Adkins v. State
| Decision Date | 15 May 2017 |
| Docket Number | S17A0111 |
| Citation | 800 S.E.2d 341 |
| Parties | ADKINS v. The STATE. |
| Court | Georgia Supreme Court |
Amy Lee Ihrig, Office of the Public Defender, Eastern Judicial Circuit, P.O. Box 9176, Savannah, Georgia 31412, for Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Matthew Min-soo Youn, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Margaret Ellen Heap, District Attorney, Christine Sieger Barker, A.D.A., Office of the District Attorney Eastern Judicial Circuit, P.O. Box 2309, Savannah, Georgia 31402, for Appellee.
Following a jury trial, Mark Adkins was convicted of a number of crimes arising from the murder of Frederick Early and the non-fatal shootings of Briona Moore and Pamphylia Baynes.1 Adkins appeals and argues that the trial court erred by (1) permitting the State to introduce a purported dying declaration by Early; (2) permitting the State to elicit improper opinion testimony by two law enforcement officers; and (3) failing to merge two aggravated assault convictions that were both based on the shooting of Baynes. We vacate in part because the trial court should have merged those two aggravated assault convictions. We otherwise affirm because it was Adkins who introduced the evidence of Early's statement and because the admission of the challenged law enforcement testimony was either not error or, at worst, harmless error.
Viewed in the light most favorable to the verdicts, the trial evidence showed as follows: On May 16, 2013, Baynes and Moore planned to catch a bus so that Baynes could pick up her disability check. They met Early, also known as "Smurf," who had agreed to give Moore money for bus fare. The three talked for about 10 minutes on a street corner before a car drove by and a passenger opened fire on the group. Baynes and Moore were shot but survived. Early died of multiple gunshot wounds
.
Baynes and Moore were initially interviewed at the hospital; neither victim identified the shooter by name. Moore said the shooter wore a ski mask, and Baynes said she would not be able to identify the shooter. But at trial, both Baynes and Moore identified Adkins as the person who shot them. Both Moore and another eyewitness, Rosalee Smith, testified that they knew Adkins by the name "Fly Monkey," and Baynes testified that Adkins went by the street name "Fly." On cross-examination, Baynes testified that she heard Early say, "Fly, Fly, Fly," after he was shot.
Adkins claimed mistaken identity, his counsel arguing in closing that there was no physical evidence linking Adkins to the shootings and emphasizing the inconsistent statements of Baynes and Moore. Adkins did not testify. The jury found Adkins guilty of all charged offenses, including malice murder for the death of Early.
1. Adkins does not challenge the sufficiency of the evidence. Nevertheless, we have independently reviewed the record and conclude that the evidence, as outlined above, was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Adkins was guilty of the crimes for which he was convicted under the standard of Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Adkins argues that the trial court erred by permitting the State to introduce Early's purported dying declaration in exception to the hearsay rule. We conclude that Adkins cannot obtain reversal on this basis because his counsel elicited the testimony in question.
Just prior to the trial court's preliminary instructions to the jury and the parties' opening statements, defense counsel informed the court that he had been served on the previous Friday with an additional statement by Baynes to the effect that, before he died, Early uttered the words, "Fly, Fly, Fly." The prosecutor explained that Baynes had relayed that remark to her the previous week and that Baynes understood the remark, made after Early was shot, to be a reference to Adkins's nickname, "Fly Monkey." Defense counsel argued that the statement should not be referenced in the State's opening because it was hearsay, posed a Confrontation Clause issue, and was inadmissible unless a hearing were held on its trustworthiness. The prosecutor argued that it was admissible as a dying declaration. The trial court found "at least on a preliminary basis" that the testimony would be admissible.
In her opening statement, the prosecutor referenced Baynes's expected testimony, telling the jury, "Pammy will tell you that she heard Smurf struggling, breathing, she heard him saying, ‘Fly, Fly, Fly.’ " Defense counsel objected on the basis of hearsay, and the trial court responded, The prosecutor promptly added that the testimony would show that Adkins's street name was Fly Monkey and most people call him Fly.
The prosecutor did not elicit testimony about the statement in her direct examination of Baynes, although Baynes testified on direct examination that Adkins went by the street name Fly. On cross-examination, defense counsel initiated the following line of questioning:
Later in his cross-examination of Baynes, defense counsel brought up the subject again:
The State argues that any error in the admission of Early's statement through Baynes's testimony was induced, as the testimony was elicited by defense counsel. A defendant generally cannot complain on appeal about the admission of evidence that he introduced himself, even when he does so after the trial court has overruled his objection to the admissibility of that evidence. See Givens v. State , 273 Ga. 818, 822 (3), 546 S.E.2d 509 (2001) ; Brown v. State , 193 Ga.App. 26, 27-28 (4), 386 S.E.2d 903 (1989) ; accord Ohler v. United States , 529 U.S. 753, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000). Although we may take notice of plain errors affecting substantial rights even when an error is not brought to the attention of the trial court, OCGA § 24-1-103 (d), "[w]here invited error exists, it precludes a court from invoking the plain error rule and reversing." United States v. Baker , 432 F.3d 1189, 1216 (11th Cir. 2005) (citation and punctuation omitted), abrogated on other grounds by Davis v. Washington , 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; see also United States v. Parikh , 858 F.2d 688, 695 (11th Cir. 1988) (); Cheddersingh v. State , 290 Ga. 680, 682-684 (2), 724 S.E.2d 366 (2012) (). Here, the testimony by Baynes about which Adkins complains on appeal was elicited by Adkins's counsel.
Adkins argues that he did not induce the alleged error in admission of the purported dying declaration because he objected to the mention of the statement during the State's opening. Although Adkins objected to the admissibility of the evidence, however, his introduction of the evidence after the State failed to introduce it waived his previous objection. When the State did not introduce evidence of the statement during Baynes's direct testimony, Adkins had the option to not do so either. Indeed, if neither party had introduced evidence of the statement, Adkins might have pointed out in his closing argument to the jury that the State had failed to present a key piece of promised evidence. Instead, he elected to present that evidence himself. He cannot complain now that the jury heard that evidence.
3. Adkins also appeals his convictions on the basis that the trial court in two instances erred by permitting the State to elicit improper opinion testimony from two law enforcement officers. We find that the admission of one officer's testimony was not error and that any error in the admission of the other officer's testimony was harmless.
Adkins argues that the trial court erred by allowing Sergeant Tiffany Manuel of the Savannah-Chatham Metro Police, who interviewed Baynes and Moore at the hospital, to give improper opinion testimony. Manuel was called to testify by the defense. Manuel testified that she first interviewed Moore, who told her that the driver was the shooter and only occupant of the vehicle and that he had long dreadlocks and brown skin and was wearing a black ski mask. Manuel testified that she then interviewed Baynes, who said there were two people in the car, with the passenger being the shooter. Baynes told Manuel that the shooter was a black male with a short haircut. Given discrepancies between the two women's stories, Manuel testified, she returned to Moore, who maintained that the shooter was the only person in the vehicle and she could see only his dreadlocks.
On cross-examination, the prosecutor revisited Manuel's initial interviews of Moore and Baynes. Manuel reiterated on cross-examination that Baynes told her the shooter had a short...
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