ELKINS v. THE STATE
S19A0331
306 Ga. 351
BOGGS, Justice
FINAL COPY
S19A0331. ELKINS v. THE STATE.
BOGGS, Justice.
In 2013, Appellant De’Marquise Kareem Elkins was convicted of malice murder and other crimes in connection with the shooting death of 13-month-old Antonio Santiago and the shooting of the baby’s mother, Sherry West, as well as the shooting ten days earlier of Pastor Wilfredo Calix-Flores behind his church. The trial court sentenced Appellant – who was 17 years old at the time of the crimes – to serve life in prison without the possibility of parole (“LWOP”) for the baby’s murder and consecutive terms of years for all but one of his other convictions. Appellant contends, among other things, that the trial court violated his constitutional rights by preventing him from showing that someone else committed the crimes; that he was deprived of a fair trial and the presumption of innocence when
As explained below, the evidence presented at trial was legally sufficient to support Appellant’s convictions. The trial court did not violate Appellant’s constitutional rights by preventing him from showing that someone else committed the crimes, he was not deprived of a fair trial or the presumption of innocence by a fleeting reference at trial to a “criminal juvenile report,” and his claims of ineffective assistance related to his trial counsel are waived. One claim of ineffective assistance, which relates to his motion-for-new-trial counsel, is not waived, however, and we must remand for an evidentiary hearing and findings of fact on that claim. Accordingly, we affirm in part and vacate in part, and we remand the case with direction.1
On September 17, 2013, the trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder, 30 years consecutive for the attempted armed robbery of West, 20 years consecutive for aggravated assault against West by shooting her, 20 years consecutive for aggravated assault against West by striking her in the head with a gun, five years consecutive for possession of a firearm during the commission of a felony, and 30 years consecutive for the attempted armed robbery of Calix-Flores, plus 20 years for aggravated assault against Calix-Flores by shooting him concurrent with the related armed robbery sentence but consecutive to the other sentences. Appellant’s remaining guilty verdicts were vacated by operation of law or merged for sentencing. Although it appears that the trial court should have separately sentenced Appellant for first degree child cruelty, see Linson v. State, 287 Ga. 881, 885-886 (700 SE2d 394) (2010), “when a merger error benefits a defendant and the State fails to raise it by cross-appeal,” Dixon v. State, 302 Ga. 691, 698 (808 SE2d 696) (2017), we generally do not correct the error, and we decline to do so here. The court ultimately sentenced Appellant’s mother to serve ten years in prison for tampering with
On September 25, 2013, Appellant filed a motion for new trial. On December 9, 2013, attorney Katherine Mason filed an entry of appearance on his behalf. With Mason’s assistance, Appellant amended his motion for new trial on April 6 and November 6, 2015. On December 18, 2015, the trial court held a hearing on the motion. On March 21, 2016, this Court decided Veal v. State, 298 Ga. 691 (784 SE2d 403) (2016), concerning the constitutionality of an LWOP sentence for a murder committed when the defendant was a juvenile. Three days later, Appellant filed another amendment to his motion for new trial that cited Veal and asked the trial court to resentence him to life with the possibility of parole. On September 9, 2016, the trial court held a hearing on the amendment and the request for resentencing. On July 12, 2017, the court entered a detailed order denying the new trial motion and declining to resentence Appellant. Appellant filed a motion to extend the time to file a notice of appeal, and the court extended the deadline to September 1, 2017.
On August 17, 2017, Appellant, assisted by new counsel Josh Moore, filed an “Emergency Motion” to reconsider, vacate, or stay enforcement of the order denying the new trial motion and to reopen the evidence on the propriety of Appellant’s LWOP sentence in light of Veal, arguing among other things that Mason provided ineffective assistance of counsel in connection with the request for resentencing and the hearing on September 9, 2016. Four days later, on August 21, 2017, the trial court denied the motion without a hearing. On August 30, 2017, Appellant filed his notice of appeal. The trial court transmitted the record, which was docketed in this Court to the term beginning in December 2018. The case was orally argued on February 5, 2019.
1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On the evening of March 11, 2013, Appellant, who was 17 years old, rode on the handlebars of 16-year-old T. S.’s bicycle to a recreation center in Brunswick to play basketball. While waiting to play, they and 17-year-old D. J. decided
Ten days later, on the morning of March 21, 15-year-old D. L. woke up around 8:30, went to his great-grandmother’s house for a few minutes, and then walked to a nearby apartment complex, where he saw Appellant and nodded to him. Appellant was wearing a red sweatshirt, blue jeans, and a silver chain, and D. L. was
When Appellant and D. L. turned onto Ellis Street, D. L. saw West pushing a stroller down the street, and Appellant headed toward her. D. L. was a few steps behind when Appellant walked up to West and demanded her purse. She did not give it to him, saying that she had no money. Appellant pulled out his gun and asked West if she wanted him to shoot her baby, and she begged him not to. He demanded the purse again, but she refused, and Appellant hit her in the face with the gun and again demanded the purse, but she did not give it to him. Appellant threatened to shoot the baby and
D. L. ran to his great-grandmother’s house, and Appellant followed him. They entered through the back door. D. L.’s great-grandmother, his great-grandmother’s friend, and D. L.’s 14-year-old cousin J. L. were there, and Debra Obley, D. L.’s great-aunt, arrived shortly afterward. Obley agreed to give Appellant a ride, and he had his red sweatshirt with him when he got into the car. Appellant was looking around, crouching down in the car, and acting strangely, and Obley asked him if he was skipping school. When Obley began questioning Appellant, he indicated that he wanted to
Detective Angela Smith was the first officer to arrive at the scene of the shooting. The baby was pronounced dead, and West was taken to the hospital, where she was crying, asking about the baby’s condition, and asking to see him. Smith told West that the baby was dead. West described the assailants as two black males and said that the older one was wearing a red sweatshirt and had thick, curly hair and thick eyebrows, a description that matched Appellant. When the baby’s father arrived, Smith allowed him to see West, who told him that their baby was dead.
On the next morning, March 22, 2013, Appellant went to the apartment of some other relatives and hid the gun under a love seat. When he was taken into custody later that morning, he had two .22-caliber bullets in his pocket, the same caliber as the bullet that killed the baby. He agreed to be interviewed by the police. Later, when he was walking to the parking lot for transportation, he said to the officers accompanying him, “Y’all ain’t got s**t on me. Y’all ain’t got
On the same morning, Appellant’s mother and older sister went to the apartment where Appellant hid the gun and retrieved it from under the love seat. An older relative took the gun from them, unloaded it, and gave the gun back to them. Later that morning, Appellant’s mother and sister got a ride to a saltwater fishing pond behind a flooring store off Highway 17, and they threw the gun into the pond. That afternoon, officers executed a search warrant for the place where Appellant was staying and recovered a red sweatshirt and a silver necklace that appeared to belong to Appellant. The gun was recovered a few days later.
Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court’s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized
2. Appellant asserts that the trial court violated his constitutional rights by preventing him from showing that someone else committed the crimes. Specifically, he complains of the trial court’s calling an overnight recess during his cross-examination of J. L. and of the trial court’s barring him from introducing extrinsic evidence of the baby’s parents’ history of addiction and family violence, including with their older children. We address each claim in turn.
(a) Appellant contends that by calling an overnight recess during his cross-examination of J. L., the trial court violated his right to confront the witnesses against him.
Shaw v. State, 301 Ga. 14, 19 (799 SE2d 186) (2017) (citations and punctuation omitted; emphasis in original). Thus, we review a limitation of the scope of cross-examination only for abuse of discretion. See id.
Immediately before J. L. testified, the trial court said, “[I]t’s 5:25. Do you have a short witness that we can put up? . . . [I]s there one that we can get started with for a few minutes before we end for the day? I want to end at about a quarter to 6, 5:45.” The State said that it could get started with a witness, and Appellant’s counsel requested a bench conference. During the bench conference, Appellant’s counsel said, “I would object only if it was [D. L.]. I don’t
On direct examination, J. L. identified Appellant as the boy he saw at his great-grandmother’s house with D. L. shortly after the shooting. Appellant then cross-examined J. L., asking multiple questions about J. L.’s testimony on direct examination that he did not go to school on the day that the baby was shot because J. L. “didn’t have nothing to wear that day.”2 Appellant’s counsel also
Q: You say you didn’t go to school on March 21st because you didn’t have any clothes?
A: Yes.
Q: When -- it was fairly cold on March 21st, wasn’t it?
A: No.
Q: It wasn’t? So when — when you walked to your [great-grandmother’s] house — I mean, you did have some clothes on when you walked there; right?
A: Yes.
Q: Okay. So I guess what you were saying is that you didn’t have any school clothes to wear . . . ?
Twelve pages into the cross-examination, the court asked if J. L. needed a break, and J. L. indicated that he did. Appellant objected, and the court said, “Well, it’s obviously that – the problem I have is that it’s ten until 6:00, and I told the jury I was going to let them go five minutes ago.” The court asked how much longer the cross-examination was going to be, and counsel replied, “It could be very short, depending on what the answer to the question is.” At that point, the court decided to recess for the evening.3 The next morning, the trial court explained before the jury was brought in that J. L. was 15 years old, his mother was incarcerated, and he did not have a place to live or clean clothes for school. According to the court, J. L. “shut down” when Appellant’s counsel repeatedly questioned him
A: Yes.
Q: Okay. And that’s why you skipped school that day? Is that why you skipped school that day? . . . [I]s the reason you skipped school that day is you didn’t have any clothes?
A: Yes.
The reasons the trial court gave for calling an overnight recess when it did are supported by the record. Moreover, trial courts have a duty to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to protect witnesses from harassment or undue embarrassment. See
(b) Appellant contends that the trial court violated his rights to confront the witnesses against him and to present a defense by barring him from introducing extrinsic evidence about the baby’s parents. First, Appellant sought to introduce evidence that, more than a decade before the shootings, West abused her two older children in New Jersey, and the baby’s father abused two romantic partners and threatened them and their children with harm and even death. Second, Appellant sought to introduce evidence of both parents’ history of addiction, which he claims supports an inference “either that their need for ready money might have been powerful
Certainly a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.
Moss v. State, 298 Ga. 613, 616 (783 SE2d 652) (2016). See also Roberts v. State, 305 Ga. 257, 260-261 (824 SE2d 326) (2019) (discussing Moss). “Evidence that merely casts a bare suspicion on another or raises a conjectural inference as to the commission of the crime by another is not admissible.” Curry v. State, 291 Ga. 446, 453 (729 SE2d 370) (2012) (citation and punctuation omitted).
A police investigator testified at trial that on the morning after the shooting of West and her baby, the investigator and other officers went to the home of Appellant’s mother looking for Appellant. The following exchange occurred during the cross-examination of the investigator by counsel for Appellant’s mother (i.e., Appellant’s co-defendant):
Q: Why were you even at [Appellant’s mother’s] house that morning?
A: To search for her son, [Appellant]; to look for her son, [Appellant].
Q: You were aware he didn’t live with her.
A: His address was listed – her address was listed as the primary address for him. We believed he did live at the address.
Q: At what point – where was it listed as the primary address for him?
A: In our –
Q: In the criminal juvenile report or something?
Appellant immediately objected and, during a bench conference, moved for a mistrial.
Back in front of the jury, the trial court gave the following curative instruction:
Whether to declare a mistrial is a question committed to the discretion of the trial court, and we will not reverse the trial court’s judgment absent a showing of abuse of discretion. See McKibbins v. State, 293 Ga. 843, 848-850 (750 SE2d 314) (2013); Isaac v. State, 269 Ga. 875, 877 (505 SE2d 480) (1998). “A passing reference to a defendant’s record does not place his character in evidence.” Isaac, 269 Ga. at 877-878 (citations and punctuation omitted). As the trial court correctly noted, statements of counsel are not evidence, see Simpkins v. State, 303 Ga. 752, 757 n.4 (814 SE2d 289) (2018), and the witness did not confirm or deny the existence of a “criminal juvenile report.” Moreover, the trial court struck the question and instructed the jury to disregard it. See Favors v. State, 305 Ga. 366, 370 (825 SE2d 164) (2019) (“Qualified jurors under oath are
4. Appellant asserts in three enumerations of error that he was denied the effective assistance of counsel. Two of his claims are waived under this Court’s longstanding case law, but the third claim is not. Moreover, based on the current record, we cannot say that his third claim of ineffectiveness fails, and we cannot properly evaluate the claim due to the lack of findings below. Accordingly, we must vacate the trial court’s judgment in part and remand the case for an evidentiary hearing on the ineffective assistance claim that is not waived.
(a) Appellant asserts that he received ineffective assistance of trial counsel, because his lead trial attorney, Kevin Gough, purportedly slept throughout significant portions of the trial. However, it is a “fundamental rule that ineffectiveness claims must be raised at the earliest practicable moment.” Wilson v. State, 286 Ga. 141, 145 (686 SE2d 104) (2009). “[T]hat moment is before appeal
As stated above in footnote 1, Appellant was represented at trial by three attorneys – Kevin Gough, Jonathan Lockwood, and Ashley Wood. After his conviction and sentence, Appellant filed a motion for new trial, which he amended with his new counsel, attorney Katherine Mason, and the trial court held an evidentiary hearing on the new trial motion at which Gough testified. Appellant did not raise a claim of ineffective assistance of trial counsel based on Gough’s alleged sleeping through portions of the trial either in his amended motions for new trial or at the motion for new trial hearing. Because he failed to raise this claim at the earliest practicable moment, he did not preserve it for appellate review. See, e.g., Golson v. State, 306 Ga. ___ (__ SE2d __) (2019); King v. State, 304 Ga. 349, 351 (818 SE2d 612) (2018); Billings v. State, 293 Ga. 99, 102-103 (745 SE2d 583) (2013).
Mason said to Gough: “[M]y client [i.e., Appellant] wants to know why you didn’t question [the baby’s mother] about the preacher and his holding her hands, if you recall any of that.” After a brief discussion, Mason said, “I believe that’s all I have of Mr. Gough, Your Honor, [and] my client . . . says he has nothing further he wishes me to ask Mr. Gough about.” Mason did not argue at the hearing – and the trial court’s order denying the motion for new trial did not mention or rule on – any claim regarding Gough’s alleged sleeping. See id.
(c) However, Appellant asserts a claim of ineffective assistance of motion-for-new-trial counsel that is not merely a camouflaged claim of ineffectiveness by trial counsel. Specifically, he contends that Mason provided ineffective assistance by filing an amendment to the motion for new trial seeking resentencing based on this Court’s then-recent decision in Veal but then failing to gather and present at the hearing on the amendment allegedly readily available evidence showing that Appellant cannot constitutionally be sentenced to serve life without the possibility of parole for the baby’s murder.
As recounted in footnote 1, after the motion for new trial hearing, but before the trial court entered an order on Appellant’s new trial motion, this Court decided Veal, which explained that the United States Supreme Court “has now made it clear that LWOP sentences may be constitutionally imposed only on the worst-of-the-worst juvenile murderers,” and that an LWOP sentence for a
The State concedes, and we agree, that Appellant raised this claim of ineffective assistance of motion-for-new-trial counsel at the earliest practicable moment after Moore took over as counsel. See Anthony v. State, 302 Ga. 546, 554 (807 SE2d 891) (2017) (explaining that the defendant preserved his ineffective assistance of post-trial counsel claims, which were not based on a waived claim of ineffective assistance of trial counsel, because his appellate counsel did not represent him prior to the appeal). See also Terrell v. State, 300 Ga. 81, 87 n.6 (793 SE2d 411) (2016). When there has been no evidentiary hearing in the trial court on a preserved claim of ineffective assistance of counsel, this Court generally must remand the case to the trial court for an evidentiary hearing on the issue.
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.
Decided June 28, 2019.
Murder. Glynn Superior Court. Before Judge Kelley.
Josh D. Moore, for appellant.
Jacquelyn L. Johnson, District Attorney, Thomas E. Buscemi, Andrew J. Ekonomou, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.
Kilpatrick Townsend & Stockton, Curtis A. Garrett, Jr.; Sarah E. Geraghty, Patrick Mulvaney, Tamara S. Caldas, amici curiae.