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Mikell v. State11/19/2001
Joseph Perry Mikell was convicted of malice murder in the shooting death of his wife Barbara Sue Mikell. He contends that the trial court erred in allowing the state to introduce testimony about two extramarital affairs as bad character evidence. Because the challenged evidence was relevant to prove identity and to impeach his testimony, we conclude that the trial court did not commit reversible error in admitting it. Therefore, we affirm.
1. Mikell contends that the evidence was insufficient to convict him of murder. The evidence at trial shows that Barbara Mikell was picking up a $50 check from a friend in downtown Atlanta when her husband called to tell her that he would not be able to have lunch with her, as they had discussed. She became angry and said, "I'll guess I'll just go home," then slammed the cell phone down on the table. While driving south on I-75, she talked again with her husband at 2:17 p.m. Thirty minutes later, she checked into a motel off of I-20 in DeKalb County where she had met her husband once before their marriage. The motel was located 35 miles from their home in Butts County. She paid for the room with their joint credit card, a bill that he paid. Using her cell phone, Ms. Mikell called her husband's pager at 3:01 p.m. and 3:54 p.m., but he did not return the calls. Records show that she did not communicate that day on her cell phone with anyone besides her husband.
A motel employee found Ms. Mikell's body the next morning around 11 a.m. Ms. Mikell was lying on her back with a pillow over her head, wearing her bra, shorts, and underpants; a check for $50 was stuck in her bra. Her blouse was draped over water glasses and pitcher on the dresser with her purse, keys, glasses, cell phone, and pager still in the room. There were no signs of a forced entry, struggle, or sexual activity. The medical examiner testified that she had been shot three times in the head while lying or sitting on the bed in the position where she was discovered.
Asserting an alibi defense, Mikell testified that he worked the entire day driving a lowboy truck, a vehicle that transports equipment, for his employer E.R. Snell Contractor. He told his wife during their 2:17 p.m. conversation that he would be working late, and she said she would be going to visit her daughter. He admitted that he worked by himself from 3:45 to 6 p.m. and did not make or receive any calls on his cell phone between 2:48 p.m. and 5:05 p.m. During that time, he was moving equipment from a subdivision two miles off of I-20 in DeKalb County to a golf course off of Highway 78 in Gwinnett County. His supervisor paged him around 4:45, and Mikell radioed back from his truck 15 minutes later saying he was on guns, but none was identified as the murder weapon, which the police never found.
Two motel residents told police that they saw a lowboy truck with the E.R. Snell logo in the parking lot behind the motel on the afternoon of May 18. Although one witness testified at trial that he had been mistaken about the date, the other witness testified that he had seen both the E.R. Snell truck and a red dump truck driven by the other witness that afternoon as he was entering his room.
In addition, the state presented evidence of a mid-day telephone call between Mikell and Sonja Brown, a friend and former mistress, on May 18. During their conversation, which lasted 34 minutes, they spent ten minutes discussing her arrest for driving under the influence and ten minutes discussing his relationship with his wife; he said Barbara was complaining earlier in the year about his long hours at work and he did not know whether they were going to get a divorce. Later Mikell asked Brown to tell his lawyer th
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