Mitchell v. State

317 Ga. 107

891 S.E.2d 915

MITCHELL v. The STATE.

S23A0599

Supreme Court of Georgia.

Decided: August 21, 2023

Brian Steel, The Steel Law Firm, P.C., 1800 Peachtree Street, N.W., Suite 300, Atlanta, Georgia 30309, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Chelsea Sharonlyn-Clyde Harvey, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Michael Scott Carlson, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, for Appellee.

Peterson, Presiding Justice.

Scean Mitchell appeals his convictions for malice murder and other offenses in connection with the shooting death of Calvin Clark, Jr. ¹ Mitchell argues that the trial court abused its discretion in admitting evidence of other acts under OCGA § 24-4-404 (b) ("Rule 404 (b)").

He also argues that his trial counsel was ineffective for failing to object when the trial court instructed the jury to disregard evidence of self-defense and for failing to request a jury instruction on self-defense. We reject both claims. There was no abuse of discretion in admitting the Rule 404 (b) evidence because it was relevant to the issue of intent and its probative value was not substantially outweighed by its unfairly prejudicial effect. And trial counsel was not ineffective because the self-defense claim was not supported by strong evidence and was inconsistent with the defense theory counsel had reasonably pursued instead. We affirm.

Viewed in the light most favorable to the jury's verdicts, the trial evidence showed the following. On the afternoon of July 14, 2017, Clark was at the home of his girlfriend, Quintara Russell, who lived at the Forrest Cove apartment complex in Fulton County. Clark left to buy some food and marijuana, and returned with only food because he did not see anyone selling drugs. Clark left the apartment again but did not tell Russell.

At some point, Russell heard two gunshots and called to Clark to ask if he heard them. Clark did not respond, and Russell next heard someone knocking on her door and screaming that "he was shot." Russell looked out the window and saw her porch "full of blood." She ran to the door and opened it, and Clark, bleeding from a gunshot wound, collapsed when she got there. Clark died from his gunshot wound.

Russell testified that Clark owned a gun and had it with him that day, but she did not see it on him when he was on the porch. One of the responding police officers saw shell casings near Clark's body and that his hand was positioned as though he had been holding a gun. From this, the officer testified that it was possible Clark may have been shooting a gun, although no weapon was found on Clark.

Several neighbors saw at least parts of the shooting and testified at trial. Mary Cooper testified that she heard the gunshots and then saw Jaquavious Johnson, Mitchell's co-defendant, pointing a gun while backing away as Mitchell scooped something off the ground near Clark's body. Cooper said that Johnson and Mitchell fled the scene together. Cooper, who had identified both defendants in a photo lineup, testified that she had seen the defendants standing under a tree outside Russell's apartment for at least an hour prior to the shooting.

Chastity Spear testified that she was on her porch when she saw Clark talk to a group of men including Johnson and Mitchell outside his apartment. The group walked off, and less than three minutes later, Spear heard gunshots. Spear next saw Mitchell running away with a gun in his hand. Marshavia Horton did not see the shooting, but heard the gunshots, looked up immediately, and saw Johnson and Mitchell running away from Clark, who was on his porch.

Marshavia's mother, Jasmon, met with a detective to report that she saw the shooting and provided descriptions of the assailants. Jasmon reported that Clark went with two men behind one of the apartment buildings to buy some marijuana, and when walking back, Clark appeared to reach for his gun when it appeared that he was about to be robbed. Before he could get his gun, Johnson and Mitchell pulled their guns and started shooting at Clark, who began running back to his apartment. Jasmon found pictures of Mitchell and Johnson on social media and provided these pictures to the detective, identifying them as the assailants. Jasmon reported that when Clark collapsed in front of his apartment door, Mitchell and Johnson were "grabbing something" from Clark that looked like a gun. During her police interview, Jasmon was shown a photo lineup and identified Johnson as one of the shooters. Although she did not identify Mitchell in a photo lineup, she identified him at trial. Jasmon also testified that, about an hour after the shooting, she talked to another neighbor, Soniyka Pullins, who reported that Mitchell and Johnson had been at Pullins's apartment planning the robbery of Clark. Jasmon told the detective that Mitchell and Johnson had been planning the robbery for weeks. The detective who interviewed Pullins testified that Pullins denied ever hearing anyone planning the robbery of Clark, but the detective explained that Pullins lived with Johnson and she seemed to be afraid of "snitching" on him. The detective also testified that he interviewed Takezia Johnson at the scene, and when he interviewed her again later, she told him that Mitchell heard she had been talking to the police and threatened to put her in a "body bag" if he learned it was true.

Evidence at trial showed that the Forrest Cove apartment complex had a lot of criminal gang activity, and that the "Glock" gang, which was identified as a Crips-related gang, controlled the area. Further evidence showed that Mitchell and Johnson were Glock gang members, and Mitchell identified himself as such on social media.

The State also presented evidence under Rule 404 (b) showing that in August 2015, Mamady Sylla was robbed at gunpoint by several people, including Mitchell, near the Forrest Cove Apartments. Sylla was selling items from an ice cream truck during the day after school. Sylla retrieved an item from a cooler and when he approached the window, Mitchell pulled a gun on him while the other assailants went through Sylla's pocket, took his iPhone, and took money from inside the truck.

1. Mitchell argues that the trial court erred in allowing the State to introduce other-acts evidence of the 2015 robbery under Rule 404 (b). The trial court ruled that the evidence was admissible for the purposes of showing motive, intent, and knowledge. Reviewing the trial court's decision to admit Rule 404 (b) evidence for an abuse of discretion, see Kirby v. State , 304 Ga. 472, 479 (4), 819 S.E.2d 468 (2018), we conclude that it did not abuse its discretion in admitting the evidence for the purpose of showing intent. ²

Under Rule 404 (b), "[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith[,]" but such evidence may be admissible for other purposes, including to prove intent, motive, and opportunity. See OCGA § 24-4-404 (b) ; State v. Jones , 297 Ga. 156, 159 (2), 773 S.E.2d 170 (2015) (Rule 404 (b) "is, on its face, an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence"). A party offering Rule 404 (b) evidence must show that (1) it is relevant to an issue in the case other than the defendant's character; (2) its probative value is not substantially outweighed by its unfair prejudice under OCGA § 24-4-403 ; and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act. See Jones v. State , 301 Ga. 544, 545, 802 S.E.2d 234 (2017). On appeal, Mitchell addresses only the first and second prongs of the Rule 404 (b) test, and his arguments fail.

(a) On the first prong, "a defendant who enters a not guilty plea makes intent a material issue, and the State may prove intent by qualifying Rule 404 (b) evidence absent affirmative steps by the defendant to remove intent as an issue." Naples v. State , 308 Ga. 43, 51 (2) (e), 838 S.E.2d 780 (2020) (citation and punctuation omitted). When intent is at issue, the first prong of Rule 404 (b) is established when the prior act was committed with the same state of mind as the charged crime. See id. ; see also Booth v. State , 301 Ga. 678, 683, 804 S.E.2d 104 (2017) ("Where the intent required for the charged offenses and other acts is the same, and intent is at issue, the first prong of the Rule 404 (b) test is satisfied.").

Here, Mitchell made intent a material issue by pleading not guilty, and he took no affirmative steps to remove it as an issue. Because intent was at issue, the relevance of the 2015 robbery was satisfied because it required the same state of mind (intent to rob) as some of the crimes — felony murder predicated on armed robbery and armed robbery — that Mitchell was charged with here. See Harris v. State , 313 Ga. 653, 661 (3), 872 S.E.2d 732 (2022) (where defendant was charged with felony murder predicated on armed robbery, armed robbery, and aggravated assault with intent to rob, other-acts evidence of prior robberies was relevant to the issue of intent).

(b) On the second prong, the Rule 403 balancing test requires other-acts evidence to be excluded if it constitutes "matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect." McKinney v. State , 307 Ga. 129, 137 (3) (b), 834 S.E.2d 741 (2019) (citation and punctuation omitted). "Factors to be considered in determining the probative value of other act evidence offered...