Atkins v. State

FINAL COPY

                  S20A1019. ATKINS v. THE STATE.


      ELLINGTON, Justice.

      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.



      1 The shooting occurred on October 18, 2016. A McDuffie County grand

jury returned an indictment on June 13, 2018, charging Atkins with malice
murder (Count 1), felony murder predicated on aggravated assault (Count 2),
aggravated assault with a deadly weapon (Count 3), and possession of a
firearm during the commission of a felony (Count 4). At a September 2018 jury
trial, Atkins was found not guilty on Count 1 and guilty on the remaining
counts. By judgment entered on September 19, 2018, the trial court sentenced
Atkins to serve life in prison for felony murder (Count 2) and five years in
prison for the firearms charge (Count 4) to run consecutively. Count 3 merged
with Count 2. Atkins filed a timely motion for a new trial. After a hearing on
January 8, 2020, at which Atkins was represented by new counsel, the trial
court denied the motion for a new trial on February 7, 2020. Atkins filed a
timely notice of appeal, and his appeal was docketed in this Court to the April
2020 term and submitted for a decision on the briefs.
     Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at Atkins’s trial shows the following. The

shooting took place in Leslie Hampton’s apartment, where both

Atkins and Parks had been living for a few months. Hampton

testified that, before she left for work at about 1:00 p.m., Terry

Thomas and Montavis Williams were hanging out in the apartment

with Atkins and Parks, listening to music. Hampton testified that

she saw a weapon and told Thomas to remove the weapon from her

home. Thomas agreed to take care of it, and Hampton left for work.

     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

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said, “Jada, call 911. [Atkins] just shot me.” Atkins turned toward

her and said, “I didn’t mean to; it was an accident; I didn’t know it

was loaded.” Lawson told Atkins to get her cell phone, and he called

9112 while she knelt beside Parks and held his hand.

     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


     2 The 911 call was received at 9:55 p.m.

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outside and found Parks with a gunshot wound, and helped him up

the stairs to the apartment where Atkins immediately called 911.

Atkins told the investigators that, the day before the shooting, the

cigarette bootleggers had been texting him that they were going to

kill Parks because he had something to do with their place being

robbed. But when investigators challenged Atkins to explain why

his story did not match what other people had said and what the

crime scene revealed, Atkins changed his story and said that

Thomas and Williams had been at the apartment playing with a gun

and ejecting the bullets one after another; Atkins, who was sitting

on the couch, asked to see the gun, believing the bullets were all out;

and, as soon as the gun was in his hand, it went off and a bullet hit

Parks, who had just walked into the room. Atkins told the

investigators that, after the shooting occurred, Thomas took the gun

from him, and Thomas and Williams collected all the bullets and left

the apartment before the police arrived. An audio recording of the

45-minute long interview was played for the jury. Neither Williams

nor Thomas, who were charged with and pleaded guilty to

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tampering with evidence in connection with the shooting by

removing the gun and some of the bullets, testified. The trial court

excluded Williams’s pretrial statements, and Atkins opted not to

present Thomas’s pretrial statement.

     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

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the gun before it fired. Atkins contends that his conviction for felony

murder must therefore be reversed.

     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 OCGA § 16-5-21 (a) (2) (“A person

commits the offense of aggravated assault when he or she assaults

. . . [w]ith a deadly weapon[.]”). The Code provides two methods of

committing an assault: “either [by] [a]ttempt[ing] to commit a

violent injury to the person of another; or [by] [c]ommit[ting] an act

which places another in reasonable apprehension of immediately

receiving a violent injury.” OCGA § 16-5-20 (a). The trial court

instructed the jury as to both methods of committing an assault. If

the evidence was sufficient for the jury to find beyond a reasonable

doubt that Atkins committed the offense by one method, the State

was not required to also prove that he committed the offense by the

alternative method. See Cash v. State, 

 (2) (

) (2015); Chase v. State, 

 (1) (

) (2004). Thus, if the evidence was sufficient for the jury to find

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beyond a reasonable doubt that Atkins attempted to inflict a violent

injury upon Parks, the State was not required to also prove that

Parks had any apprehension of receiving a violent injury.

     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.

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Virginia, 

 (III) (B) (

, 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


     3 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 

, 392 (4) (

) (2020). The Court began assigning cases to the
December term on August 3, 2020.
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that he had been unable to locate Williams and did not anticipate

being able to call him as a witness, but that he intended to call other

witnesses, two of whom he identified by name, to testify that they

heard Williams say that the shooting had been an accident. Defense

counsel argued that Williams’s statements were admissible as

excited utterances and under the residual hearsay exception.

Counsel admitted that the witnesses could not give “an accurate

time” when the statements were made but argued that the witnesses

stated that they saw Williams

     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


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testimony.

     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, 

 (4) (

) (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. OCGA § 24-8-803 (2).

     [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

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     would be superfluous.

Jenkins v. State, 

 (2) (

) (2018) (citation

and punctuation omitted). Whether a hearsay statement was an

excited utterance is determined by the totality of the circumstances.

Robbins v. State, 

 (2) (

) (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, 

 (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.




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     The residual hearsay exception, set out in OCGA § 24-8-8074,

is

     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, 

 (3) (

) (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

     4 OCGA § 24-8-807 provides:

           A statement not specifically covered by any law but having
     equivalent circumstantial guarantees of trustworthiness shall not
     be excluded by the hearsay rule, if the court determines that:
                 (1) The statement is offered as evidence of a material
           fact;
                 (2) The statement is more probative on the point for
           which it is offered than any other evidence which the
           proponent can procure through reasonable efforts; and
                 (3) The general purposes of the rules of evidence and
           the interests of justice will best be served by admission of the
           statement into evidence.
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     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, 

 (2) (

) (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

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his objection, which was misleading. As to each of the four counts of

the indictment, the verdict form read: “We the Jury find the

Defendant __________ of __________.” The court agreed to Atkins’s

request that the jury be instructed on the definition of involuntary

manslaughter, but the court declined Atkins’s request to include a

separate line on the verdict form, after the lines for the numbered

counts, “We the Jury, as to the lesser included offense of involuntary

manslaughter, find the Defendant __________.” Atkins argues that

this omission requires a new trial because the form may have misled

the jury into thinking that, after entering its “not guilty” verdict as

to malice murder, it could not find him guilty of involuntary

manslaughter for the homicide.

     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, 

 (6) (

) (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

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     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.

 (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, 

 (V) (

) (2018). See also Leeks v. State, 

 (6) (

) (2015); Buttram v. State, 

 (13) (

) (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


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to fill in the verdict form. See Jones, 

 (V).

     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

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each count is where you indicate your finding as to guilt or

innocence” and “[t]he second blank is for you to make a finding as to

what the charge is that you have made the finding of guilt or not

guilty on the [first blank].” During jury deliberations, the jury sent

a note asking the court to define, in writing, malice murder, felony

murder, aggravated assault, intent, accident, and involuntary

manslaughter. After consulting with counsel, the court provided the

jury with written copies of the instructions that were requested.

         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, 

 (V); Leeks, 

 (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.,

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not participating.



                     Decided October 19, 2020.

          Murder. McDuffie Superior Court. Before Judge
Hammond.
          Howard W. Anderson III, for appellant.
          William P. Doupe, District Attorney, Randi L. Harbeson,
Debra R. Neumann, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Leslie A. Coots, Assistant Attorney General, for appellee.




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