October of 2012, a jury found Charles Mitchell guilty of
malice murder, two counts of felony murder, armed robbery,
aggravated assault, arson, concealing the death of another,
making a false statement, and possession of a firearm in
commission of a felony in connection with the murder of Gboye
Jalloh. Mitchell was sentenced to two life terms
plus five years. His amended motion for new trial was denied,
and Mitchell appeals, asserting as his sole enumeration of
error remarks made by the trial court during preliminary
instructions to the jury venire. For the reasons stated
below, we affirm.
to support the verdict, the evidence showed that Mitchell was
involved in a dispute with the victim over money. On April 1,
2010, Mitchell was at his house with two friends, coindictees
Reggie May and Victor Holmes, when he sent a text message to the
victim, ostensibly inviting him to meet some "college
girls, " and told him to "come by yourself."
When the victim arrived, Holmes left in his vehicle. Mitchell
and May got into the victim's rental car, and the victim
said that he wanted to smoke before going to meet the girls.
Mitchell knew of an unfinished subdivision nearby, so they
drove into the entrance and parked. As they sat in the parked
car, Mitchell produced a pistol, said, "April fools,
April fools, " and pulled the trigger, but the gun did
not fire. Mitchell and the victim struggled over the gun
until Mitchell shot and wounded the victim, then pulled him
into the passenger seat. May asked Mitchell what was going
on, and he responded, "We trying to get this check,
man." At this point, Holmes reappeared, driving his car,
and followed Mitchell as he drove the victim's car to a
nearby park. After demanding, "Where the cards at?"
Mitchell rifled the moaning and cursing victim's wallet
for gift cards and obtained from him the identification code
for the cards. Mitchell and Holmes had a discussion which May
could not hear; they then dumped the victim into the trunk of
his car, and Mitchell shot him twice in the head. The three
men left in Holmes' car, but Mitchell suddenly exclaimed
that he had touched the trunk of the victim's car. They
drove to a gas station where Mitchell put some gas in a cup.
Mitchell and Holmes dropped May off at his house, and told
him to "say nothing, they don't want to have to do
nothing to [May's] mom or [his] family." Mitchell
and Holmes then returned to the scene, where Mitchell set the
car on fire by throwing a gasoline-soaked rag in the trunk.
Firefighters responding to a report of a fire discovered the
victim's body in the car trunk, burned beyond
recognition. The medical examiner testified that he could
determine, despite the extensive destruction of the body,
that the cause of death was two gunshot wounds to the head.
Police interviewed Mitchell and he denied having seen the
victim recently; after further investigation police
confronted Mitchell, who changed his story and stated that he
shot the victim in self-defense and that Holmes helped him
burn the body.
Although Mitchell has not raised the sufficiency of the
evidence in his appeal, we note that the evidence was
sufficient to support the jury's guilty verdicts under
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
his sole enumeration of error, Mitchell contends the trial
judge erred in her statements made during the court's
preliminary questioning of the venire pursuant to OCGA §
Have any of you, for any reason, formed or expressed any
opinion in regard to the guilt or innocence of the accused,
Charles Mitchell? If so, please raise your hand.
Have any of you any prejudice or bias resting on your mind,
either for or against the accused, Charles Mitchell?
Is your mind perfectly impartial between the State, that is
the district attorney, and the accused, Mr. Charles Mitchell?
So everybody's hand should have gone up. Let me ask that
question again. Is your mind perfectly impartial, that is,
you have not prejudged the case, you have not formed an
opinion, between the State and the accused?
Is everyone's hand up? All right.
hearing on Mitchell's amended motion for new trial, the
trial judge explained that the court first asked if the
jurors had any bias or prejudice, and no one raised a hand,
but when asked if they were impartial, again no one raised a
hand. Faced with this contradiction, the trial judge
concluded that the jurors were confused by the question and
did not understand the meaning of impartial, that the
statement complained of was a comment on the fact that the
responses to the second and third question were
contradictory, and that once the question was rephrased, the
jurors responded by raising their hands. The trial court
therefore denied the motion for new trial on this ground.
Mitchell contends that the trial court's comments
violated OCGA § 17-8-57. At the time of Mitchell's
trial in 2012, that Code section provided in its entirety:
It is error for any judge in any criminal case, during
its progress or in his charge to the jury, to express or
intimate his opinion as to what has or has not been proved or
as to the guilt of the accused. Should any judge violate
this Code section, the violation shall be held by the Supreme
Court or Court of Appeals to be error and the decision in the
case reversed, and a new trial granted in the court below
with such directions as the Supreme Court or Court of Appeals
may lawfully give.
(Emphasis supplied.) This Code section was amended by Ga. L.
2015, p. 1050, § 1, which slightly revised the first
sentence of the former Code section. That sentence now
It is error for any judge, during any phase of any criminal
case, to express or intimate to the jury the judge's
opinion as to whether a fact at issue has or has not been