WALKER v. THE STATE
A18A1439
In the Court of Appeals of Georgia
November 19, 2018
ELLINGTON, Presiding Judge.
THIRD DIVISION, ELLINGTON, P. J., GOBEIL and COOMER, JJ.
ELLINGTON, Presiding Judge.
A Burke County jury found John Walker guilty beyond a reasonable doubt of possession of a knife during the commission of a crime involving the person of another,
view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State‘s case, [the appellate court] must uphold the jury‘s verdict.
(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
The record in this case shows that, on the first day of Walker‘s trial, his children‘s mother testified that, during a prolonged violent attack on September 23, 2014, Walker slapped her face as she slept and then repeatedly struck her in the head and face, pulled a knife on her, and threatened to kill her. He repeatedly threatened to kill the children in front of her and held the knife to the baby‘s throat. The victim
In addition to testimony from the victim, the jury heard evidence during the State‘s case-in-chief that the victim‘s five-year-old son witnessed part of the attack and that he reported to the school nurse, his classroom teacher, and a guidance counselor that Walker threw his mother against the wall and threatened to kill her. The State also introduced police photographs showing bruising and other injuries to the victim‘s face after the incident. Another witness testified that the victim sustained a black eye, a split lip, and other visible injuries.
Before court reconvened for the second day of the trial, the victim talked to
The jury‘s guilty verdicts show that the jury credited the victim‘s testimony and the corroborating evidence that Walker beat and threatened her and held a knife during the attack and show that the jury discredited the victim‘s contradictory testimony that someone else bruised her face and that Walker never pulled a knife on her.1 Although the victim recanted parts of her inculpatory testimony the following
2. Walker contends that the verdict was based on the perjured testimony of the battery victim and must be set aside pursuant to
[g]enerally, a recantation of a witness’ trial testimony [after judgment is entered] is merely impeaching of the trial testimony and does not establish a convicted defendant‘s right to a new trial, even if the witness states under oath that his prior trial testimony was false. . . . An exception to that rule is created when a trial witness is convicted of perjury with respect to his trial testimony and the trial court concludes that the guilty verdict could not have been obtained without the perjured testimony. The only other exception to the rule against setting aside a verdict based on a challenge to trial testimony is where there can be no doubt of any kind that the State‘s witness’ testimony in every material part is purest fabrication. That exception is met when the witness’ testimony is shown to be an impossibility.
(Citations and punctuation omitted.) Lewis v. State, 301 Ga. 759, 762-763 (2) (804 SE2d 82) (2017). See also Fugitt v. State, 251 Ga. 451, 452-453 (1) (307 SE2d 471) (1983) (considering
The record shows that the day after the trial court entered judgment in Walker‘s case, the State secured an indictment against the battery victim for two counts of perjury, alleging that she testified falsely on the first day of Walker‘s trial to the effect
In this case, even treating her guilty plea and receipt of probation as a first offender as a conviction,4 the victim pleaded guilty to committing perjury with respect to her exculpatory trial testimony, not her inculpatory testimony during the State‘s case-in-chief. Under the circumstances, the trial court could not conclude that the jury‘s guilty verdicts could not have been obtained without the victim‘s admittedly perjured exculpatory testimony for the defense. Conversely, stated in the positive, the trial court could only conclude that the guilty verdict could have been obtained without the perjured testimony. Walker contends, however, that
3. Walker contends that he invoked his right to remain silent midway through a custodial interrogation and that the trial court therefore erred in admitting into evidence his statement that he held a knife during the incident.6
In examining the operation of the Fifth Amendment‘s privilege against self-incrimination, the United States Supreme Court has made
(Citations and punctuation omitted.) Mack v. State, 296 Ga. 239, 242 (1) (765 SE2d 896) (2014).7
Walker points to the following colloquy during his custodial interrogation:
| Investigator A: | Do you wish to talk to us about what happened on the 23rd? |
| Walker: | Man. I don‘t know if I should talk. . . . I don‘t want to commit myself at the same time. |
| Investigator A: | It‘s totally up to you. |
| Investigator B: | It‘s totally up to you as far as you making a statement. |
| Walker: | I want to defend myself at the same time. |
| Investigator B: | Right. |
| Investigator A: | You can do that through your lawyer, if that‘s what you want. Or you can talk to us. |
| Investigator B: | It‘s totally up to you. We can‘t force you to answer questions. We can ask you questions. If you want to answer, you can answer. You don‘t have to answer, if you don‘t want to, if it‘s something you don‘t want to answer. But we‘re just here to try to get your side of what happened and go from there. |
| Walker: | I ain‘t trying to get in no trouble, sir. |
| Investigator B: | Well, we understand that. Most people don‘t try to get in trouble, but things happen that lead to trouble. |
| Walker: | Yes, sir. |
Having reviewed the recording, we discern no declaration that Walker was finished talking or other expression of the clear desire for police questioning to cease. Williams v. State, 290 Ga. 418, 420 (2) (721 SE2d 883) (2012) (An arrestee‘s statement “‘I can‘t go on answering these questions’ was not an unambiguous and unequivocal assertion of the right to remain silent.“); Perez v. State, 283 Ga. 196, 200-201 (657 SE2d 846) (2008); State v. Andrade, 342 Ga. App. 228, 231 (803 SE2d 118) (2017). Accordingly, Walker has shown no basis for reversal.
4. Walker contends that the trial court‘s jury instructions failed to include all of the elements of the offense of family violence battery as charged, specifically the
Because Walker made no objection at the time of the charge, we review this claim of error under the “plain error” standard of review. Hughley v. State, 330 Ga. App. 786, 788 (2) (769 SE2d 537) (2015).8 Walker has the heavy burden of demonstrating the following four elements:
First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
The indictment charged that Walker committed family violence battery by intentionally causing the victim “visible bodily injury” by slapping and hitting her.
The trial court charged the jury as follows:
[Walker] is . . . charged with family violence. I charge you that the Official Code of Georgia defines family violence as meaning the occurrence of one or more of the following acts between persons who are the parents of the same child: any felony or commission of offense of battery. . . . [I]t‘s alleged that Mr. Walker committed the crime of family violence battery, a misdemeanor, for that [he] . . . did intentionally cause physical bodily injury to [the victim], who has a
child with the accused, by slapping and hitting [the victim.]
The trial court did not define “battery” or “visible bodily harm.”
Because Walker was charged with committing the offense of family violence battery by causing “visible bodily injury,” the court misspoke when it instructed the jury that Walker was charged with committing the offense by cause “physical bodily injury.” This flaw was ameliorated by the fact that the court instructed the jury that it was authorized to find Walker guilty only if it found beyond a reasonable doubt that he committed the offense as charged in the indictment and sent both the indictment and the instructions out with the jury. In addition, because the Criminal Code provides a definition of “visible bodily harm,” it is preferable to charge the jury as to that definition, as in the pattern instructions.9 Having reviewed the entire record, however, we do not find it likely that these technical errors and omissions affected the outcome of the trial court proceedings. Hornbuckle v. State, 300 Ga. 750, 755 (4) (797 SE2d 113) (2017); Christensen v. State, 245 Ga. App. 165, 166 (1) (a) (537 SE2d 446) (2000); see Green v. State, 291 Ga. 287, 294 (8) (a) (728 SE2d 668) (2012) (“The general rule . . . is that the existence of a mere verbal inaccuracy in a
Judgment affirmed. Gobeil and Coomer, JJ., concur.