a jury trial, Mark Adkins was convicted of a number of crimes
arising from the murder of Frederick Early and the non-fatal
shootings of Briona Moore and Pamphylia Baynes. Adkins appeals
and argues that the trial court erred by (1) permitting the
State to introduce a purported dying declaration by Early;
(2) permitting the State to elicit improper opinion testimony
by two law enforcement officers; and (3) failing to merge two
aggravated assault convictions that were both based on the
shooting of Baynes. We vacate in part because the trial court
should have merged those two aggravated assault convictions.
We otherwise affirm because it was Adkins who introduced the
evidence of Early's statement and because the admission
of the challenged law enforcement testimony was either not
error or, at worst, harmless error.
in the light most favorable to the verdicts, the trial
evidence showed as follows: On May 16, 2013, Baynes and Moore
planned to catch a bus so that Baynes could pick up her
disability check. They met Early, also known as "Smurf,
" who had agreed to give Moore money for bus fare. The
three talked for about 10 minutes on a street corner before a
car drove by and a passenger opened fire on the group. Baynes
and Moore were shot but survived. Early died of multiple
and Moore were initially interviewed at the hospital; neither
victim identified the shooter by name. Moore said the shooter
wore a ski mask, and Baynes said she would not be able to
identify the shooter. But at trial, both Baynes and Moore
identified Adkins as the person who shot them. Both Moore and
another eyewitness, Rosalee Smith, testified that they knew
Adkins by the name "Fly Monkey, " and Baynes
testified that Adkins went by the street name
"Fly." On cross-examination, Baynes testified that
she heard Early say, "Fly, Fly, Fly, " after he was
claimed mistaken identity, his counsel arguing in closing
that there was no physical evidence linking Adkins to the
shootings and emphasizing the inconsistent statements of
Baynes and Moore. Adkins did not testify. The jury found
Adkins guilty of all charged offenses, including malice
murder for the death of Early.
Adkins does not challenge the sufficiency of the evidence.
Nevertheless, we have independently reviewed the record and
conclude that the evidence, as outlined above, was legally
sufficient to authorize a rational trier of fact to find
beyond a reasonable doubt that Adkins was guilty of the
crimes for which he was convicted under the standard of
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
Adkins argues that the trial court erred by permitting the
State to introduce Early's purported dying declaration in
exception to the hearsay rule. We conclude that Adkins cannot
obtain reversal on this basis because his counsel elicited
the testimony in question.
prior to the trial court's preliminary instructions to
the jury and the parties' opening statements, defense
counsel informed the court that he had been served on the
previous Friday with an additional statement by Baynes to the
effect that, before he died, Early uttered the words,
"Fly, Fly, Fly." The prosecutor explained that
Baynes had relayed that remark to her the previous week and
that Baynes understood the remark, made after Early was shot,
to be a reference to Adkins's nickname, "Fly
Monkey." Defense counsel argued that the statement
should not be referenced in the State's opening because
it was hearsay, posed a Confrontation Clause issue, and was
inadmissible unless a hearing were held on its
trustworthiness. The prosecutor argued that it was admissible
as a dying declaration. The trial court found "at least
on a preliminary basis" that the testimony would be
opening statement, the prosecutor referenced Baynes's
expected testimony, telling the jury, "Pammy will tell
you that she heard Smurf struggling, breathing, she heard him
saying, 'Fly, Fly, Fly.'" Defense counsel
objected on the basis of hearsay, and the trial court
responded, "It's on the record. It's
overruled." The prosecutor promptly added that the
testimony would show that Adkins's street name was Fly
Monkey and most people call him Fly.
prosecutor did not elicit testimony about the statement in
her direct examination of Baynes, although Baynes testified
on direct examination that Adkins went by the street name
Fly. On cross-examination, defense counsel initiated the
following line of questioning:
Q: Now that's three interviews, two on the day of the
shooting and one on six eleven thirteen, and you never
mentioned the name "Fly, " did you?
A: 'Cause I didn't know his name.
Q: Okay. Now, last week, on March 6th, which would
have been last Thursday, is that correct? You spoke to the
Prosecutors in the
D.A.'s office on the sixth floor of this building?
A: Uh-huh (affirmative indication).
Q: And that is the first time that you mentioned hearing
Smurf say, "Fly, ...