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Carmichael v. State

Court of Appeals of Georgia, Second Division

November 1, 2019


Page 185


          Armed robbery, etc. Chattooga Superior Court. Before Judge Graham.


          William B. Mills, for appellant.

          Herbert E. Franklin, Jr., District Attorney, Rachael H. Stein, Assistant District Attorney, for appellee.

          Judges: REESE, Judge. Miller, P. J., and Rickman, J., concur.


Page 186

          Reese, Judge.

          A Chattooga County jury found James Carmichael ("the Appellant") guilty of armed robbery, robbery, aggravated assault, possession of methamphetamine, two counts of possession of a firearm by a convicted felon, three counts of possession of a firearm during the commission of a felony, and three counts of possession of a firearm by[353 Ga.App. 65] a convicted felon during the commission of a crime.[1] The trial court sentenced him as a recidivist,[2] to serve a life sentence without

Page 187

the possibility of parole, followed by 45 years in confinement with no possibility of parole, as well as a consecutive sentence of 13 more years in confinement.

          The Appellant seeks review of the denial of his motion for new trial, arguing that the trial court erred by permitting him to withdraw his motion to bifurcate the trial, and by permitting evidence under OCGA � 24-4-404 (b) (“ Rule 404 (b)” ), as well as evidence of his prior convictions. He also argues that he received ineffective assistance of counsel when trial counsel withdrew his motion to bifurcate and failed to object to receiving untimely notice pursuant to Rule 404 (b). For the reasons set forth infra, we affirm.

          Viewed in the light most favorable to the jury's verdict,[3] the record shows that, Tommy Wilson, an admitted drug addict, testified that he met the Appellant on January 22, 2016, through Paige Blalock, Wilson's drug dealer, when Blalock brought the Appellant to Wilson's home, where Wilson lived with his cousin, P. W. Wilson testified that, on that day, Blalock brought methamphetamine, and Wilson traded his handgun for the drugs. He also held Blalock's cell phone as collateral because she did not have enough drugs to cover the cost of the gun. Three days later, Blalock and the Appellant returned to Wilson's home and Blalock retrieved her cell phone. Blalock left the Appellant at Wilson's home, leaving him with Wilson and P. W., and Wilson noticed that the Appellant carried the handgun that he (Wilson) had traded to Blalock.

          Wilson testified that the Appellant was angry that Blalock left him at Wilson's house, stating, “ [Blalock] left with the money.” The three men used methamphetamine, and the Appellant spent the night at Wilson's home. Wilson testified that, on January 26, the Appellant stated that he wanted to go shopping for something to drink. Wilson further testified that, at around 2:00 p.m., he, the Appellant, and P. W. took Wilson's Dodge Durango and, at the Appellant's direction, Wilson drove to a back alley behind TJ's Package Store. Wilson testified that, as he drove to the store, he saw the Appellant put on pink gloves and a mask that looked like “ a folded up poncho” that covered his entire face. According to Wilson, the[353 Ga.App. 66] Appellant exited the truck while wearing Wilson's hooded camouflage jacket and carrying Wilson's cell phone and the handgun.

          Wilson testified that, while the Appellant was in the package store, Wilson drove around near the store because he “ fear[ed] for [his] life” and the Appellant had told him “ not to sit [in the alley].” As he continued driving, Wilson saw the Appellant leave the package store wearing the mask and pink gloves, and carrying “ two liquor bottles and a [plastic] bag.” The Appellant got into Wilson's vehicle, and Wilson drove back to his residence. Wilson testified that, after arriving at his home, he did not want the Appellant to come inside, telling him that “ whatever [the Appellant] was going to do[,] he was going to have to do it out in the front yard[.]” The Appellant responded by putting the two liquor bottles on Wilson's front porch and pointing the handgun at Wilson. Wilson testified that Blalock drove up and picked up the Appellant from the front yard. He further testified that he found his camouflage jacket inside his vehicle. P. W. put the liquor bottles in a bookbag and “ dumped it [into the Chattooga River].” In the meantime, Wilson saw that a picture of his Durango had been “ posted all over Facebook” by law enforcement. Wilson pled guilty to being a party to the armed robbery and for drug possession, and he identified the Appellant at trial as the person he had dropped off and picked up from the package store.

          At around 4:00 p.m. on January 26, 2016, while M. D. worked at TJ's Package Store, a black man wearing a “ solid” face mask, cap, camouflage jacket, and pink gloves walked into the store with a “ chrome looking” handgun that he pointed at M. D. The robber told M. D. to “ open the register.” M. D. put his hands in the air and told the robber, “ just calm down, you can have the money[.]” The robber walked around the counter, and ...

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