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Adkins v. State

Supreme Court of Georgia

May 15, 2017

ADKINS
v.
THE STATE.

          PETERSON, Justice.

         Following 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.[1] 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.

         Viewed 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 gunshot wounds.

         Baynes 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 shot.

         Adkins 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.

         1. 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).

         2. 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.

         Just 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 admissible.

         In her 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.

         The 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, ...

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