Preview:

Final Copy 286 Ga. 434 S09A1766. MIKELL v. THE STATE. Hunstein, Chief Justice. Fredrico Shenard Mikell was convicted of felony murder and multiple counts of armed robbery and aggravated assault arising out of an attack on six people in a home in Statesboro. He appeals from the denial of his motion for new trial1 challenging the sufficiency of the evidence and asserting other errors. For the reasons that follow, we affirm. 1. The evidence authorized the jury to find that appellant guided Kendall

The crimes occurred on October 14, 2006. Mikell was indicted December 11, 2006 in Bulloch County along with Marcus Benbow, Bryan Hughley and Kendall Worthy. The 24-count indictment charged Mikell with malice murder, felony murder, burglary, six counts each of armed robbery, aggravated assault and false imprisonment, two counts of possession of a firearm during the commission of a crime (one each for the two weapons used during the crimes) and possession of a firearm by a convicted felon. The State nol prossed the final charge and two armed robbery charges. On May 22, 2008, a jury acquitted him of malice murder, burglary, the false imprisonment charges and the two firearm possession charges and found him guilty of the remaining charges. He was sentenced that same day to life for the felony murder charge, into which the trial court merged the armed robbery and aggravated assault charges as to the murder victim; three concurrent life sentences for the remaining armed robbery charges; and a consecutive 20-year sentence for aggravated assault with four concurrent 20-year sentences for the remaining aggravated assault charges. Mikell's motion for new trial, filed May 28, 2008 and amended March 10, 2009, was denied May 15, 2009. A notice of appeal was filed May 22, 2009. The appeal was docketed July 9, 2009 and was submitted for decision on the briefs.

1

Worthy, Marcus Benbow and a third man to a home in Statesboro where six people were inside playing or watching a dice game. Appellant went alone to the door and, after identifying himself, asked to speak to the murder victim, Corey Walker. Visible on the floor was the money paid in by Walker and the other participants in the dice game. Appellant was well known to Walker and others in the room, including Chalandria McClouden, with whose family appellant had frequently dined. Appellant asked Walker about purchasing drugs and left after learning Walker had none. Thirty to forty-five minutes later, dice game participant James Williams answered a knock on the door and was shot in the knee with a handgun as he struggled to keep out of the home a man Williams later identified as Benbow. Co-indictee Worthy then entered the home with an AK-47 assault rifle. He shot Williams in the other knee with the rifle and, as the home's unarmed inhabitants fled the gunmen, shot McClouden in the back and legs and fatally wounded Walker. McClouden testified that, after the shots were fired, she turned toward the front door and "could see [appellant] and he stood there looking at me and then he took out running." Benbow picked up the dice game money, shot Williams in the knee yet again, and then he and Worthy fled the scene, driving off without appellant.
2

Worthy, as part of a negotiated guilty plea deal pursuant to which he was to receive a single life sentence, testified that appellant and the other indictees came to Statesboro to commit a robbery; that appellant approached several individuals under the ruse of wanting to purchase a large amount of drugs as a means of finding someone to rob; and that Benbow, upon hearing of the victims' gambling money, proposed robbing the victims, to which appellant agreed. Worthy testified that appellant carried the assault rifle up to the door but dropped it and ran away as Benbow struggled to get inside the home; that Worthy then joined Benbow, picked up the rifle and fired it in the home after Benbow shot victim Williams at the door; and that Worthy then ran to the car, followed by Benbow with the money from the dice game, and left town. Appellant was identified by the surviving victims and, after being taken into custody, gave both a recorded statement, heard by the jury, and a written statement, read into evidence, in which he admitted his knowledge of and participation in the plan to commit armed robbery, including accompanying Benbow to the door, knocking on it and giving his name to gain entry into the home. However, he claimed he then hesitated and abandoned the enterprise by running away after Benbow got inside and kept on running as he heard the shots
3

being fired. In light of McClouden's testimony that she saw appellant in the doorway after the shots had been fired, we find no merit in appellant's contention that the evidence was insufficient to support his convictions because the State failed to disprove beyond a reasonable doubt his affirmative defense of abandonment. See OCGA

Download S09A1766. MIKELL v. THE STATE.pdf

Georgia Law