JENKINS v. THE STATE
S21A1127
In the Supreme Court of Georgia
Decided: January 19, 2022
LAGRUA, Justice.
Appellant Devon Jenkins was convicted of felony murder and other crimes in connection with an August 6, 2014 home invasion in Gwinnett County in which the victim, Adam Schrier, was shot and killed and two other victims, including a child, were injured. On appeal, Appellant contends that the evidence was legally insufficient to support his conviction for possession of a firearm by a convicted felon, that the trial court erred in admitting other-act evidence prohibited by
1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant‘s trial showed that during the early morning hours of August 6, 2014, several intruders forcibly entered Schrier‘s home in Duluth. Schrier shared the home with his four-year-old daughter, E.S., his girlfriend, Jami Smith, and Smith‘s eight-year-old daughter, M.S. That morning, Smith woke up at 5:30 a.m. and was smoking a cigarette in the basement-level garage when she heard banging noises above her from the main floor of the house. Smith stepped inside the house and yelled for Schrier. She started to walk up the stairs leading from the basement to the main floor
When they reached the main floor, Smith saw another man pulling M.S. downstairs from the second floor of the house where the bedrooms were located.2 The men forced Smith and M.S. into the living room where Schrier, who had been shot in the chest, was lying on his back on the floor. Appellant directed Smith and M.S. to lie down on their stomachs on the floor next to Schrier and demanded
The men bound Smith‘s and M.S.‘s arms and legs with duct tape. As the men were doing so, M.S. knocked the tape away, and Appellant started shooting at Smith and M.S. Smith tried to cover M.S. to protect her, and a bullet grazed Smith‘s shoulder and entered M.S.‘s arm. The men finished binding Smith‘s and M.S.‘s arms and legs and left the house. Smith could not stand because of the gunshot wound to her leg, but she was able to free M.S.‘s legs from the duct tape. M.S. then retrieved Smith‘s cell phone from upstairs, and Smith called 911. Police officers and paramedics soon responded, and Smith and M.S. were transported to a hospital and treated for their injuries. Schrier died at the scene from a gunshot wound to the chest.
Following the home invasion, neighbors of Schrier reported seeing a light-colored or white Dodge pickup truck parked outside
The home invasion was the result of a series of drug-related incidents that occurred in July and August 2014. In mid-July, law enforcement officers conducted a drug raid at the Gwinnett County apartment of Becky Banner, a woman who was trafficking methamphetamine supplied by a drug cartel. During the drug raid, Becky‘s son, Bryan Banner, who also trafficked methamphetamine, drove to his mother‘s residence. When Bryan arrived, he saw a K-9 unit at the door to his mother‘s apartment and realized what was happening. He immediately drove to Becky‘s other residence in Gwinnett County and retrieved five kilograms (11 pounds) of methamphetamine that Becky was storing in a Chevrolet Blazer parked outside the second residence. After retrieving the drugs, Bryan asked Schrier a close friend to hide the drugs for him. Schrier agreed and stored the drugs in a storage unit near his home. Over the next week, Bryan sold most of the methamphetamine
On the night of the home invasion, Brewner met with Appellant and Scott at a La Quinta hotel in Gwinnett County where Brewner was staying with his girlfriend, Charlice Roberts. Appellant was also staying at this hotel with his girlfriend, Summer Lawrence. During this meeting, the men finalized the plot to invade
Around 1:00 or 2:00 a.m. on August 6, Appellant left the hotel room he was sharing with Lawrence, and Lawrence saw him get into a white pickup truck with Scott and his other co-defendant, Jamie Stokes. Appellant was carrying a large black duffel bag. After sunrise that morning, Appellant returned to the hotel and went to sleep without speaking to Lawrence. The next day, after moving to another hotel, Appellant told Lawrence that the night they left, he shot a man after they tried to rob him and “the man tried to fight him.” He also said that “he didn‘t shoot the girl, and he didn‘t shoot the older kid.” Appellant insisted he did not want Lawrence “to get caught up in it,” and he wanted to go to Chicago.
On the night after the home invasion, Bryan Banner contacted the police and told them he had information on the “possible home invasion/homicide” at Schrier‘s home. Bryan implicated Jamie Staples in these crimes, suggesting that the motive was to steal
On August 15, investigators with the Gwinnett County District Attorney‘s Office learned that the white Dodge pickup truck seen parked outside Schrier‘s home near the time of the home invasion had been rented from a Chattanooga, Tennessee rental car company in July by a woman named Shana Woods. When investigators interviewed Woods, she informed them that she had rented the Dodge Ram for Brian Brewner to use.3 Investigators also discovered that, on the afternoon of August 6, the pickup truck had been parked at the Congress hotel a hotel adjacent to the La Quinta hotel in Gwinnett County where Appellant and Brewner were staying the night before the home invasion. Surveillance video from the Congress hotel also showed that on the morning of August 6, a white Dodge pickup truck, followed by a white Toyota Camry with tinted
On August 21, Staples was arrested on unrelated drug charges. Staples implicated Brewner in the home invasion and told the police where they could find Brewner. Later that night, police officers located Brewner and Roberts in the parking lot of a hotel in DeKalb County. As the police officers approached, Brewner fled the area in a white SUV, but Roberts remained and was brought in for questioning. During Roberts‘s interview, she told the police officers that Brewner and Appellant were involved in the home invasion. Warrants were then issued for Appellant‘s and Brewner‘s arrest. Police officers also released information about the arrest warrants to the media, which increased media coverage and publicity about the home invasion.
On the night of August 27, Sneh Sean Savice, an acquaintance
Shortly after this incident, Kristian Dunning, a friend of Appellant‘s with whom Lawrence used to reside, spoke to Appellant on the phone. During this conversation, Appellant told Dunning “everything” about “the crime he had done” and asked her to do a search on her phone for his name and “Fox 5” because he “knew he
During his incarceration prior to trial, Appellant confided in his cellmate that he was involved in the “Duluth home invasion.” Appellant said they were trying to steal drugs for a man who was
2. Appellant first contends that the evidence presented at trial was insufficient to support his conviction for possession of a firearm by a convicted felon. We disagree.
Count 23 of the indictment charged Appellant with possession of a firearm by a convicted felon, stating that
on the 6th day of August, 2014, [Appellant] did then and there unlawfully possess a firearm after having been convicted on the 1st day of December, 2010, in the Superior Court of Gwinnett County, a court of competent jurisdiction, of the offense of Theft by Receiving Stolen Property, a felony under the laws of this State. . . .
At a pretrial hearing in November 2015, Appellant agreed to stipulate to the 2010 theft-by-receiving felony conviction if the State redacted this conviction from the firearm possession charge in the indictment given to the jury. The parties so stipulated, and the indictment was redacted to replace the name of the predicate felony
At trial, the parties agreed to a written stipulation to be read to the jury, and the trial court read the following stipulation and instructions to the jury:
The parties have entered into a stipulation that has been approved by the Court about the following facts: And that is, that Devon Jenkins, James Stokes, and Pierre Scott are all convicted felons. When a party stipulates facts, this is in the nature of evidence. You may take that fact or those facts as a given without the necessity of further proof; however, you are not required to do so, and even such matters may be contradicted by other evidence. You make all the decisions, as the jury, based on the evidence in this case.
After the close of evidence, the trial court instructed the jury as follows:
You have received in evidence prior convictions of the defendants and certain witnesses. You may consider this evidence only insofar as it relates to attacking the credibility of the witness and/or the required element of conviction of a felony for the offense in Counts 23, 25, and 26 of the indictment, and not for any other purpose or count.
The trial court then reminded the jury that the parties stipulated to the fact that “each defendant is a convicted felon” and repeated the
On appeal, Appellant claims that, because the stipulation did not specify that Appellant was a convicted felon on or before the home invasion on August 6, 2014, it was insufficient as a matter of law to establish that his felony conviction preceded the gun possession a necessary element of
When evaluating challenges to the sufficiency of the evidence as a matter of constitutional due process, “we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was
In this case, the trial court read the written stipulation to the jury with no objection from either party, and though the stipulation was worded in the present tense, the purpose of the stipulation was clear - to eliminate “the necessity of further proof” of “the required element of conviction of a felony” for the felon-in-possession counts, as the jury was later instructed. No alternative hypothesis was presented to the jury in the evidence, closing arguments, or jury instructions to suggest that Appellant was not a convicted felon at the time of the home invasion. Thus, the jury was authorized to accept the stipulation, to infer that Appellant‘s felony conviction occurred before the events alleged in the indictment, and to find Appellant guilty of possession of a firearm by a convicted felon. See
3. Appellant next contends that the trial court erred by admitting trial testimony from State witnesses regarding Appellant‘s actions shortly before and after he encountered the police roadblock with Savice in late August 2014 because this evidence was prohibited by
Prior to trial, Appellant filed a motion in limine seeking to exclude this testimony, arguing that the evidence was irrelevant, was inadmissible as “just pure bad acts,” and did not go to
During the trial, the court readdressed Appellant‘s motion in limine outside the presence of the jury, and Savice and Dunning made a proffer of the contents of their potential testimony. The trial court then heard arguments from both sides about whether the testimony fell under the ambit of Rule 404 (b) and whether it should have been included in a pre-trial notice to Appellant.6 The trial court concluded that the evidence was admissible – implicitly concluding it was intrinsic evidence – to demonstrate that Appellant fled from
On appeal, Appellant claims that this testimony should have been excluded under Rule 404 (b) because it was impermissible character evidence and was unrelated to the crimes for which he was charged. Appellant further claims that the trial court failed to conduct the proper balancing test under
We agree and conclude that the evidence was properly admitted as flight evidence, which is generally intrinsic and not subject to Rule 404 (b). See Rawls v. State, 310 Ga. 209, 218-219 (4) (a) (850 SE2d 90) (2020) (holding that “[e]vidence of flight may be admissible as circumstantial evidence of guilt“). See also Williams v. State, 302 Ga. 474, 485 (IV) (d) (807 SE2d 350) (2017) (“The limitations and prohibition on ‘other acts’ evidence set out in [Rule 404 (b)] do not apply to intrinsic evidence.” (citations and punctuation omitted)).
Evidence is admissible as intrinsic evidence when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense.
Williams, 302 Ga. at 485 (IV) (d) (citations and punctuation omitted). Evidence of flight is generally intrinsic, as “the fact of an accused‘s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, [is]
Although Appellant‘s act of fleeing from the police roadblock occurred three weeks after the home invasion, the record shows that the home invasion had become highly publicized at that point, and
With these considerations in mind, we conclude that the testimony from Savice and Dunning was properly admitted as intrinsic evidence of flight. And, although Rule 403 grants a trial court discretion to exclude relevant evidence “if its probative value is substantially outweighed” by its prejudicial effect, this Court has repeatedly explained that “exclusion of evidence under Rule 403 is an extraordinary remedy that should be used only sparingly,” and the party seeking to exclude the evidence must show that the probative value of the relevant evidence is “substantially outweighed by the danger of prejudice.” Orr, 305 Ga. at 742 (4) (b) (citation and punctuation omitted). Appellant did not meet that burden here.
Generally speaking, the greater the tendency to make the existence of a fact more or less probable, the greater the probative value. And the extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered.
Therefore, the trial court did not abuse its discretion in admitting evidence that Appellant fled the roadblock, as it was not inadmissible under Rule 403. See Harris, 310 Ga. at 377 (2) (b) (holding that the trial court did not abuse its discretion in admitting the State‘s evidence as intrinsic evidence). And, even if the trial court had erred in admitting this evidence, any such error was harmless given the weight of the other evidence admitted against Appellant at trial, including statements from his co-indictees, Appellant‘s confessions to his cell-mate and other acquaintances, an in-court identification by one of the victims of Appellant as the perpetrator, and Appellant‘s DNA evidence from a cigarette found
4. Appellant‘s final contention is that his trial counsel was ineffective for failing to request a jury instruction indicating that the roadblock evidence was being admitted for the limited purpose of proving flight. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, Appellant must show “both that counsel‘s performance was deficient, and that the deficient performance was prejudicial to his defense.” Lockhart v. State, 298 Ga. 384, 385 (2) (782 SE2d 245) (2016). See also Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Here, in denying Appellant‘s
Accordingly, because the evidence at issue was properly admitted as intrinsic evidence of flight, which is not subject to Rule 404 (b), and because we see no other basis for giving a limiting instruction in this case, Appellant “fails to show that a request for a limiting instruction would have been granted, and thus fails to establish ineffective assistance of counsel on this basis.” Adams v. State, 283 Ga. 298, 300 (3) (b) (658 SE2d 627) (2008). Therefore, we conclude that Appellant failed to show deficient performance under Strickland, and his ineffective assistance of counsel claim fails.
Judgment affirmed. All the Justices concur.