Mitchum v. State

• Court: Georgia Supreme Court
• Writing for the Court: FLETCHER, Presiding Justice.
• Citation: Mitchum v. State, 274 Ga. 75, 548 S.E.2d 286 (Ga. 2001)
• Decision Date: 04 June 2001
• Docket Number: No. S01A0387.,S01A0387.
• Parties: MITCHUM v. The STATE.

548 S.E.2d 286

274 Ga. 75

MITCHUM v. The STATE.

No. S01A0387.

Supreme Court of Georgia.

June 4, 2001.

Reconsideration Denied July 16, 2001.

Carol B. Miller, Pembroke, for appellant.

J. Thomas Durden, Jr., Dist. Atty., Richard E. Braun, Jr., Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee.

FLETCHER, Presiding Justice.

A jury convicted Robert Earl Mitchum of felony murder and aggravated assault in connection with the beating death of Charles Howell.¹ The trial court granted the state's motion in limine to exclude prior acts of violence committed by the victim against third persons because Mitchum failed to give ten days' notice. Mitchum contends that trial counsel rendered ineffective assistance of counsel by failing to give the required notice and the trial court's evidentiary rulings precluded him from presenting his self-defense theory. Because the defendant was able to present his justification defense at trial and trial counsel's performance did not prejudice him, we affirm.

1. The evidence presented at trial shows that the victim was drunk and arguing with his girlfriend, Jackie Jenkins, at their trailer. Jenkins' daughter asked their neighbors for help, and Mitchum, his cousin, and her boyfriend Ron Bell Jr. came over. As the three men were talking on the patio, Howell accused Mitchum of having sex with Jenkins and swung at him. Mitchum, who had been holding a softball bat behind his back, made a "grand slam" swing, hit Howell in the neck, and knocked him down, where Mitchum hit him at least three more times as Howell lay motionless on the concrete patio. Although Mitchum testified that he thought Howell had a knife in his hand, none of the four eyewitnesses saw Howell with a knife or other weapon that night. The medical examiner testified that Howell choked to death from the blow to his neck. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Mitchum guilty of the crimes charged.²

2. To establish a claim of ineffective assistance of trial counsel, the defendant must show that counsel's performance was deficient and the deficient performance prejudiced the defense.³ In determining prejudice, the question is whether, without the errors of counsel, there is a reasonable probability that the jury would have had a reasonable doubt of guilt.⁴

(a) Mitchum contends that his trial counsel was ineffective for failing to give ten days' notice of his intent to introduce evidence of the victim's prior violent acts,⁵ object to the scope of the state's motion in limine, and proffer evidence concerning the prior act evidence. Contrary to the defendant's contention, he was able to present his justification defense and introduce evidence of the victim's general reputation for violence. Mitchum testified at trial that he saw Howell reach into his pocket and was turning to walk away when he heard his cousin holler his name. Mitchum grabbed the bat, turned around, and hit Howell three times until he fell to the ground. Mitchum further testified that he was scared and felt his life was in danger; it looked like Howell had a knife in his hand. Other witnesses testified that Howell routinely carried a knife and had been flicking it open that afternoon. In addition, Mitchum's cousin testified that she took the bat with her to the neighboring trailer for her own protection and to stop Howell from fighting.

Even if trial counsel had given the state the requisite notice, the trial court would not have abused its discretion in ruling inadmissible the evidence of specific acts of violence. The testimony that Mitchum gave at the hearing on the motion for new trial was similar to his testimony at trial and described the victim's general propensity for violence rather than any specific act of violence against an individual.⁶ Based on this evidence, we conclude that the defendant has not shown a reasonable probability that the jury would have reached a different verdict absent the alleged errors of trial counsel concerning the prior...