Mitchell v. State
| Citation | 242 Ga. App. 177,529 S.E.2d 169 |
| Decision Date | 01 February 2000 |
| Docket Number | No. A99A2445.,A99A2445. |
| Parties | MITCHELL v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
Bennett Law Firm, Michael S. Bennett, Sr., James T. Bennett, Valdosta, for appellant.
J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee. BARNES, Judge.
Eugene Mitchell was indicted for armed robbery and possession of a knife during the commission of a crime. A jury convicted him on both counts, and the trial court sentenced him to serve twelve years for the armed robbery and five years concurrently for the knife possession. Mitchell appeals, arguing that insufficient evidence supports his conviction; that admitting evidence at trial of his post-arrest silence violated his privilege against self-incrimination; that his identification as a suspect at a "showup" violated his due process rights; that the Valdosta Police Department policy of destroying field notes violated his due process and confrontation rights; that his trial counsel was ineffective; and that he was denied his right to be defended by counsel of his own selection. After considering each of these enumerations, we affirm.
We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses' credibility but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga.App. 254, 255, 485 S.E.2d 830 (1997).
Construed to support the verdict, the evidence at trial showed that around 11:00 a.m. on April 2, 1997, a black man with a sweatshirt hood over his head and a bandanna tied over the lower half of his face robbed Vallorbe Real Estate Management Company. The victim testified that she looked up from her desk and saw the robber standing before her holding a knife. He threw a black bag onto her desk and said, "[p]ut the money in the bag and don't say a word." The robber then reached over the desk, pointed the knife at the victim, took the cash box, and left.
The police arrived, and the victim described the robber as a young black man wearing a dark sweatshirt with some kind of printing on it. With that description, the police began searching the neighborhood. Within about 15 to 20 minutes, they returned and asked her to look through her plate-glass storefront and see if she could identify anyone outside as the robber. She could not, and the police let the first suspect go. Shortly thereafter, the police again asked her to look outside and see if she could identify anyone as the robber. This time she positively identified Mitchell as the robber, and he was arrested.
Detective McGraw testified that he heard radio traffic about an armed robbery and went with his partner to help secure the area. He heard another officer say the suspect was running along a canal parallel to the road, where the detective was located, then saw the suspect jump the canal and run around a house. Detective McGraw ran after him and, as he turned the corner, came upon another officer arresting the suspect. Detective McGraw picked up the bag on the ground next to the suspect and found money and paperwork from Vallorbe inside it. He identified Mitchell as the suspect he had been chasing.
Mitchell testified in his defense, explaining that, while walking through the area, he saw a black man run through a fence gate, throw a bag on the ground, and run off. Mitchell testified that he picked up the bag, looked inside, and saw papers and money. While he was looking, he heard someone say, "Did you see anybody run through there?"
He then realized someone was looking for the black man who had run off, and because he was also a black man holding the bag the other man dropped, he panicked and ran, keeping the bag because he was afraid his fingerprints would be on it. He stopped when a police officer with a drawn gun ordered him to do so.
Mitchell also presented two other witnesses, both nurses from the jail, who testified that he had unusual, remarkable eyes that changed color.
1. Mitchell contends that insufficient evidence supports his convictions of armed robbery and possession of a knife while committing a crime. We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Mitchell guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Mitchell contends that the victim's identification of him during an impermissibly suggestive showup gave rise to a substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). We first consider whether the identification procedure was impermissibly suggestive and note that we have held that on-the-scene confrontations and identifications are inherently suggestive because of the presentation of a single suspect. Ferguson v. State, 221 Ga.App. 415, 418(1), 471 S.E.2d 528 (1996). We then consider whether the situation presented a substantial likelihood of irreparable misidentification.
[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation.
(Citations and punctuation omitted.) Id.
In the case before us, Mitchell was arrested within an hour and in the immediate neighborhood of the robbery. The victim testified that the robber stood before her desk in full daylight, then reached over her desk and grabbed the cash box. When she first identified him, "his face was very fresh in [her] mind." She positively identified him at the showup and at trial, testifying that she remembered his eyes, and Mitchell himself presented two witnesses who testified that he had unusual eyes. Finally, when caught, Mitchell was carrying the bag used in the robbery, which contained money and paperwork with the name of the victim's company on it. The trial court's determination that no likelihood of irreparable misidentification existed under the totality of the circumstances is supported by the evidence, is not clearly erroneous, and is therefore affirmed.
3. Mitchell argues that the trial court erred in admitting evidence of his post-arrest silence, in violation of his Fifth Amendment privilege against self-incrimination. However, trial counsel did not object to the cross-examination. While in most instances failure to object would waive this issue (see, e.g., Pye v. State, 269 Ga. 779, 787(14), 505 S.E.2d 4 (1998)), Mitchell also alleges that his trial counsel was ineffective for failing to object to the prosecutor's cross-examination of him regarding his silence after the investigating detective told him he did not have to give a statement. We will consider Mitchell's argument in the context of his ineffective assistance of counsel claim.
4. We must affirm a trial court's finding that a defendant has not been denied effective assistance of counsel unless it is clearly erroneous. Kelly v. State, 267 Ga. 252, 253(2), 477 S.E.2d 110 (1996).
In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense.
Stephens v. State, 265 Ga. 120, 121(2), 453 S.E.2d 443 (1995).
(a) On direct examination, Mitchell testified that after he was taken to the police station, he went into a back office where a detective began asking him about a knife. He testified that he told the detective he did not know anything about a knife and then the detective read him his rights. At that time, Mitchell testified that he told her he would rather not make a statement because he was not sure what he had gotten himself into. He was then taken to the sheriff's department and booked.
The following exchange then took place:
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