State of Louisiana v. Nathaniel Mitchell, III

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-415

STATE OF LOUISIANA

VERSUS

NATHANIEL MITCHELL, III

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 19635-19
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

SHARON DARVILLE WILSON
JUDGE

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Court composed of Elizabeth A. Pickett, Candyce G. Perret, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Annette Roach
LOUISIANA APPELLATE PROJECT
P.O. Box 6547
Lake Charles, Louisiana 70606
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT
Nathaniel Mitchell, III

Hon. Stephen C. Dwight, District Attorney
David S. Pipes, Assistant District Attorney
CALCASIEU PARISH DISTRICT ATTORNEY’S OFFICE
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE
State of Louisiana

WILSON, Judge.

A jury found Defendant, Nathaniel Mitchell, III, guilty of second-

degree murder, in violation of La.R.S. 14:30.1. The trial court sentenced Mr.

Mitchell to serve life in prison without benefit of probation, parole, or suspension of

sentence. Mr. Mitchell now seeks review of his conviction. For the following

reasons, we affirm the conviction and sentence, and Mr. Mitchell’s ineffective

assistance of counsel claim is relegated to post-conviction relief.

I.

ISSUES

We must decide:

(1) whether the trial court erred in allowing the State to
introduce various recordings into evidence when the
recordings were not properly authenticated;

(2) whether the trial court erred in allowing the State to
place into evidence a gun cleaning kit found during
a search of the home of Mr. Mitchell’s ex-wife; and

(3) whether counsel rendered assistance below that
guaranteed by the Sixth Amendment, resulting in
prejudice to Mr. Mitchell.

II.

FACTS AND PROCEDURAL HISTORY

Late afternoon on July 17, 2019, several teenagers found the burned

body of a male at the dead end of D. Williams Road in DeQuincy, Louisiana. The

teenagers notified law enforcement, and several days passed before police were able

to identify the male from a DNA hit. The body was that of Zacchaeus Hakim Burton.

On September 5, 2019, Mr. Mitchell was charged alongside George Anthony Buck

with the second-degree murder of Mr. Burton, in violation of La.R.S. 14:30.1. On

May 25, 2022, an amended indictment was filed, adding a charge against George

Buck for obstruction of justice, in violation of La.R.S. 14:130.1. On May 31, 2022,

Mr. Buck entered into a plea deal with the State in exchange for testimony against

Mr. Mitchell.

Trial began on September 27, 2022. On October 3, 2022, a jury found

Mr. Mitchell guilty of second-degree murder, specifically finding that he killed Mr.

Burton with a specific intent to kill or inflict great bodily harm. On November 7,

2022, Mr. Mitchell filed a motion for new trial contending his conviction was

contrary to law and evidence. On November 22, 2022, a hearing was held on the

motion, and it was denied by the trial court. On November 23, 2022, in accordance

with La.R.S. 14:30.1(B), Mr. Mitchell was sentenced to life in prison without benefit

of probation, parole, or suspension of sentence.

On December 6, 2022, Mr. Mitchell filed a motion for reconsideration

of sentence alleging that his life sentence was excessive and cruel and unusual

punishment. The motion was denied the same day without reasons. On September

6, 2023, the trial court held a resentencing hearing, at which time it specified that

Mr. Mitchell’s life sentence was to be served at hard labor and further clarified that

any possible diminution of sentence would be at the discretion of the Department of

Corrections. Mr. Mitchell now appeals.

III.

LAW AND DISCUSSION

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed

for errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

VIDEO AUTHENTICATION

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In his first assignment of error, Mr. Mitchell contends that the trial court

erred in allowing the State to introduce various recordings into evidence when the

recordings were not properly authenticated. A trial court’s ruling on the

admissibility of evidence is reviewed for an abuse of discretion. State v. Cosey, 97-

2020 (La. 11/28/00), 779 So.2d 675. Mr. Mitchell contends that the surveillance

videos were not properly authenticated because the State did not establish that the

various pieces of equipment were properly maintained and that the recordings’ time

stamps were accurate. Mr. Mitchell maintains that proper authentication required

that the person whose equipment recorded the video be called as a witness to

authenticate the evidence. We disagree.

Louisiana Code of Evidence Article 901 states, in pertinent part:

A. General provision. The requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent
claims.

B. Illustrations. By way of illustration only, and
not by way of limitation, the following are examples of
authentication or identification conforming with the
requirements of this Article:

The article then goes on to list ten non-exclusive means of authenticating evidence

including “(B)(1) Testimony of witness with knowledge. Testimony that a matter

is what it is claimed to be[;]” “(B)(4) Distinctive characteristics and the like.

Appearance, contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances[;]” and “(B)(9) Process or

system. Evidence describing a process or system used to produce a result and

showing that the process or system produces an accurate result.”

In the present case, various detectives testified to retrieving various

surveillance recordings and provided firsthand accounts of the recovery of the

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videos. Each officer described what was captured on the surveillance, how it was

captured and how they determined the video’s accuracy. As explicitly stated in

La.Code Evid. art. 901(B)(1), testimony of a witness with knowledge that the

evidence is what it is purported to be is sufficient to authenticate the evidence.

To support his argument, Mr. Mitchell relies heavily on the fourth

circuit’s decision in State in Interest of J.H., 22-324 (La.App. 4 Cir. 8/9/22), 369

So.3d 827. In J.H., the court held that the testimony from a detective regarding his

familiarity with the area, location of cameras, and previous experience was

insufficient to authenticate surveillance videos. Specifically, the court stated:

Here, the State offered no testimony from a person
who maintained the surveillance video system that
recorded the video, to describe the process or system by
which the video was created and to attest to the accuracy
of the system. However, as argued by the State, Det.
Bidichandani testified that he was familiar with the
neighborhood of the Melpomene Housing Development,
where the incident occurred; he knew to contact Mr.
Pollard, the security director, about video surveillance; he
retrieved the video footage from Mr. Pollard; and, from
“previous experience collecting video footage from this
area”, he knew “that their camera systems and layout is
accurate.”

We find Det. Bidichandani’s testimony fails to lay
the proper foundation for authentication of this video
evidence. Det. Bidichandani received a copy of an excerpt
of a video recording from a third party who did not testify
regarding the process or system by which the video was
created. Thus, there was no testimony regarding the
accuracy of the video. In addition, since Det. Bidichandani
received this from a non-testifying third party, the chain of
custody has not been properly established. Consequently,
the trial court abused its discretion in admitting the video
surveillance footage into evidence.

Id. at 836.

Mr. Mitchell’s reliance on J.H. is misplaced for three reasons. First, as

recognized by Mr. Mitchell in his brief, the ultimate finding of the court in J.H. was

that the evidence adduced at trial was insufficient to support the court’s adjudication.

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Therefore, the court’s discussion of the admissibility of the surveillance tapes was

nothing more than dicta. Secondly, J.H. is a case from the fourth circuit, so while it

is persuasive, it has no direct authority to instruct this court on the application of

La.Code Evid. art. 901. Finally, even the fourth circuit has distinguished J.H. and

called the decision into question for failing to address La.Code Evid. art. 901(B)(1)

and (4) as alternative means of authentication.

The fourth circuit recently addressed the J.H. ruling in State in Interest

of K.B., 23-409 (La.App. 4 Cir. 9/26/23), 372 So.3d 864. In K.B., 372 So.3d at 881–

83, the fourth circuit stated the following:

However, we find the reasoning of State in Interest
of J.H. distinguishable from the matter sub judice. First, as
explained previously, the Court in State in Interest of
J.H. concluded that the juvenile court abused its discretion
because no one testified regarding the process or system
by which the video was created. 2022-0324, p. 13, 369
So.3d at 836–37. Though La. C.E. art. 901(B)(9) lists
“process or system” as a method of authenticating or
identifying evidence, La. C.E. art. 901(B) specifically
states that the list contained therein is “[b]y way of
illustration only, and not by way of limitation” and that it
constitutes a list of “examples of authentication or
identification.” Moreover, in other cases this Court has
emphasized that La. C.E. art. 901(B) is not an
“exhaustive” list. See Smith, 2015-1359, p. 6, 192 So.3d at
840. Thus, we find that citing to a party’s failure to
authenticate or identify evidence via one of the specific
listed methods is an improper interpretation of La. C.E.
art. 901(B).

Second, in so holding, the Court in State in Interest
of J.H., also stated that the State had not properly
established the chain of custody. 2022-0324, p. 13, 369
So.3d at 836–37. However, in discussing chain of custody,
the Court in State in Interest of J.H. also specifically stated
that “[t]he identification of the evidence may also be
satisfied ‘by chain of custody, that is, by establishing the
custody of the object from the time it was seized to the
time it was offered in evidence.’ ” Id. at p. 11, 369 So.3d
at 835 (emphasis added). Thus, like “process or system,”
the chain of custody is just another potential method for
identifying or authenticating evidence. That is, the failure
to authenticate or identify evidence in this matter does not

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mean that the evidence has not been properly or
sufficiently authenticated or identified; therefore, the
failure to authenticate or identify evidence via one of these
listed methods should not automatically be deemed fatal
by a court.

Additionally, it is worth noting that although the
Court in State in Interest of J.H. listed La. C.E. art.
901(B)(1) and (4) in one of its opening rule statements
about authentication and identification of evidence, the
Court did not appear to consider whether these examples
of methods of authentication or identification were
applicable in the matter (i.e., (1) testimony of witness with
knowledge and (4) distinctive characteristics and the like).
2022-0324, p. 11, 369 So.3d at 835–36). Yet, the Court
summarized the State’s argument about the authentication
or identification of the footage in this regard:

Det[ective] Bidichandani testified that he was
familiar with the neighborhood of the ...
[h]ousing [d]evelopment, where the incident
occurred; he knew to contact Mr. Pollard, the
security director, about video surveillance; he
retrieved the video footage from Mr. Pollard;
and, from “previous experience collecting
video footage from this area”, he knew “that
their camera systems and layout is accurate.”

Id. at p. 13, 369 So.3d at 836. However, the Court did not
discuss La. C.E. art. 901(B)(1) and (4) in its analysis or
explain why Detective Bidichandani’s testimony to this
effect failed to satisfy La. C.E. art. 901(B)(1) and/or La.
C.E. art. 901(B)(4).

Finally, the Court in State in Interest of J.H. appears
to have relied in its reasoning on distinguishing its facts
from the situation the Louisiana Supreme Court addressed
in State v. Rice, 2017-0446 (La. 6/29/17), 222 So.3d
32.2022-0324, pp. 12-13, 369 So.3d at 835–36. In Rice,
the district court concluded that the State had not
sufficiently authenticated video surveillance footage and
sustained an objection to the footage lodged by the
prosecution. 2017-0446, pp. 1-2, 222 So.3d at 32-33. The
Louisiana Supreme Court disagreed, explaining:

[T]he defense called Shelby Williams,
who lives across the street from defendant
and whose video surveillance system
captured defendant at, according to Mr.
Williams's testimony, times pertinent to
when the offenses occurred. ...

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....
The requirement of authentication as a
condition precedent to admissibility is
satisfied by evidence sufficient to support a
finding that the matter in question is what its
proponent claims. La. C.E. art. 901(A). Such
evidence may come in the form of testimony
by a witness with knowledge that the matter
is what it is asserted to be; indications of the
item's distinctive characteristics, including its
contents, substance, internal patterns, and
other distinctive characteristics; or evidence
describing the process or system used to
produce the item and showing that the
process or system produces an accurate
result. See La.C.E. art. 901(B)(1), (4), and
(9).

Such a showing was made by Mr.
Williams's testimony. Contrary to the
prosecutor's objection—urging that there was
no custodian who could testify about the
process by which the video was produced—
Mr. Williams explained that he had
personally designed and managed the video
surveillance system at his home (for security
purposes) and knew the video at issue to be
what it was asserted to be. He also described
the process and system by which the video
was created and testified to the accuracy of
that system

Id. at pp. 1-3, 222 So.3d at 33-34 (footnotes omitted).

After summarizing Rice, the Court in State in
Interest of J.H. distinguished it by observing that “the
State offered no testimony from a person who maintained
the surveillance video system that recorded the video, to
describe the process or system by which the video was
created and to attest to the accuracy of the system.” 2022-
0324, p. 13, 2022 WL 3210100, at *6. However, as the
above excerpt from Rice demonstrates, the Louisiana
Supreme Court addressed the narrow issue of whether the
footage could be authenticated by Mr. Williams in light of
Mr. Williams’ testimony that his video surveillance
system had captured the defendant at times pertinent to
when the offenses occurred, as well as Mr. Williams’
testimony that he designed and managed the video
surveillance system. 2017-0446, pp. 1-3, 222 So.3d at 33-
34. Notably, the Louisiana Supreme Court did not say that
this was the only way the footage could have been

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authenticated or identified or that Mr. Williams was the
only witness who could have authenticated or identified
the footage. Id.

As discussed above, establishing a chain of custody of the video is a

sufficient manner of authenticating a video, one of many ways to do so.

Additionally, as noted by Mr. Mitchell in his brief, the objections raised at trial were

to the contents of the video. Mr. Mitchell has put forth no evidence to question the

chain of custody of the videos, as he acknowledges trial counsel did not object to the

establishment of the chain of custody of the videos.

In light of La.Code Evid. art. 901 and the fourth circuit’s ruling in K.B., we

cannot say the trial court committed manifest error when it allowed surveillance

videos to be introduced when there was testimony establishing the chain of custody,

which defense counsel conceded during trial and in brief to this court. As noted in

K.B., 372 So.3d at 881, “the failure to authenticate or identify evidence in this matter

does not mean that the evidence has not been properly or sufficiently authenticated

or identified; therefore, the failure to authenticate or identify evidence via one of

these listed methods should not automatically be deemed fatal by a court.”

Accordingly, we find that the argument with regard to the introduction of

surveillance video lacks merit.

Mr. Mitchell also contests the introduction of information obtained

from two License Plate Readers (LPRs) in the town of DeQuincy which were used

to corroborate codefendant George Buck’s testimony regarding where he,

Defendant, and the victim were travelling the day of the murder. Detective Travis

Lavergne, the Senior Sergeant in the Calcasieu Parish Sheriff’s Office’s Violent

Crime Unit, testified that the Calcasieu Parish Sheriff’s Office has a Field

Intelligence Group which ensures the accuracy and functionality of the LPRs located

throughout the parish, consistently ensuring their accuracy. He did note, however,

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that while there are two LPRs in DeQuincy which were important to the case, the

location of one of the LPRs was incorrect in the field report. Specifically, he noted

one of the LPRs was listed as being located at the intersection of Highway 12 West

and Highway 109 when it was actually located on East 4 th Street. Nonetheless,

Detective Lavergne noted the GPS verified the actual location of the LPR and

confirmed it was located on East 4th Street. Defense counsel raised no objection to

the introduction of the LPR reports tracking the movement of the car Mr. Buck was

driving and the vehicle Mr. Mitchell was driving. In light of Detective Lavergne’s

testimony and the failure of defense counsel to object to the introduction of the LPR

reports, we find that this portion of Mr. Mitchell’s assignment of error is also without

merit.

GUN KIT ADMISSIBILITY

In his second assignment of error, Mr. Mitchell contends the trial court

erred in allowing the State to place into evidence a gun cleaning kit found during a

search of the home of his ex-wife. Essentially, Mr. Mitchell asserts the admission

of the gun cleaning kit, found in the home of his ex-wife Deanna Peters, was error

because the State offered no evidence to connect the kit to him beyond testimony

from Ms. Peters that the kit was not hers and that she did not have a gun in the home.

Mr. Mitchell contends the gun cleaning kit was not relevant to the case; however,

even if it was relevant, its probative value was so insignificant that it was greatly

outweighed by the prejudice caused when the State insinuated to the jury that the kit

was his, indicating that he had a gun when he was visiting Ms. Peters at the time the

victim was killed. At the time the cleaning kit was introduced into evidence, the trial

court stated to the jury:

But I will state, with regard to relevancy, that it does seem to have some
minimal contact. However, it does go to the total weight of the

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allegations; and, therefore, you will be able to give it whatever weight
you think is appropriate. Any or none is up to you as the triers of fact.

The State argues that, considering the relatively low bar for relevance

under La.Code. Evid. art. 401, the lack of any intrinsic prejudice from association

with a gun cleaning kit, and the cautionary instruction to the jury, the admission of

the kit was not an abuse of discretion. Nonetheless, the State contends that even if

the admission was an abuse of discretion, any error would be harmless given the

other evidence presented to the jury.

During the trial, the jury heard testimony from George Buck as to the

commission of the crime by Mr. Mitchell. That testimony was corroborated by

phone records placing Mr. Mitchell with the victim, Mr. Burton, the entire day of

his homicide, including at the time of his death. It was further corroborated by the

testimony of Mr. Mitchell’s ex-wife, who also placed Mr. Burton and Mr. Mitchell

together and testified to their absence from her home the morning of the murder.

Finally, it was also corroborated by video surveillance and other electronic data

which tracked Mr. Buck’s account of what happened.

According to Mr. Buck, Mr. Mitchell and Mr. Burton met Mr. Buck at

his parents’ house, then the three of them met at Mr. Buck’s grandparents’ house, at

which time Mr. Mitchell told him Mr. Burton was buying a gun from someone. Mr.

Buck testified he then met Mr. Mitchell and Mr. Burton at a gas station before

meeting them again at his grandmother’s house. According to Mr. Buck, at that

time, Mr. Mitchell told him Mr. Burton was trying to kill him and he was going to

do something to stop him. Despite knowing Mr. Mitchell was planning to kill Mr.

Burton, Mr. Buck testified he led them to a secluded, dead-end road. That road was

D. Williams Road, near Mr. Buck’s grandmother’s house. Mr. Buck testified he met

Mr. Mitchell at D. Williams Road in his own car, they all went to the store, then Mr.

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Buck got into the car with Mr. Mitchell and Mr. Burton at his grandmother’s house,

and the three of them returned to D. Williams Road with Defendant driving.

According to Mr. Buck, Mr. Mitchell asked him to get out of the car

and grab a “little white box” out of the trunk. After not finding a little white box in

the trunk, Mr. Buck saw Mr. Mitchell and Mr. Burton standing on the side of the car,

at which point Mr. Mitchell shot Mr. Burton multiple times. Mr. Buck described the

gun as a black and silver semi-automatic pistol. According to Mr. Buck, he removed

Mr. Burton’s money and ID from his body, then he and Mr. Mitchell returned to Mr.

Buck’s grandmother’s house. Mr. Buck then took a gas can, returned to Mr.

Burton’s body, and set Mr. Burton’s body on fire to try and destroy any DNA

evidence that might have linked him to Mr. Burton’s death.

The surveillance videos and LPRs discussed above corroborated Mr. Buck’s story,

confirming the vehicles were where he said they were, showing the three men all

together at the gas station, then a single car returning to the area where Mr. Burton

died. Additionally, cell phone records showed Defendant and Mr. Burton were

together the night before the murder and the day of said murder. This court has

previously noted that “even the erroneous admission of irrelevant evidence does not

require a reversal of a conviction if the error is harmless beyond a reasonable doubt.”

State v. Chesson, 03-606, p. 18 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 179–80,

writ denied, 03-2913 (La. 2/13/04), 867 So.2d 686. As also noted by this court in

Chesson, 856 So.2d at 180:

In Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct.
2078, 2081, 124 L.Ed.2d 182 (1993), the United States
Supreme Court explained that:

Harmless-error review looks . . . to the basis
on which “the jury actually rested its
verdict.” Yates v. Evatt, 500 U.S. 391, 404,
111 S.Ct. 1884, 1893, 114 L.Ed.2d 432
(1991)(emphasis added). The inquiry, in

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other words, is not whether, in a trial that
occurred without the error, a guilty verdict
would surely have been rendered, but
whether the guilty verdict actually rendered
in this trial was surely unattributable to the
error.

Much like in Chesson, Mr. Mitchell’s conviction in the instant case

rested on the eye-witness testimony of codefendant George Buck, as corroborated

by surveillance footage, GPS tracking of cell phones, and LPRs which noted the

location of the vehicles being used by Mr. Mitchell and Mr. Buck on the day of the

murder. While the gun cleaning kit may have been irrelevant, we find that there is

no evidence to support any suggestion that the erroneous introduction into evidence

of the gun cleaning kit had any prejudicial effect on Mr. Mitchell’s trial.

Accordingly, we find that this assignment of error lacks merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his final assignment of error, Mr. Mitchell contends that counsel

rendered assistance below that guaranteed by the Sixth Amendment, resulting in his

prejudice Specifically, Mr. Mitchell contends trial counsel was ineffective for

failing to request a “great caution” jury instruction, failing to object to the State’s

admission of irrelevant evidence concerning a trip to Baton Rouge after the murder,

failing to object to the State’s closing argument comments about the trip, and failing

to lodge a continuing objection to the introduction of evidence discussed in

Assignment of Error number 1.

Issues involving ineffective assistance of counsel are typically

relegated to post-conviction relief; however, “[w]hen ‘the record discloses evidence

needed to decide the issue,’ an appellate court may decide it.” State v. Peart, 621

So.2d 780, 787 (La.1993)(quoting State v. Ratcliff, 416 So.2d 528, 530 (La.1982)).”

Claims of ineffective assistance are evaluated under the two-prong test established

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in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). That test requires

a defendant to prove not only that his counsel’s performance was deficient but also

that the deficiency prejudiced the defense; both prongs must be met.

Regarding the “great caution” instruction, Mr. Mitchell puts forth the

following:

George Buck was a fourth felony offender, having
just been released from prison less than two weeks before
this crime. He gave four different versions of the event
and entered into a favorable plea agreement shortly before
his own trial was scheduled to start. Although this
information was made known to the jury, the jury was not
instructed properly regarding the great caution it should
give to the co-defendant’s testimony.
Mr. Mitchell contends the jury should have been instructed that they should

accept the testimony of the codefendant “with great caution, suspicion, or distrust as

the codefendant provided evidence in exchange for an advantage.” As noted by the

State, however, the trial court did give the following instruction to the jury:

In evaluating the testimony of the witness, you may
consider his or her ability and opportunity to observe and
remember the matter about which he or she is testifying,
his or her manner while testifying, any reason he or she
may have for testifying in favor of or against the State or
the Defendant, and the extent to which the testimony is
supported or contradicted by other evidence.

This instruction is virtually identical to the instruction given by the trial

court in State v. Talbert, 20-251 (La.App. 3 Cir. 2/3/21), 311 So.3d 1100. There,

this court stated “the ‘great caution’ instruction is not required when the

codefendant’s testimony is corroborated by surrounding circumstances.” Id. at

1113. Apparently recognizing this flaw in his argument, Mr. Mitchell contends his

case is distinguishable from Talbert because no one placed him in possession of a

handgun before or after the shooting and there was no physical evidence linking him

to the crime scene. Although Mr. Mitchell contends the evidence regarding the

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“surrounding circumstances” is unreliable, his complaints are all issues which were

known to the jury, such as the “large margin of error” regarding the cell-phone

analysis.

While the Talbert case did involve a separate witness testifying they

saw the defendant with a gun, aside from the testimony of the codefendant who

placed multiple guns in the hands of the defendant, the primary issue involved in the

Talbert case was the issue of misidentification, raised by the defendant. Mr. Mitchell

in the instant case has not claimed misidentification; rather, he argued Mr. Buck was

lying and there is no evidence, aside from Mr. Buck’s testimony, to indicate he was

involved in this shooting in any way. Indeed, Mr. Mitchell contends “the evidence

offered more support to find that Buck was involved in selling an illegal gun to

Burton, and the shooting occurred during that transaction.”

Based upon the evidence presented at trial, which corroborated Mr.

Buck’s testimony regarding the movements of himself, Mr. Mitchell, and the victim

on the day the victim was murdered, we find that, like in Talbert, the instruction

given to the jury was sufficient to remind the jury of its duty to consider the

motivations Mr. Buck had in testifying and the “great caution” instruction was not

required. Accordingly, Mr. Mitchell cannot establish counsel’s failure to request the

“great caution” instruction would have resulted in a different outcome; and,

therefore, he cannot establish counsel’s actions prejudiced him as required under

Strickland.

Additionally, as already stated, there was no error in the trial court’s

admission of evidence discussed in Mr. Mitchell’s first assignment of error, and Mr.

Mitchell cannot establish counsel’s actions prejudiced him as required under

Strickland.

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With regard to the final portion of this assignment of error, that trial

counsel should have objected to the State eliciting testimony from Mr. Buck

regarding a trip he and Mr. Mitchell took to Baton Rouge two days after Mr. Burton’s

murder, we find this issue should be relegated to post-conviction relief. The State

contends this was a strategic decision by Mr. Mitchell’s trial counsel to attack Mr.

Buck’s claim that he and Mr. Mitchell’s relationship ended after Mr. Mitchell

involved him in a murder. During the trial, Mr. Mitchell’s counsel pointed out the

fact Mr. Mitchell helped Mr. Buck assemble furniture for Mr. Buck’s children at his

home and travelled with Mr. Mitchell to Baton Rouge two days later. We find that

the evidence before this court is insufficient to determine whether trial counsel

intentionally allowed the evidence in strategically, or if his failure to object was

deficient performance. Accordingly, we find this issue should be relegated to post-

conviction relief, where the trial court may develop a full record on the issue.

IV.

CONCLUSION

For the foregoing reasons, Mr. Mitchell’s conviction and sentence is

affirmed; however, his claim for ineffective assistance of counsel, regarding

counsel’s failure to object to the State’s introduction of evidence concerning a trip

to Baton Rouge two days after the shooting, is relegated to post-conviction relief.

AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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