Parks v. State, S02A0352.

• Decision Date: 10 June 2002
• Docket Number: No. S02A0352.,S02A0352.
• Citation: 565 S.E.2d 447,275 Ga. 320
• Parties: PARKS v. The STATE.
• Court: Georgia Supreme Court

565 S.E.2d 447

275 Ga. 320

PARKS v. The STATE.

No. S02A0352.

Supreme Court of Georgia.

June 10, 2002.

Reconsideration Denied July 12, 2002.

Dwight L. Thomas, Caprice R. Jenerson, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Christopher M. Quinn, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Jennifer S. Gill, Asst. Atty. Gen., for appellee. SEARS, Presiding Justice.

The appellant, Deunte Parks, appeals from his convictions for the malice murders of Monquita Scott and Beryl Murrill, for burglary, and for the aggravated assaults of Quiana Murrill and Tranese Wilburn.¹ On appeal, Parks contends, among other things, that the evidence is insufficient to support his convictions, that the trial court erred in admitting hearsay statements into evidence, and that the trial court erred in not having Parks present at every bench conference held during the trial. We conclude that these contentions, as well as Parks's other contentions, have no merit, and we therefore affirm.

1. The evidence introduced at trial shows that on the night of July 21, 1996, Monquita Scott was spending the night at the home of her aunt, Beryl Murrill. Monquita's cousins, Quiana Murrill and Tranese Wilburn, were also at Beryl Murrill's apartment that night. In the early morning hours of July 22, when the occupants of the apartment were all upstairs, someone threw a brick through the sliding glass door in the lower level of the apartment and entered. Quiana Murrill and Tranese Wilburn testified that they went to the top of the stairs and saw Parks, who was pointing a gun at them, coming up the stairs. According to Quiana and Tranese, Parks then went upstairs, and as the occupants of the apartment were hiding in two bedrooms, Parks shot Monquita Scott, her aunt, and Quiana and Tranese. Each victim was shot twice, except for Quiana Murrill, who was shot five times. Quiana Murrill and Tranese Wilburn survived, but Monquita died that day and her aunt died a week later.

There was evidence introduced at trial that Monquita Scott and Parks had dated for some time before the shooting, and that they had had a child together. Monquita did not live with Parks, but lived with her mother, Glenda Scott. There was evidence that after the child was born, their relationship began to deteriorate. Based partly on statements made to her by Monquita, Glenda Scott testified that Monquita and Parks had verbal and physical fights, and that Parks would call Monquita incessantly. Glenda Scott testified that on July 8, 1996, Parks entered her house, fought with Monquita, and scratched and bruised her. Glenda Scott also testified that on July 12, 1996, Parks called repeatedly to speak with Monquita, and she (Glenda) would not let him do so. Parks told her that "[y]ou know, bitch, you don't know who you're f___ing with." Later that same day, Glenda testified that she saw Parks walking away from her car and that all the windows were broken out of it. According to Glenda, on July 20, Parks called her home repeatedly and asked to speak to Monquita. She would not let him do so, and on one call, he told her that "[y]ou don't know who you're f___king with because my buddies will come and shoot up your house."

Stephanie Ragland, a friend of Parks's, testified that Parks had scratches on his face at some point while the Olympics were in Atlanta, and during the weekend of the shooting, July 19 21, 1996, the Olympic Games had started. Ragland also testified that Parks told her that Monquita and her sister had "jumped on" him, and that "[t]hose bitches are going to learn not to f___ with me." Ragland added that she was familiar with guns, and that she had seen Parks with a black gun that looked like a nine millimeter. Although a murder weapon was not recovered, nine millimeter shell casings were found on the floor of the home.

Ryan Johnson, who had known Parks for many years, testified that Parks told him that he had killed Monquita Scott, and that Parks's exact words were that "I tried to kill all them mother f___ers."

Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Parks guilty beyond a reasonable doubt of the crimes for which he was convicted.²

2. Parks contends that the trial court erred in permitting the State to introduce certain hearsay statements made by Monquita Scott to her mother. We conclude that most of these statements were properly admitted under the necessity exception to the hearsay rule, and that although one was not, its admission was harmless error.

For hearsay to be admissible under the necessity exception, (1) the out-of-court declarant must be unavailable to testify, (2) the hearsay statements must be relevant to a material fact and must be more probative evidence concerning that fact than other evidence available to the State, and (3) the hearsay statements must have been made under circumstances indicating their trustworthiness.³ In the present case, the victim was deceased and thus unavailable to testify. Moreover, we conclude that all but one of Monquita's statements to Glenda were relevant to demonstrate the prior difficulties between Monquita and Parks and that there was no other non-hearsay evidence that was as probative of those difficulties. In addition, because Monquita's mother testified that she and Monquita had a good "mother-daughter" relationship, that they talked about everything, and that Monquita could come to her with any problems, we conclude that the statements were made under circumstances indicating their trustworthiness.⁴ Finally, as to one statement that Monquita made to her mother to the effect that she (Monquita) had had a vision of the Virgin Mary, we conclude that it was not relevant to a material fact at trial, and that it was inadmissible hearsay. We conclude, however, that the error was harmless considering the overwhelming evidence of Parks's guilt.⁵

3. After the jury had been selected and the trial had begun, Parks attended several bench conferences with his attorney. The trial court, however, after one of these conferences, asked Parks's attorney not to bring Parks to the bench conferences because the court was concerned about security in that Parks had a separate case pending in which he was charged with escape. Parks's attorney objected, contending that Parks had a constitutional right to be present at the bench conferences. The trial court overruled the objection, but granted Parks a continuing objection on the issue. During the remainder of the trial, numerous bench conferences were held in Parks's absence. On appeal, Parks contends that the trial court erred in its ruling. For the following reasons, we disagree.

In Huff v. State,⁶ we addressed whether Huff's absence from a jury charge conference, as well as from a discussion that took place in chambers regarding whether Huff's custodial statement should go out with the jury during deliberations, violated his constitutional right to be present at all stages of his trial under Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983. We noted that "[t]he right to be present attaches `at any stage of a criminal proceeding that is critical to its outcome if (the defendant's) presence would contribute to the fairness of the procedure.' Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)."⁷ Stated somewhat differently, it has been said that the right to be present

exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant's absence. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (citing Snyder v. Massachusetts, 291 U.S. 97, 105-106, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).⁸

In Huff, we concluded that because the charge conference and the in-chambers conference addressed legal matters concerning which Huff could not have made a meaningful contribution, his constitutional right to be present was not violated.⁹

Our decision in Huff is consistent with decisions from other courts that have addressed whether a defendant's right to be present has been violated. For example, in United States v. Boyd,¹⁰ the trial court held a motion for new trial hearing with the defendant's attorney present but the defendant absent. The Eleventh Circuit Court of Appeals found no violation of the defendant's right to be present because the hearing did not impact the defendant's right to cross-examine trial witnesses, because the defendant did not have any knowledge regarding the subject of the motion for new trial, and because he could not have assisted his counsel so as to have made the hearing more reliable.¹¹ Quoting Justice Cardozo, the Eleventh Circuit concluded that the defendant's "presence at the hearing would have been `useless, or the benefit but a shadow,' Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 78 L.Ed. 674 (1934), and thus his exclusion did not violate his due process rights."¹²

Similarly, in State v. Blakeney,¹³ the North Carolina Supreme Court addressed whether the defendant's absence from various bench conferences violated his right to be present. The court relied on several factors to conclude that the defendant's right to be present had not been violated. First, the court noted that there was nothing to suggest that the conferences implicated the defendant's confrontation rights.¹⁴ Second, the court also concluded that the record did not show that the defendant's presence had a "`reasonably substantial relation to his opportunity to defend.'"<sup>15</sup> The factors that led the court to the latter conclusion were that "`bench conferences typically concern legal matters with which an accused is likely unfamiliar and incapable of rendering meaningful assistance,'"¹⁶ and that the defendant was present in the...