Wilkins v. State

• Decision Date: 28 February 2020
• Docket Number: S19A1403
• Citation: 308 Ga. 131,839 S.E.2d 525
• Court: Georgia Supreme Court
• Parties: WILKINS v. The STATE.

308 Ga. 131

839 S.E.2d 525

WILKINS

v.The STATE.

S19A1403

Supreme Court of Georgia.

Decided: February 28, 2020

Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Emily C. Puhala, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.

Nahmias, Presiding Justice.

Appellant Nathaniel Wilkins was convicted of two counts of malice murder in connection with the shooting deaths of Forrest Ison and Alice Stevens. He appeals, arguing that the trial court erred by admitting into evidence an alleged adoptive admission and by denying three motions for a mistrial. He also argues that his trial counsel provided ineffective assistance by not objecting when the trial court gave an inapplicable jury instruction about accomplice corroboration and defined aggravated assault three times. We affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Some time before the murders, Appellant worked with Ison and Stevens at a restaurant in Savannah. Ison was the executive chef; his girlfriend Stevens was part of the wait staff; and Appellant was a line cook. Due to Appellant's poor performance, Ison fired him. Appellant then found a job at a different restaurant, where he worked with Michael Jones, who was dating Appellant's sister Tracey Burgess.

According to Burgess, on the night of November 3, 2013, Appellant asked her to drive him and Jones to "take care of something." Appellant directed Burgess to drive to an intersection in Savannah, where Ison and Stevens then drove by in a car. Appellant told Burgess to follow the car. Burgess, Appellant, and Jones followed Ison and Stevens to a gas station, waited while Ison pumped gas and bought some items at the convenience store, and then continued to follow them to their home. Burgess parked in front of the house. As Appellant and Jones got out, Appellant said that they were going to rob Ison and Stevens; Appellant had a brown and gray gun, and Jones had a black gun.² Appellant and Jones ran behind bushes in front of the house. When Ison and Stevens got out of their car, Appellant and Jones approached them. Appellant pointed his gun at Stevens, and she yelled, "No, Nate!" three or four times. Appellant then shot her, and she fell to the ground. Jones pointed his gun at Ison, who threw his car and house keys to Jones. Jones said that was not what he came for, and he then shot Ison several times.

At that point, Burgess drove away, leaving Appellant and Jones behind. Several of Ison and Stevens's neighbors heard multiple gunshots, and two neighbors heard a woman scream. One of the neighbors saw two young, black men running from the scene; one wore a light gray hoodie, and the other wore a black hoodie.³ Burgess pulled into the parking lot of a nearby nursing home, where Appellant and Jones caught up and got in the car. They drove back to the house where Burgess and Jones were staying. Jones later showed the man with whom they were staying a gun with an "army fatigue" green, black, and brown finish that Jones had stored in the closet. After the shooting, Burgess heard Appellant telling people that "he got rid of some germs and bacteria."

Ison and Stevens were found lying on the steps to the side door of their house. Ison was already dead by the time EMTs arrived; Stevens died shortly thereafter. Ison had been shot three or four times; he had bullet entrance wounds on his chin, his chest, and the back of his head, and a bullet graze wound on his hand. The wound to his head was caused by a .22-caliber bullet; the wound on his chin was bigger than the wounds on his head and chest. Stevens had been shot on the right side of her head and on her chin with a larger caliber bullet, similar to the bullet that caused Ison's chin wound. Three .45-caliber cartridge cases and two .45-caliber bullets were found near the bodies. The bullets were consistent with being fired from a Para Ordnance .45-caliber pistol.

Joris Cooper, who was Appellant and Jones's restaurant co-worker, testified to the following. Shortly after the murders, Jones showed Cooper a gun. The next night, Cooper was standing outside the restaurant with Jones when Appellant drove up. Jones walked to the back of the car and called Cooper over. Jones opened the trunk, showed Cooper a t-shirt with blood on it, and said: "This [is] the t-shirt we used to wipe the blood and our prints ... off the gun." Appellant was standing by the door of the car, within earshot. While Jones was talking about the shirt, Appellant looked at Jones, turned and gave Cooper a "quick look," and then turned back to Jones. Some time after that incident, Cooper was walking outside when Appellant drove up to him. Appellant said that another co-worker had asked if Appellant committed the murders; Appellant then said, "he better keep his mouth closed or his motherf**king ass going to come up missing too." Cooper gave Appellant a look to indicate, "all right, man," and Appellant drove away.

Neither Appellant nor Jones testified at Appellant's trial. Appellant's main defense theory was that Burgess and Cooper, the State's key witnesses, were not reliable. Burgess had changed her story about the night of the murders several times, and she had been indicted separately on the same charges faced by Appellant in connection with the murders, plus two additional counts. In exchange for her truthful testimony, the State agreed to let her plead guilty to just one count of attempted armed robbery. Cooper testified that he was hoping to receive reward money for providing information about the murders.

Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the two murders of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State , 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted)).

2. As discussed above, Cooper testified that Jones showed him a t-shirt in the trunk of the car Appellant was driving and said: "This [is] the t-shirt we used to wipe the blood and our prints ... off the gun." The State offered that testimony as an adoptive admission by Appellant. At trial, before opening statements and outside the presence of the jury, Cooper was questioned about his proposed testimony. Based on his answers (which were substantially similar to the testimony recounted in Division 1 above that he then gave before the jury), the trial court concluded that Jones's statement was admissible because it had been adopted by Appellant through Appellant's silence. The court found that Appellant was looking at and within earshot of Jones when Jones made the statement, adding, "[Appellant] couldn't have not heard it." The court also pointed to the incriminating nature of Jones's statement and the fact that "the shirt is in the car [Appellant] drives up in."⁴

As this Court recently explained, under Georgia's current Evidence Code, a defendant's silence may, in certain circumstances, communicate that he has adopted another person's statement as true, making that statement admissible under OCGA § 24-8-801 (d) (2) (B), which defines "admissions" not excluded by the hearsay rule when offered against a party to include "[a] statement of which the party has manifested an adoption or belief in its truth." See State v. Orr , 305 Ga. 729, 740, 827 S.E.2d 892 (2019).⁵ Looking to Eleventh Circuit case law for guidance, Orr further explained:

For evidence to qualify as a criminal defendant's adoptive admission under Rule 801 (d) (2) (B), the trial court must find that two criteria were met: first, that " ‘the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond,’ " and second, that " ‘there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement.’ " United States v. Jenkins , 779 F.2d 606, 612 (11th Cir. 1986) (citation omitted).

Orr , 305 Ga. at 740, 827 S.E.2d 892. See also Westbrook v. State , 308 Ga. 92, 839 S.E.2d 620 (2020).⁶ Before admitting a statement as an adoptive admission, the trial court must determine, as a preliminary question, whether these two criteria have been met. See United States v. Carter , 760 F.2d 1568, 1580 (11th Cir. 1985). The jury is then responsible for making the ultimate determination of whether the defendant adopted the statement as true. See Jenkins , 779 F.2d at 613 n.4.⁷ The circumstances to be considered include any "physical or psychological impediments to the party's responding to the statement (for example, circumstances showing that a party feared to speak would negate any inference that the party agreed or adopted the statement)." Paul S. Milich, Georgia Rules of Evidence § 18:4, at 709 (2019-2020 ed.). See also United States v. Hale , 422 U.S. 171, 176-177, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (explaining why the circumstances of arrest and custodial interrogation may undermine a claim that a suspect's silence was intended as an admission).

Appellant argues that he could not be expected to respond to Jones's statement because it was ambiguous and he did not know what Jones may have told Cooper in any conversation leading up to the statement. However, even if Appellant did not have the full context of Jones and Cooper's...