Parks v. State

• Decision Date: 30 November 2016
• Docket Number: S16A1001
• Parties: PARKS v. The STATE.
• Court: Georgia Supreme Court

300 Ga. 303

794 S.E.2d 623

PARKS

v.The STATE.

S16A1001

Supreme Court of Georgia.

Decided: November 30, 2016

Raina Jeager Nadler, P.O. Box 768202, Roswell, Georgia 30076, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., John Richard Edwards, A.D.A., D. Victor Reynolds, District Attorney, Cobb County District Attorney's Office, 70 Haynes Street, Marietta, Georgia 30090, for Appellee.

BENHAM, Justice.

Appellant Harold Parks seeks review of his convictions for crimes stemming from the shooting death of Terrence Washington.¹ For the reasons set forth below, we affirm.

1. Appellant contends the evidence was insufficient to convict. Viewed in a light most favorable to upholding the jury's verdicts, the evidence shows on September 16, 2013, appellant became enraged that Washington's girlfriend had parked in a certain area outside their apartment building and threw a mug of coffee at her. A neighbor, who worked as a courtesy officer at the apartment complex and was coming home from work at another security job, saw the altercation and attempted to deescalate the situation. The victim also tried to deescalate the situation, but ended up arguing with appellant as well. Appellant's father was also nearby watching the argument, but did not interfere. The victim's girlfriend testified she saw appellant's father hand appellant a gun, but then appellant left the parking area and so she did not give what she had seen anymore thought. The victim's girlfriend entered her vehicle and drove away, only to hear gunshots moments later. In the meantime, the courtesy officer contacted police because he feared the argument was not finished and, while on the phone, he too heard the gunshots. After the shooting stopped, the victim's girlfriend returned to the parking area along with police. A responding officer found the victim on the ground, bleeding and without a pulse. The victim's body was located on the side of the apartment building at the bottom of a stairwell which was near his apartment unit. Several witnesses testified they did not see the victim with a firearm and no firearm was found near his body. The 9mm shell casings recovered at the scene indicated appellant fired at least 18 rounds. The medical examiner testified the victim had 29 distinct gunshot wounds

and died from a wound inflicted by a bullet traversing his aorta and vena cava and causing him to bleed to death. The medical examiner also testified the gunshots were fired from more than 3 feet away and the victim was already on the ground when some of the shots were fired.

Prior to the shooting, the victim had told his mother, a close family friend, and his girlfriend that he was having a dispute with appellant over a parking space. The evidence showed the apartment complex did not assign parking spaces to residents, but appellant had complained to others that he wanted the parking space located outside the front door to his apartment. After the shooting, appellant disappeared and was not found until after Thanksgiving 2013 when authorities were alerted he had spent Thanksgiving with his minor sons. Appellant turned himself in because his children had been taken into protective custody. Pursuing a defense of justification, appellant testified at trial as follows:

[W]e had a verbal altercation right here on the sidewalk and I noticed that he had a weapon in his pocket. So I stepped closer to [the victim] and we was still arguing at the time. So at that time, [the victim] attempted to reach for [the gun] and I grabbed it. And once I grabbed it I got it from [the victim], you know, struggling. And I twisted [the victim's] hand and I twisted the weapon out of [the victim's hand] and I fired.

Once I noticed it was a weapon, you could see the butt of the gun. So once I noticed I stepped closer to [the victim] but we still was in an altercation and talking. So when [the victim] reached for it I reached and grabbed and we got into a struggle over the gun. And I eventually removed the gun from [the victim's] hands. And my finger ended up in the trigger and I shot.

Appellant admitted more than once that the victim was unarmed at the time he fired the gun. After appellant shot the victim, he stated he dropped the weapon and fled from the apartment complex. No weapon, however, was at the scene and no weapon was recovered from any other location during the investigation.

The evidence summarized above was sufficient to convict appellant of the crimes for which the jury returned verdicts of guilt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury was authorized to reject appellant's evidence of self-defense. Bradford v. State, 2016 WL 6407258, 299 Ga. 880 (1), 792 S.E.2d 684 (October 31, 2016).

2. Because appellant was tried after January 1, 2013, Georgia's new Evidence Code was in effect and applicable to his case. Appellant alleges the trial court erred when it admitted evidence of his 1990 conviction for aggravated assault pursuant to OCGA § 24-4-404 (b) which states in pertinent part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This Court has held:

In determining the admissibility of "other acts" evidence, this Court has adopted the Eleventh Circuit's three-part test for admissibility under Federal Rule of Evidence 404 (b) which requires that the admitting court find (1) the evidence is relevant to an issue in the case other than the defendant's character, (2) the probative value is not substantially outweighed by undue prejudice, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act. [Cit.] When weighing the probative value of other acts evidence against its prejudicial effect, Georgia courts apply the balancing test set forth in OCGA § 24–4–403,² which similarly tracks its federal counterpart. See Fed. R. Evid. 403. On appeal, a trial court's decision to admit evidence pursuant to OCGA § 24–4–404 (b) is reviewed for a clear abuse of discretion, a review requiring the appellate court to make a "common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness." [Cit.].

Brannon v. State, 298 Ga. 601 (4), 783 S.E.2d 642 (2016).

In this case, the trial court held a pretrial hearing to determine whether the 1990 conviction would be admitted. The State showed the conviction resulted from appellant's pleading guilty to an aggravated assault where he participated in a shooting that occurred in the parking lot of an apartment complex and where the weapon used was a 9mm handgun. The State argued the evidence was admissible to show motive, intent, knowledge, identity and the absence of mistake or accident. The trial court admitted the evidence for all of the reasons asserted by the State; and, in accordance with OCGA § 24-4-403, concluded the probative value of the evidence outweighed any unfair prejudice. At trial, the trial court gave a limiting instruction to the jury before any 404 (b) evidence was introduced. The 404 (b) evidence consisted of the testimony of two victims who said they were shot during the incident which involved a dispute over drugs and money; the testimony of the investigating officer who testified his investigation found appellant and one other person were the main shooters during the incident; and a certified copy of the conviction which showed appellant pled guilty to the crime.

The trial court erred when it admitted appellant's 1990 conviction. No argument can be made for introducing the 1990 aggravated assault to show appellant's knowledge and absence of mistake or accident as to the crimes charged here; his knowledge was not at issue where the defense was justification, and he made no claim that he accidentally or mistakenly shot the victim. Identity and motive are equally inapplicable under the federal Rule 404 (b) case law that we recently endorsed in (Brooks v. State, 298 Ga. 722 (2), 783 S.E.2d 895 (2016) ) (concluding that the 404 (b) evidence was not admissible to prove identity where "the [prior and current] crimes were not so similar as to mark the murders as the handiwork of appellant" and "the modus operandi for each murder was relatively commonplace—these were not signature crimes"); id. at 726–727, 783 S.E.2d 895 (explaining that "to be admitted to prove motive, extrinsic evidence must be ‘logically relevant and necessary to prove something other than the accused's propensity to commit the crime charged,’ " and holding that "evidence of the 1983 murder of a Mississippi state trooper during a prison escape is unrelated and unnecessary to prove why appellant murdered a security guard in the course of a theft seven years earlier"). Identity and motive are particularly inapposite here, where appellant claimed self-defense, thereby admitting that he was the person who shot the victim, and the motive for the prior aggravated assault was a dispute over drugs and money 24 years earlier, which had nothing to do with why appellant shot the victim in this case in a dispute over a parking place.

The only arguable permissible purpose of the other act evidence in this case was to show appellant's intent. We have held that intent is put at issue any time a defendant pleads not guilty and so evidence that goes to prove intent would be relevant. Olds v. State, 299 Ga. 65 (2), 786 S.E.2d 633 (2016). However, in this case,...