Perkinson v. State

• Decision Date: 14 March 2005
• Docket Number: No. S04P1845.,S04P1845.
• Parties: PERKINSON v. The STATE.
• Court: Georgia Supreme Court

610 S.E.2d 533

279 Ga. 232

PERKINSON v. The STATE.

No. S04P1845.

Supreme Court of Georgia.

March 14, 2005.

Reconsideration Denied April 14, 2005.

Christopher G. Paul, Cartersville, for appellant.

T. Joseph Campbell, Dist. Atty., Thurbert E. Baker, Atty. Gen., Mitchell P. Watkins, Patricia B. Attaway Burton, Asst. Attys. Gen., for appellee.

HUNSTEIN, Justice.

A Bartow County jury convicted Eric Alexander Perkinson of malice murder, three counts of felony murder, aggravated battery, two counts of aggravated assault, two counts of false imprisonment, theft by taking, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The jury recommended a death sentence for the malice murder conviction after it found three statutory aggravating circumstances beyond a reasonable doubt: that the offense of murder was committed by the defendant during the commission of an armed robbery and during the commission of a kidnaping with bodily injury; and that the murder was committed by the defendant for himself or another for the purpose of receiving money or another thing of monetary value. OCGA § 17-10-30(b)(2), (4). Finding no reversible error, we affirm the convictions and sentences.¹

1. On June 6, 1998, the victims, 17-year-old Dakarai Sloley and 16-year-old Louis Nava, drove Sloley's aunt's white BMW automobile to pick up Sloley's dog from a dog groomer in Dekalb County. The dog was not ready so they returned to the parked BMW to wait. Eric Perkinson and an accomplice, Rico Wilson, entered the back seat of the car. At gunpoint, Perkinson and Wilson forced Sloley and Nava to drive to a nearby church parking lot. Perkinson, holding the gun, demanded and received cash from both victims. In the church parking lot, they rendezvoused with a green Toyota driven by two more accomplices who were Perkinson's brothers. Sloley was made to sit in the front passenger seat of the BMW and Nava was forced into the BMW's trunk. Wilson then drove the BMW north on I-75 for about 45 minutes to Bartow County while Perkinson remained in the back seat with the gun. The two accomplices in the Toyota followed. Sloley asked Perkinson and Wilson not to kill them and Wilson said they would not kill them. During the drive north, the Toyota briefly passed the BMW and Sloley observed the Toyota's license plate. Wilson exited I-75 in Bartow County and Perkinson instructed him to drive the BMW to a wooded, secluded stretch of Paga Mine Road.

Wilson parked the BMW on the side of the dirt road and the Toyota stopped behind them. Wilson and Perkinson got out of the BMW and opened the trunk. Perkinson told Nava to get out and take off his shirt and shoes. Nava complied. Perkinson then marched Nava into the woods at gunpoint and shot him twice, killing him. Perkinson returned to the BMW, ordered Sloley to get out, and told him he was next. Sloley said, "I thought you weren't going to kill us." Perkinson replied, "[Y]ou already saw our faces and you got the license plate on the Corolla." While he was being marched into the woods by Perkinson, Sloley fled and Perkinson fired several shots, hitting Sloley in the left arm. Sloley fell down. Although the bone in his left arm had been severed by the bullet, he got to his feet after he heard the cars leaving and ran through the woods until he came to a road where he flagged down a pizza delivery driver. Police recovered the BMW and the Toyota within a short time and arrested Perkinson and his three accomplices. Sloley identified Perkinson both in a photo lineup and in court as the gunman. Police found Perkinson's fingerprint on the BMW and the murder weapon was found in the BMW. Perkinson told police after his arrest that he had gone to Dekalb County on June 6 in the green Toyota Corolla with his brothers and Rico Wilson, but Wilson left them in Dekalb County and he did not see the white BMW until that night in Rome when Rico Wilson was driving it. In a second statement, he said Rico Wilson told him he wanted to steal a BMW to pay off a debt. Perkinson said he did not see the carjacking, but he later saw Wilson in the BMW with three unidentified passengers. Perkinson said he and two others followed the BMW on I-75 in the Toyota, but stopped following it after it reached Bartow County. However, witnesses in Cartersville and Rome saw the BMW and the green Toyota Corolla driving around together on the night of June 6.

The evidence was sufficient to enable a rational trier of fact to find proof beyond a reasonable doubt of Perkinson's guilt of malice murder, felony murder, aggravated battery, aggravated assault, false imprisonment, theft by taking, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence also was sufficient to authorize the jury to find the three statutory aggravating circumstances beyond a reasonable doubt. Id.; OCGA § 17-10-35(c)(2).

2. In the guilt-innocence phase, Perkinson presented evidence that he was mentally retarded. At the conclusion of the guilt-innocence phase, he moved for a directed verdict on this issue. The trial court denied the motion and he contends that this was error. We conclude that a "directed verdict was not warranted because the evidence regarding [Perkinson's] mental ability was disputed and conflicting." Jenkins v. State, 269 Ga. 282, 291(15), 498 S.E.2d 502 (1998). "`Mentally retarded' means having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period." OCGA § 17-7-131(a)(3). Although Perkinson presented evidence that he was mentally retarded because he had done very poorly in school and because he had scored lower than 70 on IQ testing, a level which is generally accepted as an indication of significantly subaverage intellectual functioning, the State presented evidence that Perkinson had scored above 70 on two IQ tests, that his poor school performance may be related to disruptive behavior, that his adaptive ability exceeded that which is indicative of mental retardation, and that he may have malingered on recent IQ testing by the State's experts. Because there was a conflict in the evidence, the trial court did not err by allowing this issue to go to the jury. See King v. State, 273 Ga. 258, 272-273(29), 539 S.E.2d 783 (2000); Jenkins, supra; OCGA § 17-9-1(a).

3. This Court has recently addressed the defendant's burden of proof for mental retardation and held that beyond a reasonable doubt is proper. See Head v. Stripling, 277 Ga. 403, 410(3), 590 S.E.2d 122 (2003); Head v. Hill, 277 Ga. 255, 261-262, 587 S.E.2d 613 (2003). OCGA § 17-7-131 is not unconstitutionally vague or internally inconsistent. See King v. Hawkins, 266 Ga. 655, 656, 469 S.E.2d 30 (1996) (trial court's ascertainment of a factual basis for a guilty plea need not meet the beyond a reasonable doubt standard); Worthy v. State, 253 Ga. 661, 666-667(6), 324 S.E.2d 431 (1985).

4. The trial court did not commit reversible error in its charge to the jury on mental retardation. Although the court followed the Standard Pattern Jury Instruction on mental retardation which improperly adds "at the time of the commission of the offense" to the statutory language, the jury here was instructed as to the statutory definition of mental retardation, including the requirement that they find that the impairments in adaptive behavior manifested during the developmental period. See OCGA § 17-7-131(a)(3). We caution courts that the improper language should not be included in future charges.

5. Perkinson claims that the trial court erred by refusing to change venue. "A trial court must order a change of venue in a death penalty case when a defendant can make a `substantive showing of the likelihood of prejudice by reason of extensive publicity.' [Cit.]" Barnes v. State, 269 Ga. 345, 347(2), 496 S.E.2d 674 (1998). In order to prevail on this claim, Perkinson must show that his trial setting was inherently prejudicial as a result of pretrial publicity or that there was actual bias on the part of individual jurors. See Gissendaner v. State, 272 Ga. 704, 706(2), 532 S.E.2d 677 (2000). When determining whether the trial setting was inherently prejudicial, courts consider the size of the community, the extent of the media coverage, and the nature of the media coverage. Barnes, supra. The trial court found that Bartow County was no longer a small community and that the media coverage, while extensive at times, was not inflammatory or prejudicial. Most of the news reports simply related the allegations in the indictment and other undisputed aspects of the case, such as that Perkinson had been arrested and charged with the murder of Louis Nava and other offenses, that the district attorney was seeking the death penalty, and that Perkinson was alleging that he was mentally retarded; this is information that prospective jurors were apprised of during voir dire. See King, supra, 273 Ga. at 261(4), 539 S.E.2d 783. The trial court was particularly concerned with a lengthy article that appeared in the Atlanta Journal-Constitution at the beginning of voir dire that included some information that would not be admissible during the guilt-innocence phase, such as Perkinson's juvenile court record, but it determined that relatively few prospective jurors had read this article. See Gissendaner, supra. We conclude, upon review of the record, that the pretrial media coverage was "neither so extensive and inflammatory nor so reflective of `an atmosphere of hostility' as to require a change of venue." Id. at 706, 532 S.E.2d 677. Compare Tyree v. State, 262 Ga. 395, 395-397(1), 418 S.E.2d 16 (1992).

With regard to whether there was actual bias on the part of individual jurors, the State and Perkinson...