Mitchell v. State, 32212
| Decision Date | 07 September 1977 |
| Docket Number | No. 32212,32212 |
| Citation | 238 S.E.2d 100,239 Ga. 456 |
| Parties | Randy D. MITCHELL v. The STATE. |
| Court | Georgia Supreme Court |
Stanley H. Nylen, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Donald J. Stein, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., Atlanta, for appellee.
The defendant Randy Darnell Mitchell was convicted by a jury of murder and sentenced by the trial judge to life in prison. There was evidence from which the jury was authorized to find that the 19-year-old defendant approached his next door neighbor on her back porch at about five o'clock in the afternoon. His neighbor lived with her husband, a judge, who had not yet returned home from work. The defendant entered her home where he attacked her, because, he said, she looked like his mother. The defendant took the fingernail file she used to defend herself away from her and stabbed her with it more than two dozen times. Four of these blows entered her heart, causing death. The defendant disposed of the fingernail file.
Blood samples taken from the house indicated that in addition to the blood of the victim, there also were present stains of blood type B, rh positive, configuration c,c,D,e,e. Expert testimony indicates that on the average thirteen persons in ten thousand have blood of this type and configuration. The defendant's blood is of this type and configuration.
After discovering defendant's blood type and configuration and obtaining certain other evidence, the authorities confronted the defendant. He confessed and his confession was presented to the jury. The evidence supports the verdict.
1. The defendant contends that he should have been allowed to ask a prospective juror on voir dire the questions: The trial court did not err in sustaining the prosecutor's objection to the question. Bethay v. State, 235 Ga. 371(4), 219 S.E.2d 743 (1975), and cases cited; Code Ann. § 59-705.
2. By motion to suppress the defendant challenged the admission of evidence obtained under the authority of a search warrant. He contended that the information placed before the issuing magistrate was too unreliable or too stale to support a finding of probable cause for the issuance of the warrant.
The affidavit contained the following statements relating to probable cause: (1) The deceased was stabbed to death in her home located at . . . between 4:30 and 5:30 p.m. on February 17, 1976. (2) Suspect Mitchell was seen on that date in front of the house next door at about 5:30 p.m. by the victim's husband before and after he discovered the body. (3) Blood stains found at the scene of the murder were determined by the state crime lab to be of two types: O and B positive; the victim had type O; according to military records the suspect has type B positive; the crime lab has determined the polymorphic enzymes and other antigen systems on the type B positive stains found but has not done so as to the suspect's blood. (4) Suspect admitted to affiant that he was incarcerated prior to discharge from the military for assaulting a school teacher; deceased worked for the Atlanta school system. (5) A letter opener, possibly the murder weapon, and deceased's Timex watch were missing after the murder. (6) On March 9, 1976, during interrogation, affiant observed a suspected blood stain on suspect's right trouser leg and a laceration scab on the middle finger of his right hand. (7) The above information was obtained by affiant (a detective), law enforcement officers in Fulton County or personnel of the State Crime Laboratory.
The affidavit was dated and the warrant was issued on March 11, 1976, after a hearing at which the detective supplemented his affidavit with testimony showing that he had asked the suspect if he would consent to giving a blood sample and the suspect had refused, saying: "If I am guilty, I shouldn't give any blood."
Defendant argues that affiant's statements are conclusions, that the reliability of the information is not established in the affidavit, that the information observed by affiant during the March 9 interrogation of the suspect (26 days after the murder) was unreliable on its face and not shown to be related to this case, that aside from that observation the other information was stale, and that it was not shown to whom (affiant or another) the victim's husband related the information in (2) above.
" Observations by fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number." United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1964). See also Matthews v. State, 236 Ga. 867, 870, 225 S.E.2d 896 (1976).
" Staleness" as relates to probable cause is not always measured by the interval between the commission of the crime and the issuance of the search warrant. "Staleness" as relates to probable cause is measured by the probability that the thing to be seized is located at the place to be searched and it involves the interval between (i) the time when the thing to be seized is indicated by the evidence or information to be at the place to be searched and (ii) the time when the search warrant is issued. Edward G. Mascolo, in his article Stale Probable Cause, 43 Conn.B.J. 189 (1969), refers to staleness as "currency of situs" (at page 194). As was stated in Andresen v. State of Maryland, 24 Md.App. 128, 172, 331 A.2d 78, 106 (1975), aff'd Andresen v. Maryland, 427 U.S. 463, n. 9 at 478, 96 S.Ct. 2737, 49 L.Ed.2d 627: "The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later."
The information in the affidavit was not so stale as to make it...
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