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. The jury was authorized to find that appellant and the 16-year-old victim were involved in an intimate relationship
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,
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,
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 pretextual. See Hernandez v. New York,
3. During voir dire, the State brought into the courtroom a cart carrying
“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,
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,
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,
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,
When the identity and involvement of a witness are otherwise disclosed to defendant in discovery provided to him by the State, the purpose of the witness list rule is served and the court may allow the State to call the witness even though he or she was not listed on the State’s formal witness list.
McLarty v. State,
6. The defense stipulated at trial to the admission of appellant’s original cellular telephone records. The State also introduced, and the trial court admitted into evidence, a summary of these records indicating there were 36 calls or text messages between appellant and the victim in the day before and morning of the crimes. Appellant contends admission of the State-created summary violated the continuing witness rule.
We find no reversible error in the admission of this summary or in the jury’s possession of the summary during deliberations. The continuing witness objection is
based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. [Cit.]
Tibbs v. Tibbs,
7. The trial court did not abuse its discretion by admitting two photographs of a stairway at the crime scene, one showing measurements, the other not. Photographs that are relevant and material are admissible, even if they are somewhat duplicative. Dean v. State,
8. On direct examination, a police investigator was asked whether it is sometimes difficult to obtain fingerprints of an identifiable quality from a crime scene. Appellant initially objected to this inquiry on the ground that no foundation had been laid to qualify the witness as an expert on fingerprint evidence, but he acquiesced after the trial judge stated he would allow the question but then allow appellant to cross-examine the witness regarding his qualifications if appellant wished to do so. Counsel responded by stating, “Thank you, Judge.” Even assuming the State was required to qualify the witness as a fingerprint expert, this enumeration of error is waived on appeal because appellant acquiesced in the procedure announced by the court. See Compton v. State,
9. Appellant contends the State improperly impeached his mother, whom he called as an alibi witness. OCGA § 24-9-82 provides that a “witness may be impeached by disproving the facts testified to by him.” The record demonstrates that during cross-examination, Ms. Wilkins twice testified that no one from the State called her. In rebuttal the State presented evidence, including a recorded phone call, showing that an investigator called Ms. Wilkins but she refused to speak with him. This evidence was properly admitted pursuant to OCGA § 24-9-82 because it disproved Ms. Wilkins’ testimony and was relevant to the issue of her credibility. Contrary to appellant’s argument, the fact that the evidence may have shown Ms.
Judgment affirmed.
Notes
The crimes occurred on January 19, 2008. Appellant was indicted by a Cobb County grand jury on April 4, 2008, on charges of malice murder, felony murder, aggravated assault, and aggravated battery. A jury trial was held March 2-10, 2010, and appellant was found guilty of all charges. He was sentenced on March 18,2010, to life in prison on the malice murder charge and a consecutive 20-year term on the aggravated battery charge. The felony murder and aggravated assault charges were vacated by operation of law or merged. See Malcolm v. State,