Jenkins v. State
| Decision Date | 15 March 2018 |
| Docket Number | S17A1743 |
| Citation | 812 S.E.2d 238 |
| Parties | JENKINS v. The STATE. |
| Court | Georgia Supreme Court |
Brian Steel, The Steel Law Firm, P.C., 1800 Peachtree Street, N.W., Suite 300, Atlanta, Georgia 30309, for Appellant.
Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, S. Taylor Johnston, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Elizabeth A. Baker, Jay Marvin Jackson, Tracy Graham Lawson, Elizabeth Rosenwasser, Clayton County District Attorney's Office, 9151 Tara Boulevard Fourth Floor, Jonesboro, Georgia 30236, for Appellee.
Clarence Jenkins Jr. ("Jenkins") appeals his convictions and sentences for felony murder, possession of a firearm during the commission of aggravated assault, and possession of a firearm during the commission of aggravated battery, all in connection with the shooting death of his 22-year-old son, Chavarious Jenkins ("Chavarious"). For the reasons that follow, we affirm in part, vacate in part, and remand for resentencing.1
Construed to support the verdicts, the evidence showed that on November 11, 2012, Jenkins, Chavarious and Karl Cotton—a cousin of Jenkins—watched a football game and drank beer at a friend's home; they then went to Jenkins's house, which he shared with his fiancee, Latrece Whitfield. There, Chavarious said he wanted to become engaged to marry, and he and Jenkins argued; Jenkins said he should "get his life together" and should buy a car before an engagement ring. The men began to argue over their financial history and shoved one another; in anger, Chavarious punched a hole in a wall of the house. Cotton and Whitfield broke up the altercation, pushed the men apart, and Chavarious went into the living room. Chavarious "kept running his mouth" and Jenkins left the house; Jenkins returned a minute later, carrying a handgun, and went into the living room.
While Cotton was also in the living room, Jenkins stated to Chavarious "I'll f**king kill you for disrespecting me in my house" and, at a close distance, pointed the pistol at Chavarious's head; Chavarious attempted to push the pistol away from his head and backed up; the two men fell over the arm of a sofa and onto it; Cotton heard a gunshot; and a projectile struck Chavarious in the head. Jenkins then placed the pistol on a counter, went to the sofa, and held Chavarious. Jenkins said to Cotton, "help me, I don't want to go to jail." At that point, Cotton left the house, and Whitfield, who went into the living room after the gunshot, called 911.2
The first officer to arrive at the scene in response to the 911 call saw Jenkins on the sofa; Chavarious was on his lap, bleeding profusely from a gunshot wound
to the head. A Glock pistol that proved to be the fatal weapon was on the nearby counter. The trigger pull on the Glock was five and a half pounds; it could not be fired by dropping or throwing it. Two days after the shooting, Chavarious died from the gunshot wound to his head.
1. Jenkins does not contest the legal sufficiency of the evidence establishing his guilt of the charges for which he was convicted. Nevertheless, in accordance with this Court's general practice in appeals of murder cases, we have reviewed the record and conclude that the evidence at trial authorized the jury to find Jenkins guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
However, our review of the record reveals that Jenkins received a sentence of five years in prison for the crime of possession of a firearm during the commission of aggravated assault, as well as a sentence of five years in prison for the crime of possession of a firearm during the commission of aggravated battery. See Footnote 1, supra. But, the underlying crimes for each possession charge were committed on the same victim, as part of the same fatal encounter, and the possession charges thus merged with each other. See Smith v. State , 297 Ga. 268, 269 (1) (b), 773 S.E.2d 269 (2015) ; Gibbs v. State , 295 Ga. 92, 96 (2), 757 S.E.2d 842 (2014). Consequently, the case must be remanded so that Jenkins may be resentenced on only one of the possession counts, in the discretion of the trial court. See Tye v. State , 298 Ga. 474, 481 (3), 782 S.E.2d 10 (2016).
2. Jenkins told a law enforcement officer who arrived at his house a few minutes after the 911 call was placed that he was showing Chavarious his handgun when it accidently discharged. The State moved in limine to exclude the defense from introducing evidence of Jenkins's statement as inadmissible hearsay. Outside the jury's presence, Jenkins proffered the officer's testimony that: he was the first to arrive at the house in response to the 911 call; he arrived two or three minutes after being dispatched; he took the pistol that was on the counter and placed it in his police vehicle, where he left it; other emergency personnel soon arrived and several medical technicians began attending Chavarious; he did not engage Jenkins in discussion until Chavarious had been moved to the floor; Jenkins's clothes were bloodied and Jenkins had not washed his hands when he spoke with him; he had no recollection whether Jenkins was calm during their talk and did not make any written note of any observation regarding Jenkins's demeanor; and Jenkins said that he was showing Chavarious the pistol and it went off accidentally.
The trial court granted the State's motion and excluded the evidence of Jenkins's statement that he was showing Chavarious the pistol when it accidently fired. Jenkins contends that this ruling was error and that the evidence should have been admitted under the "excited utterance" exception to the hearsay rule, which is found in OCGA § 24-8-803 (2).3 A trial court's decision to admit evidence is reviewed for an abuse of discretion. Pierce v. State , 302 Ga. 389, 391 (1), 807 S.E.2d 425 (2017). OCGA § 24-8-803 (2) was enacted in 2011 as part of our new Evidence Code, much of which was borrowed from the Federal Rules of Evidence. Timmons v. State , 302 Ga. 464, 468 (2) (a), 807 S.E.2d 363 (2017).
"And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance." [Cit.]
Pierce , supra at 392 (1) (a), 807 S.E.2d 425.
Although the passage of time between the event and the declarant's statement is not dispositive as to the admissibility of the statement, the trial court recognized that it is relevant to the critical inquiry—whether the declarant is still in a state of excitement resulting from that event when the declaration is made. See United States v. Stepherson , 383 Fed. Appx. 853, 855 (I) (11th Cir. 2010). And in that regard, even a brief period of time can provide a declarant an opportunity to couch a statement in such a way as to best serve his interests. See Sewell , supra. Here, not only was there a passage of time sufficient for Jenkins to formulate a specific version of the events to his advantage, but there was evidence supporting an inference that he actually did so, when he earlier asked Cotton to help him, and said he did not want to go to jail.4 Conversely, there was no evidence presented to the court of Jenkins's words or actions that showed he was actually experiencing stress or excitement at the time of his statement to the officer so as to eliminate "the possibility of fabrication, coaching, or confabulation [and] provide sufficient assurance that the statement [was] trustworthy and that cross-examination would be superfluous." Wright , supra.
Given the totality of the circumstances, the trial court did not abuse its discretion in excluding evidence of Jenkins's statement to the responding officer from being placed before the jury on the basis that it was hearsay that did not fall under the exception set forth in OCGA § 24-8-803 (2).
3. Jenkins contends that his trial counsel failed to provide effective...
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