Byers v. State

• Decision Date: 05 April 2021
• Docket Number: S21A0296
• Citation: 311 Ga. 259,857 S.E.2d 447
• Court: Georgia Supreme Court
• Parties: BYERS v. The STATE.

311 Ga. 259

857 S.E.2d 447

BYERS

v.The STATE.

S21A0296

Supreme Court of Georgia.

Decided: April 5, 2021

John R. Monroe, for appellant.

B. Alison Sosebee, District Attorney, Elizabeth B. Mackey, Nicholas D. Nunn, Jessica G. Cantrell, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

Peterson, Justice.

Christopher Byers appeals his convictions for malice murder, aggravated battery, concealing the death of another, abandonment of a dead body, and tampering with evidence, all related to the killing of Ray Walnoha.¹ Byers's primary enumeration of error is that the trial court erred by excluding inculpatory statements by another man involved in the crimes, overheard by a defense witness. Byers also argues that his conviction for aggravated battery was not supported by sufficient evidence, and that, alternatively, that count should have merged into his malice murder conviction, and that his sentence for the crime of tampering with evidence should have been that of a misdemeanor. We agree that the tampering count should have been treated as a misdemeanor, and so we vacate Byers's conviction on that count and remand the case for resentencing. We conclude that any error in failing to admit the defense witness testimony at issue was harmless, and that the evidence was sufficient to support a conviction for aggravated battery on which the trial court properly entered a separate sentence, and we therefore affirm Byers's other convictions.

Byers's convictions are predicated on evidence that he killed Walnoha with an ax at the Pickens County home of Arnold Griffith, Jr. The killing occurred sometime in late July 2014. Walnoha's body was never found.

After Byers was taken into custody on an unrelated warrant in the fall of 2016, he admitted to an investigator that he twice struck Walnoha in the head with an ax while Walnoha slept on a couch on Griffith's porch, claiming that Walnoha intended to kill and rob Griffith and his family. Byers claimed that he then told Griffith that Walnoha was dead; Walnoha was still alive, however, having managed to crawl into the yard. After finding Walnoha in the yard, Byers claimed, Griffith struck Walnoha with the ax in the back of the neck. Byers admitted that he buried Walnoha's body in the woods with Griffith, cleaned up the crime scene, and took Walnoha's car, while Griffith cleaned off the ax. Byers also made incriminating statements to fellow inmates; one inmate testified that Byers told him that Walnoha was "twitching" or "kind of convulsing" when Byers and Griffith found him in the yard.

Griffith, who pleaded guilty to various charges related to Walnoha's death prior to Byers's trial, testified that, on the day Walnoha was killed, Byers summoned him to look out into the yard, where, Byers reported, Walnoha was "dying." Griffith testified that he observed that Walnoha was sitting in the yard, "swaying." Griffith testified that he told Byers he would have to "do something" and then looked away, whereupon he heard what he presumed to be the sound of Byers killing Walnoha with an ax. Griffith admitted that he helped Byers clean up the crime scene, including using bleach on the porch, cleaning off the ax, and burying the body in the woods nearby. Griffith testified that Byers later told Griffith that he had moved the body but did not say where.

Byers's admissions and Griffith's statements as to Byers's involvement in Walnoha's death were corroborated by other evidence. On July 23, 2014, Byers's sister and mother saw Walnoha and Byers together in Walnoha's car. Sometime in the next few days, Byers's mother saw Byers driving Walnoha's car. Byers showed his mother that he had Walnoha's wallet, driver's license, and cell phone, and reported that Walnoha had given him the car and was with his girlfriend in Tennessee. Byers, who was acting strangely, showed his mother what she called a "hatchet" that was in the trunk of the car. On July 28, 2014, Walnoha's car was involved in an accident and found abandoned about two miles from the crash site. Byers's DNA was recovered from blood on the driver's side airbag of the car.

Several months after Walnoha disappeared, Byers visited Walnoha's brother and the brother's girlfriend, telling her, "I don't think you'll ever have to worry about Ray knocking on the door again." In March 2016, Byers asked Walnoha's sister for help with legal trouble involving a car accident, asking her to testify that Walnoha never let anyone drive his car. Byers told the sister that her brother had met "some girl" and was in Kentucky.

The investigation into Walnoha's disappearance was sparked in earnest in May 2016 when sheriff's deputies visited Griffith's home while investigating an unrelated matter. William Bartlebaugh, who was staying at Griffith's house, showed deputies a purported burial site near the home. Griffith also went with police and identified a place on a trail near the home as the place where Walnoha had been buried. A cadaver dog alerted to the same location. In a nearby burn barrel, agents found small bones, consistent with finger or foot bones, but too small for agents to test for DNA or even determine whether they were human remains. Agents also saw an area of the ground that appeared to have been disturbed, consistent with a very shallow grave.

GBI agents found that floorboards of a porch on Griffith's house had been bleached and that a wall was discolored and tested positive for the presence of blood. Inside the house, agents found a license plate that matched Walnoha's car. They also collected an ax from the nearby home of Griffith's sister, Marjorie Babcock, that matched the description of the murder weapon later given by Byers.

After his arrest in the fall of 2016, Byers identified as Walnoha's burial site the same place near Griffith's home that Griffith and the cadaver dog had identified.

1. Byers first argues that the trial court erred in excluding evidence proffered by the defense that Griffith had admitted killing Walnoha. We conclude that any error in this evidentiary ruling was harmless.

The defense proffered that Griffith's brother-in-law, Wesley Babcock, would testify that he overheard Griffith's inculpatory statements over a baby monitor that Wesley had set up in the room of his wife, Marjorie. Wesley testified that he used the baby monitor as part of his efforts to care for his wife, who was unwell, and he began to testify about a visit by Griffith to his sister in her bedroom about a month before her death in December 2017. Citing OCGA § 16-11-62 and general expectations of privacy in a bedroom, the trial court sustained the State's objection to Wesley's testimony about what he overheard via the baby monitor that day. The defense proffered for the record that Wesley would have testified that he heard Griffith tell his sister that Byers hit Walnoha with the ax first, before Griffith "finished him off and put him out of his misery."

We need not, and do not, decide whether the trial court properly concluded that Wesley's overhearing constituted a violation of OCGA § 16-11-62,² whether the State even had standing to raise such a violation in the scenario presented here, or whether a party may forfeit a challenge to standing of this sort by not raising it in a timely way before the trial court.³

It is fundamental that harm as well as error must be shown for reversal. The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In determining whether trial court error was harmless, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury's verdict.

Henderson v. State , 310 Ga. 708, 713 (3), 854 S.E.2d 523 (2021) (citations and punctuation omitted). See also OCGA § 24-1-103 (a) ("Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...."). Any error in excluding Wesley's testimony about what he overheard over the baby monitor was harmless, because it was highly probable that exclusion of the testimony did not contribute to the verdicts. The proffered testimony was cumulative of other evidence as to Griffith's involvement. Moreover, even if the jury had concluded that Griffith dealt the final blow to Walnoha, it still would have had strong evidence on which to convict Byers of the charged offenses, at least as a party to the crimes.

Even without Wesley's proffered testimony about Griffith's involvement, the jury heard other evidence, in addition to Byers's statements, that Griffith may have dealt the final blow that felled Walnoha in the yard. See Mitchell v. State , 293 Ga. 1, 3 (2), 742 S.E.2d 454 (2013) (exclusion of evidence harmless when cumulative of other evidence admitted at trial). Prior to Wesley's testimony, another witness who was housed with Griffith in jail testified that Griffith had referred to himself as "the ax murderer." Although that witness indicated that Griffith was "kidding," the defense also was able to elicit Wesley's testimony for the jury that on one occasion when he visited Griffith in jail, Griffith was "screaming and yelling and saying he murdered somebody."

Moreover, even if the jury had heard and credited Wesley's testimony about Griffith's involvement, and found that Griffith dealt the final blow, it is still highly probable that the jury would have concluded that Byers was guilty of Walnoha's murder and the other crimes of conviction, at least as a party to the crimes, as the evidence of Byers's guilt was very strong. See Keller v. State , 308 Ga. 492, 503 (5), 842 S.E.2d 22 (2020) (in the "light of the strong evidence of [appellant's] guilt," refusal to allow appellant's witness to testify was "harmless error,...