Smallwood v. the State , 334 Ga. App. 224 ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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
October 22, 2015
In the Court of Appeals of Georgia
A15A1373. SMALLWOOD v. STATE
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
SE2d 393) (2015). We view the evidence on appeal “in the light most favorable to
sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732SE2d 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.
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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
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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. App. 28, 32 (4) (486 SE2d
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 SE2d
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 SE2d 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
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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 SE2d 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), 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 SE2d 6) (2009) (upholding the denial of motion for
mistrial when a witness testified the defendant said he did not want to return to jail).
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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 never spoke with him about
his testimony or told him to avoid mentioning the fact Smallwood was incarcerated.
Smallwood called the witness’s brother in support of the motion for mistrial to testify
that he had been with the witness all day and no one had approached them about his
testimony. On cross, he admitted that he did not hear everything the State said to his
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brother. The State acknowledged that it could not be positive anyone spoke with the
witness but reported that it told the other witnesses, the two other passengers and a
police officer, to not bring up Smallwood’s criminal history. The State also argued
that the statement was not responsive to the question asked, and the court agreed the
answer “was certainly not elicited by the state.” The court denied the motion,
concluding that the answer about Smallwood’s prison time was not necessarily
responsive to the question and agreed to give curative instructions to rectify any
prejudice.
The trial court instructed the jury to disregard the witness’s testimony given
immediately before Smallwood’s objection as irrelevant because “it has no bearing
on this case” and “ [i]t’s something that would be highly improper for you to
consider.” To determine if the jurors understood, it asked the jurors to raise their
hands if they felt they could not follow the instructions and every juror kept his hand
down. Next, it asked the jurors to raise their hands if they thought they could and
would follow the instructions, and this time every juror raised his hand. Smallwood
renewed his motion for mistrial after the curative instructions, which the court again
denied.
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Once again, we must review the trial court’s actions for an abuse of discretion
based on the statement, the surrounding circumstances, the court’s response and other
evidence in the case. Agee, 279 Ga. at 777 (4).
[M]otions for mistrial are largely in the discretion of the trial judge,
especially where the cause of the motion lies in the voluntary remark of
a witness not invited by court or counsel, and, where the jury is properly
instructed and the remark is not so flagrantly prejudicial as to violate the
fair trial rights of the defendant, the court’s discretion will not be
overturned
Owens v. State, 250 Ga. App. 61, 61 (550 SE2d 464) (2001). Here, the court ruled
that the State did not elicit a response about the defendant’s past criminal history, but
that the witness volunteered the information. The court then supplied curative
instructions.
Smallwood cites Jackson v. State, 302 Ga. App. 412, (691 SE2d 553) (2010),
where two witnesses testified about the defendant’s incarceration, one directly after
the other. This court reversed the denial of a motion for mistrial based on the fact that
the court gave curative instructions twice in a short time span and the witnesses’ used
the same language, ‘incarceration’, with clear intent after instructions otherwise. Id.
at 416 (1). Thomas v. State, 322 Ga. App. 734, 741 (3) (746 SE2d 216) (2013).
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Smallwood’s trial is distinguished because the witness only mentioned the
defendant’s past criminal history in reference to their relationship, and the court gave
curative instructions only once.
This case is more similar to Morgan v. State, where a witness responded that
the defendant was incarcerated at some point when asked about her relationship with
him. Morgan v. State, 303 Ga. App. 358, 361 (2) (693 SE2d 504) (2010). This court
ruled that “an unresponsive answer that impacts negatively on a defendant’s character
does not improperly place the defendant’s character in issue.” Id. at 362 (1). Here, the
witness testified that he lost contact with Smallwood while he was in prison when the
State attempted to ask about their relationship.
Furthermore, “no mistrial would have been granted as a nonresponsive answer
that impacts negatively on defendant’s character does not improperly place the
defendants character in issue.” Id. at 362 (1). See also Billings v. State, 308 Ga. App.
248, 253 (4) (707 SE2d 177) (2011).
Additionally, any error that arose from the jury having heard these unsolicited
passing references to Smallwood’s previous criminal entanglements was harmless in
light of the overwhelming evidence against Smallwood. As noted earlier, all three of
the car’s other occupants pled guilty to various offenses and testified at trial for the
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State. One of the passengers, who had dated Smallwood for about six months,
testified that the money and drugs belonged to Smallwood. She described stopping
at a house where Smallwood went in and came out with a box that looked like the one
containing methamphetamine that the police found under the car.
We conclude that the trial court did not abuse its discretion in denying
Smallwood’s motion for mistrial because the witness’s comment was nonresponsive,
brief, and the trial court provided curative instructions, and because the evidence
against Smallwood was overwhelming.
Judgment affirmed. Ray and McMillian, JJ., concur.
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