Walker v. State
| Decision Date | 13 July 1988 |
| Docket Number | No. 45397,45397 |
| Citation | 370 S.E.2d 149,258 Ga. 443 |
| Parties | WALKER v. The STATE. |
| Court | Georgia Supreme Court |
T. Michael Flinn, Gerald P. Word, Word & Flinn, Carrollton, for George "Chip" Walker.
William G. Hamrick, Jr., Dist. Atty., Carrollton, Peter J. Skandalakis, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Asst. Atty. Gen., for the State.
Appellant George Walker was convicted of felony murder and aggravated assault, and was sentenced to terms of imprisonment. 1 Walker appeals and we affirm.
Walker and a friend, Terry Bonner, who both were black, attended a dry rush party at a predominantly white fraternity at West Georgia College in Carrollton, Georgia. Fraternity members asked Walker and Bonner to leave, reportedly because the two men had beer with them. As Walker and Bonner left the party, a series of verbal exchanges began, followed by a confrontation between Walker and Bonner and fraternity members on a street near the fraternity. The altercation ultimately resulted in the stabbing death of one fraternity member, Adam Frentheway, and a stab wound to the abdomen of a second member, Michael Paulk. The jury convicted Walker of the aggravated assault of Paulk and of the felony murder of Frentheway, based on the underlying felony of aggravated assault of Frentheway.
1. We conclude that the evidence was sufficient to support the convictions under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979).
2. In his first two enumerations, Walker contends that the trial court violated Uniform Superior Court Rule 10.1, OCGA § 15-12-133, the Sixth and Fourteenth Amendments, and 1983 Ga. Const. Art. I, Sec. I, Paras. I and XI, by improperly restricting voir dire examination of prospective jurors concerning racial bias, pre- trial publicity, and self-defense. We find no error. The court did not improperly restrict voir dire in any way.
3(a). In the appellant's third enumeration, he contends that the trial court violated OCGA § 17-8-57 by impermissibly commenting on the evidence. Walker did not contemporaneously object or move for a mistrial on this ground, but, relying on Allen v. State, 194 Ga. 178, 21 S.E.2d 73 (1942), he contends that his failure to object or move for a mistrial was not a procedural default.
We disagree. In Pulliam v. State, 196 Ga. 782, 790(6), 28 S.E.2d 139 (1943), this court overruled any previous cases that held "the view that a failure of the aggrieved party to move for a mistrial, or to register a proper objection, because of prejudicial remarks of the judge in this connection, will not preclude the party prejudiced thereby from complaining thereof after verdict, in the event the finding of the jury be adverse to him." The present rule is that "[t]he question of whether [§ 17-8-57] has been violated is not reached unless an objection or motion for mistrial is made." State v. Griffin, 240 Ga. 470, 241 S.E.2d 230 (1978). Accord Ford v. State, 255 Ga. 81(2), 335 S.E.2d 567 (1985). We therefore find that Walker waived the right to contend that the court violated § 17-8-57. This part of Enumeration Three has no merit.
(b). Walker also alleges in Enumeration Three that the same comment by the trial court violated his due process rights under the state and federal constitutions. However, as with his contention concerning § 17-8-57, Walker did not raise this issue at trial, and therefore has forfeited the right to subsequently assert it.
Moreover, for the following reasons, we find no substantive merit in his due-process contention. The colloquy in which the comment occurred is as follows:
The court: Why ask that?
Mr. Word (defense counsel): Your honor, I'm trying to make sure race isn't an issue in this case.
The court: Ask them that question, and if there's any response you can ask that.
Mr. Mallory (the district attorney): Is he asking if race is an issue, your honor, is that the question?
The court: Yes, sir.
....
The court: I don't think you can ask them. I think you can ask about racial prejudice, if race is an issue. The defendant is the one that's injected race into the case. The state hasn't.
(Emphasis supplied.)
Walker argues that the emphasized comment "put a chill on the voir dire process, denying the defendant an opportunity to get a racially unbiased jury in denial of his [due process] rights...." However, Walker limits his argument to this conclusory allegation; he does not attempt to explain how the court's remark limited his opportunity to obtain a racially unbiased jury.
If Walker means to contend that the court's comment somehow abridged the scope or effectiveness of his voir dire questions, the record does not support that assertion. As we concluded in Division Two, supra, Walker had a fair and adequate opportunity during voir dire to explore the prospective jurors' possible racial biases.
If Walker is asserting that the court's comment prejudiced the minds of the jurors against him, this assertion likewise has no merit. One reason is that the record does not indicate that the court's comment in fact prejudiced the jurors. A second reason is that Walker has not explained how the comment, on its face, was prejudicial. Finally, the court cured the error, if any, at the end of trial when it instructed the jury as follows:
I want to say to you, by no ruling or comment which the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case, or upon the credibility of the witnesses, or upon the evidence, or upon the guilt or innocence of the defendant.
For the foregoing reasons, we conclude that the due-process argument of Enumeration Three has no merit.
4. Contrary to the fourth enumeration of error, the verdict was not incomplete.
5. In his next enumeration, the fifth, Walker aruges that the trial court erred by refusing to charge the jury on voluntary manslaughter as a lesser-included offense of felony murder. However, we find that this enumeration has no merit, because an intent to kill is an essential element of voluntary manslaughter, and the defendant's own testimony shows that he did not intend to kill Frentheway.
"Intent to kill is an essential element of both murder and voluntary manslaughter." Parks v. State, 254 Ga. 403, 414(12), 330 S.E.2d 686 (1985). 2 At trial Walker testified as follows:
Q. At the time you first pulled out your knife there at the first spot you've marked, 3 did you intend to stab anyone?
A. No, sir, I didn't.
Q. What [were] your intentions with that knife?
A. To make sure that they didn't harm me.
Q. Were you afraid they were going to harm you?
A. Yes, sir.
Q. And, when you swung the knife the second time, 4 did you intend to stab anybody?
A. No, sir, I didn't.
Q. What did you...
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