In the Supreme Court of Georgia
Decided: January 28, 2025
S24A1181. MITCHELL v. THE STATE.
PINSON, Justice.
Kenyatta Mitchell appeals his convictions for the malice murder of Carey Von Moss, the aggravated assault of Marcell Greene,
and two counts of possession of a firearm during the commission of
each of these felonies. 1
1 The shootings occurred on September 5, 2016. On November 30, 2016,
a Chatham County grand jury returned an indictment charging Mitchell with malice murder of Von Moss (Count 1), felony murder of Von Moss (Count 2), two counts of possession of a firearm during the commission of a felony (Counts 3, 5), and aggravated assault of Greene (Count 4). After a jury trial from April 5 to April 12, 2021, the jury returned guilty verdicts on all counts. On June 8, 2021, the trial court sentenced Mitchell to life in prison for malice murder (Count 1) and consecutive sentences of five years for each count of firearm possession during the commission of a felony (Counts 3, 5) and twenty years for aggravated assault (Count 5); the felony murder (Count 2) was vacated by operation of law. Mitchell, through his trial counsel, timely filed a motion for new trial on the same day he was sentenced. Mitchell later changed counsel, and his new counsel filed an amended motion for new trial on January 1, 2024. After a hearing on February 20, 2024, the trial court denied the motion for new trial, as amended, on April 9, 2024. Mitchell timely filed a notice of appeal on April 26, 2024. His appeal was docketed to the August 2024 term of court and submitted for a decision on the briefs.
On appeal, Mitchell contends the trial court erred by admitting
into evidence a surveillance video and still images from the video,
which he contends were not properly authenticated, and by allowing
a witness to identify him in the surveillance video and a screenshot
taken from it. He also contends that the trial court erred by denying
his motion to suppress Greene’s identification of him and denying a
motion for mistrial after the prosecutor failed to redact hearsay from
a recorded witness interview that was played for the jury. And he
contends that the cumulative effect of these errors requires a new
trial.
Each claim fails. The surveillance video and the screenshots
taken from it were properly authenticated. The trial court did not
abuse its discretion by allowing a witness to identify Mitchell in the
surveillance video and screenshot because the witness’s identification was helpful to the jury given the poor quality of the images, and
the witness was present during the events shown in the video and
could testify about his personal knowledge of those events. The trial
court did not abuse its discretion by denying the motion to suppress
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the identification because the likelihood of irreparable misidentification was not substantial, and the court did not abuse its discretion
in denying the motion for a mistrial because it instead gave a sufficient curative instruction to disregard any hearsay statements in
the unredacted recording. And because the trial court did not err in
any of these respects, there are no errors to assess cumulatively. Because Mitchell’s claims fail, his convictions are affirmed.
1. Background
The evidence at trial showed the following. On September 5,
2016, Greene and Von Moss were both staying at a home on West
42nd Street in Savannah, Georgia. Greene walked outside the home
and saw Von Moss talking to a man dressed in brown clothing. The
man in brown then pulled out a gun and shot Von Moss. Greene
shouted, and the man in brown turned and shot Greene, too. Greene
ran toward the back of the home, heard another gunshot, and saw
Von Moss fall in the driveway of the home. Someone called 911, and
Greene was taken to the hospital, where he was treated for a gunshot wound to his left forearm. Von Moss died from a gunshot wound
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to his torso. Soon after the shooting, Greene was shown two photo
lineups and, in the second lineup, identified Mitchell as the shooter.
Mitchell’s friend, Rashid Simmons, testified at trial that on the
day of the shooting he borrowed his girlfriend’s “truck” and drove
Mitchell to “somewhere on 42nd or something.” 2 When Simmons
dropped Mitchell off, Simmons also got out of the truck and saw
Mitchell walk around the corner to Jefferson Street. Simmons then
heard gunshots, turned, and saw Mitchell running back toward the
truck. Mitchell got into the driver’s seat of the truck and drove away
without Simmons. Simmons identified himself and Mitchell in a
video and screenshots taken from the surveillance camera of a home
on West 41st Street.
Megan McLoud Cela testified she had been walking near the
300 block of West 41st Street and Jefferson Street on the day of the
shooting. She stopped to speak to a man who parked his SUV on
2 At the time of the shooting, Simmons’s girlfriend owned a two-door Ford
Explorer, which she let Simmons borrow on the day of the shooting. Simmons and his girlfriend called the Explorer a “truck,” but other witnesses called it an “SUV.”
4
West 41st Street, and then another man wearing “a brownish burgundy . . . shirt and dark colored pants” ran around the corner yelling “I did it, I did it, I did it.” The man who yelled “I did it,” then got
into the SUV and drove away without the other man. Cela then
“went to the corner and kind of looked around.” She saw a group of
men and asked if they were okay; they said they had been doing
construction work next to the home “where the incident occurred.”
She knew which home they were talking about and went there,
where she found Von Moss “down on the ground bleeding profusely.”
She took off her T-shirt and used it to try to stop the bleeding while
they waited for the ambulance to arrive.
One of the men doing construction next to the home where the
shooting occurred, Kevin Bridges, testified that he heard the gunshots and ran, then saw the shooter running behind him. Bridges
said the shooter may have been wearing “light tan” clothing.
Mitchell’s wife, Brianna Mitchell, testified that Mitchell told
her about the shooting on September 5, 2016, when he returned
home after being gone for “a couple days.” Mitchell told her he had
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shot and killed someone who “supposedly” had broken into his
grandmother’s home. Brianna did not know the man who was killed,
but Mitchell told her he “went and stood basically right in front of
the house and started shooting,” and then “[h]e took off running to
his friend’s truck, and he left in that truck.” She said the truck belonged to Mitchell’s friend “Black.” (Simmons went by that nickname.) And she learned later that Mitchell had shot a second person.
Brianna testified that she knew what Mitchell told her about
the shooting was true because he showed her a statement from a
witness on a website, and she recognized the witness’s description
of the shooter’s clothes. The witness had described an outfit Mitchell
wore often: brown suede sweatpants with a white stripe on the side
of the legs and a brown shirt. Mitchell wore that outfit on the last
day Brianna saw him before the shooting. When Mitchell returned
home and told Brianna about the shooting, he was not wearing the
same brown outfit, and she had not seen that outfit since. Brianna
was shown the surveillance video that had been admitted into evidence, and she testified that she recognized the outfit the man in the
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video wore as the same one Mitchell was wearing when he left home
two days before the shooting (the last time she saw him before the
incident).
2. Authentication of Surveillance Video and Screenshots
Mitchell contends that the trial court erred by admitting a surveillance video and screenshots taken from the video because the
timestamp on the video was inaccurate and, thus, neither the video
nor the screenshots were properly authenticated. Rulings that admit
evidence over an objection to authentication are reviewed for an
abuse of discretion. See Henderson v. State, 317 Ga. 66, 86 (8) (891
SE2d 884) (2023).
(a) At trial, Gregory Bratton testified that he lived on West 41st
Street at the time of the shooting, and his home had a working camera-surveillance system at that time. Bratton confirmed that the
surveillance system ran and recorded all the time, and it also recorded the date and time. He identified State’s Exhibit 8 as a disc
containing surveillance footage from his home. He affirmed that it
was a fair and accurate depiction of the recording provided to the
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police and had not been altered in any way. The recording was admitted without objection and published to the jury.
As the video played, Bratton identified the street shown in the
footage as the 300 block of 41st Street. Bratton said the date on the
video (9/5/2016) was correct but that the timestamp (3:44, 43 seconds) was “not exactly the right time”; he could not remember how
far off the time was but had “mentioned it” when he gave the video
to the police.
Based on Bratton’s testimony, Mitchell’s counsel objected to
the admission of the surveillance video because the time stamp was
“an unknown number of minutes off.” The State responded that “the
time stamp is irrelevant . . . to admissibility,” and Mitchell’s counsel
could cross-examine Bratton about the time stamp, which would go
to the weight of the evidence. The court ruled that Bratton authenticated the video and it was admitted. Mitchell’s counsel did not ask
Bratton any questions on cross-examination.
Sergeant Zachary Burdette later identified State’s Exhibits 9
through 12 as screenshots taken from Bratton’s home surveillance
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video. Sergeant Burdette testified that each photo was a fair and
accurate representation of the screenshot. The screenshots were admitted over defense counsel’s objections, which were based on his
continuing objection to the admission of the surveillance video from
which the screenshots were taken. State’s Exhibit 9 showed an
“SUV” traveling west “roughly a block away from” the crime scene.
The other photos showed the 300 block of West 41st Street, which
was between Jefferson and Montgomery Streets. The crime scene
was at the corner of 42nd Street and Jefferson Street.
(b) Mitchell has not shown that the trial court abused its discretion by admitting the surveillance video and the screenshots
taken from it. See Henderson, 317 Ga. at 86 (8). The Evidence Code’s
authentication requirement is met “by evidence sufficient to support
a finding that the matter in question is what its proponent claims.”
OCGA § 24-9-901 (a). For authentication purposes, video recordings
from autonomous cameras must be based on “competent evidence,”
and the video must show contemporaneous date and time stamps.
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OCGA § 24-9-923 (c). 3 But “the fact that the date-time stamp does
not reflect the actual time when the images were captured goes to
the weight to be given the evidence, not its admissibility.” Brannon
v. State, 298 Ga. 601, 609 (5) (783 SE2d 642) (2016) (citation and
punctuation omitted). Thus, the fact that the time stamp shown on
Bratton’s home surveillance video was “not exactly the right time”
did not make the video or the screenshots taken from it inadmissible
on authentication grounds, and the trial court did not abuse its discretion by admitting this evidence over Mitchell’s objections. See id.
See also Henderson, 317 Ga. at 86 (8).
3. Witness Identification of Mitchell in the Surveillance Video
and Screenshots
Mitchell contends that the trial court erred in allowing Mitchell’s friend, Simmons, to identify the person in the surveillance video
from Bratton’s home and from a screenshot taken from the video
because the quality of the video and screenshot were so poor that
3 OCGA § 24-9-923 (c) applies to “photographs, motion pictures, video
recordings, and audio recordings produced at a time when the device producing the items was not being operated by an individual person or was not under the personal control or in the presence of an individual operator.”
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any identification was unreliable. We review a trial court’s ruling to
admit evidence for an abuse of discretion. Sinkfield v. State, 318 Ga.
531, 545 (6) (899 SE2d 103) (2024).
(a) The surveillance video from Bratton’s home on 41st Street
was played during Simmons’s testimony. 4 Simmons said he was
driving the truck at the point shown in the video and identified himself in the video. He also identified Mitchell as the man shown running to the truck in the video. Simmons clarified that, when the
truck first appeared in the video, he had just dropped off Mitchell on
Jefferson Street.
The State also showed Simmons a screenshot from the surveillance video and asked him to identify the person in the screenshot.
Mitchell’s counsel objected to Simmons identifying anyone in the
video because doing so “invade[d] the kin [sic] of the jury” because it
did not “require any special knowledge of the jury to observe on their
own.” The State responded that the video was not “so clear that the
4 The video was also played during the testimony of other witnesses, but
Mitchell’s claim on appeal relates only to Simmons’s testimony about the video.
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jury can determine on their own who that individual is” and Simmons had a “special ability to identify that person that the jury does
not” because Simmons himself was in the video and photo and knew
who else was there. The court overruled the objection and ruled that
Simmons could “explain what he sees in the video to the extent that
it is not patently obvious on the face of the images, which at this
point I believe it’s not.”
When asked, “who is this individual we see running behind [the
truck]?” Simmons said, “I can’t see the picture like that. But I’m
guessing it’s [Mitchell]. It’s kind of blurry.” Mitchell’s counsel renewed his objection, adding, “The witness just said I’m guessing it’s
somebody. That doesn’t sound very knowledgeable to be able to present to the jury special knowledge.” The trial court overruled the
objection and allowed the State to show Simmons the surveillance
video “to see if that helps him. If it doesn’t, then I will instruct him
not to speculate on who that is.” After viewing the corresponding
video footage, Simmons identified the person shown in the screenshot as Mitchell.
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(b) Under Rule 701 (a), a lay witness may testify “in the form
of opinions or inferences” that are “[r]ationally based on the perception of the witness,” “[h]elpful to a clear understanding of the witness’s testimony or the determination of a fact in issue” and “[n]ot
based on scientific, technical, or other specialized knowledge.”
OCGA § 24-7-701 (a). Such lay opinion testimony may include a witness’s identification of a defendant in surveillance photographs or
video recordings, at least where there is “some basis for concluding
that a witness is more likely [than the jury] to correctly identify” the
defendant as the person in the photo or video. Glenn v. State, 302
Ga. 276, 280-281 (II) (806 SE2d 564) (2017) (quoting United States
v. Pierce, 136 F.3d 770, 774 (11th Cir. 1998)).5 One such basis is the
witness’s “familiarity with the defendant’s appearance.” Id. at 280
(II). As we explained in Glenn, “in most cases, the opportunity to
5 Because OCGA § 24-7-701 is modeled after Rule 701 of the Federal
Rules of Evidence, we look to the decisions of federal appellate courts, and of the Eleventh Circuit in particular, that have construed and applied that rule. See Miller v. Ga. Peanut Co., LLC, 317 Ga. 22, 26 (1) (a) (891 SE2d 776) (2023) (citing Glenn, 306 Ga. at 555 (3); State v. Almanza, 304 Ga. 553, 558 (2) (820 SE2d 1) (2018)).
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observe a person’s mannerisms, gait, and similar characteristics depicted in video footage will increase the likelihood that a lay witness
familiar with a defendant will be better equipped than jurors to
identify the defendant from such images.” Id. And in Glenn itself, we
indicated that a lay witness with such familiarity would be in an
even better position than jurors to identify the defendant where the
video “was of such poor quality that the average juror would not be
able to distinguish the faces by themselves.” Id. at 281 (II).
Applying those principles here, the trial court did not abuse its
discretion in admitting Simmons’s lay opinion testimony. Mitchell
concedes that the video and images were of poor quality that would
make it difficult for a viewer (including a juror) to distinguish the
faces of the people shown. And he does not dispute that Simmons
had observed Mitchell’s appearance, “mannerisms, gait, and similar
characteristics depicted in [the] video footage” before, giving him a
better chance to correctly identify Mitchell than the jury would have.
See Glenn, 302 Ga. at 280-281 (II). Moreover, Simmons identified
himself in the video and was present for the events shown in the
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video, making his testimony even more “[h]elpful to a clear understanding of the witness’s testimony or the determination of a fact in
issue.” OCGA § 24-7-701 (a). So the trial court did not abuse its discretion by allowing Simmons to testify as to whether Mitchell was
the person in the video and screenshot.
4. Admission of Greene’s Identification of Mitchell
Mitchell contends that Greene’s identification of Mitchell
should have been suppressed. We review a trial court’s ruling
whether to suppress identification evidence for an abuse of discretion. Eleby v. State, 319 Ga. 234, 245 (5) (c) (903 SE2d 64) (2024).
(a) Soon after the shooting, Greene, the surviving gunshot victim, identified Mitchell in a photo lineup as the person who shot him
and Von Moss. Before trial, Mitchell moved to suppress Greene’s
identification, and the trial court denied the motion because it concluded that the identification procedure was not impermissibly suggestive.
At trial, Sergeant Burdette explained the Savannah Police Department’s photo array procedures as follows. Generally, a set of six
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photographs were selected and someone other than the lead investigator would show the witness the photographs and go over the admonition form. Someone other than the lead investigator usually
would do this because the lead investigator knows which photograph
depicts the suspect and the police do not want to “give a hint to the
person looking at the photographs who we want them to pick out.”
Four days after the shooting, Detective Rebekah Gregory
showed Greene a photo array, which was admitted into evidence as
State’s Exhibit 1. Greene testified that he was not able to identify
the person who shot him and Von Moss in this photo array. He “was
thinking it was number four in this lineup” but “was indecisive between number four and number six” when he “first saw it.” Detective
Gregory did not require that Greene choose a suspect in this array,
and Greene’s signature does not appear on any of the photographs
in this lineup. Sergeant Burdette testified that Mitchell’s photo was
number six in this lineup.
Three days later, Greene viewed a second photo lineup, which
was admitted into evidence as State’s Exhibit 2. Sergeant Burdette
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showed Greene the second photo array himself because he “was the
only person in the office” when Greene “was available to come in.”
Sergeant Burdette testified that his goal was to select photos
for the array that “depict similar characteristics as the person of interest or suspect.” He testified that the person in position four of the
first lineup — the person Greene had said he would pick “if he had
to pick somebody” — did not appear in the second lineup; only Mitchell, who was number six in the first lineup (and whose photo in the
first lineup Greene said he “recognized”), appeared in both lineups.
An older booking photo of Mitchell was used in the first lineup, while
a more recent photo from Mitchell’s driver’s license was used in the
second lineup.
Greene testified that he was left alone with the second photo
array “for a while” and during that time he “went through the photos.” He thought Mitchell’s photo looked “just too familiar,” so
Greene “set [the photo] across the room” at a distance that he
thought approximated the distance from which he saw the shooter.
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Greene testified that he circled and signed his name next to Mitchell’s photograph in the second photo lineup because he recognized
the person in the photo as the person who shot him and Von Moss.
On cross-examination, Greene testified that he was “pretty
sure” he recognized the person he circled as the person who shot
him. When asked by defense counsel, “What percentage would you
say?” Greene said, “Percentage enough to bet my life on it.” At first,
Greene did not recall telling the police he was not 100 percent sure
that the person he selected in the second lineup was the shooter. But
after Greene’s memory was refreshed outside the presence of the
jury (with the video of his police interview), he testified that he recalled telling the police during the second lineup that he was not “a
hundred percent sure” but, if he had to pick someone from the
lineup, he would pick the photo that turned out to be Mitchell’s.
Greene testified that he circled Mitchell’s photo in the second
lineup because Mitchell was the man who shot him. Greene said,
“They asked me to pick. I was supposed to pick who shot me. That’s
what I did.” When asked on redirect why he circled Mitchell’s photo
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in the second lineup, Greene testified, “Because he stood out. He
looked familiar. He looked like the person that shot me. That’s the
person that shot me.” Greene said he would not have circled the
photo if it was not the person who shot him, which is why he had not
circled any photo in the first lineup.
During Sergeant Burdette’s direct testimony, the State introduced the video recording of the second time Greene viewed a photo
array. On cross-examination, Sergeant Burdette confirmed that the
video showed him telling Greene, after he had viewed the second
photo array, “[L]et’s do this. If he stands out to you, you believe that
picture stands out to you more than the rest, I’m going to have you
circle it. Just put your signature here.” Sergeant Burdette also confirmed that Greene “couldn’t be a hundred percent sure. But if he
had to pick somebody, he would pick that picture,” which was a
photo of Mitchell. Sergeant Burdette confirmed that Greene indicated he also “recognized another photo. But if he had to pick somebody, he wouldn’t pick that one. If he had to, he would pick that picture” of Mitchell.
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Greene testified that it “was sunny” on the day of the shooting
and there was nothing obstructing his view of Von Moss and the
shooter, who were standing in the driveway when Greene came outside. Greene described the shooter as someone wearing “all brown.”
Greene “cursed” when the man shot Von Moss, and then the man
“looked at” Greene and shot him, too. From the time Greene walked
outside to the time he was shot “maybe 30 seconds” elapsed, or
“[e]nough time for [Greene] to walk down the steps.” Greene said he
“kind of sort of” told the police that he had been looking at the gun
during the shooting, but he testified at trial that he was only focusing on it “[a] little bit, not really.” He was looking at “[t]he whole
situation.”
(b) An out-of-court identification by a witness violates due process (and is thus not admissible at trial) if it is “so impermissibly
suggestive that it could result in a substantial likelihood of misidentification.” Eleby, 319 Ga. at 244 (5) (c). An identification procedure
is not impermissibly suggestive unless it “leads the witness to the
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virtually inevitable identification of the defendant as the perpetrator, and is the equivalent of the authorities telling the witness, ‘This
is our suspect.’” Id. If a procedure was impermissibly suggestive, the
identification will be excluded only if “considering the totality of the
circumstances, there was a substantial likelihood of irreparable misidentification.” Id. at 244-245 (5) (c). Those circumstances include
the witness’s opportunity to view the perpetrator at the time of the
crime, his degree of attention, the accuracy of his prior description,
his level of certainty, and the length of time between the crime and
identification. See id. at 245 (5) (c).
Mitchell contends that the identification procedure used when
Greene identified him was impermissibly suggestive because it effectively “narrowed down” his choice to only Mitchell. He points out
that after Greene opined that two of the men depicted in the first
lineup — Mitchell and a second person — could be the shooter, the
police included a photo of Mitchell in the second photo array, but not
one of the other man Greene had pointed to in the first lineup. Because only one of the two photos that stood out to Greene in the first
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lineup was still available, Mitchell contends that it was “virtually
inevitable” that Greene would select Mitchell’s photo.6
Assuming without deciding that this procedure was impermissibly suggestive, Mitchell’s argument fails because the likelihood of
irreparable misidentification was not substantial. See Eleby, 319
Ga. at 246 (5) (c). The evidence showed that Greene had an unobstructed view of the shooter on a sunny day for about 30 seconds,
and Greene testified that he was looking at “[t]he whole situation”
when Von Moss was shot and the shooter “looked at” Greene before
shooting him. See Curry v. State, 305 Ga. 73, 77 (2) (823 SE2d 758)
(2019) (not a substantial likelihood of irreparable misidentification
where witnesses viewed defendant “in full daylight”; “heard a gunshot” and then “ran to see what was happening, and saw two men
6 Mitchell also notes the procedure used by Sergeant Burdette — giving
the photos to Greene and then leaving him alone in a room to look at them — did not comply with OCGA § 17-20-2, but he concedes the failure to follow the statutory procedures does not require exclusion. See OCGA §§ 17-20-2 (b); 17-20-3 (“The court may consider the failure to comply with the requirements of [OCGA § 17-20-2] with respect to any challenge to an identification; provided, however, that such failure shall not mandate the exclusion of identification evidence.”). See also Kirkland v. State, 310 Ga. 738, 741-742 (2) (a) (854 SE2d 508) (2021).
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running from that direction, establishing that the witnesses were
fully attentive to observing the two men”; and expressed “extremely
high” certainty in their identifications of defendant). And Greene described the shooter as someone wearing “all brown,” which is consistent with the clothing that multiple witnesses saw Mitchell wearing on the day of the shooting, and that his wife recognized on the
surveillance video. See Eleby, 319 Ga. at 245 (5) (c). Greene identified Mitchell one week after the shooting, see id., and although he
said he was not “a hundred percent sure” at the time of the identification, he said that Mitchell’s photo “stood out” and selected his
photo after viewing it from a distance that approximated the distance from which he saw the shooter. And even though Greene did
not identify the shooter in the first lineup, he “recognized” Mitchell’s
photo in that lineup (but could not choose between Mitchell’s photo
and someone else’s photo) and the second lineup used a different,
more recent photo of Mitchell, which may explain why Greene was
able to make an identification during the second lineup and makes
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it less likely that he chose Mitchell’s photo because it was also included in the first lineup. See Howard v. State, 318 Ga. 681, 688 (2)
(899 SE2d 669) (2024) (“[A]lthough [witness] was hesitant about
identifying [defendant] in the initial photo array, the uncontested
evidence is that [defendant] was wearing a hat that cast a shadow
on his face in this photo, both explaining [the witness’s] hesitance
about identifying him from that photo and making it less likely that
the viewing of this photo influenced [the witness’s] subsequent, more
certain identifications of [defendant].”). Greene also testified at trial
that he was sure enough of his identification to “bet [his] life on it”
and selected Mitchell’s photo because he was the person who shot
Greene and Von Moss. Under these circumstances, we conclude the
likelihood of irreparable misidentification was not substantial, and
so the trial court did not abuse its discretion by denying the motion
to suppress. See id.; Eleby, 319 Ga. at 245-246 (5) (c); Curry, 305 Ga.
at 77 (2).
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5. Denial of Mistrial Motion Based on the Admission of Hearsay
Mitchell contends that the trial court erred by denying his motion for a mistrial because it was undisputed that the State failed to
redact a hearsay statement that identified Mitchell as the shooter
from the recording of a witness interview. Generally a trial court’s
denial of a motion for mistrial “will not be disturbed on appeal unless
a mistrial is essential to preserve the defendant’s right to a fair
trial.” Grissom v. State, 296 Ga. 406, 414 (6) (768 SE2d 494) (2015)
(citation and punctuation omitted).
(a) During trial, the parties agreed that the State would redact
hearsay statements from a witness’s interview with the police before
playing it for the jury. But when the video was played at trial, a
question that contained hearsay — a statement from a third person
that Mitchell was the shooter — had not been redacted and was
played. Mitchell’s attorney objected, and the prosecuting attorney
conceded the statement was hearsay but said its inclusion was “inadvertent” and suggested the court give a curative instruction.
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Mitchell moved for a mistrial based on the admission of the hearsay.
The trial court denied the motion for mistrial because the statement that someone identified Mitchell as the shooter “was made
very briefly and in passing by the detective and not by” the witness,
and it did not “put[ ] something in front of the jury that [was] shocking or completely revelatory or changes the complexion of the evidence significantly at all.” After the court denied the motion, it proposed a curative instruction. Defense counsel stated he wished to
“preserve for the record the motion” for mistrial but said the wording
of the proposed curative instruction was “acceptable” given the
court’s denial of a mistrial.
The rest of the video was played for the jury and, once it ended,
the trial court instructed the jurors that “[a]nything said by the detectives themselves is not evidence” and they “should disregard any
out of court statement in the recording attributed to any person except for statements made by the [witness] or statements that [the
witness] attributed to the defendant.”
(b) The trial court did not abuse its discretion in determining
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that a curative instruction would protect the defendant’s rights and
so a mistrial was not required. The motion for mistrial was based on
the introduction of a hearsay statement through the detective’s
question to the witness, and the trial court instructed the jury that
the detective’s statements were not evidence and that they should
disregard any statement attributed to someone other than the witness or defendant. Jurors are presumed to follow instructions, see
Grissom, 296 Ga. at 414 (6), and Mitchell has not offered any reason
to think they could not do so here. Nor has he explained how giving
the curative instruction instead of granting the mistrial failed to
protect his right to a fair trial; indeed, he consented to the wording
of the curative instruction. Mitchell has failed to establish an abuse
of discretion. See id.
6. Cumulative Error
Mitchell contends that he is entitled to a new trial based on the
cumulative effect of the trial court’s errors. Because Mitchell has not
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demonstrated any errors, there are no errors to assess cumulatively.
See Blocker v. State, 316 Ga. 568, 583 (5) (889 SE2d 824) (2023).
Judgment affirmed. All the Justices concur.
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