WILKINS v. THE STATE
S19A1403
Supreme Court of Georgia
February 28, 2020
308 Ga. 131
NAHMIAS, Presiding Justice.
Appellant Nathaniel Wilkins was convicted of two counts of malice murder in connection with the shooting deaths of Forrest Ison and Alice Stevens. He appeals, arguing that the trial court erred by admitting into evidence an alleged adoptive admission and by denying three motions for a mistrial. He also argues that his trial counsel provided ineffective assistance by not objecting when the trial court gave an inapplicable jury instruction about accomplice corroboration and defined aggravated assault three times. We affirm.1
According to Burgess, on the night of November 3, 2013, Appellant asked hеr to drive him and Jones to “take care of something.” Appellant directed Burgess to drive to an intersection in Savannah, where Ison and Stevens then drove by in a car. Appellant told Burgess to follow the car. Burgess, Appellant, and Jones followed Ison and Stevens to a gas station, waited while Ison pumped gas and bought some items at the convenience store, and then continued to
At that point, Burgess drove away, leaving Appellant and Jones behind. Several of Ison and Stevens’s neighbors heard multiple gunshots, and two neighbors heard a woman scream. One of the neighbors saw two young, black men running from the scene; one wore a light gray hoodie, and the other wore a black hoodie.3 Burgess pulled
Ison and Stevens were found lying on the steps to the side door of their house. Ison was already dead by the time EMTs arrived; Stevens died shortly thereafter. Ison had been shot three or four times; he had bullet entrance wounds on his chin, his chest, and the back of his head, and a bullet graze wound on his hand. The wound to his head was caused by a .22-caliber bullet; the wound on his chin was bigger than the wounds on his head and chest. Stevens had been shot on the right side of her head and on her chin with a larger caliber bullet, similar to the bullet that caused Ison’s сhin wound. Three .45-caliber cartridge cases and two .45-caliber bullets were found near the bodies.
Joris Cooper, who was Appellant and Jones’s restaurant co-worker, testified to the following. Shortly after the murders, Jones showed Cooper a gun. The next night, Cooper was standing outside the restaurant with Jones when Appellant drove up. Jones walked to the back of the car and called Cooper over. Jones opened the trunk, showed Cooper a t-shirt with blood on it, and said: “This [is] the t-shirt we used to wipe the blood and our prints . . . off the gun.” Appellant was standing by the door of the car, within earshot. While Jones was talking about the shirt, Appellant looked at Jones, turned and gave Cooper a “quick look,” and then turned back to Jones. Some time after that incident, Cooper was walking outside when Appellant drove up to him. Appellant said that another co-worker had asked if Appellant committed the murders; Appellant then said, “he better keep his mouth closed or his motherf**king ass going to come up missing too.” Cooper gave Appellant a look to indicate, “all right, man,” and Appellant drove away.
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 above was sufficient to authorize a rational jury to find Appellаnt guilty beyond a reasonable doubt of the two murders of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
2. As discussed above, Cooper testified that Jones showed him a t-shirt in the trunk of the car Appellant was driving and said: “This [is] the t-shirt we used to wipe the blood and our prints . . . off the gun.” The State offered that testimony as an adoptive admission by Appellant. At trial, before opening statements and outside the presence of the jury, Cooper was questioned about his proposed testimony. Based on his answers (which were substantially similar to the testimony recounted in Division 1 above that he then gave before the jury), the trial court concluded that Jones’s statement was admissible because it had been adopted by Appellant through Appellant’s silence. The court found that Appellant was looking at and within earshot of Jones when Jones made the statement, adding, “[Appellant] couldn’t have not heard it.” The court also pointed to the incriminating nature of Jones’s statement and the fact that “the shirt
As this Cоurt recently explained, under Georgia’s current Evidence Code, a defendant’s silence may, in certain circumstances, communicate that he has adopted another person’s statement as true, making that statement admissible under
For evidence to qualify as a criminal defendant’s adoptive admission under Rule 801 (d) (2) (B), the trial court must find that two criteria were met: first, that “‘the statеment was such that, under the circumstances, an innocent defendant would normally be induced to respond,’” and second, that “‘there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement.’” United States v. Jenkins, 779 F.2d 606, 612 (11th Cir. 1986) (citation omitted).
Appellant argues that he could not be expected to respond to Jones’s statement because it was ambiguous and he did not know what Jones may have told Cooper in any conversation leading up to the statement. However, even if Appellant did not have the full context of Jones and Cooper’s prior conversation, the trial court could reasonably determine that a statement referring to a bloody shirt in the trunk of the car that Appellant drove up in and was standing next to as the shirt “we” used to wipe blood and fingerprints off a gun is the kind of statement that would normally promрt an innocent person to clarify that he was not part of the “we.”
Likewise, the trial court’s conclusion that Appellant heard,
(a) The prosecutor began questioning Cooper about the gun that Jones showed him in this way: “At first, tell me what hapрened, and
circumstances silence is so ambiguous that it is of little probative force.’” (quoting Hale, 422 U.S. at 176)). Pretermitting whether Appellant properly raised this argument in the trial court, it fails. The trial court did not abuse its discretion in ruling that under these circumstances (which were very different than the ones in Hale), the jury could find that Appellant’s silence was not ambiguous but rather indicated his adoption of Jones’s incriminating statement about the crimes. Such an adoptive admission was highly probative and not unfairly prejudicial. See Anglin v. State, 302 Ga. 333, 337 (806 SE2d 573) (2017).
Cooper’s use of the term “murder weapon” may have been inadmissible because it apparently was based on hearsay — what Jones told him about the weapon — and the State did not identify any applicable hearsay exception. See Kirby v. State, 304 Ga. 472, 478 (819 SE2d 468) (2018) (“[A] witness cannot use inadmissible hearsay to demonstrate personal knowledge of a matter.”). However, it was a passing reference that was contrary to the directions given by the prosecutor; the statement did not link the weapon to Appellant; the
(b) While questioning Cooper about the adoptive admission discussed in Division 2 above, the prosecutor asked, “You go over there. You get summoned over there by [Jones], and tell me how this t-shirt comes into play. Tell [the jurors]. It’s important.” Cooper responded, “He was showing me the shirt — he had done told me before, but he was showing me the shirt that he said they used to wipe the gun or the — .” Appellant objected and moved for a mistrial on the ground that Cooper was improperly corroborating Appellant’s adoptive admission with testimony about what Jones said while Appellant was not present. The trial court denied the mistrial motion, but told the jury “to disregard the last statement made by this witness.” The court asked if the jurors could do that; they said yes.
Cooper’s statement was ambiguous: it was not clear to what
(c) Finally, when the prosecutor was questioning the lead detective about his investigation, the following exchange occurred:
PROSECUTOR: Okay. [The case] had been unsolved and dead-ended for a while; is that accurate?
DETECTIVE: Yes.
PROSECUTOR: You werе working on it, but you didn’t have any arrests; is that fair to say?
DETECTIVE: No. We continued to work on it.
PROSECUTOR: Sure. What did you do next?
DETECTIVE: In March of that year we got information of some possible suspects.
Appellant objected and moved for a mistrial on the ground that the detective’s final statement was hearsay and violated the
The import of the disputed statement is unclear, because the detective did not identify the “information,” its source, or any of the “possiblе suspects.” But even assuming that the statement amounted to inadmissible hearsay, it did not tell the jury anything the jury did not already know. Given that Appellant was on trial, the jury knew that he became a suspect at some point. See Davis, 308 Ga. at 750 (noting that the lead investigator’s testimony that she focused on the defendant as a potential suspect “was an obvious point given that she ultimately arrested him”). The testimony also did not violate Appellant’s constitutional right to confront his accusers. See id. at 749, n.3 (rejecting the defendant’s argument that the investigator’s testimony that she focusеd on him after interviewing more than 30 people violated his right to confront his accusers because the investigator did not testify to the substance of what any of the witnesses told her). Additionally, the jury was instructed to disregard
4. During the final jury charge, the trial court gave a set of instructions on accomplice testimony, see generally
Appellant contends that his trial counsel’s failure to object to the accomplice-corroborating-accomplice instruction constituted ineffective assistance, because two accomplices did not testify at his trial. To prevail on this claim, Appellant must show both “that his trial counsel’s performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the
It appears that the accomplice-corroborating-accomplice instruction that the trial court gave was not applicable to this case. The evidence at trial showed that Appellant may have had two accomplices — Jones and Burgess.10
Accordingly, if Appellant’s counsel had objected to the instruction, the trial court should have omitted it from the series of charges on accomplice testimony. But even assuming that counsel’s failure to make such an objection was deficient, Appellant has failed to show resulting prejudice.
Appellant’s argument that the inapplicable instruction was prejudicial is premised on Crosby v. State, 150 Ga. App. 555 (258 SE2d 264) (1979), where the Court of Appeals held that the trial court committed reversible error when it instructed the jury on corroboration by a second accomplice even though only one accomplice testified. That holding was summarized this way: “The inapplicable instruction in the instant case authorized the jury to reach a finding of guilty by a theory not supported by the evidence, and we can not
This Court has never endorsed Crosby’s holding, which runs contrary to our cases that generally deem harmless a jury instruction that indicates that a defendant could be found guilty under a theory for which there was no evidence or even argument (and in this case the State never argued that there was testimony from a second accomplice). See, e.g., Wetzel v. State, 298 Ga. 20, 36 n.17 (779 SE2d 263) (2015) (“‘(G)enerally it is not [harmful] error to charge the jury on a portion оf the Code section that may be inapplicable under the facts in evidence.’” (quoting Chapman v. State, 273 Ga. 865, 868 (548 SE2d 278) (2001))). See also Saffold v. State, 298 Ga. 643, 650-651 (784 SE2d 365) (2016) (“[T]here may have been no evidence to support such a finding [under a jury instruction regarding parties to a crime], but again the State never argued that Appellant was a party to the crime on these grounds, and it is quite unlikely the jury based its verdict on
Accordingly, to the extent that Crosby can be read as establishing a rule that erroneously giving the accomplice-corroborating-accomplice instruction at issue here is always prejudicial, it is disapproved. And under the circumstances of this case, we see no prejudice. The jury was told that it could consider the testimony of one accomplice as corroboration of another accomplice’s testimony, but because there was no testimony about the murders from a second accomplice, the jury necessarily had to lоok for other evidence — such as Cooper’s testimony — for the necessary corroboration of Burgess’s testimony. Because there is no reasonable probability that the result of the trial would have been different had the disputed jury instruction
5. Appellant also contends that his trial counsel was ineffective in failing to object to the trial court’s defining aggravated assault three times during the final jury charge. Two of those definitions corresponded to two separate crimes chаrged in the indictment — felony murder based on aggravated assault and aggravated assault. It is not clear why the court defined aggravated assault a third time, but it is also not clear how this additional repetition harmed Appellant. All three times, the court gave substantially the same instruction, and Appellant does not argue that the instruction itself was erroneous.
Generally, “‘[m]ere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative uttеrance so as to tend to prejudice the minds of the jury.’” Grier v. State, 273 Ga. 363, 365 (541 SE2d 369) (2001) (citation omitted). Appellant has not shown how the repetition of the correct definition of aggravated assault was “argumentative or opinionative” or prejudiced him in any way. Thus, even assuming that trial counsel was deficient for not objecting to the repetitive charge,
6. Although we have evaluated separately Appellant’s two claims of ineffeсtive assistance of counsel based on his trial counsel’s failure to object to jury instructions, we also recognize that “the effect of prejudice resulting from counsel’s deficient performance is viewed cumulatively.” Grant v. State, 305 Ga. 170, 178 (824 SE2d 255) (2019). To that end, we conclude that the cumulative prejudice from the deficiencies assumed in Divisions 4 and 5 does not create a reasonable probability that the result of the proceedings would have been different in the absence of the deficiencies alleged.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 28, 2020.
Murder. Chatham Superior Court. Before Judge Bass.
Steven L. Sparger, for appellant.
Meg E. Heap, District Attorney, Emily C. Puhala, Assistant