Atkins v. StateAtkins v. State
A jury found Brian Atkins guilty of felony murder predicated on aggravated assault and possession of a firearm in connection with the shooting death of Brian Parks.1 On appeal, Atkins contends that the evidence was insufficient to prove that he assaulted Parks with a deadly weapon, that the trial court erred in excluding an unavailable witness‘s out-of-court statement, and that the verdict form was misleading. For the reasons explained below, we affirm.
Jada Lawson, who was friends with Hampton, Atkins, and Parks, testified as follows. She went to the apartment after work that evening and watched a movie with Atkins, Parks, Thomas, and Williams. Lawson went to take a shower. At that point, Parks was in his bedroom, and Atkins was sitting at the table in the kitchen area. About five minutes into her shower, Lawson heard a gunshot. She turned off the shower, wrapped herself in a towel, and went to check. She found Atkins facing the front door, which was open, and Parks lying on the floor in the living room, near the television. Parks
Markeshika Hart testified that six weeks before the shooting she went on a trip to Myrtle Beach for Labor Day with a group of family and friends that included Atkins and Parks. Hart testified that Atkins and Parks got into a fight that weekend after Parks criticized Atkins‘s treatment of a girl Atkins was dating. Hart testified that Atkins hit Parks in the face twice. Although Parks initially tried to brush off Atkins‘s provocation, Hart urged Parks to fight back, and a brief scuffle ensued. Parks then went to leave the hotel room, and Atkins said he would throw Parks off the balcony.
A GBI agent testified that, in an interview about four hours after the shooting, Atkins told investigators that Parks left the apartment to go to a bootleggers’ place to get a cigarette and that, while Parks was gone, Atkins heard one or two gunshots, went
The forensic evidence included the following: a single .32-caliber bullet that was retrieved from Parks‘s body; a finding from the autopsy that the bullet entered Parks‘s chest above the left nipple, traveled through the third rib and slightly downward to lodge in the sixth thoracic vertebra; a .32-caliber shell casing found in front of the couch in the apartment; and an unfired .32-caliber cartridge found on the floor under a couch cushion.
Atkins did not testify or present any witnesses or documentary evidence.
1. Atkins contends that there was no evidence that Parks was in reasonable apprehension of injury and, therefore, the evidence did not support the charge of aggravated assault, the predicate to the felony murder charge. Specifically, he argues that there was no evidence that Parks thought the gun was loaded or even that he saw
In Count 3, the indictment charged Atkins with “mak[ing] an assault upon the person of Brian Parks with a deadly weapon, to wit: a certain firearm[.]” See
We conclude that the evidence, though circumstantial, authorized the jury to find that Atkins attempted to inflict (and succeeded in inflicting) a violent injury upon Parks. That evidence includes the angry encounter Atkins had with Parks six weeks before the shooting when he threatened to throw Parks off a balcony; Parks‘s statement before he died that Atkins shot him; Atkins‘s failure to call 911 immediately after the shooting; Atkins‘s initial false statement that Parks was shot outside of the apartment the day after bootleggers threatened to kill him; and the inconsistency between Atkins‘s statement that he was sitting on the couch when Parks walked into the room and the gun went off and the forensic evidence showing that the fatal bullet followed a downward trajectory through Parks‘s chest. The evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Atkins was guilty of aggravated assault. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The evidence was also legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Atkins was guilty of felony murder predicated on aggravated assault and possession of a firearm during the commission of a felony. See id.3
2. Atkins contends that the trial court erred in refusing to admit Williams‘s out-of-court statements that the shooting was an accident. He argues that the statements qualified as excited utterances because Williams was still under the stress of the shooting. In the alternative, he argues that Williams‘s statements were admissible under the residual exception to the hearsay rule and that the trial court applied the wrong standard when it excluded the statement because it lacked “exceptional guarantees of trustworthiness.”
After the State rested, Atkins‘s counsel informed the trial court
freaking out over what had happened, very nervous, running in and out of the house, and actively trying to avoid police with Terry Thomas. . . . So this is not a delayed matter, this happened that night . . . in the immediate aftermath of the shooting . . . when [he was] running from the police.
As for indicia of reliability for the residual exception, counsel argued that “multiple witnesses who [were] not connected to these families and [were] not connected to these events” said that Williams “said the same thing in the aftermath” of the shooting. Counsel did not elaborate on how the witnesses knew Williams or proffer their
The trial court sustained the State‘s objection to Williams‘s statements, based on the lack of evidence about the amount of time that elapsed between the shooting and the statements, which it deemed “a critical component” of the excited utterance exception, and on the lack of “exceptional guarantees of trustworthiness” that are required under the residual hearsay exception.
“[A] trial court‘s decision whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion.” Lyons v. State, 309 Ga. 15, 21 (4) (843 SE2d 825) (2020). The excited utterance exception provides that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” shall not be excluded by the hearsay rule.
[T]he 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.
Jenkins v. State, 303 Ga. 314, 317 (2) (812 SE2d 238) (2018) (citation and punctuation omitted). Whether a hearsay statement was an excited utterance is determined by the totality of the circumstances. Robbins v. State, 300 Ga. 387, 389-390 (2) (793 SE2d 62) (2016). The critical inquiry is “whether the declarant is still in a state of excitement resulting from that event when the declaration is made. And in that regard, even a brief period of time can provide a declarant an opportunity to couch a statement in such a way as to best serve his interests.” Jenkins, 303 Ga. at 318 (2) (citations omitted). Here, Williams, who admittedly was involved in tampering with the crime scene immediately after the shooting, allegedly made the statements while actively avoiding being found by the police. We conclude that the trial court did not abuse its discretion in rejecting Atkins‘s excited utterance argument because the circumstances did not eliminate the possibility of fabrication.
to be used very rarely and only in exceptional circumstances, and only when there exists certain exceptional guarantees of trustworthiness and high degrees of probativeness and necessity. . . . A trial court‘s decision to admit [or exclude] hearsay evidence under Rule 807 is reviewed for an abuse of discretion. This Court is particularly hesitant to overturn a trial court‘s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.
Davenport v. State, 309 Ga. 385, 390 (3) (846 SE2d 83) (2020) (citations and punctuation omitted; emphasis supplied). Such guarantees of trustworthiness
must be equivalent to cross-examined former testimony, statements under a belief of impending death, statements
against interest, and statements of personal or family history. These categories of hearsay have attributes of trustworthiness not possessed by the general run of hearsay statements that tip the balance in favor of introducing the information if the declarant is unavailable to testify. And they are all considered sufficiently trustworthy not because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made.
Jacobs v. State, 303 Ga. 245, 249 (2) (811 SE2d 372) (2018) (citations and punctuation omitted).
Contrary to Atkins‘s argument, the trial court‘s reference to “exceptional guarantees of trustworthiness” did not show that the trial court was applying an incorrect standard. Even if Williams told multiple, allegedly independent witnesses that the shooting was an accident, Atkins has not shown that such repetition is a guarantee of trustworthiness equivalent to cross-examined former testimony, statements under a belief of impending death, statements against interest, or statements of personal or family history. Consequently, the trial court did not abuse its discretion in excluding Williams‘s statements.
3. Atkins contends that the trial court used a verdict form, over
In deciding whether a verdict form accurately presented the law and properly guided the jury, this Court reviews the language of the form along with the trial court‘s instructions to the jury. Rowland v. State, 306 Ga. 59, 67-68 (6) (829 SE2d 81) (2019).
In a criminal case, a verdict form is erroneous when the form would mislead jurors of reasonable understanding, or the trial court erroneously instructed the jury on the
presumption of innocence, the State‘s burden of proof, the possible verdicts that could be returned, or how the verdict should be entered on the printed form. A preprinted verdict form is treated as part of the jury instructions which are read and considered as a whole in determining whether there is error.
Id. at 68 (6) (citation and punctuation omitted). We have found no error in a murder case where a trial court instructed the jury on the lesser offenses of voluntary manslaughter and involuntary manslaughter, used a verdict form that provided a blank line beside each count of the indictment, instructed the jury to write its verdict on each count in the space provided, “and provided clear and detailed instructions on how to complete the verdict form whether the jury found [the defendant] not guilty, guilty of either of the lesser offenses, or guilty of the offense charged.” Jones v. State, 303 Ga. 496, 503 (V) (813 SE2d 360) (2018). See also Leeks v. State, 296 Ga. 515, 522-523 (6) (769 SE2d 296) (2015); Buttram v. State, 280 Ga. 595, 599 (13) (631 SE2d 642) (2006). Thus, it is not error to fail to expressly include lesser offenses on a verdict form, provided the court appropriately instructs the jury on the lesser offenses and how
During closing argument in this case, defense counsel told the jury that it would be instructed about involuntary manslaughter, asked the jury to find Atkins not guilty of murder, felony murder, and aggravated assault, and argued that, based on the evidence, “the proper verdict” was involuntary manslaughter. During the State‘s closing argument, the prosecutor showed the verdict form to the jury and explained how to fill in the form. As to each murder count, the prosecutor told the jury that, if it found Atkins guilty or not guilty, the verdict would go in the first blank and the offense in the second blank. The prosecutor continued, “If you choose to find him guilty of a lesser included offense of involuntary manslaughter, then your verdict would be ‘we the jury find the defendant guilty of involuntary manslaughter in Count 1 and . . . Count 2.‘”
The court properly instructed the jury on the charged offenses, the State‘s burden of proof, and the presumption of innocence. Near the end of the jury charge, the court referred back to the prosecutor‘s review of the verdict form and reiterated that “[t]he first blank as to
The language of the verdict form, the explanations during closing argument about the jury‘s consideration of an involuntary manslaughter verdict and filling in the verdict form, and the trial court‘s jury charge, viewed together, show no error. See Jones, 303 Ga. at 504 (V); Leeks, 296 Ga. at 522-523 (6). In addition, the jury‘s request for definitional instructions, including for involuntary manslaughter, shows the jury‘s focused attention on involuntary manslaughter along with the charged offenses. This claim of error fails.
Judgment affirmed. All the Justices concur, except Warren, J.,