Wilkins v. State

• Decision Date: 10 September 2012
• Docket Number: No. S12A0658.,S12A0658.
• Citation: 731 S.E.2d 346,291 Ga. 483,12 FCDR 2780
• Parties: WILKINS v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 483

731 S.E.2d 346

12 FCDR 2780

WILKINS

v.The STATE.

No. S12A0658.

Supreme Court of Georgia.

Sept. 10, 2012.

Justin James Wyatt, Justin Wyatt & Associates, Marietta, for appellant.

Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department Of Law, Anna Green Cross, Patrick H. Head, Dist. Atty., A.D.A., Office of the District Attorney, Katherine Lee Iannuzzi, Asst. Atty. Gen., Department of Law, Jesse David Evans, Deputy Chief A.D.A., for appellee.

THOMPSON, Presiding Justice.

Appellant Mathew Wilkins was found guilty of malice murder, felony murder, aggravated assault, and aggravated battery in connection with the death of Marlisa Wells.¹ He appeals from the denial of his motion for new trial, and for the reasons that follow, we affirm.

1. The jury was authorized to find that appellant and the 16–year old victim were involved in an intimate relationship which resulted in the victim becoming pregnant. On the morning of the crimes, appellant went to the victim's home to talk about her pregnancy. They argued, and appellant stabbed the victim at least 60 times. Expert testimony established the victim died as a result of blunt force trauma and stab wounds to her head and neck region. The victim was discovered by her grandparents lying on the bathroom floor covered in blood with a fork protruding from her back. There was no sign of forced entry into the home.

Despite appellant's claim that he did not see or speak with the victim on the day of the crimes, cellular telephone records indicate they exchanged as many as 36 calls or text messages on the day before and morning of the crimes, the last call being routed through a cellular tower 1.5 miles from the victim's home. Police also discovered a pair of shoes wrapped inside clothing hidden behind an HVAC unit in the attic of appellant's home. Analysis demonstrated blood on the shoe lace matched the victim's DNA profile and also confirmed the presence of appellant's DNA in the victim's vaginal swab, indicating he and the victim had engaged in sexual intercourse shortly before her death.

Viewed in the light most favorable to the verdict, we conclude the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” Mickens v. State, 277 Ga. 627, 629, 593 S.E.2d 350 (2004).

2. Appellant contends the State engaged in unconstitutional race-based discrimination by using three of its nine peremptory strikes against African–Americans. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To establish a Batson violation, a defendant must show that the State engaged in purposeful racial discrimination in its use of peremptory strikes. “Once a party raising a Batson challenge satisfies his or her burden of showing a prima facie case of racial discrimination, the reasons provided to overcome any presumption of racial discrimination must be concrete, tangible, race-neutral, and neutrally applied. [Cits].” Scott v. State, 280 Ga. 466, 467, 629 S.E.2d 211 (2006).

The record in this case supports the trial court's finding that the reasons offered for the State's strikes were race-neutral and not pre-textual. See Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (“Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral”); Scott, supra, 280 Ga. at 467, 629 S.E.2d 211 (trial court's finding that there was no violation of Batson is entitled to great deference). In one instance, a prospective African–American juror testified he had an uncle with whom he was close who was convicted of murder. “Prior convictions or arrest histories of a family member are a sufficiently race neutral reason to exercise a peremptory strike. [Cit.]” Henry v. State, 265 Ga. 732, 734, 462 S.E.2d 737 (1995). The second African–American juror was similarly struck because he had a prior arrest and had initiated a criminal complaint against an individual and then failed to cooperate with the prosecution as the case proceeded. The prosecutor's concerns regarding this juror's prior arrest and his experience with the State in a prior prosecution are racially-neutral. As to the State's final peremptory strike, the State explained that the juror failed to respond to several general voir dire questions regarding prior arrests or convictions and whether he had ever been falsely accused of a crime. Then, during individual voir dire, this juror disclosed he previously had been arrested and falsely accused of a crime. The prosecutor's explanation for striking this juror is supported by the record and was racially neutral. Inasmuch as the State offered racially-neutral reasons for its strikes and appellant failed to establish that the reasons given were pretexts for racial discrimination, we conclude the trial court was authorized to find there was no Batson violation.

3. During voir dire, the State brought into the courtroom a cart carrying nondescript boxes, paper evidence bags, and a foam board. The defense moved for a mistrial based on the fact that potential jurors were able to observe the cart as it passed in the hallway and were tainted by seeing this evidence before the start of trial. After offering to allow defense counsel to question potential jurors, the trial court denied appellant's motion for mistrial because the items panel members saw were unremarkable and there was no evidence that the panel members could not be fair and impartial.

“Whether 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.” Ottis v. State, 271 Ga. 200, 201, 517 S.E.2d 525 (1999). We find no abuse of the trial court's discretion in determining that the items panel members saw were unremarkable and their view of these items would not affect appellant's right to a fair trial. See Smith v. State, 288 Ga. 348, 350, 703 S.E.2d 629 (2010) (mistrial should be granted only where “ ‘essential to the preservation of the defendant's right to a fair trial’ ” (citations omitted)).

4. A second motion for mistrial was made after an investigator was asked what he would have done in the investigation if the DNA evidence from the vaginal swab had come back as belonging to someone other than appellant. At that point in the trial, the State had not yet introduced any evidence showing that semen was found in the victim's body or indicating that the sample matched appellant's DNA. Appellant moved for a mistrial, arguing a mistrial was required because the prosecutor had commented on facts not in evidence. The trial court denied the motion for mistrial but informed counsel that if the State did not present the evidence referred to, the prosecutor's question would be improper and the issue would be revisited by the court.

“ ‘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. [Cit.] Whether the statements are so prejudicial as to warrant a mistrial is within the trial court's discretion. [Cits.]” Agee v. State, 279 Ga. 774, 777, 621 S.E.2d 434 (2005). In this case we find no prejudice and no abuse of the trial court's discretion because the evidence the prosecutor's question alluded to was subsequently introduced into evidence.

5. Appellant contends the trial court erred by allowing a witness whose name was not included on the State's witness list to testify at trial. Because appellant opted into reciprocal discovery pursuant to OCGA § 17–16–2(a), the State was required to provide the defense with the State's list of witnesses no later than ten days before trial. See OCGA § 17–16–8(a). OCGA § 17–16–6 sets forth the remedies for a defendant upon the State's failure to comply with OCGA § 17–16–8, providing that

the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

Thus, by it plain terms, “the severe sanction of exclusion of evidence applies only where there has been a showing of bad faith by the State and prejudice to the defense.” Cockrell v. State, 281 Ga. 536, 539, 640 S.E.2d 262 (2007).

Even assuming the State violated the requirements of OCGA § 17–16–8, we find no abuse of the trial court's broad discretion in fashioning its remedy. See Norris v. State, 289 Ga. 154, 156, 709 S.E.2d 792 (2011) (opportunity to interview witness is usually sufficient remedy for discovery violation); Holmes v. State, 284 Ga. 330, 332, 667 S.E.2d 71 (2008) (legislature cloaked trial court with discretion to use its own judgment in fashioning remedy under OCGA § 17–16–6). There is no evidence in this case of prosecutorial misconduct or bad faith by the State for failing to include the witness on the witness list and it is undisputed that the trial court...