jr., was convicted of malice murder, aggravated assault,
and two counts of possession of a firearm during the commission of a felony, in
connection with the killing of Antonio Jermaine Mitchell (“Jermaine”)1 and the
wounding of Desmond Jones.2 His amended motion for new trial was denied,
and he appeals, asserting that the evidence was insufficient, that the trial court
erred in allowing a State’s witness to be questioned as a hostile witness, and that
the trial court erred in allowing speculative testimony from a forensic biologist.
1
No apparent relation to the appellant.
2
The crimes occurred on July 5, 2009. On January 29, 2010, a Lowndes County grand
jury indicted Mitchell for malice murder, aggravated assault, armed robbery, and two counts
of possession of a firearm during the commission of a felony. The State elected not to
proceed on the armed robbery count. Mitchell was tried before a jury from January 31-
February 3, 2011. The jury found Mitchell guilty on all remaining counts, and he was
sentenced to life imprisonment plus 30 years. Mitchell’s third amended motion for new trial
was denied on December 2, 2016, his notice of appeal was filed on December 15, 2016, and
the case was docketed in this Court for the term beginning in December 2017. The case was
submitted for decision on the briefs.
As part of the last enumeration, he also asserts ineffective assistance of counsel.
For the reasons stated below, we affirm.
Construed to support the verdict, the evidence showed that Cheryl Core
was Mitchell’s girlfriend; she and her sister, Aianza Wheeler, lived with
Mitchell.3 After the women performed at a bachelor party, which Jones
attended, Core became irate because she believed they had not been paid
enough. The next evening, July 4, the two women, Mitchell, and Mitchell’s
friend Lorenzo Countee met and planned to rob Jones in order to get the money
they believed they were owed. Core texted Jones, and arranged to meet him and
his friend, Jermaine, at a nearby apartment complex. Mitchell drove his father’s
truck to the apartment complex, and Core and Wheeler got out of the truck some
distance away and walked into the complex in order to avoid suspicion. The
women then met the two victims, entered their SUV, and drove to a nearby gas
station then back to the apartment complex, ostensibly to meet a nonexistent
sister but in reality to facilitate the robbery. While the victims and the women
were sitting in the SUV talking, “the shooting started happening” and the
3
Before Mitchell’s trial, Core pleaded guilty to robbery and aggravated assault and
Wheeler pleaded guilty to robbery, but they had not been sentenced when they testified.
2
women fled. Mitchell called the mother of his child to retrieve the truck, and
then they all went to church. Mitchell told Core, “I shot two n-----s basically for
23 dollars.” Core also testified that Mitchell threatened her, saying, “if anybody
said anything, I don’t have a problem with killing anybody else.” Wheeler
testified, “When [Mitchell] came into the house he said he can’t believe he
killed him two n-----s. He can’t wait to make the news.”
Countee’s girlfriend, Ashley Staten, testified that she was riding in
Mitchell’s gray Ford truck with Core, Wheeler, Countee, and Mitchell, whom
she knew. When the others began talking about robbing someone, and Core was
apparently arranging a meeting by phone, Staten became nervous. When
Mitchell got out of the truck, put on a ski mask and jacket, and pulled a “big,
black gun” out of a pillowcase, Staten got out of the truck and ran away. When
she saw Mitchell later, he said that he “had shot him two n-----s.”
Jones was shot five or six times in the hand, jaw, shoulder, back, and neck.
He passed out, but regained consciousness and called 911. Police arrived in
response to the call, but Jermaine was already dead. The medical examiner
testified that Jermaine was shot five times, severing his spine and damaging his
carotid artery. The cause of death was gunshot wounds to the chest and neck. A
3
police detective found 11 expended Wolf brand .223 Remington cartridge cases
on the scene, all fired from the same firearm. Police found a trash bag outside
Mitchell’s former apartment nearby containing a box of Wolf brand .223
Remington cartridges, receipts in Mitchell’s name, and a high school report card
with Mitchell’s name on it.4 Police photographed and recorded the license
number of a gray Ford pickup truck on the scene and traced it to Mitchell’s
father. They also found a ski mask and a jacket on top of an air conditioning unit
under a nearby building. A set of keys in the jacket pocket included an auto
parts reward card registered to Mitchell or his father. Mitchell acknowledged to
police that the keys were his, but said he didn’t know how they ended up at the
crime scene. A witness for the defense testified that he heard what he first
thought were firecrackers because it was the Fourth of July, then saw a man in
a dark-colored jacket standing by the driver’s door of a red SUV, and saw a
passenger jump out and flee. Only when he heard a woman screaming did he
realize, “I’ve just seen a shooting.” He described the shooter as wearing a dark
top and something on his head that could have been a hoodie or a mask.
4
Evidence was presented that Mitchell, Core, and Wheeler had lived at that apartment
until approximately a week before the murder.
4
1. Mitchell first contends that the evidence was insufficient because no
witness saw Mitchell fire a weapon, no weapon was ever recovered, and no
fingerprint or DNA evidence supported the convictions. He asserts that an
uncorroborated admission is insufficient to support a conviction, citing former
OCGA § 24-3-53, in effect at the time of trial,5 Miller v. State, 268 Ga. 1 (
485
SE2d 752) (1997), and Burns v. State,
188 Ga. 22, 27 (2) (
2 SE2d 627) (1939).
While Mitchell fails to note the distinction between a confession and an
admission, see, e.g., English v. State,
300 Ga. 471, 473-474 (2) (
796 SE2d 258)
(2017), the record does not support his contentions in any event.
Viewed in the light most favorable to the verdict, the evidence of
Mitchell’s participation in the crime is sufficient to support his convictions. In
addition to his statements to multiple witnesses, he was placed at the scene by
co-defendants as well as other witnesses and evidence. One witness saw him
don a mask and jacket and take out a “big, black gun” immediately before the
shooting; a mask and jacket were recovered from the scene, with Mitchell’s keys
in the pocket. He discussed committing the robbery beforehand in the presence
5
This Code section was carried forward, unchanged, as OCGA § 24-8-823 of the new
Evidence Code.
5
of three witnesses, and the truck described by these and other witnesses was
recovered from the scene and was registered to Mitchell’s father. A trash bag
outside of Mitchell’s former apartment contained a box of the same brand and
caliber of ammunition used in the murder, along with various personal papers
in Mitchell’s name. Whether his three statements to witnesses that he shot two
people amounted to confessions or merely admissions, other evidence was
sufficient corroboration. “Although an uncorroborated confession cannot
support a conviction under OCGA § 24-3-53, corroboration of a confession in
any particular satisfies the requirements of the statute.” (Citations and
punctuation omitted.) Miller, supra,268 Ga. at 2. “As long as there is some
competent evidence, even though contradicted, to support each fact necessary
for the state’s case, the jury’s verdict will be upheld.” (Citation omitted.)
Jackson v. State,
271 Ga. App. 278, 280 (1) (a) (
609 SE2d 207) (2005). The
evidence was sufficient under Jackson v. Virginia,
443 U. S. 307 (
99 SCt 2781,
61 LE2d 560) (1979).
2. Mitchell contends that the trial court erred in allowing the mother of his
child to be questioned by the State as a hostile witness. This witness was called
by the State and testified that she could remember talking to the police, but
6
could not remember anything she said to them. She avoided responding to the
State’s question regarding whether she had visited appellant approximately 55
times in jail, then when asked, “You’d rather not be here today, would you?”
responded, “Okay.” The State requested that she be ruled a hostile witness, and
the trial court stated, “Well, I’ll just give you some latitude, [counsel], and we’ll
just see how it goes.” The witness was then asked if she was reluctant to testify;
she responded, “I’m not testifying,” reiterated that she did not remember what
was said in her police interview, and agreed that she had “volunteered very
quickly that [she] didn’t give a written statement.” A short colloquy ensued
during which Mitchell’s counsel acknowledged, “I think he’s got a right, I
guess, to ask about the statements.” The trial court never ruled explicitly that she
was a hostile witness, but declared, “I’ll let you proceed and you can lead the
witness.” In response to the State’s further questions, the witness said that she
remembered nothing of what she told police investigators.
Citing Hayes v. State, 268 Ga. 809 (6) (
493 SE2d 169) (1997), Mitchell
asserts that the State must demonstrate that “the witness is nervous, reluctant,
and hostile” (emphasis supplied) before the trial court has discretion to allow
leading questions. This is not a correct statement of the law. Hayes states rather
7
that “the trial court has the discretion to allow leading questions on direct
examination, when a witness is nervous, or reluctant, or hostile.” (Citations
omitted; emphasis supplied.) Id. at 812-813 (6). When a witness “demonstrated
a reluctance to tell what [she] knew about the shootings . . . the trial court had
great latitude to permit the assistant district attorney to treat [the witness] as a
hostile witness and propound leading questions.” Knight v. State,
266 Ga. 47,
49 (4) (b) (
464 SE2d 201) (1995). “It would be a rare case in which the trial
court’s exercise of discretion on this issue would warrant reversal.” Fugate v.
State,
263 Ga. 260, 265 (10) (
431 SE2d 104) (1993); see also former OCGA §
24-9-63. Here, the witness obviously was reluctant to testify, and the trial court
did not abuse its discretion.
3. At trial, the State called a forensic biologist who testified that she
compared samples taken from the ski mask recovered from the scene with the
DNA profiles of Mitchell, Wheeler, and Jermaine, and the DNA found on the
mask did not match any of the known samples. The prosecutor then asked if it
was possible that Mitchell had worn the mask, and the witness responded that
it was possible. When asked “how can that be?,” the witness responded that
normally saliva would be deposited on a mask by talking, sneezing or coughing,
8
and agreed that sometimes she received “masks with no saliva on them.” The
witness agreed with the prosecutor’s statement that she could testify only that
she found no saliva belonging to Mitchell, but that she “cannot exclude that he
could have worn it.”
Mitchell contends that the trial court erred in allowing the witness to
testify that the absence of Mitchell’s DNA on the ski mask recovered from the
scene did not rule out the possibility that he wore it. He asserts that the “specific
evidence . . . proves that Lewis Mitchell, Jr. did not wear the ski mask because
his DNA was not on it.” But Mitchell failed to raise any objection to the
witness’ testimony at trial, and this issue is therefore waived. Butts v. State, 273
Ga. 760, 769 (20) (
546 SE2d 472) (2001).6 Moreover, “[i]n criminal cases, the
opinions of experts on any question of science, skill, trade, or like questions
shall always be admissible; and such opinions may be given on the facts as
proved by other witnesses.” Former OCGA § 24-9-67.7 Testimony regarding
6
The Attorney General correctly notes that the plain error rule set forth in OCGA §
24-1-103 (d) was not in effect at the time of Mitchell’s trial in 2011.
7
This provision was carried forward essentially unchanged into Georgia’s new
Evidence Code as OCGA § 24-7-707. See Davis v. State, 301 Ga. 397, 407 (6) (d) n. 10 (
801
SE2d 897) (2017).
9
reasons for the presence or absence of DNA on a sample falls within that scope.
See, e.g., Bates v. State, 293 Ga. 855, 857 (1) (
750 SE2d 323) (2013) (forensic
biologist testified to reasons for absence of DNA evidence).
To the extent that Mitchell, in one sentence as part of this enumeration,
raises the contention that his trial counsel was ineffective in failing to object to
this testimony, he has failed to meet his admittedly heavy burden, see
Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (
106 SCt 2574, 91 LE2d
305) (1986), to show that his lawyer performed his duties at trial in an
objectively unreasonable way, considering all the circumstances, and in the light
of prevailing professional norms. Strickland v. Washington,
466 U. S. 668, 687-
688 (III) (A) (
104 SCt 2052, 80 LE2d 674) (1984).8 Mitchell failed to question
his trial counsel on this point at the hearing on his motion for new trial, and
“trial counsel’s decisions are presumed to be strategic and thus insufficient to
support an ineffective assistance of counsel claim.” (Citations and punctuation
omitted.) Bright v. State,
292 Ga. 273, 275 (2) (a) (
736 SE2d 380) (2013).
8
“Failure to satisfy either prong of the Strickland test is sufficient to defeat a claim
of ineffective assistance, and it is not incumbent upon this Court to examine the other prong.”
(Citation and punctuation omitted.) Smith v. State, 296 Ga. 731, 733 (2) (
770 SE2d 610)
(2015).
10
Mitchell has not overcome this presumption. The record shows that Mitchell’s
counsel extensively cross-examined the expert on her conclusions, eliciting an
admission from the witness that no studies supported her testimony, reiterating
the absence of DNA evidence implicating Mitchell, and introducing into
evidence the expert’s report containing that finding. Mitchell therefore has failed
to show ineffective assistance of trial counsel.
Judgment affirmed. All the Justices concur.
11
Decided April 16, 2018.
Murder. Lowndes Superior Court. Before Judge Cowart.
J. Converse Bright, for appellant.
Bradfield M. Shealy, District Attorney, Jessica W. Clark, Michelle T.
Harrison, Assistant District Attorneys; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Vanessa T. Meyerhoefer, Assistant Attorney
General, for appellee.
12
