Mitchell v. State

FINAL COPY

                S19A1147. MITCHELL v. THE STATE.


      WARREN, Justice.

      Sandy Mitchell, Jr., was convicted of malice murder and other

crimes in connection with the shooting death of Byron Brown.1 On

appeal, Mitchell contends that his trial counsel was constitutionally

ineffective for failing to object to certain trial testimony from a

detective in this case on the grounds that it was improper expert

opinion, and that other testimony offered by the same detective was



      1 The crimes occurred on September 23, 2012.      On February 4, 2015, a
Muscogee County grand jury indicted Mitchell for the malice murder of Brown;
felony murder predicated on the aggravated assault of Brown; and possession
of a firearm during the commission of a felony. At a trial held from June 3 to
7, 2015, the jury found Mitchell guilty of all counts. The trial court sentenced
Mitchell to life in prison for malice murder and five years consecutive for
possession of a firearm during the commission of a felony. Although the trial
court purported to merge the felony murder count into the malice murder
conviction, that count was actually vacated by operation of law. See Malcolm
v. State, 

 (

) (1993). Mitchell filed a motion for
out-of-time appeal, which the trial court granted, and then filed a motion for
new trial on May 2, 2017. That motion was later amended through new
counsel, and, on February 21, 2019, was denied (as amended) after a hearing.
On March 11, 2019, Mitchell filed a timely notice of appeal, and the case was
docketed in this Court for the August 2019 term and submitted for a decision
on the briefs.
admitted in violation of Brady v. Maryland, 

 (

, 10 LE2d 215) (1963). Mitchell also contends that the trial

court erred in permitting the detective to testify about the alleged

Brady violation evidence and in admitting a particular autopsy

photograph into evidence. For the reasons that follow, we disagree

and affirm Mitchell’s convictions.

     1. Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at Mitchell’s trial showed the following. In the

early morning hours of September 23, 2012, after spending time

with a friend who was staying at a Motel 6 in Columbus, Mitchell

had an employee of the motel call a taxi. Brown was the taxi driver

who picked Mitchell up from the motel at approximately 2:00 a.m.

According to Mitchell’s later statement to police, he had Brown drive

him toward Mitchell’s home and then drop him off at the intersection

of Munson Drive and Shelby Street, which was near Mitchell’s home.

The taxi company’s policy required drivers to radio in when they

dropped off a passenger. Brown radioed in after picking Mitchell up,

but did not radio in again that night. Less than an hour later, Brown

                                     2
was found slumped over in his taxi at the intersection of Munson

Drive and Shelby Street, dead from a gunshot wound to the back of

the head.

     At trial, one of Mitchell’s neighbors testified that at

approximately 2:30 a.m., he saw a taxi sitting at the intersection of

Munson Drive and Shelby Street, approached the taxi, and saw

Brown slumped over in the front seat. Shortly thereafter, while he

was standing outside his home, the neighbor saw an African-

American man wearing a white shirt walk around the front of the

taxi and then run away. The neighbor then called police.

     When police arrived, they found Brown unresponsive with a

gunshot wound to the head. The taxi was still running and the lights

were still on. Police discovered gunpowder residue on the back of

the hat that Brown was wearing and a shell casing underneath

Brown’s seat.

     Based on call logs from the cab company, investigators

determined that Brown’s last pickup was at the Motel 6 and that the

request for a taxi was made on behalf of a person from Room 234.

                                 3
Police discovered that Room 234 was rented to Mitchell’s friend, so

they went to the Motel 6 and questioned him. The friend informed

police that he had spent time with Mitchell earlier that night and

told them where Mitchell lived. Police also questioned the Motel 6

employee who called the taxi for Mitchell, and he identified Mitchell

from a photographic lineup as the man who requested the taxi.

     Police arrived at Mitchell’s home at 6:30 that morning.

Mitchell was not home, but police spoke with his wife, who said that

she had not seen Mitchell since 10:00 the night before. Police left

but returned later that afternoon, and Mitchell’s wife consented to a

search of the property, which uncovered a .380 handgun under the

air conditioning unit in the backyard, along with a rolled up white

t-shirt and a black nylon cap. Later, ballistics and forensic testing

confirmed that the handgun was the murder weapon, and that the

cap matched fibers found in Brown’s taxi. Police obtained a warrant

for Mitchell’s arrest, and Mitchell was later arrested at nearby Fort

Benning.



                                 4
      After being advised of rights under Miranda,2 Mitchell

consented to a custodial interview in which he admitted to taking a

taxi ride from the Motel 6 to the intersection of Munson Drive and

Shelby Street, but he denied shooting Brown. He also claimed that

he discovered that Brown had been shot when, after he was dropped

off, he saw the taxi’s lights from his backyard and walked back to

the taxi to see why it was still there.3 According to Mitchell, he then

left and “snuck” onto Fort Benning with the help of a friend. When

questioned about the gun found in his backyard, Mitchell said,

“someone must have dropped it” there. But he admitted that he was

wearing a white t-shirt and a nylon cap when he rode in Brown’s

taxi. In addition, Mitchell’s stepbrother received a text message

from Mitchell two days before the shooting stating that Mitchell

wanted to rob someone.

      Mitchell does not challenge the sufficiency of the evidence.


      2 Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966).

      3 Police later determined that it was impossible to see the location of the

vehicle from Mitchell’s backyard.
                                       5
Nevertheless, consistent with this Court’s general practice in

murder cases, we have reviewed the record and conclude that, when

viewed in the light most favorable to the verdicts, the evidence

presented at trial was sufficient to authorize a rational jury to find

beyond a reasonable doubt that Mitchell was guilty of the crimes for

which he was convicted. See Jackson v. Virginia, 

, 318-

319 (

, 61 LE2d 560) (1979).

     2. Mitchell argues that his trial counsel was constitutionally

ineffective for (a) failing to object to certain testimony Detective

Amanda Hogan offered on behalf of the State, on the theory that it

was improper expert opinion testimony and (b) failing to object or

move for a mistrial, on Brady grounds, because of other testimony

Detective Hogan offered at trial.

     To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

deficient and that the deficient performance resulted in prejudice to

the defendant. Strickland v. Washington, 

(

, 80 LE2d 674) (1984); Wesley v. State, 

,

                                    6
356 (

) (2010).      To satisfy the deficiency prong, a

defendant must demonstrate that his attorney “performed at trial in

an objectively unreasonable way considering all the circumstances

and in the light of prevailing professional norms.” Romer v. State,

 (

) (2013); see also Strickland, 

. This requires a defendant to overcome the “strong

presumption” that trial counsel’s performance was adequate.

Marshall v. State, 

 (

) (2015) (citation

and punctuation omitted).      To satisfy the prejudice prong, a

defendant must establish a reasonable probability that, in the

absence of counsel’s deficient performance, the result of the trial

would have been different.      Strickland, 

.      “A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” 

 “If an appellant fails to meet his or

her burden of proving either prong of the Strickland test, the

reviewing court does not have to examine the other prong.”

Lawrence v. State, 

 (

) (2010). We

conclude that Mitchell has failed to show that any of his trial

                                 7
counsel’s alleged failures were deficient.

     (a)    Expert Opinion Testimony.

     Mitchell’s first claim stems from Detective Hogan’s testimony

about the crime scene, and specifically that there was gunpowder

residue on Brown’s hat; that the gunshot “was at a close range inside

the vehicle”; and that the bullet entered the back of Brown’s head

and exited from his left eye. She also testified about how and in

which direction the gunshot casing would have been ejected from the

gun, and about the location in the vehicle where that casing was

found.     According to Mitchell, Detective Hogan provided expert

ballistic, forensic, and firearm testimony outside the ken of the

average juror, thus requiring the State to lay a foundation for

Detective Hogan’s expertise in those areas — yet the State failed to

lay the requisite foundation.

     Mitchell acknowledges that his trial counsel objected to the

complained-of testimony, but contends that his trial counsel merely

voiced a generalized objection and that he was ineffective for failing

to object specifically that Detective Hogan’s testimony was

                                  8
“improper expert testimony.” But a closer review of the transcript

reveals that trial counsel did object on the grounds that Mitchell

urges on appeal, and, as a result, counsel was not deficient in this

respect.

     Indeed, when the State asked Detective Hogan, “from your

experience where do you think that the shot came from that — that

killed Mr. Brown?” defense counsel said “I object. I’m not sure she

would be qualified. That would be a ballistics question I would

think.” The trial court then asked whether the prosecutor could “lay

a foundation.” As the prosecutor sought to do so, Detective Hogan’s

answers veered back into what she observed in this case, and

defense counsel objected again because “[t]his isn’t laying a

foundation anymore.” The Court agreed, directing the prosecutor to

“[i]nquire of the witness’s experience and training in the area that

you’re examining.” Despite the prosecutor’s effort to do so, Detective

Hogan again turned to the facts of this case, prompting defense

counsel to complain, “again, we’re back now to testifying about this

case. I think if we could voir dire expertise, not — not to elicit facts

                                   9
about this particular matter.”

     The trial court then held a sidebar with the attorneys, telling

the prosecutor, “what I wanted you to do was voir dire her on her

expertise and — as a foundation for her giving an opinion, not have

her testify to what you had prepared her to testify until she is

accepted as an expert in that area.” The prosecutor responded:

          I don’t think it takes an expert to say from whence a
     bullet comes. . . . [S]he can say from her experience, it
     looks like it came from the inside. . . . I wasn’t going to get
     into any questions about ballistics, any questions about
     stippling or soot or any of that. . . . [S]he said that she saw
     the gunshot to the back of his head and he was slumped
     down.

     The Court opined, “That’s an observation. And did she also say

she saw — saw soot, soot from the gun?” To this, the prosecutor

replied:

          Yeah. . . . And I said from — from your training and
     experience where do you think the bullet came from. . . .
     The GBI expert wasn’t at the scene. All I’m — all I’m
     trying to get from the witness is what she thought that
     the — the bullet came from. . . . I think it — she can use
     her common sense.

     The Court asked, “So she’s not being offered as an expert?” And


                                   10
the prosecutor replied, “No.” The court then permitted the State to

“inquire about her observations,” and defense counsel seemed to

concede by commenting, “I guess just as long as it’s not a conclusion

that an expert would have to make.”

     When the State continued its direct examination of Detective

Hogan, she testified that she personally observed gunpowder

residue on Brown’s hat and a shell casing under his seat. The State

then asked, “And from — from seeing where the — the shot entered

the body and where it exited and where you found the casing, what

— what did that indicate to you?” Detective Hogan responded, “That

it was at a close range inside the vehicle.” Defense counsel objected

yet again, complaining, “[t]hat’s specifically the type of question I’m

not sure she would be qualified to answer,” and the court overruled

counsel’s objection.

     Under OCGA § 24-1-103 (a) (1), valid evidentiary objections

must “stat[e] the specific ground of objection, if the specific ground

[is] not apparent from the context.”         Contrary to Mitchell’s

arguments on appeal, however, the record shows that trial counsel

                                  11
did articulate specific grounds for his objections to Detective

Hogan’s testimony. Indeed, trial counsel specifically objected that

Detective Hogan was not “qualified” to answer ballistics questions;

that the State was not properly “laying a foundation”; that it was

necessary to “voir dire [the] expertise” of Detective Hogan; that

Detective Hogan could not provide “a conclusion that an expert

would have to make”; and that Detective Hogan was not “qualified

to answer” questions about what the gunshot entry and exit wounds

indicated. Trial counsel was not required to use the specific phrase

“improper expert testimony” — which seems to be Mitchell’s

contention on appeal — to lodge a specific objection on that ground.

See Harvey v. State, 

 (

) (2017)

(“[M]agic words are not needed to make a proper objection” that

“articulate[s a party’s] concern with sufficient specificity to inform

the trial judge of the alleged error when objecting.”).      Because

Mitchell’s trial counsel objected on the very grounds that Mitchell

now contends trial counsel failed to assert — and because Mitchell

obtained a ruling from the trial court on that objection — Mitchell

                                 12
“cannot establish that his trial counsel was deficient” as to this

claim. Ellis v. State, 

 (

) (2010) (citation

and punctuation omitted); see also Franklin v. State, 

,

876 n.10 (

) (2019) (ineffectiveness claim based on

alleged failure to make particular objection meritless because record

showed counsel did make that objection); Slaton v. State, 

 (

) (2018) (same).

     (b)   Brady Violation.

     Mitchell also    contends that during Detective Hogan’s

testimony, the defense first learned that 10 fingerprints recovered

from Brown’s taxi were “of great value,” and also first learned of the

identity of the fingerprint examiner. According to Mitchell, the

State’s failure to produce this evidence prior to trial constituted a

Brady violation: a “suppression by the prosecution of evidence

favorable to an accused upon request” that “violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady,

. He thus argues that his trial counsel’s failure to

                                  13
object to, or move for, a mistrial on this basis constituted ineffective

assistance. But because we conclude that Mitchell has failed to

establish a Brady violation as a threshold matter, he also has not

shown that his trial counsel was constitutionally deficient.

     During the State’s direct examination of Detective Hogan, she

testified about a report that was furnished to the defense concluding

that over 60 fingerprints “of value” had been recovered from Brown’s

taxi. Detective Hogan also testified that “once [the examiner] broke

it down and went through the 64, he was able to determine that only

ten were of great value that had enough ridges that could be put into

the system.” This prompted trial counsel to approach the bench,

where he objected that he had not been made aware that an

examiner had identified these 10 fingerprints as having “great

value,” and that he would “like to know” if those fingerprints

matched Mitchell, if they “matched anyone else,” and who examined

the prints because he “might like to subpoena them and have them

come in and testify.” Specifically, trial counsel advised the court

that these 10 “great value” fingerprints were not mentioned in the

                                  14
report that he was furnished and he had not previously heard about

them, despite having asked the prosecution, prior to trial, whether

there were any additional reports. The trial court excused the jury

so that Detective Hogan could be questioned further about the issue

outside of the jurors’ presence. During this questioning, Detective

Hogan stated that she had just learned “[y]esterday afternoon,”

when she “double-checked” with a law enforcement database, that

the 10 fingerprints had been identified as “ones that could have

resulted in any kind of match or a hit,” but that even for those, “there

was no match in the system,” and no additional report was prepared.

She also stated that “Corporal Godfrey” is “the one that actually

reads the prints.” After Detective Hogan provided that explanation,

trial counsel stated that he had “no problem with the State going

into further questions on that topic,” the jury returned, and

Detective Hogan’s direct examination resumed; she went on to

testify that “there [were] many [fingerprints] found in the taxi,” but

“none were identifiable . . . [t]o . . . any person.”

     To establish a Brady violation, a defendant must show that:

                                    15
     (1) the State, including any part of the prosecution team,
     possessed evidence favorable to the defendant; (2) the
     defendant did not possess the favorable evidence and
     could not obtain it himself with any reasonable diligence;
     (3) the State suppressed the favorable evidence; and (4) a
     reasonable probability exists that the outcome of the trial
     would have been different had the evidence been disclosed
     to the defense.

Anthony v. State, 

 (

) (2017) (quoting

State v. James, 

 (

) (2013)).

Pretermitting whether the first three factors are present here,

Mitchell has failed to establish the fourth prong: that “a reasonable

probability exists that the outcome of the trial would have been

different had the evidence been disclosed.”        

 (citation and

punctuation omitted).

     Here, Mitchell argues that had he been provided with

information about the 10 “great value” fingerprints and the identity

of the fingerprint examiner, Mitchell could have conducted

independent tests. He further argues that if those tests showed that

the 10 “great value” fingerprints matched other people (or, at least,

that they did not match Mitchell), that would have enabled the


                                 16
defense to present evidence that Mitchell was not the only person

recently in Brown’s taxi; to argue that Mitchell had not been in

Brown’s taxi at all; or to impeach the State’s law enforcement

witnesses by showing that its investigation was deficient. But “‘[t]he

mere possibility that an item of undisclosed information might have

helped the defense’” is not enough to establish the fourth Brady

factor. Upton v. Parks, 

 (

) (2008)

(quoting United States v. Agurs, 

 (

,

49 LE2d 342) (1976)). Because Mitchell presents no evidence in

support of his speculation and conjecture about how the allegedly

undisclosed evidence would have been favorable to him, he fails to

establish a reasonable probability that the outcome of his trial would

have been different had any such evidence been disclosed. See id. at

255-256 (State’s failure to disclose a GBI ballistics report showing a

match between crime-scene shell casings and ballistics casings from

an unsolved crime and its reference in a report to an unknown

witness did not support Brady claim because defendant’s argument

about what exculpatory evidence he may have been able to uncover

                                 17
had he had the report was “purely speculative”); Walker v. State, 

 (

) (1994) (no Brady violation where

undisclosed witness statement contained only “speculations to the

police that some unnamed person (presumably other than appellant)

was the perpetrator of the crimes”). Moreover, any such evidence

would be unlikely to change the outcome of Mitchell’s trial because

the jury already heard Detective Hogan agree, as part of her trial

testimony, that none of the fingerprints found in Brown’s taxi were

matched to “any person,” and the jury reasonably could infer that

included Mitchell.

     Because Mitchell has failed to establish the fourth Brady

factor, he cannot establish that trial counsel’s failure to assert a

Brady violation was constitutionally deficient. See Jackson v. State,

 (

) (2019) (because Brady claim failed,

ineffectiveness claim based thereon also failed).

     3. Mitchell contends that the trial court erred (a) by failing to

prevent Detective Hogan from testifying about the 10 “great value”

fingerprints because of the alleged Brady violation described in

                                 18
Division 2 (b), and by failing to declare, sua sponte, a mistrial to

remedy that alleged Brady violation; and (b) by admitting into

evidence an autopsy photograph that Mitchell argues is gruesome

and unduly prejudicial.

      (a)     Brady Violation.

      For the reasons explained above in Division 2 (b), Mitchell has

failed to establish a Brady violation. Accordingly, his enumeration

of error based on the trial court’s alleged failure to remedy that

violation, either by excluding the evidence or by declaring a mistrial,

also fails.

      (b)     Autopsy Photograph.

      Mitchell contends that a gruesome autopsy photograph, which

showed Brown’s head with the scalp cut open and skin peeled back

to reveal the gunshot wound on Brown’s skull, should not have been

admitted at trial. Mitchell argues that under the exclusionary rule

announced by this Court in Brown v. State, 

 (302




                                    

) (1983),4 the trial court committed reversible error by

admitting the photograph into evidence. But we have “disavow[ed]”

— and reiterated the disavowal of — “the application of the rule

announced in Brown, and applied in its progeny, in cases governed

by the new Evidence Code.” Venturino v. State, 

(

) (2019); see also Flowers v. State, 

(

) (2020); Bentley v. State, 

 (

) (2019).         Under our current Evidence Code, we generally

evaluate the admissibility of autopsy photographs under OCGA §§

24-4-401, 24-4-402, and 24-4-403 (“Rules 401, 402, and 403”), relying

on “our cases decided under the new Evidence Code, and also

look[ing] to federal case law for guidance.” Venturino, 

.

       Rule 401 defines “relevant evidence” broadly, State v. Orr, 

 (

) (2019), because it is defined as


       4 In Brown, this Court announced a rule that “[a] photograph which
depicts the victim after autopsy incisions are made or after the state of the
body is changed by authorities or the pathologist will not be admissible unless
necessary to show some material fact which becomes apparent only because of
the autopsy.” 

.
                                      20
“evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” OCGA § 24-

4-401.   And Rule 402 provides: “All relevant evidence shall be

admissible, except as limited by constitutional requirements or as

otherwise provided by law or by other rules, as prescribed pursuant

to constitutional or statutory authority, applicable in the court in

which the matter is pending. Evidence which is not relevant shall

not be admissible.” OCGA § 24-4-402. Under Rule 403, “[r]elevant

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.”

OCGA § 24-4-403. “Decisions regarding relevance are committed to

the sound discretion of the trial court, and the exclusion of relevant

evidence under Rule 403 is an extraordinary remedy that should be

used only sparingly.”    Venturino, 

 (citations and

punctuation omitted).

                                 21
     Here, the medical examiner testified that the photograph at

issue “help[ed] explain the direction of the gunshot wound . . . in

further detail,” and that because “one of the wounds involved the

eyeball,” it could be “challenging, especially in this case” to get the

same perspective of the wound without Brown’s skin being pulled

back. And when asked, “Is it necessary in your presentation of the

evidence?” the medical examiner responded, “Yes.           It’s — it’s

necessary for me to explain the direction in a — in a photograph.”

The trial court then admitted the photograph, finding that although

the photograph was “unpleasant” to view, the trajectory of the

gunshot could be better explained with the use of the photograph.

     Given the medical examiner’s testimony, the trial court did not

abuse its discretion when it concluded that the autopsy photograph

was relevant under Rule 401’s broad definition. See, e.g., Pike v.

State, 

 (

) (2018) (“The challenged

photographs . . . were relevant to show the nature and location of

the victim’s injuries, which corroborated the State’s evidence of the

circumstances of the killing.”); Moss v. State, 

, 617-618

                                  22
(

) (2016) (“The photos and related testimony were

relevant to show the nature and location of the victim’s injuries,

which corroborated the account of the shooting given by . . .

eyewitnesses.”). Even though the trial court concluded that the

photograph was “unpleasant . . . to look at,” it also concluded that

the medical examiner “said that his explanation of the trajectory and

direction of — of the gunshot can be better explained by him through

the use of the photograph” and admitted the photograph into

evidence on that basis. Given these findings, we cannot say that the

trial court abused its direction by admitting into evidence the

autopsy photograph at issue here. See, e.g., Flowers, 

(reasoning that in admitting an autopsy photograph “showing the

underside of Flowers’s brain, to illustrate the extent of the bruising,”

the trial court “did not abuse its discretion in deciding that the

photograph’s probative value was not substantially outweighed by

the danger of unfair prejudice”); Venturino, 

(reasoning that “[a]lthough the photograph was relatively gruesome,

the record shows that it depicted the ‘only way’ the medical

                                  23
examiner could . . . ‘accurately’ show the precise path that the bullets

travelled through [the victim’s] body” and concluding that “the trial

court did not abuse its discretion when it ruled that the photograph

was relevant and that its probative value was not substantially

outweighed by the danger of unfair prejudice”).5                       Mitchell’s

enumeration therefore fails.

      Judgment affirmed. All the Justices concur.




      5 In support of his contention that the prejudicial impact of the autopsy

photograph outweighed its probative value, Mitchell notes that one of the
jurors — who stated that he had been shot in the head while serving in the
Army — informed the trial court, “I’m having bad nightmares from seeing [the
autopsy photographs] and what happened to me in the service.” But a review
of the record on appeal shows that this difficulty was unique to this particular
juror; the juror did not complain about the specific photograph at issue on
appeal; and the trial court excused the juror “in the interest of . . . justice and
also . . . in consideration to the juror’s experience and what the evidence in the
trial is causing him to re-experience.” Considering the record as a whole, we
cannot say that the trial court abused its discretion in conducting its analysis
of the autopsy photograph at issue.
                                        24
                   DECIDED FEBRUARY 10, 2020.
     Murder. Muscogee Superior Court. Before Judge Smith,
     David S. West, for appellant.
     Julia F. Slater, District Attorney, Alonza Whitaker, Benjamin
E. Gephardt, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Katherine D. Emerson, Assistant Attorney General, for appellee.




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