WALKER v. THE STATE.
S19A1520
Supreme Court of Georgia
FEBRUARY 10, 2020
308 Ga. 33
BENHAM, Justice.
FINAL COPY
Walker was tried jointly with Daijah‘s mother, Janice White, and we previously summarized the evidence presented at their joint trial as follows:
Daijah2 was ten months old at the time of her death. She lived with White, her father [Walker], and a brother, who was then 22 months old. On October 16, 2003, White left for work at 4:10 p.m.; a neighbor heard Daijah “whining” inside the apartment. The neighbor and Walker spoke outside the apartment for approximately 20 minutes. No other adult was at the apartment.
At 5:46 p.m., a physician was called to the emergency room of a hospital where Daijah had been taken by ambulance; Daijah was already dead. She was bruised on her face and head, shoulder, and chest, which appeared to have been squeezed by hands. There was a cut on her abdomen, and marks on her groin and a thigh, showing very recent blows. On the outside of her genitalia, there was bruising and some healing lesions, and there were bruises and lacerations on the back of her thighs, including the mark of a strap; these injuries had occurred two or three days before her death, while some of the injuries to the torso were the final blows before death. Walker told the physician that Daijah‘s brother must have thrown her off the bed or against a wall.
Earlier, Walker had told the emergency personnel who came to the apartment that Daijah had fallen from the bed. Neither of these accounts was consistent with the observed injuries. . . .
The medical examiner testified that the cause of Daijah‘s death was blunt force injuries to the head and body. Fatal abdominal bleeding had occurred due to internal bruising produced by exterior blows. Her final injuries also included two skull fractures, probably from two separate blows. A retinal injury indicated that Daijah was violently shaken a month before death. Bruising on her throat indicated that Daijah had been grasped firmly under the chin by an adult hand. Daijah‘s buttocks revealed “bruising on top of bruising on top of bruising” that had occurred over the last two or three days before death; the majority of the bruises were very recent. She also had a bruise on her leg caused by an object such as a belt. Bruises covered 40 to 50 percent of Daijah‘s body. It was “not plausible at all” that Daijah‘s injuries were caused by a fall from a bed. The medical examiner opined that Daijah suffered her final injuries two to three hours before death; on cross-examination, the medical examiner agreed that there was an “80 or 90 percent chance” that death would have occurred “within an hour or thereabouts” after the final injuries.
Daijah died on a Thursday. The previous weekend, from Friday night until Sunday evening, Daijah stayed with an aunt. At that time, Daijah had a bruise on her thigh, and a small bruise on her cheek, but no other injuries.
White v. State, 281 Ga. 276, 277-278 (637 SE2d 645) (2006). Additionally, the jury heard testimony that Walker, while in jail
1.
Walker first argues that the circumstantial case against him was insufficient to sustain his conviction. Specifically, he asserts that the evidence merely showed that he was present in the residence when some of Daijah‘s injuries were inflicted, leaving open the possibility that someone other than Walker harmed Daijah or that Daijah‘s injuries were the result of a fall. We disagree.
Under both former
OCGA § 24-4-6 , in effect at the time of [Walker‘s] trial, and presentOCGA § 24-14-6 , in order to convict [Walker] оf the crimes based solely upon circumstantial evidence, the proven facts had to be consistent with the hypothesis of [his] guilt and exclude every reasonable hypothesis save that of [his] guilt. Not every hypothesis is reasonable, and the evidence does not have to exclude every conceivable inference or hypothesis; it need rule out only those that are reasonable. The reasonableness of an alternative hypothesis raised by a defendant is a question рrincipally for the jury, and when the jury is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of the accused‘s guilt, this Court will not disturb that finding unless it is insupportable as a matter of law.
(Citations omitted.) Akhimie v. State, 297 Ga. 801, 804 (1) (777 SE2d 683) (2015).
Here, the evidence showed that, at the time she died, Daijah had sustained numerous injuries in the days and hours leading up to her death. The jury heard testimony that Daijah was residing with Walker and White during this time and, in fact, that Walker was the sole adult with Daijah in the hours preceding her death. Thоugh Walker provided various accounts of a fall — and attempted to place blame on Daijah‘s toddler-age brother — the jury heard expert testimony that Daijah‘s injuries were not consistent with a fall. Finally, the jury learned that Walker had made an incriminating statement in a letter to White while awaiting trial. “Based upon this evidence, the jury was not required to find that [Walker‘s] hypothesis . . . was a reasonable one.” Black v. State, 296 Ga. 658, 660 (1) (769 SE2d 898) (2015). See also Nixon v. State, 284 Ga. 800 (671 SE2d 503) (2009). The evidence was also sufficient as a matter of constitutional due process to authorize a rational trier of fact to find beyond a reasonable doubt that Walker was guilty of the
2.
Walker next argues that the jury was improperly instructed with respect to intent, malice murder, and the State‘s burden of proof.3 “In reviewing a challenge to the trial court‘s jury instruction, we view the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case.” (Citations and punctuation omitted.) Allaben v. State, 299 Ga. 253, 259 (3) (d) (787 SE2d 711) (2016). We consider each of Walker‘s four arguments in turn.4
(a) The trial court gave the pattern jury instruction on “definition of crime,” charging the jury as follows:
Now, jurors, these defendants are charged with crimes against the laws of this state. And in that connection I charge you that these defendants are charged with these crimes, and a crime is a violation of a statute of this state in which there is a joint operation of an act or omission to act and an intention or criminal negligence.
(Emphasis supplied.) Walker argues that this reference to criminal negligence was improper because it was not an element of any offense and, further, that the instruction likely misled the jury on the issue of intent. However, the trial court‘s instruction was an accurate statement of the law. See
(b) Walker next argues that the trial court erred when it instructed the jury as follows:
The first of these offenses is malice murder, for which both of them are charged. And in that connection I charge you the Official Code of Georgia, Title 16-5-1, which reads in part that a person commits murder when that person unlawfully and with malice or forethought, either expressed or implied, causes the death of another human being.
(Emphasis supplied.) According to Walker, this instruction authorized the jury tо convict on malice murder based on malice or forethought rather than malice aforethought. However, “[a] mere verbal inaccuracy resulting from a slip of the tongue which does not clearly mislead or confuse the jury is not reversible error.” (Citations and punctuation omitted.) Davenport v. State, 283 Ga. 171, 172 (656 SE2d 844) (2008). Here, the trial court‘s malaprop was a singular occurrence, and the jury was otherwise properly and accurately charged on malice murder. Further, the jury was instructed that the State was required to prove every material allegation of the indictment — which includes the language “malice aforethought” — and every essential element of the offenses charged therein. Accordingly, considering the trial court‘s instruction as a whole, there is no reversible error.
(c) Walker next complains that the jury was misled and confused when the trial court, before instructing the jury on felony murder, mistakenly announced its intention to charge on malice murder. Specifically, the trial court advised the jury as follows:
Now, these defendants are also charged in Count 2 with felony murder; and in this instance the underlying felony being aggravated assault. So what I‘m going to do, I‘m going to charge you first concerning malice murder; and then I‘m going to charge you the offense of aggravated assault because it is the underlying offense in this charge. A person commits the crime of murder when in the commission of a felony that person causes the death of another human being with or without malice.
(Emphasis supplied.) Contrary to Walker‘s assertion on appeal, this language did not suggest to the jury that “the mere cоmmission of another felony was sufficient to convict of both malice and felony
(d) Walker argues that the trial court committed reversible error when it charged the jury that reasonable doubt “does not mean a vague or arbitrary or capricious doubt, nor does it mean the possibility that the defendants may be innocent.” (Emphasis supplied.) While Walker is correct that this Court has “emphatically disapproved” this language, see Coleman v. State, 271 Ga. 800, 804 (8) (523 SE2d 852) (1999), this instruction is not cause for automatic reversal, see Anderson v. State, 286 Ga. 57 (5) (685 SE2d 716) (2009). Instead, “reversal is not required if, when viewing the charge as a whole, the State‘s burden of proof is adequately defined.” White v. State, 302 Ga. 806, 807 (2) (809 SE2d 749) (2018). Here, the trial court properly instructed on Walker‘s presumption of innocence, correctly charged that Walker hаd no burden of proof, and properly advised that the State had the burden of proof to establish the allegations and elements of the charged offenses beyond a reasonable doubt. “We therefore conclude that, viewing the charge as a whole, the jury instruction did not mislead the jury as to the standard of proof required by due process.” Id.
3.
Finally, Walker alleges that trial counsel was ineffective in five different ways. These claims have no merit.
Walker succeeds on his claims only if he dеmonstrates both that his trial counsel‘s performance was deficient and that he suffered prejudice as a result of counsel‘s deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). “To prove deficient performance, [an appellant] must show that his lawyer performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). With respect to prejudice, Walker must
“[S]atisfaction of this test is a difficult endeavor. Simply because a defendant has shown that his trial counsel performed deficiently does not lead to an automatic conclusion that he was prejudiced by counsel‘s deficient performance.” Davis v. State, 306 Ga. 140, 144 (3) (829 SE2d 321) (2019). And “[i]f an appellant is unable to satisfy one prong of the Strickland test, it is not incumbent upon this Court to examine the other prong.” (Citation and punctuation omitted.) Id. at 143 (3). With these principles in mind, we address each of Walker‘s arguments in turn.
(a) Walker first argues that trial counsel was ineffective for failing to object to what he says are two instances of improper testimony from his co-defendant, White, who testified in her own defense at their joint trial.
In the first instance, White testified that, before she received Walker‘s jailhouse letter, she “didn‘t know what had happened to [Daijah],” but that, after reading the letter, she was convinced that “he did it.” Walker contends that White‘s testimony implied that Wаlker was guilty and, as such, that trial counsel should have objected on the basis that it was improper opinion testimony under former
When asked why he failed to object, trial counsel testified that he was cognizant that the trial was going “on and on” and that he
(b) Walker also argues thаt trial counsel should have objected to two other instances of witness testimony.
In the first instance, Daijah‘s pediatrician testified concerning her interaction with White and Walker on the evening Daijah arrived dead at the emergency room. The physician was asked if “both” White and Walker had passed a “drug screen,” and she answered, “No.” When asked about this comment, trial counsel testified that he did not object because he did not want to highlight the testimony with an objection and, also, because the testimony did not squarely establish that Walker‘s drug screen was positive. The trial court credited trial counsel‘s testimony in this respect. Again, the trial court‘s factual determinations are supported by the record, and we agree with the trial court that this was reasonable trial strategy. See Gomez v. State, 301 Ga. 445, 460 (7) (a) (801 SE2d 847) (2017).
In the second instance, an Emergency Medical Technician (“EMT“) who responded to the scene testified that she observed Daijah on the floor of the master bedroom and that the child was coverеd in bruises. The EMT testified that, although Walker reported Daijah had fallen off the bed, she and her partner found this explanation “fishy” given the nature and locations of the child‘s injuries. Walker contends that trial counsel should have objected to
Though the EMT testified that Daijah appeared to have suffered extensive bruising and, as such, that she was dubious of Walker‘s explanation that Daijah fell from the bed, the jury heard similar testimony from two other experts — medical doctors — who detailed Daijah‘s numerous injuries and opined in great detail how those injuries were wholly inconsistent with a mere fall from the bed. In light of the extensive testimony from other expert witnesses who also cast seriоus doubt on Walker‘s explanation about Daijah‘s injuries, we agree with the trial court that counsel‘s failure to object here did not likely affect the outcome of the trial. See Smith v. State, 307 Ga. 106, 115 (5) (834 SE2d 750) (2019) (defendants not prejudiced by erroneous admission of improper testimony where it was “merely cumulative of other properly admitted evidence“).
(c) The trial court ordered that no one be permitted to enter or exit the courtroom during closing argument or the jury charge, and Walker contends that trial counsel was ineffective for failing to object to this closure of the courtroom.
At the hearing on Walker‘s motion for new trial, trial counsel testified that he welcomed the trial court‘s decision, as it facilitated an unfettered and uninterrupted closing argument and jury charge. We cannot say that counsel‘s decision was patently unreasonable trial strategy, as trial counsel may have reasoned that a less-distracted jury would better suit his client. See Beasley v. State, 305 Ga. 231, 237 (4) (824 SE2d 311) (2019) (trial counsel‘s decision against objeсting during trial to the closure of the courtroom while
Nevertheless, even if counsel did act deficiently, Walker has failed to demonstrate prejudice. See Weaver v. Massachusetts, ___ U. S. ___ (IV) (137 SCt 1899, 198 LE2d 420) (2017); Reid v. State, 286 Ga. 484 (3) (c) (690 SE2d 177) (2010). The transcript reflects that the public was permitted to be present in the courtroom during trial and that, during closing argument and the jury charge, individuals were present in the gallery. In short, the trial court simply restricted movement in and out of the courtroom during the time in question. Walker has not identified anyone who was excluded from the courtroom; likewise, he has not shown that the trial court‘s order rendered his trial fundamentally unfair or that it somehow altered the outcome of trial. Accordingly, Walker is not entitled to relief оn this claim. See Reid, 286 Ga. at 488.
(d) Walker also asserts that trial counsel was ineffective for failing to lodge a timely objection to a portion of the State‘s closing argument. Closing argument was not taken down, but a transcribed bench conference occurring after both closing argument and the jury charge reflects that trial counsel claimed the prosecutor had argued in closing that “he had not heard any evidence from the stand to show that Mr. Walker was not guilty.” Trial counsel objected on the basis that this was “impermissible burden shifting” and requested a curative instruction. The prosecutor responded that, although he had made the argument, it was in response to Walker‘s closing argument that “no one had testified that [Walker] did these things.” Trial counsel‘s objection and motion were plainly untimely, but the trial court addressed the issue and, in effect, overruled it, explaining to the parties that the jury had been properly instructed both on the State‘s burden of proof and that counsel‘s argument was not evidence.
Trial counsel‘s untimely objection notwithstanding, Walker
(e) As referenced above, the jury learned that Walker made certain incriminating statements in a jailhouse letter to White. Walker asserts that trial counsel was ineffective for failing to request a jury instruction consistent with former
(f) Finally, the cumulative prejudice from any assumed deficiencies discussed in Division 3 (b), (c), and (d) is insufficient to show a reasonable probability that the results of the proceedings would have been different in the absence of the alleged deficiencies. See Jones v. State, 305 Ga. 750, 757 (4) (e) (827 SE2d 879) (2019). Accordingly, Walker is not entitled to relief under this theory.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 10, 2020.
Murder. Upson Superior Court. Before Judge Sams.
William A. Adams, Jr., for appellant.
Benjamin D. Coker, District Attorney, B. Ashton Fallin, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney Genеral, Matthew D. O‘Brien, Assistant Attorney General, for appellee.