SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 17, 2014
In the Court of Appeals of Georgia A13A1786. MITCHELL v. THE STATE.
RAY, Judge.
A DeKalb County jury convicted Christopher Mitchell of armed robbery
(OCGA § 16-8-41). Mitchell appeals, contending that the trial court erred in
excluding the testimony of two newly-discovered defense witnesses. He also contends
that he had ineffective assistance of counsel. For the reasons that follow, we reverse.
At trial, the State relied primarily on the testimony of the victim, Ronald
Haywood. Viewed in the light most favorable to the guilty verdict,1 the evidence
showed that Haywood had previously worked with a man known by the nickname
“Naro.” One day, Haywood mentioned to Naro that he wanted to buy a laptop
computer, and Naro indicated that his cousin had one for sale. Shortly thereafter,
1 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Haywood sent a text message to Naro’s phone stating that he wanted to purchase the
laptop, and he received a text reply from a man who identified himself as Naro’s
cousin, stating that “Yes, I have the computer to sell.” Haywood and the man agreed
to meet at a Church’s Chicken restaurant. The man then gave Haywood another phone
number with which to contact him, and Haywood wrote the number down on a piece
of paper. According to Haywood, he had never met nor seen Naro’s cousin before and
did not know his name, but the man had indicated that he would be in a burgundy
Ford Taurus.
When Haywood arrived at the Church’s Chicken restaurant, he did not see
anyone there. Haywood then called the phone number that he had been given, and the
man who had previously identified himself as Naro’s cousin told Haywood to meet
him at an apartment complex.
Upon his arrival at the apartment complex, Haywood saw two men waving at
him. Haywood then attempted another telephone call to see if one of the men was
Naro’s cousin, but he got no response. As Haywood was driving away, Naro’s cousin
called back and confirmed that he was one of the men who had been waving at him.
Haywood returned and found one of the men standing near the entrance of the
apartment complex, but the second individual was not with him. The man then got
2 into the vehicle with Haywood and directed him to an apartment in the back of the
complex. As Haywood was parking his vehicle, he observed a burgundy Ford Taurus
parked nearby in the parking lot. After exiting his vehicle, Haywood and the man
walked around the back of the apartment building, and the man pulled out a silver
handgun and pointed it at Haywood. During the robbery, Haywood was instructed to
remove his clothes and run away, and the man took Haywood’s pants containing his
driver’s license, car keys, and $250 in cash.
Haywood later gave the police a description of the robber and the Ford Taurus,
as well as the phone number that he had used to contact the man. During the
subsequent investigation, the police learned that the phone number belonged to
Mitchell and that the Ford Taurus was registered to Charles White, the father of
Mitchell’s friend.2 Haywood was presented with a photographic lineup, and he
positively identified Mitchell as the man who had robbed him. The silver handgun
used in the robbery and the items taken from Haywood were never recovered.
2 Mitchell’s friend, Carlos Ricardo White, was also charged as a co-defendant in the indictment, but the trial in this case proceeded only against Mitchell.
3 Mitchell was arrested and subsequently interviewed by the police. After being
advised of his Miranda3 rights, Mitchell admitted that he was Naro’s cousin, that
Carlos White was his friend, and that Carlos usually drove the Ford Taurus.
Based on the above evidence, the jury found Mitchell guilty of armed robbery
and not guilty of possession of a firearm during the commission of a felony.
1. Mitchell contends that the trial court erred when it denied his request to
permit two newly-discovered witnesses to testify for the defense. We agree.
The victim and sole eyewitness, Haywood, was the first witness to testify at
trial. On direct examination, Haywood recounted his version of the events and
specifically testified that he had neither seen nor met Mitchell (Naro’s cousin) prior
to the robbery. During a brief recess, Mitchell’s trial counsel was approached by two
individuals who had been sitting in the courtroom observing the trial. They informed
counsel that they recognized Haywood when he came into the courtroom, that
Haywood was known by a different name in the community, and that Haywood had
known Mitchell for several years.4 Thus, the existence of these witnesses and the
3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 4 Trial counsel stated to the trial court that, prior to trial, neither Mitchell nor the two individuals knew anyone by the name of “Robert Haywood” and that it was only after Haywood appeared at trial that they recognized him as someone they knew.
4 relevance of the information they possessed did not become apparent until Haywood
appeared on the witness stand and testified.
At the trial court’s request, Mitchell’s counsel made a proffer of what the
witnesses would testify to, and it was readily apparent from this proffer that the
credibility of the victim could be called into question. However, the trial court
ultimately denied Mitchell’s request to permit the witnesses to testify because i) their
names were not provided to the State prior to trial and ii) these witnesses had
remained in the courtroom during Haywood’s testimony in violation of the rule of
sequestration.
(a) Reciprocal discovery. OCGA § 17-16-6 provides, in pertinent part, that
[i]f at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of [reciprocal discovery], the court may order the defendant to permit the [State to] interview . . . the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from . . . presenting the witness not disclosed[.]
(Punctuation omitted; emphasis supplied.)
In ruling on the State’s objection to the witnesses based on the alleged
discovery violation, the trial court erred by failing to require the State to make the
5 requisite showing of prejudice and bad faith as required by OCGA § 17-16-6. See
Webb v. State, 300 Ga. App. 611, 613-614 (685 SE2d 498) (2009); Ware v. State, 298
Ga. App. 232, 234 (2) (679 SE2d 797) (2009); Williams v. State, 256 Ga. App. 249,
251 (1) (568 SE2d 132) (2002); Hill v. State, 232 Ga. App. 561, 562 (502 SE2d 505)
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SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
March 17, 2014
In the Court of Appeals of Georgia A13A1786. MITCHELL v. THE STATE.
RAY, Judge.
A DeKalb County jury convicted Christopher Mitchell of armed robbery
(OCGA § 16-8-41). Mitchell appeals, contending that the trial court erred in
excluding the testimony of two newly-discovered defense witnesses. He also contends
that he had ineffective assistance of counsel. For the reasons that follow, we reverse.
At trial, the State relied primarily on the testimony of the victim, Ronald
Haywood. Viewed in the light most favorable to the guilty verdict,1 the evidence
showed that Haywood had previously worked with a man known by the nickname
“Naro.” One day, Haywood mentioned to Naro that he wanted to buy a laptop
computer, and Naro indicated that his cousin had one for sale. Shortly thereafter,
1 Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Haywood sent a text message to Naro’s phone stating that he wanted to purchase the
laptop, and he received a text reply from a man who identified himself as Naro’s
cousin, stating that “Yes, I have the computer to sell.” Haywood and the man agreed
to meet at a Church’s Chicken restaurant. The man then gave Haywood another phone
number with which to contact him, and Haywood wrote the number down on a piece
of paper. According to Haywood, he had never met nor seen Naro’s cousin before and
did not know his name, but the man had indicated that he would be in a burgundy
Ford Taurus.
When Haywood arrived at the Church’s Chicken restaurant, he did not see
anyone there. Haywood then called the phone number that he had been given, and the
man who had previously identified himself as Naro’s cousin told Haywood to meet
him at an apartment complex.
Upon his arrival at the apartment complex, Haywood saw two men waving at
him. Haywood then attempted another telephone call to see if one of the men was
Naro’s cousin, but he got no response. As Haywood was driving away, Naro’s cousin
called back and confirmed that he was one of the men who had been waving at him.
Haywood returned and found one of the men standing near the entrance of the
apartment complex, but the second individual was not with him. The man then got
2 into the vehicle with Haywood and directed him to an apartment in the back of the
complex. As Haywood was parking his vehicle, he observed a burgundy Ford Taurus
parked nearby in the parking lot. After exiting his vehicle, Haywood and the man
walked around the back of the apartment building, and the man pulled out a silver
handgun and pointed it at Haywood. During the robbery, Haywood was instructed to
remove his clothes and run away, and the man took Haywood’s pants containing his
driver’s license, car keys, and $250 in cash.
Haywood later gave the police a description of the robber and the Ford Taurus,
as well as the phone number that he had used to contact the man. During the
subsequent investigation, the police learned that the phone number belonged to
Mitchell and that the Ford Taurus was registered to Charles White, the father of
Mitchell’s friend.2 Haywood was presented with a photographic lineup, and he
positively identified Mitchell as the man who had robbed him. The silver handgun
used in the robbery and the items taken from Haywood were never recovered.
2 Mitchell’s friend, Carlos Ricardo White, was also charged as a co-defendant in the indictment, but the trial in this case proceeded only against Mitchell.
3 Mitchell was arrested and subsequently interviewed by the police. After being
advised of his Miranda3 rights, Mitchell admitted that he was Naro’s cousin, that
Carlos White was his friend, and that Carlos usually drove the Ford Taurus.
Based on the above evidence, the jury found Mitchell guilty of armed robbery
and not guilty of possession of a firearm during the commission of a felony.
1. Mitchell contends that the trial court erred when it denied his request to
permit two newly-discovered witnesses to testify for the defense. We agree.
The victim and sole eyewitness, Haywood, was the first witness to testify at
trial. On direct examination, Haywood recounted his version of the events and
specifically testified that he had neither seen nor met Mitchell (Naro’s cousin) prior
to the robbery. During a brief recess, Mitchell’s trial counsel was approached by two
individuals who had been sitting in the courtroom observing the trial. They informed
counsel that they recognized Haywood when he came into the courtroom, that
Haywood was known by a different name in the community, and that Haywood had
known Mitchell for several years.4 Thus, the existence of these witnesses and the
3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 4 Trial counsel stated to the trial court that, prior to trial, neither Mitchell nor the two individuals knew anyone by the name of “Robert Haywood” and that it was only after Haywood appeared at trial that they recognized him as someone they knew.
4 relevance of the information they possessed did not become apparent until Haywood
appeared on the witness stand and testified.
At the trial court’s request, Mitchell’s counsel made a proffer of what the
witnesses would testify to, and it was readily apparent from this proffer that the
credibility of the victim could be called into question. However, the trial court
ultimately denied Mitchell’s request to permit the witnesses to testify because i) their
names were not provided to the State prior to trial and ii) these witnesses had
remained in the courtroom during Haywood’s testimony in violation of the rule of
sequestration.
(a) Reciprocal discovery. OCGA § 17-16-6 provides, in pertinent part, that
[i]f at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of [reciprocal discovery], the court may order the defendant to permit the [State to] interview . . . the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from . . . presenting the witness not disclosed[.]
(Punctuation omitted; emphasis supplied.)
In ruling on the State’s objection to the witnesses based on the alleged
discovery violation, the trial court erred by failing to require the State to make the
5 requisite showing of prejudice and bad faith as required by OCGA § 17-16-6. See
Webb v. State, 300 Ga. App. 611, 613-614 (685 SE2d 498) (2009); Ware v. State, 298
Ga. App. 232, 234 (2) (679 SE2d 797) (2009); Williams v. State, 256 Ga. App. 249,
251 (1) (568 SE2d 132) (2002); Hill v. State, 232 Ga. App. 561, 562 (502 SE2d 505)
(1998) (“trial court had discretion under OCGA § 17-16-6 to exclude the testimony
of a nondisclosed defense witness only upon a showing of prejudice to the State and
bad faith by the defense”).
Notably, in its order denying Mitchell’s motion for new trial, the trial court
specifically found, in relation to one of Mitchell’s ineffective assistance claims, that
trial counsel “was not deficient for not placing [the] two witnesses on the defense
witness list because he did not know about the witnesses until the trial was
underway.” As the record clearly shows that there was no bad faith on the part of
Mitchell in failing to disclose the newly-discovered witnesses, the trial court erred in
excluding the witnesses based on a violation of reciprocal discovery. Webb, supra.
(b) Sequestration. The trial court’s decision to exclude Mitchell’s defense
witnesses was also based, in part, on a violation of the rule of sequestration. The trial
court found that Mitchell had invoked the rule of sequestration “and then chose not
to follow it,” and that “he should not be rewarded for circumventing the meaning of
6 the rule of sequestration[.]” However, the record does not support the trial court’s
reasoning.
Here, at the time the rule was invoked, the two individuals at issue were not
potential witnesses. They became witnesses only after Haywood appeared on the
witness stand and testified, and they promptly informed defense counsel of this fact.
As noted in subsection (a) of this Division, the trial court found that Mitchell’s
counsel did not know about the witnesses until after the trial was underway. Under
these circumstances, we fail to see how trial counsel could have “chosen” to disregard
the rule of sequestration.
Moreover, even if we were to assume that the rule of sequestration had been
violated, exclusion of the witnesses was not the proper remedy. See Jordan v. State,
247 Ga. 328, 347 (10) (276 SE2d 224) (1981) (in light of a defendant’s constitutional
right to call witnesses on his behalf, a defense witness who has violated the rule of
sequestration in a criminal case shall not be prevented from testifying).
When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’ testimony. A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.
7 (Citation and footnote omitted.) Robinson v. State, 246 Ga. App. 576, 583 (7) (541
SE2d 660) (2000).
Accordingly, to the extent that the trial court’s decision was based on a
violation of the rule of sequestration, it was error to exclude the witnesses from
testifying. Jordan, supra.
When this issue arose at trial, the trial court requested Mitchell’s counsel to
make a proffer of what the witnesses would testify to, and it was readily apparent
from this proffer that the witnesses’ testimony could have been used to impeach
Haywood. As the State’s case against Mitchell hinged on the credibility of Haywood
as the sole eyewitness to the armed robbery, we cannot say that the exclusion of the
witnesses’ testimony was harmless. Accordingly, Mitchell’s conviction must be
reversed.
2. We do not address Mitchell’s remaining enumeration of error relating to
ineffective assistance of counsel as it is not likely to recur on retrial.
Judgment reversed. Barnes, P. J., and Miller, J., concur.