308 Ga. 1
FINAL COPY
S19A1330. MITCHELL v. THE STATE.
ELLINGTON, Justice.
Tony Mitchell was convicted of the malice murder of Randy
Lewis and related crimes following a trial before a Fulton County
jury.1 On appeal, Mitchell contends that his trial counsel rendered
ineffective assistance because she failed to competently execute her
chosen strategy of discrediting the jailhouse informant who testified
that Mitchell had confessed to having killed Lewis. We affirm for the
1 Lewis was killed on or about June 12, 2011. A Fulton County grand
jury indicted Mitchell for malice murder, felony murder predicated on
aggravated assault, aggravated assault, and theft by taking. Mitchell was tried
in a May 11 to May 14, 2015 jury trial. The jury found Mitchell guilty on all
counts. On May 15, 2015, the trial court sentenced Mitchell to serve life in
prison without parole on the count of malice murder and a concurrent sentence
of ten years in prison on the count of theft by taking. The trial court merged
the counts of felony murder and aggravated assault with the malice murder
conviction, although the felony murder count was actually vacated by
operation of law. See Malcolm v. State, 263 Ga. 369, 374 (
434 SE2d 479) (1993).
Mitchell filed a timely motion for new trial on June 1, 2015, which he later
amended on June 26, 2018. Following a hearing, the trial court denied the
motion as amended on December 14, 2018. Mitchell’s timely appeal was
docketed in this Court for the August 2019 term and submitted for decision on
the briefs.
reasons that follow.
Viewed in a light most favorable to the verdicts, the evidence
presented at trial shows the following. In June 2011, Mitchell and
Lewis were roommates living in a halfway house in Fulton County.
The house was a duplex; Mitchell and Lewis lived on one side and a
group of approximately six to eight men lived on the other side.
Lewis worked in a nearby restaurant. He was a dependable
employee who reported to work when scheduled. Lewis also owned
a black sedan. He gave rides to other halfway house residents, but
he did not allow other people to drive his car.
Lewis was last seen alive when he left work in the early
morning of June 12, 2011. Lewis failed to report for work the
following day, after which his manager called him numerous times
without success and knocked on the door of his residence with no
response. Witnesses saw Mitchell leave the residence he shared with
Lewis during the early morning of June 12, walk to Lewis’s car
carrying a bag, place the bag in the trunk of the car, and drive away.
Mitchell, who was a convicted felon, wore an electronic
2
monitoring device. That device alerted Mitchell’s parole officer that
Mitchell left his residence on June 12 and had not returned by June
13, upon which a warrant was issued for Mitchell’s arrest. At some
point, Mitchell removed the device from his ankle.
On June 16, men living in the halfway house noticed a foul
smell emanating from an open window of Lewis’s and Mitchell’s
residence. One of the men crawled through the window and unlocked
the front door. The rest of the men then entered the residence and
found Lewis’s body under a bed. After being called to the scene, the
investigating officer saw that Lewis’s body was wrapped in a sheet
and that his head was, the investigator testified, “wrapped in plastic
and taped.” The officer also saw a rope around Lewis’s neck and a
lot of blood.
Lewis’s car was later found parked at a Waffle House
restaurant in Macon. On June 22, Mitchell was arrested in Miami,
Florida on charges of shoplifting, after which he was extradited to
Georgia. Once in Georgia, Mitchell was interviewed by an Atlanta
Police Department detective. During the interview, Mitchell
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acknowledged that he drove Lewis’s vehicle to Macon. He claimed
that he removed his ankle monitor because he had failed a drug test
and expected that he would soon be arrested.
In early spring 2013, Mitchell met Stacy Bennett in the Fulton
County Jail, where both men were being held. In August 2013,
Bennett wrote a letter to the Fulton County District Attorney’s office
stating that he had information concerning the murder in Mitchell’s
case. Bennett testified at Mitchell’s trial in 2015 that Mitchell told
him the following. Mitchell lived in a halfway house with Lewis.
Lewis had asked Mitchell to look at a mechanical problem with
Lewis’s car. Mitchell told Lewis that he could not fix the car without
“some kind of box.” Mitchell then asked Lewis for money, and Lewis
told Mitchell to “chill” because the police had come around looking
for Mitchell. After Lewis went to sleep, Mitchell struck Lewis on the
head with a “brass knuckle weapon” welded with a “southwest side
zone three,” which consisted of “like a ‘W’ and then a three on it.”
After Mitchell hit Lewis, a struggle ensued, during which Mitchell
wrapped a rope around Lewis’s neck and strangled him. Mitchell
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“pulled a trashcan in the room and he took a bag and wrapped it
around the guy and put tape on it[.]” Mitchell then got in the car and
headed to Florida.
At the time of Mitchell’s trial, Bennett was serving a prison
sentence following his conviction for aggravated assault and other
crimes. He testified that he had not been promised anything in
exchange for his testimony but that an assistant district attorney
was writing a letter on his behalf to the parole board.
The medical examiner who supervised Lewis’s autopsy
concluded that he died due to strangulation and blunt force head
trauma. The medical examiner described Lewis’s head as completely
encased in plastic packing tape wrapped “in several layers and more
or less a couple of inches thick[.]” Photographs taken during the
autopsy showed, as described by witnesses, a “W” or “3” shaped
wound pattern over Lewis’s ear.
1. Mitchell does not challenge the sufficiency of the evidence
to support his convictions. Nevertheless, in accordance with this
Court’s standard practice in appeals of murder cases, we have
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reviewed the record and conclude that the evidence, as summarized
above, was sufficient to enable a rational trier of fact to find Mitchell
guilty beyond a reasonable doubt of the crimes for which he was
convicted. See Jackson v. Virginia, 443 U. S. 307 (III) (B) (
99 SCt
2781, 61 LE2d 560) (1979).
2. Mitchell contends that the trial court erred in finding that
he received effective assistance of counsel. He argues that his trial
counsel’s performance fell below an objective standard of
reasonableness because she failed to use readily available evidence
to further her express trial strategy of discrediting Bennett, the
jailhouse informant. He argues that trial counsel’s deficient
performance prejudiced him because, apart from Bennett’s
testimony, the State’s case was circumstantial.
To succeed on his claim of ineffective assistance, Mitchell must
establish that his counsel’s performance was professionally deficient
and that he suffered prejudice as a result. See Strickland v.
Washington, 466 U. S. 668, 687 (
104 SCt 2052, 80 LE2d 674) (1984).
To show deficient performance, Mitchell must establish that his
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attorney performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms. See Henderson v. State, 304 Ga. 733, 735 (3)
(
822 SE2d 228) (2018). In reviewing an ineffectiveness claim, this
Court
must apply a strong presumption that counsel’s conduct
fell within the wide range of reasonable professional
performance. Thus, decisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim
only if they were so patently unreasonable that no
competent attorney would have followed such a course.
Id. (citation and punctuation omitted).
To establish prejudice, Mitchell must prove that there is a
reasonable probability that, but for counsel’s deficiency, the result
of his trial would have been different. See Strickland, 466 U. S. at
694. We need not address both parts of the Strickland test if Mitchell
makes an insufficient showing on one. See
id. at 697.
The record shows that Mitchell’s trial counsel interviewed
Bennett before the trial. She was aware that Bennett planned to
testify that Mitchell had confessed to him. Trial counsel came to
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believe that Bennett was not being truthful and that he had received
his information about the details of the case from looking at
Mitchell’s pre-trial discovery. Trial counsel was aware that Mitchell
had been in physical possession of his discovery while in jail through
her discussions with Mitchell. Her strategy was to show that
Bennett was lying and that he was seeking favors from the State.
At trial, Mitchell’s counsel cross-examined Bennett at length.
In response to her questioning, Bennett acknowledged that he had
spent more than 13 years of his life in prison, that he would “do
anything to get out” of prison, that the assistant district attorney
was writing a letter to the parole board on his behalf, and that when
he had met earlier with the assistant district attorney he had told
the prosecutor that he wanted to go home in exchange for his
testimony. Bennett also testified on cross-examination that he could
have accessed Mitchell’s cell, at least as long as he was with
Mitchell, and that he understood that discovery included the
indictment and witness statements. He agreed that Mitchell had
told him that Mitchell “used plastic bags and wrapped that around
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Mr. Lewis’s head.”
During closing argument, trial counsel argued, among other
things, that although Bennett claimed plastic was wrapped around
Lewis’s head, the evidence showed that “it was tape. It wasn’t plastic
bags, it was tape.” She argued that Bennett got the incorrect detail
that it was bags from Mitchell’s discovery, and maintained that
Bennett had “testified that he had access to [Mitchell’s] cell.” She
argued that Bennett’s knowledge of “the wound being in the shape
of a three or a ‘W’” also came from Mitchell’s discovery. She asserted
that “13 years of [Bennett’s] life he’s been in prison. And he told you
he would do anything to go home.”
(a) Mitchell claims that his trial counsel was ineffective in
failing to investigate and then expose the circumstances of the case
pending against Bennett in Fulton County Superior Court at the
time Bennett wrote to the district attorney’s office that he had
information about the murder in Mitchell’s case. “In any
ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
9
applying a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U. S. at 691. See also Barker v. Barrow,
290 Ga.
711, 713 (1) (
723 SE2d 905) (2012) (same).
Trial counsel testified at the motion for new trial hearing that
although she was aware that Bennett was facing charges when he
was housed with Mitchell, she did not investigate the circumstances
of that case. Mitchell points out that at the time Bennett wrote the
letter to the district attorney’s office in August 2013, he had not been
tried on the pending charges.2 That trial occurred later the same
month. Mitchell posits that if the case pending against Bennett was
strong, then Bennett’s motivation to help himself by accessing
Mitchell’s discovery and fabricating Mitchell’s confession would also
2 The record shows that Bennett was indicted in January 2013 for two
counts of armed robbery and other offenses. On August 13, 2013, Bennett wrote
a letter to the office of the Fulton County district attorney stating that he had
“some info concerning the murder case of Tony Mitchell.” The district
attorney’s office received that letter on August 30, 2013. Before the district
attorney’s office received the letter, a jury found Bennett guilty at a trial
commencing on August 19, 2013, of one count of aggravated assault, two counts
of false imprisonment, theft by taking, and possession of a firearm by a
convicted felon, but not guilty of the armed robbery and other charges.
Bennett’s sentence of “12 years to serve 5 years, balance of 7 years probated,”
was entered on December 13, 2013. An investigator with the district attorney’s
office met with Bennett about his letter after Bennett was sentenced.
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be strong. As to the allegedly dire circumstances of that case,
Mitchell showed at the hearing on his motion for new trial that
Bennett had been facing two counts of armed robbery, among other
charges; Bennett had been denied bail; his co-defendant had pled
guilty and been sentenced upon condition she testify truthfully at
his trial; the State had filed notice of its intent to seek recidivist
punishment; and Bennett faced a possible sentence of life without
parole. Mitchell also contends that Bennett had been “at odds with
his trial counsel” based on an order for mental evaluation showing
that Bennett’s attorney had requested the evaluation on grounds
that, among other things, Bennett was refusing to follow the advice
of counsel.
Pretermitting whether trial counsel’s failure to investigate
Bennett’s case was deficient, Mitchell has not shown prejudice. The
circumstances of Bennett’s case did not shed any direct light on
whether Bennett accessed Mitchell’s discovery. There was never a
plea agreement in Bennett’s case arising from his testimony at
Mitchell’s trial; Bennett did not ask for a deal in his letter to the
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district attorney; and Bennett’s understanding that an assistant
district attorney would write a letter to the parole board was elicited
on direct and cross-examination. Nor did the evidence show that
even if Bennett accessed Mitchell’s discovery, he must have done so
before writing the letter to the district attorney or before the trial on
the charges pending against Bennett when he wrote the letter.
Bennett’s testimony at Mitchell’s 2015 trial showed that he and
Mitchell were housed together in the jail from March until December
2013. Bennett testified about his conviction and sentence in the case
pending against him while he was housed with Mitchell, as well as
the charges of which he was acquitted during that period of time,
which included Bennett’s acquittal on the two charges of armed
robbery. According to Bennett, Mitchell knew that Bennett was
acquitted of the armed robbery charges and asked Bennett about
Bennett’s case. Trial counsel argued in closing that Bennett had
“befriended Mr. Mitchell, . . . gained his trust, . . . read his
information and made up a story to the [prosecutor] . . . because . . .
he would do anything to go home[.]”
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As the foregoing shows, the jury was made aware of Bennett’s
case, of Mitchell’s interest in Bennett’s case after Bennett had been
acquitted of the most serious charges against him, and the amount
of time Bennett had to gain Mitchell’s trust. It also would have been
within the trial court’s discretion to prohibit trial counsel from cross-
examining Bennett about the potential sentence in his case in the
absence of any plea deal in exchange for his testimony. See Redding
v. State, 307 Ga. __, __ (2) (__ SE2d __) (2020). Under the
circumstances, there is no reasonable probability that the result of
Mitchell’s trial would have been different even if the details of
Bennett’s case had been investigated by trial counsel and presented
to the jury. See Shank v. State,
290 Ga. 844, 848 (5) (a) (
725 SE2d
246) (2012) (claim that trial counsel was ineffective because he did
not adequately investigate the case was without merit because the
defendant “failed to show that a more thorough investigation would
have yielded any significant exculpatory evidence and thus failed to
establish prejudice resulting from the allegedly deficient
investigation”).
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(b) Mitchell contends that his trial counsel was ineffective in
that she failed to introduce evidence that an investigating
detective’s report included the erroneous assertion that the victim
had a bag taped around his head. Mitchell showed at the motion for
new trial hearing that a police investigator documented in a report
served on the defense as part of discovery that “[t]he victim was
found inside of his bedroom with a bag tapped [sic] around his head
which was bloody.”
Mitchell argues that to support trial counsel’s theory that
Bennett had accessed Mitchell’s discovery and was lying about
Mitchell’s confession, counsel established at trial that (1) Bennett
claimed Mitchell admitted to him that he used a plastic bag from a
trash can and taped it around Lewis’s head, (2) per the medical
examiner, there was no bag taped around Lewis’s head, and (3)
Bennett admitted he could have gained access to Mitchell’s personal
effects in the jail. Mitchell maintains that an additional fact was
nevertheless required for the defense to show that Bennett’s
information came from reading Mitchell’s discovery: that the
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investigator’s report included in Mitchell’s discovery contained the
incorrect detail that a bag was taped around Lewis’s head.
More specifically, the trial transcript shows that the
investigator testified that Lewis’s head was “wrapped in plastic and
taped.” When the investigator was recalled for questioning by the
defense, trial counsel did not ask the investigator if his report
referenced a bag taped around Lewis’s head. Rather, she asked: “Do
you recall in your report . . . giving a description of the way Mr.
Lewis’[s] head was wrapped with tape?” The investigator then
responded affirmatively. Mitchell argues that his trial counsel’s
failure to establish the readily available fact that the investigator’s
report also stated that a bag was taped around Lewis’s head fell
below an objective standard of reasonableness.
Assuming, without deciding, that trial counsel’s performance
was deficient as alleged, Mitchell does not show he was prejudiced.
In her closing argument, trial counsel referenced Bennett’s claim
about the use of the bag as well as the medical examiner’s testimony
showing the absence of a bag, and she argued that Bennett had read
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about “plastic” around the victim’s head from the investigator’s
report and argued that “it wasn’t plastic bags; it was tape.” Trial
counsel presented a defense based on discrediting Bennett, although
it was not executed in the manner appellate counsel now finds most
appropriate. The circumstantial evidence of Mitchell’s guilt was also
very strong. Even if we accept for the purposes of argument that
trial counsel fell short in failing to introduce the contents of the
investigator’s report, there is not a reasonable likelihood that, but
for counsel’s alleged error, the outcome of the trial would have been
different.
(c) Mitchell further contends that his trial counsel was
ineffective in failing to show that Mitchell received his discovery
because the theory of the defense was predicated on that fact. In
other words, Bennett could not have gotten his information from
Mitchell’s discovery unless that discovery had first been delivered to
Mitchell. Mitchell’s first counsel in this matter, who withdrew from
representation before the appearance of trial counsel, testified at the
hearing on the motion for new trial that he delivered the discovery
16
to Mitchell at the jail. Thus, Mitchell posits, his trial counsel could
have easily established the predicate fact that Mitchell received his
discovery through the testimony of Mitchell’s first counsel.
Assuming that trial counsel was deficient in failing to show
that Mitchell had actually received his discovery, Mitchell cannot
show prejudice. The State did not suggest at trial that Mitchell had
never received his discovery, such that it would have been
impossible for Bennett to have seen it. Rather, in response to
questioning by the prosecutor during direct examination, Bennett
maintained that he had never seen Mitchell’s discovery, nor had he
seen photographs of the crime scene or read any police reports or
case summaries in Mitchell’s case. Mitchell does not show that his
trial counsel’s alleged deficiency in failing to explicitly establish that
he received discovery was reasonably likely to have affected the
outcome of the trial.
(d) Mitchell contends that, given trial counsel’s strategy of
discrediting Bennett, she unreasonably failed to confront Bennett or
make closing argument regarding Bennett’s claim that Mitchell told
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him that he hit Lewis in the head with brass knuckles, then engaged
in a struggle with Lewis before strangling him with a rope. Mitchell
argues that the evidence “was not indicative of a struggle between
Lewis and his assailant occurring after the head wound was
inflicted.” He bases this assertion on evidence that the blood found
at the crime scene was not widespread, but was confined to a small
area.
The testimony of the medical examiner showed that Lewis was
alive when he was strangled, although “either one” of the blunt force
trauma to the head or the strangulation could have individually
resulted in his death. However, the medical examiner opined,
strangulation would “probably . . . or potentially” have caused death
faster than the head injury.
The physical and forensic evidence allowed for the possibility
that Lewis was struck on the head and then strangled. Mitchell does
not point to any testimony showing that Lewis could not have
struggled after having being hit on the head, or that the location of
the blood found at the scene ruled out a struggle. It was within the
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broad range of reasonable professional assistance for trial counsel to
decline to confront Bennett about the alleged struggle during cross-
examination and not to argue in closing that the evidence did not
support the occurrence of a struggle. See Smith v. State, 303 Ga.
643, 648 (II) (B) (
814 SE2d 411) (2018) (“[W]hether to impeach
prosecution witnesses and how to do so are tactical decisions.”)
(citation and punctuation omitted)); Nations v. State,
290 Ga. 39, 43
(4) (a) (
717 SE2d 634) (2011) (“The scope of cross-examination is
generally a matter of trial tactics and strategy, and will rarely
constitute ineffective assistance of counsel.” (citation omitted)).
(e) Mitchell contends that trial counsel was ineffective in
failing to impeach Bennett with certified copies of his prior
convictions, which included convictions for attempted escape and
armed robbery. The jury was informed on direct examination of
Bennett’s felony convictions and his sentence for aggravated assault
and other crimes in the case for which he was then serving time. On
cross-examination, trial counsel showed that Bennett had served 13
years of his life in jail and elicited Bennett’s acknowledgment that
19
he would do anything to get out of prison. Under these
circumstances, trial counsel’s failure to additionally impeach
Bennett with certified copies of his prior convictions was not
objectively unreasonable. Romer v. State, 293 Ga. 339, 344-345 (3)
(a) (
745 SE2d 637) (2013) (In light of the cross-examination
conducted by trial counsel, it was not patently unreasonable for trial
counsel not to generally impeach the witness’s credibility with her
prior convictions.); Chance v. State,
291 Ga. 241, 246 (7) (a) (
728
SE2d 635) (2012) (“The decision whether to impeach a witness
through introduction of certified copies of prior convictions is a
matter of trial strategy.” (citation and punctuation omitted)).
(f) Lastly, we consider the cumulative effect of prejudice
resulting from trial counsel’s allegedly deficient performance.
Schofield v. Holsey, 281 Ga. 809 (II) n.1 (
642 SE2d 56) (2007) (“[I]t
is the prejudice arising from counsel’s errors that is constitutionally
relevant, not that each individual error by counsel should be
considered in a vacuum.” (citation and punctuation omitted)). Here,
“the cumulative prejudice from any assumed deficiencies discussed
20
in Divisions [2 (a), (b), and (c)] is insufficient to show a reasonable
probability that the results of the proceedings would have been
different in the absence of the alleged deficiencies.” Davis v. State,
306 Ga. 140, 150 (3) (j) (
829 SE2d 321) (2019) (citation and
punctuation omitted).
In light of the foregoing, we see no merit in Mitchell’s claims of
ineffective assistance of trial counsel.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 10, 2020.
Murder. Fulton Superior Court. Before Judge Dunaway.
Steven E. Phillips, for appellant.
21
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Aslean Z. Eaglin, 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.
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