Elkins v. State

• Decision Date: 28 June 2019
• Docket Number: S19A0331
• Citation: 830 S.E.2d 217,306 Ga. 351
• Parties: ELKINS v. The STATE.
• Court: Georgia Supreme Court

306 Ga. 351

830 S.E.2d 217

ELKINS

v.The STATE.

S19A0331

Supreme Court of Georgia.

Decided: June 28, 2019

Josh David Moore, Georgia Capital Defenders, 104 Marietta St. NW, Suite 900 Atlanta, Georgia 30303, for Appellant.

Curtis Allen Garrett, Jr., Kilpatrick Townsend & Stockton LLP, 1100 Peachtree Street, Suite 2800, Atlanta, Georgia 30309-4528, Sarah E. Geraghty, Patrick Mulvaney, Tamara Serwer Caldas, Southern Center for Human Rights, 83 Poplar Street, NW, Atlanta, Georgia 30303, for Amicus Appellant.

Patricia B. Attaway Burton, Deputy, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Andrew J. Ekonomou, Thomas Edwars Buscemi, Brunswick Judicial Circuit District Attorney's Office, Glynn County Courthouse, 701 H Street, Box 301, Brunswick, Georgia 31520, Jacquelyn Lee Johnson, District Attorney, Brunswick Judicial Circuit District Attorney's Office, P.O. Box 369, Woodbine, Georgia 31569, for Appellee.

Boggs, Justice.

In 2013, Appellant De’Marquise Kareem Elkins was convicted of malice murder and other crimes in connection with the shooting death of 13-month-old Antonio Santiago and the shooting of the baby’s mother, Sherry West, as well as the shooting ten days earlier of Pastor Wilfredo Calix-Flores behind his church. The trial court sentenced Appellant – who was 17 years old at the time of the crimes – to serve life in prison without the possibility of parole ("LWOP") for the baby’s murder and consecutive terms of years for all but one of his other convictions. Appellant contends, among other things, that the trial court violated his constitutional rights by preventing him from showing that someone else committed the crimes; that he was deprived of a fair trial and the presumption of innocence when the jury heard that he had a juvenile criminal record; and that he was denied the effective assistance of counsel.

As explained below, the evidence presented at trial was legally sufficient to support Appellant’s convictions. The trial court did not violate Appellant’s constitutional rights by preventing him from showing that someone else committed the crimes, he was not deprived of a fair trial or the presumption of innocence by a fleeting reference at trial to a "criminal juvenile report," and his claims of ineffective assistance related to his trial counsel are waived. One claim of ineffective assistance, which relates to his motion-for-new-trial counsel, is not waived, however, and we must remand for an evidentiary hearing and findings of fact on that claim. Accordingly, we affirm in part and vacate in part, and we remand the case with direction.¹

1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On the evening of March 11, 2013, Appellant, who was 17 years old, rode on the handlebars of 16-year-old T.S.’s bicycle to a recreation center in Brunswick to play basketball. While waiting to play, they and 17-year-old D.J. decided to go to a nearby store to buy Gatorade. On the way, they saw Pastor Calix-Flores and a parishioner working on a fence and a gate behind the pastor’s church. On the way back from the store, after T.S. and D.J. had walked past Calix-Flores and the parishioner, Appellant pulled out a gun, pointed it at Calix-Flores and the parishioner, and demanded their cell phones and wallets. When the parishioner said that he did not have any, Appellant shot Calix-Flores in the arm. As the two men ran to the church building for shelter, Appellant fired at them five more times. Appellant then ran up to T.S. and D.J. and warned them that if they said anything, something would happen to them. Appellant left alone down an alley. T.S. and D.J. fled in a different direction. Video surveillance captured the boys fleeing.

Ten days later, on the morning of March 21, 15-year-old D.L. woke up around 8:30 a.m., went to his great-grandmother’s house for a few minutes, and then walked to a nearby apartment complex, where he saw Appellant and nodded to him. Appellant was wearing a red sweatshirt, blue jeans, and a silver chain, and D.L. was wearing a black hoodie, Levi’s pants, and Jordan shoes. Minutes later, D.L. was walking towards his uncle’s house when he ran into Appellant again. As they walked along, Appellant, who was about three months short of his eighteenth birthday, asked D.L., who was only 15, if D.L. had ever robbed anyone, and D.L. said no. Appellant showed D.L. the handle of a gun on his waist and joked about robbing him. Appellant indicated that he was looking for "Mexicans" to rob and asked D.L. if he knew where any Mexicans lived. D.L. told him that they were "in the area where [the Mexicans]" live.

When Appellant and D.L. turned onto Ellis Street, D.L. saw West pushing a stroller down the street, and Appellant headed towards her. D.L. was a few steps behind when Appellant walked up to West and demanded her purse. She did not give it to him, saying that she had no money. Appellant pulled out his gun and asked West if she wanted him to shoot her baby, and she begged him not to. He demanded the purse again, but she refused, and Appellant hit her in the face with the gun and again demanded the purse, but she did not give it to him. Appellant threatened to shoot the baby and started counting down from five, but West stopped him when he got to three; he again demanded her purse, and she again refused. Appellant walked around the stroller, fired a shot into the ground, shot West in the leg, and resumed the countdown. Appellant then pointed the gun at the baby and shot him between the eyes, killing him instantly. West started screaming, and as Appellant and D.L. fled, she managed to wheel the stroller to a nearby yard and tried to perform CPR on the baby until the police arrived.

D.L. ran to his great-grandmother’s house, and Appellant followed him. They entered through the back door. D.L.’s great-grandmother, his great-grandmother’s friend, and D.L.’s 14-year-old cousin J.L. were there, and Debra Obley, D.L.’s great-aunt, arrived shortly afterwards. Obley agreed to give Appellant a ride, and he had his red sweatshirt with him when he got into the car. Appellant was looking around, crouching down in the car, and acting strangely, and Obley asked him if he was skipping school. When Obley began questioning Appellant, he indicated that he wanted to get out of the car. When Obley let him out, she saw what looked like a gun stuck in his pants.

Detective Angela Smith was the first officer to arrive at the scene of the shooting. The baby was pronounced dead, and West was taken to the hospital, where she was crying, asking about the baby’s condition, and asking to see him. Smith told West that the baby was dead. West described the assailants as two black males and said that the older one was wearing a red sweatshirt and had thick, curly hair and thick eyebrows, a description that matched Appellant. When the baby’s father arrived, Smith allowed him to see West, who told him that their baby was dead.

On the next morning, March 22, 2013, Appellant went to the apartment of some other relatives and hid the gun under a love seat. When he was taken into custody later that morning, he had two .22-caliber bullets in his pocket, the same caliber as the bullet that killed the baby. He agreed to be interviewed by the police. Later, when he was walking to the parking lot for transportation, he said to the officers accompanying him, "Y’all ain’t got s**t on me. Y’all ain’t got no gun. Y’all ain’t got fingerprints. All y’all have is a f**king acquittal." One of the officers smiled, and Appellant said, "Oh, you got the gun?"

On the same morning, Appellant’s mother and older sister went to the apartment where Appellant hid the gun and retrieved it from under the love seat. An older relative took the gun from them, unloaded it, and gave the gun back to them. Later that morning, Appellant’s mother and sister got a ride to a saltwater fishing pond behind a flooring store off Highway 17, and they threw the gun into the pond. That afternoon, officers executed a search warrant for the place where Appellant was staying and recovered a red sweatshirt and a silver necklace that appeared to belong to Appellant. The gun was recovered a few days later.

Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court’s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Brown v. State , 302 Ga. 454, 456, 807 S.E.2d 369 (2017) ("It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence." (citation and punctuation omitted)).

2. Appellant asserts that the trial court violated his constitutional rights by preventing him from showing that someone else committed the crimes. Specifically, he complains of the trial court’s calling an overnight recess during his cross-examination of J.L. and of the trial court’s barring him from introducing extrinsic evidence of the baby’s parents’ history of addiction and family violence, including with their older children. We address each claim in turn.

(a) Appellant contends that by calling an overnight recess during his cross-examination of J.L., the trial court violated his right to confront the witnesses against him.

The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Limitations on

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