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Jenkins v. State

Supreme Court of Georgia

March 15, 2018

JENKINS
v.
THE STATE.

          HINES, Chief Justice.

         Clarence Jenkins Jr. ("Jenkins") appeals his convictions and sentences for felony murder, possession of a firearm during the commission of aggravated assault, and possession of a firearm during the commission of aggravated battery, all in connection with the shooting death of his 22-year-old son, Chavarious Jenkins ("Chavarious"). For the reasons that follow, we affirm in part, vacate in part, and remand for resentencing.[1]

         Construed to support the verdicts, the evidence showed that on November 11, 2012, Jenkins, Chavarious and Karl Cotton - a cousin of Jenkins - watched a football game and drank beer at a friend's home; they then went to Jenkins's house, which he shared with his fiancee, Latrece Whitfield. There, Chavarious said he wanted to become engaged to marry, and he and Jenkins argued; Jenkins said he should "get his life together" and should buy a car before an engagement ring. The men began to argue over their financial history and shoved one another; in anger, Chavarious punched a hole in a wall of the house. Cotton and Whitfield broke up the altercation, pushed the men apart, and Chavarious went into the living room. Chavarious "kept running his mouth" and Jenkins left the house; Jenkins returned a minute later, carrying a handgun, and went into the living room.

         While Cotton was also in the living room, Jenkins stated to Chavarious "I'll f**king kill you for disrespecting me in my house" and, at a close distance, pointed the pistol at Chavarious's head; Chavarious attempted to push the pistol away from his head and backed up; the two men fell over the arm of a sofa and onto it; Cotton heard a gunshot; and a projectile struck Chavarious in the head. Jenkins then placed the pistol on a counter, went to the sofa, and held Chavarious. Jenkins said to Cotton, "help me, I don't want to go to jail." At that point, Cotton left the house, and Whitfield, who went into the living room after the gunshot, called 911.[2]

         The first officer to arrive at the scene in response to the 911 call saw Jenkins on the sofa; Chavarious was on his lap, bleeding profusely from a gunshot wound to the head. A Glock pistol that proved to be the fatal weapon was on the nearby counter. The trigger pull on the Glock was five and a half pounds; it could not be fired by dropping or throwing it. Two days after the shooting, Chavarious died from the gunshot wound to his head.

         1. Jenkins does not contest the legal sufficiency of the evidence establishing his guilt of the charges for which he was convicted. Nevertheless, in accordance with this Court's general practice in appeals of murder cases, we have reviewed the record and conclude that the evidence at trial authorized the jury to find Jenkins guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         However, our review of the record reveals that Jenkins received a sentence of five years in prison for the crime of possession of a firearm during the commission of aggravated assault, as well as a sentence of five years in prison for the crime of possession of a firearm during the commission of aggravated battery. See Footnote 1, supra. But, the underlying crimes for each possession charge were committed on the same victim, as part of the same fatal encounter, and the possession charges thus merged with each other. See Smith v. State, 297 Ga. 268, 269 (1) (b) (773 S.E.2d 269) (2015); Gibbs v. State, 295 Ga. 92, 96 (2) (757 S.E.2d 842) (2014). Consequently, the case must be remanded so that Jenkins may be resentenced on only one of the possession counts, in the discretion of the trial court. See Tye v. State, 298 Ga. 474, 481 (3) (782 S.E.2d 474) (2016).

         2. Jenkins told a law enforcement officer who arrived at his house a few minutes after the 911 call was placed that he was showing Chavarious his handgun when it accidently discharged. The State moved in limine to exclude the defense from introducing evidence of Jenkins's statement as inadmissible hearsay. Outside the jury's presence, Jenkins proffered the officer's testimony that: he was the first to arrive at the house in response to the 911 call; he arrived two or three minutes after being dispatched; he took the pistol that was on the counter and placed it in his police vehicle, where he left it; other emergency personnel soon arrived and several medical technicians began attending Chavarious; he did not engage Jenkins in discussion until Chavarious had been moved to the floor; Jenkins's clothes were bloodied and Jenkins had not washed his hands when he spoke with him; he had no recollection whether Jenkins was calm during their talk and did not make any written note of any observation regarding Jenkins's demeanor; and Jenkins said that he was showing Chavarious the pistol and it went off accidentally.

         The trial court granted the State's motion and excluded the evidence of Jenkins's statement that he was showing Chavarious the pistol when it accidently fired. Jenkins contends that this ruling was error and that the evidence should have been admitted under the "excited utterance" exception to the hearsay rule, which is found in OCGA § 24-8-803 (2).[3] A trial court's decision to admit evidence is reviewed for an abuse of discretion. Pierce v. State, 302 Ga. 389, 391 (1) (807 S.E.2d 425) (2017). OCGA § 24-8-803 (2) was enacted in 2011 as part of our new Evidence Code, much of which was borrowed from the Federal Rules of Evidence. Timmons v. State, 302 Ga. 466, 468 (2) (a) (807 S.E.2d 363) (2017).

"And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance." [Cit.]

Pierce, supra at 392 (1) (a).

         Like OCGA § 24-8-803 (2), Rule 803 of the Federal Rules of Evidence creates an exception to the hearsay rule of exclusion for "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Fed.R.Evid. 803 (2). As the United States Supreme Court has observed, the basis for the excited utterance exception to the hearsay rule

is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous. [Cits.]

Idaho v. Wright, 497 U.S. 805, 820 (110 S.Ct. 805, 111 L.Ed.2d 638) (1990). Further, the justification for the exception "derives from the teaching of experience that the stress of nervous excitement or physical shock 'stills the reflective faculties, ' thus removing an impediment to truthfulness. [Cits.]" United States v. Sewell, 90 F.3d 326, 327 (II) (8th Cir. 1996). Accordingly, this Court has noted that it is " '[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the eventor condition' [that] may be admitted into evidence under the excited utterance ...


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