Elkins v. State
306 Ga. 351
Ga.2019Background
- In 2013 De'Marquise Elkins (age 17 at the time) was convicted of malice murder and related offenses for the fatal shooting of a 13‑month‑old and for other shootings; he received LWOP for the murder and consecutive terms on other counts.
- Eyewitnesses placed Elkins at the scene; shortly after the killing he was seen with a red sweatshirt, had .22 bullets on his person when arrested, and a gun later linked to the crime was recovered after family members discarded it.
- Defense sought to show another possible perpetrator by cross‑examining witnesses and sought to introduce extrinsic evidence about the infant’s parents (prior abuse and addiction) as alternate-suspect evidence; court limited some inquiry and barred the extrinsic evidence.
- During trial there was an unobjected reference (question) to a “criminal juvenile report”; the trial court struck the remark and gave a curative instruction when defense moved for mistrial.
- Appellant raised multiple ineffective‑assistance claims: (1) trial counsel allegedly slept during trial (not raised at the earliest practicable moment and thus waived); (2) motion‑for‑new‑trial counsel allegedly failed to develop Veal‑based resentencing evidence — this claim was preserved and requires remand for an evidentiary hearing.
Issues
| Issue | Appellant's Argument | State's/Respondent's Argument | Held |
|---|---|---|---|
| Did calling an overnight recess during cross‑examination violate Confrontation Clause? | Recess curtailed effective cross‑examination of witness J.L. | Court had discretion to control interrogation to protect a young, vulnerable witness; recess was reasonable | No abuse of discretion; Confrontation Clause not violated |
| Did barring extrinsic evidence about the parents deny right to present an alternate‑suspect defense? | Parents’ prior abuse/addiction would create reasonable inference of another perpetrator | Proffered evidence only cast bare suspicion and did not directly connect parents to the corpus delicti | Trial court did not abuse discretion in excluding the evidence |
| Did the fleeting reference to a "criminal juvenile report" and denial of mistrial deprive defendant of a fair trial? | Passing reference effectively put juvenile record/character in evidence and prejudiced jury | Question merely asked by co‑defense counsel; statements of counsel are not evidence; court struck the remark and gave curative instruction | No abuse of discretion; curative instruction sufficient |
| Was there ineffective assistance of counsel requiring relief? (multiple claims) | (a) Trial counsel slept during trial; (b) New‑trial counsel failed to develop Veal resentencing evidence | (a) Claim not raised at earliest practicable moment so waived; (b) preserved claim about motion‑for‑new‑trial counsel needs factual development | (a) Waived; (b) Remand for evidentiary hearing and findings on preserved ineffective‑assistance claim |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of evidence review)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance of counsel)
- Veal v. State, 298 Ga. 691 (Ga. 2016) (juvenile LWOP constitutional standards; irreparable corruption/incorrigibility requirement)
- Moss v. State, 298 Ga. 613 (Ga. 2016) (standards for admitting evidence pointing to another perpetrator)
- Jones v. State, 294 Ga. 501 (Ga. 2014) (preservation requirements for ineffective‑assistance claims at motion for new trial)
- Wilson v. State, 286 Ga. 141 (Ga. 2009) (ineffectiveness claims must be raised at earliest practicable moment)
- Favors v. State, 305 Ga. 366 (Ga. 2019) (presumption that jurors follow curative instructions)
- Shaw v. State, 301 Ga. 14 (Ga. 2017) (trial court’s wide latitude to limit cross‑examination)