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.
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
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
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, Fly, Fly” —
A: Yeah.
Q: — after he was shot.
A: Yeah.
Q: You never mentioned that before.
A: No.
Later in his cross-examination of Baynes, defense counsel brought up the subject again:
Q: Okay. So last Thursday is the first time you mentioned Fly.
A: Yeah.
Q: You say that Smurf said, “Fly, Fly, Fly.”
A: Yeah.
Q: Was he telling you to run?
A: No. He said that after he shot him.
Q: So what did he say exactly? That’s what I’m trying to get at. What did Smurf say exactly?
A: Fly, Fly, Fly (whispering).
Q: That’s what Smurf said.
A: Yes, . . . shot him.
The State argues that any error in the admission of Early’s statement through Baynes’s testimony was induced, as the testimony was elicited by defense counsel. A defendant generally cannot complain on appeal about the admission of evidence that he introduced himself, even when he does so after the trial court has overruled his objection to the admissibility of that evidence. See Givens v. State,
Adkins argues that he did not induce the alleged error in admission of the purported dying declaration because he objected to the mention of the statement during the State’s opening. Although Adkins objected to the admissibility of the evidence, however, his introduction of the evidence after the State failed to introduce it waived his previous objection. When the State did not introduce evidence of the statement during Baynes’s direct testimony, Adkins had the option to not do so either. Indeed, if neither party had introduced evidence of the statement, Adkins might have pointed out in his closing argument to the jury that the State had failed to present a key piece of promised evidence. Instead, he elected to present that evidence himself. He cannot complain now that the jury heard that evidence.
3. Adkins also appeals his convictions on the basis that the trial court in two instances erred by permitting the State to elicit improper opinion testimony from two law enforcement officers. We find that the admission of one officer’s testimony was not error and that any error in the admission of the other officer’s testimony was harmless.
(a) Sergeant Manuel’s testimony.
Adkins argues that the trial court erred by allowing Sergeant Tiffany Manuel of the Savannah-Chatham Metro Police, who interviewed Baynes and Moore at the hospital, to give improper opinion testimony Manuel was called to testify by the defense. Manuel testified that she first interviewed Moore, who told her that the driver was the shooter and only occupant of the vehicle and that he had long dreadlocks and brown skin and was wearing a black ski mask. Manuel testified that she then interviewed Baynes, who said there were two people in the car, with the passenger being the shooter. Baynes told Manuel that the shooter was a black male with a short haircut. Given discrepancies between the two women’s stories, Manuel testified, she returned to Moore, who maintained that the shooter was the only person in the vehicle and she could see only his dreadlocks.
On cross-examination, the prosecutor revisited Manuel’s initial interviews of Moore and Baynes. Manuel reiterated on cross-examination that Baynes told her the shooter had a short haircut and testified that Baynes said neither of the two occupants of the vehicle had their faces covered. The prosecutor continued:
Q: Okay Based on what Briona Moore told you about being able to see the shooter’s hair with his ski mask on, did that stand out to you?
A: It did.
Q: Why?
A: Well, typically a ski mask covers your entire head, so it would cover your hair and everything. You might have cut-outs for your eyes and maybe your mouth, but your head would be covered.
Q: So did that seem like that might not be completely honest?
A: That’s correct.
Defense counsel objected that this was “improper opinion” testimony. The trial court said it would permit the testimony as it was “just the witness’ impression.”
Adkins argues on appeal that Manuel’s testimony as to her opinion that Moore
Manuel’s testimony could be read as a comment on the honesty of Moore’s trial testimony that she did see the shooter’s face. Any error in the admission of Manuel’s testimony was harmless, however. A nonconstitutional error is harmless if it is highly probable that the error did not contribute to the verdict. See Lindsey v. State,
(b) Detective Sammons’s testimony.
Adkins also argues that the trial court erred in allowing certain testimony by Detective Alan Sammons of the Savannah-Chatham Metropolitan Police Department, who testified regarding the interviews of Moore and Baynes that he conducted about a month after the shootings. Sammons testified that Baynes provided a description of the shooter and picked Adkins out of a photo array, but did not provide a name of the shooter. On cross-examination, Sammons testified that, before showing Baynes the photo line-up, he did not ask her to provide “specific facial features” of the alleged shooter. On re-direct examination, the prosecutor asked Sammons to explain why he had not asked Baynes for that information. Sammons replied, “My instinct told me she knew who the shooter was, that she already had seen him.” Defense counsel objected that this was “[ijmproper
Here, Sammons’s testimony that his “instinct” told him that Baynes knew the identity of the shooter was offered to explain why he had not asked Baynes to provide more detailed information on the shooter’s facial features, after the defense raised a question about that matter. The prosecutor did not ask Sammons whether he thought Baynes’s various statements to him or her testimony before the jury were true. That factor stands in contrast to the circumstances of Word v. State,
4. Finally, Adkins argues that the trial court erred in failing to merge Counts 8 and 9, which each charged aggravated assault based on Adkins shooting at Baynes.
Under OCGA § 16-1-7 (a) (2), “[wjhen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime” but may not be convicted of more than one crime if “[tjhe crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” To determine whether one crime merges into the other as a lesser included offense, “we examine whether each offense requires proof of a fact which the other does not.” Long v. State,
Judgment affirmed in part and vacated in part, and case remanded.
Notes
The crimes occurred on May 16, 2013. On August 7, 2013, a Chatham County grand jury indicted Adkins for malice murder, two counts of felony murder, three counts of possession of a firearm during the commission of a felony, four counts of aggravated assault, and one count of possession of a firearm by a convicted felon. A jury found Adkins guilty of all eleven counts at the March 2014 trial. The trial court sentenced Adkins to life for the malice murder conviction (Count 1) and purported to “merge” the two felony murder counts (Counts 2 and 3) into that count. The trial court sentenced Adkins to five years for each of the three counts of possession of a firearm during the commission of a felony (Counts 4, 7, and 10), to run consecutively, and gave Adkins probation for the offense of possession of a firearm by a convicted felon (Count 11). As to the four aggravated assault counts, the trial court sentenced Adkins to twenty years for each, running the two convictions pertaining to the assault on Moore (Counts 5 and 6) concurrently to one another and running the two convictions pertaining to the assault on Baynes (Counts 8 and 9) concurrently to one another. The trial court denied Adkins’s motion for new trial on November 5, 2015, but vacated the 20-year sentence on one of the aggravated assault convictions pertaining to Moore (Count 5) on the basis that it should have merged with the aggravated assault conviction under Count 6. Adkins filed a timely notice of appeal, and the case was docketed to this Court for the term beginning in December 2016 and submitted for a decision on the briefs.
This provision of the new Evidence Code carried forward with minor revisions former OCGA § 24-9-80, which provided, “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” See Scudder v. State,
For reasons that are unclear, the trial court granted Adkins’s motion for new trial to the extent that Adkins argued the court should have merged Counts 5 and 6, the corresponding aggravated assault counts naming Moore as the victim, but did not do the same for Counts 8 and 9.