Perkins v. State

• Decision Date: 21 September 1998
• Docket Number: No. S98P0624.,S98P0624.
• Citation: 505 S.E.2d 16,269 Ga. 791
• Parties: PERKINS v. The STATE.
• Court: Georgia Supreme Court

505 S.E.2d 16

269 Ga. 791

PERKINS v. The STATE.

No. S98P0624.

Supreme Court of Georgia.

September 21, 1998.

Thomas Michael Martin, Jonesboro, for David Aaron Perkins.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Erman J. Tanjuatco, David Brandon Hornsby, Asst. Dist. Attys., Jonesboro, Hon. Thurbert E. Baker, Atty. Gen., Christopher L. Phillips, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State

Stephen Christopher Bayliss, Michael Mears, MultiCounty Public Defender, Atlanta, Joseph L. Chambers, Sr., Prosecuting Attorney's Council of Georgia, Smyrna, for other interested parties.

FLETCHER, Presiding Justice.

A jury convicted David Perkins of the murder of Herbert D. Ryals, III, and he was sentenced to death.¹ The jury found as aggravating circumstances that the murder was committed while the defendant was engaged in the commission of an aggravated battery and was outrageously and wantonly vile, horrible, and inhuman in that it involved depravity of mind and an aggravated battery to the victim.² Perkins contends that the Clayton County district attorney engages in gender bias by seeking the death penalty exclusively against men. Because Perkins' statistical evidence fails to show selective prosecution in his case, we affirm.

The evidence shows that David Perkins had an argument with his wife, Gail, on August 12, 1995. She left their apartment to spend the night with her mother-in-law. Angry, Perkins remarked to a friend about the full moon and said "something's going to go down tonight." Perkins bought a bottle of whiskey and, around midnight, invited a neighbor, Herbert Ryals, to his apartment to drink and play guitars. Perkins and Ryals had met only once previously. Perkins is 6' 2" and weighed 220 pounds; Ryals was 5' 9" and weighed 170 pounds.

At 5 a.m., Perkins called his wife and asked her to bring some cigarettes to their apartment. Perkins met Gail outside the apartment and told her not to scream or "freak out." Once inside, Gail observed numerous bloodstains in the apartment and the victim, with visible stab wounds, lying motionless on the bathroom floor. Perkins pulled a knife from his pocket and told her that he would kill her if she tried to call the police. Gail left the apartment after promising Perkins that she was going to buy cigarettes. Instead, she called the police and reported a stabbing. Gail described the scene at her apartment and her husband's violent behavior to the responding officers and told them that they would need "more units." After more officers arrived, the police followed Gail to her apartment, where she gave them a key. The officers entered the apartment and discovered the victim's body in the same bloody condition as described by Gail Perkins.

Perkins was arrested two hours later when he returned to the apartment. While he was being handcuffed, he told the police that he had been watching them for over an hour. No one observed any marks, bruises, or cuts on the defendant, and Perkins did not request any medical treatment. During booking, Perkins mumbled, "[the victim] hit me with his guitar, I hit back, so I hit him back, I think he's dead, I know he's dead." Perkins then became violent toward the booking officer and had to be further restrained. A neighbor testified that Perkins had knocked on her door before his arrest, asked for a cigarette, and said, "I've just killed someone and I'm going to jail for the last time."

The state presented an expert on blood spatter who testified that the blood droplets and smears indicated that the victim had been initially assaulted in the living room and had fled, wounded and still under attack, through the kitchen and bedroom and into the bathroom. A broken liquor bottle in the bedroom indicated that the victim had been struck there with the bottle, and damage to the bathroom door showed that the victim had tried to barricade himself inside the bathroom but the door had been forced open from the outside. The victim was found lying on his side in the bathroom, curled into a fetal position.

The medical examiner testified that there were eleven stab or cut wounds on the victim. A stab wound in the center of the chest had been delivered with such force that the knife had damaged the heart. There were five stab wounds to the back, including three that had pierced the victim's lungs. Two ribs were fractured by the force used to inflict these wounds. There were also wounds on the victim's arms, shoulder, finger, and nose. Based on the depth of the stab wounds, the doctor estimated that the knife used to inflict the wounds had a blade length of five inches. The doctor further noted a serious blunt force injury to the victim's left eye; the blow was so severe that the skull had fractured and skull fragments were forced into the victim's brain. This wound was consistent with being struck by a liquor bottle. The victim also had a series of parallel bruises on his chest that matched the frets on a guitar found in the living room. Although several of the stab wounds could have been fatal, the doctor testified that none of the wounds had been immediately fatal and that the victim could have lived for ten minutes after being injured. The blood spatter throughout the apartment and on the victim's clothing showed that the victim had been conscious and either standing or sitting when the wounds had been inflicted.

To show motive, the state presented evidence that the victim's wallet was missing and that Perkins had spent the last of his money to purchase liquor the day before the murder. A former inmate also testified that Perkins had boasted in jail about hiding incriminating evidence, including the victim's wallet and identification. Perkins claimed self-defense. He testified that the victim suddenly and without reason hit him with a guitar, so he drew the knife he always wore on his belt and "just started sticking." The knife was never recovered; Perkins claimed that he lost it that night.

1. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Perkins guilty of the crimes charged beyond a reasonable doubt.³

2. Perkins filed a plea in bar to prevent the Clayton County district attorney's office from seeking the death penalty in his case because of alleged gender discrimination. Perkins claims that the Clayton district attorney only seeks the death penalty against men and that this alleged gender bias violates the state and federal constitutions. Perkins submitted evidence showing that the Clayton County grand jury had indicted 73 men and 11 women for murder and the district attorney had sought the death penalty against nine men and no women from 1985 until 1995, when he was charged with murder. Perkins also introduced the records of the female murder defendants to show that statutory aggravating circumstances existed in those cases to warrant the seeking of the death penalty.

Perkins has the burden on an equal protection claim to prove the existence of purposeful discrimination and its discriminatory effect on him.⁴ In order to prevail, Perkins must prove "that the decision-makers in his case acted with discriminatory purpose."⁵ We conclude that Perkins' meager statistics are insufficient to show selective prosecution because they do not provide any evidence specific to his own case that support an inference that gender considerations played a part in the district attorney's decision to seek the death penalty against him.⁶ Further, although Perkins requests that we create a Batson⁷-like rule that would require the state to explain its reasons for seeking the death penalty, policy considerations behind a prosecutor's discretion argue against requiring district attorneys to defend their decisions to seek a death sentence.⁸ The U.S. Constitution and Georgia law authorize the death penalty for Perkins' crimes and Perkins has failed to show that the state acted in an unconstitutional manner with respect to his case.⁹ The trial court did not err by denying Perkins' plea in bar.

3. Perkins challenges the issuance of a search warrant for his apartment by claiming that the issuing magistrate had insufficient information to determine probable cause. Before obtaining the search warrant, the police had entered the apartment at 6 a.m., secured the crime scene, and seized evidence that was in plain view. The entry without a warrant and seizure of items in plain view were permissible under either the consent or exigent circumstances exceptions since the defendant's wife had reported a stabbing, asked the police to enter the apartment, and given them a key to the front door.¹⁰ The search warrant was issued at approximately 1 p.m. on the same day to enable the officers to conduct a more detailed search of the apartment. The supporting affidavit for the search warrant recited that a dead white male with multiple stab wounds had been found in the defendant's apartment and that the defendant had been charged with murder. Based on these facts, the affidavit was clearly sufficient to support the magistrate's finding of probable cause.¹¹

4. Perkins claims that the trial court erred by allowing hearsay statements by his wife to be admitted under the necessity exception to the hearsay rule.¹² On the day of the murder, Gail Perkins described the threatening behavior of her husband and the bloody condition of the apartment to Riverdale Police Officer Johanne Welch, who was the first officer to respond to the 911 call. One hour later, Gail Perkins described to Riverdale Police Chief Ron Bedingfield in greater detail the crime scene, her husband's demeanor, his brandishing of the knife, and his refusal to allow her to get help for the victim. At trial, however, Gail Perkins exercised the marital privilege and refused to testify.¹³ The trial court ruled that Gail Perkins'...