Smallwood v. State

• Decision Date: 22 October 2015
• Docket Number: No. A15A1373.,A15A1373.
• Citation: Smallwood v. State, 334 Ga.App. 224, 779 S.E.2d 1 (Ga. App. 2015)
• Parties: SMALLWOOD v. STATE.
• Court: Georgia Court of Appeals

334 Ga.App. 224

779 S.E.2d 1

SMALLWOOD

v.STATE.

No. A15A1373.

Court of Appeals of Georgia.

Oct. 22, 2015.

Shari Suzanne Gunnin, for Appellant.

Lee Darragh, Burke Olivia Doherty, for Appellee.

BARNES, Presiding Judge.

Samuel Smallwood appeals his conviction for trafficking in methamphetamine and possession of drug-related items. Smallwood contends the trial court erred by failing to grant a mistrial when improper evidence came out regarding his criminal history. For the reasons that follow, we affirm.

"[W]hether to grant a motion for mistrial is within the trial court's sound discretion, and the trial court's exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant's right to a fair trial." (Citation & punctuation omitted.) Wynn v. State, 332 Ga.App. 429, 434(2), 773 S.E.2d 393 (2015). We view the evidence on appeal "in the light most favorable to sustain the verdict." Anthony v. State, 317 Ga.App. 807, 732 S.E.2d 845 (2012). So viewed, the record shows the following relevant facts.

Smallwood was traveling in a car with three other people when an officer pulled them over for a broken tail light. After the officer spoke with the passengers, he believed three out of the four were high on methamphetamine and decided to investigate further. The owner of the vehicle consented to a search and the officer found methamphetamine or drug-related items on all of the passengers, except Smallwood. On Smallwood's person they found $2,270 which he claimed belonged to another passenger. Underneath the car, the officers discovered two magnetic containers that held more drugs and a gun. The other three occupants of the car entered plea bargains and agreed to testify against Smallwood at trial. They testified that the drugs and money belonged to Smallwood, that he stopped at someone's house before the drive, and that he approached the rear of the vehicle when they stopped mid-trip. During the trial, Smallwood moved for mistrial twice alleging that improper character evidence came out through the testimony.

The jury found Smallwood guilty of trafficking in methamphetamine and the possession of drug-related objects. Smallwood moved for a new trial on the same argument of improper character evidence. The trial court denied the motion and held that the implicating evidence was not enough to make the trial unfair. Smallwood filed a timely appeal.

1. First, Smallwood contends the trial court erred by failing to grant a mistrial when character evidence regarding his criminal history came out in an audio/video recording the State played during trial. He maintains that the admission of evidence violated his right to a fair and impartial trial before an unbiased jury. We disagree.

Before trial both parties stipulated that Smallwood's criminal history would not come into evidence. The State planned to show the audio/video recording of the traffic stop and agreed to redact any mention of Smallwood's past criminal history including where the arresting officer asked the driver of the vehicle about Smallwood's parole status. At trial, the State played the video during the officer's testimony but failed to mute the tape before the officer asked about Smallwood's parole status. Smallwood objected and moved for a mistrial on the presumption that the jury heard the officer. The parties agreed the jury never heard a response from the driver because the State immediately muted the recording, right before Smallwood's objection. Since the audio/video recording could not be entered into the record, the trial court was unsure if the jury heard the full word ‘parole’, as Smallwood claimed, or just the beginning of the word, as the State claimed. It was also unsure if the question pertained to Smallwood or to another person and ultimately denied the motion for mistrial. The trial court offered to either sustain the objection, move to strike the material, or provide curative instructions, but Smallwood declined all of these options.

Generally, the character of the defendant should not come into evidence unless he chooses to put his character in issue and "when prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant's right to a fair trial." White v. State, 268 Ga. 28, 32(4), 486 S.E.2d 338 (1997). The decision to grant or deny a mistrial lies within the sole discretion of the trial court and we review the court's actions for an abuse of that discretion by looking at several factors, such as "the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety." (Citation & punctuation omitted.) Agee v. State, 279 Ga. 774, 777(4), 621 S.E.2d 434 (2005). We also consider additional facts like "whether the reference to the improper character evidence is isolated in brief, whether the jury's exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the State." Jackson v. State, 321 Ga.App. 607, 610(1), 739 S.E.2d 86 (2013).

Looking at these factors, the trial court did not abuse its discretion in denying Smallwood's motion for mistrial. The jury heard the word briefly during a line of questioning with a third person witness on an audio/video recording which the State immediately muted. The jury's exposure to the word ‘parole’ was brief, the question was out of context, misleading, unanswered, and the State's failure to mute the recording was "clearly inadvertent."

Smallwood cites Johnson v. State, 275 Ga. 508, 510(3), 570 S.E.2d 292 (2002), to show that the admitted character evidence violated his right to a fair trial. But in that case the State entered three certified copies of the defendant's prior convictions into evidence, which seems much more prejudicial than a mention of the word ‘parole’. Id. The present case is more similar to Jackson, 321 Ga.App. at 612(1), 739 S.E.2d 86, where the State unintentionally played a recording implicating the defendant. The court held that there was no reasonable probability that the statement contributed to the guilty verdict as the statement was "likely heard by the jury only once" and "was a brief single, comment made toward the end of an approximately thirty minute recording." Id.

Furthermore, the mere mention of a defendant's criminal history "falls short of placing his character at issue." (Citation & punctuation omitted.)

Mathis v. State, 299 Ga.App. 831, 835(1)(c)(i), 684 S.E.2d 6 (2009) (upholding the denial of motion for mistrial when a witness testified the defendant said he did not want to return to jail). Reviewing the evidence in light of the above factors, we find the trial court did not abuse its discretion in denying Smallwood's motion for mistrial.

2. Second, Smallwood contends that the trial court erred by failing to grant a mistrial when improper character evidence was introduced during witness testimony regarding the fact defendant had been in prison. We disagree.

During trial, the State asked the driver of the vehicle to explain his relationship with Smallwood by establishing they attended junior high school together and they were still acquainted. When asked if he still remained in contact with Smallwood the witness replied "[W]e lost contact till he got out of prison two-and-a-half or three years ago or something like that." Smallwood objected and moved for a mistrial based on admission of improper character evidence from both the recording and the witness.

The State argued that it warned all of its witnesses to avoid mention of Smallwood's past criminal history and asked the trial court for curative instructions to remedy any prejudice. The witness claimed the State...