Faulkner v. State

Decision Date19 May 2014
Docket NumberNo. S14A0404.,S14A0404.
Citation758 S.E.2d 817,295 Ga. 321
CourtGeorgia Supreme Court


Russell Knighton Walker, Russell K. Walker, P.C., Perry, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Andrew George Sims, Asst. Atty. Gen., Department of Law, Marie R. Banks, Asst. Dist. Atty., Daniel Patrick Bibler, Deputy Chief Asst. Dist. Atty., George Herbert Hartwig, III, Dist. Atty., Houston County District Attorney's Office, for appellee.


Kevin Wayne Faulkner was tried by a Houston County jury and convicted of murder and other crimes in connection with the fatal shooting of Emmanuel Dawson. Faulkner appeals, contending that the evidence is legally insufficient to sustain his convictions, that the trial court erred when it excluded certain testimony at trial, that the trial court erred in its charge to the jury, that he is entitled to a new trial based on newly discovered evidence, and that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we see no error, and we affirm.1

1. Viewed in the light most favorable to the verdict, the evidence shows that Faulkner had often purchased crack cocaine from Dawson. On May 30, 2008, Faulkner stole his girlfriend's .22 caliber pistol. Soon afterwards, Dawson was seen getting into the passenger seat of Faulkner's van, and Faulkner drove away. While in the van, Dawson was shot just above his left ear with a .22 caliber gun, and his body was left on the side of a dirt road in Houston County. Faulkner abandoned his van in Peach County, called 911, and told law enforcement officers that he had been kidnapped by Dawson and others. In subsequent interviews, Faulkner said that, when Dawson did not want to trade crack cocaine for the gun, they picked up an unknown third person who got into the back seat, bought the gun from Faulkner, and used it to shoot Dawson. Bloodstains on Faulkner's jeans matched Dawson's DNA. Faulkner testified at trial, finally identifying the third person he claimed to have committed the crimes as Dwayne Crew. Faulkner also testified that he—at Crew's direction—helped move Dawson's body from the van and searched Dawson's pockets and socks, taking money from a pocket.

(a) On appeal, Faulkner contends that the evidence is legally insufficient to prove beyond a reasonable doubt that he is guilty of the crimes of which he was convicted. In support of this contention, Faulkner relies primarily on the testimony of three prison inmates, to whom Crew confessed to shooting Dawson while Crew and the inmates were together in the same jail. But that testimony was impeached by various methods. And another inmate testified that Faulkner admitted that he had shot Dawson in the head and dumped his body on the side of the road. Moreover, before and during trial, Crew himself consistently denied having been in the van or having had any involvement in Dawson's death. And none of the physical evidence proved that Crew was in the van. It is for the jury as the finder of fact “to resolve conflicts in the evidence and questions of witness credibility.” Tolbert v. State, 282 Ga. 254, 256(1), 647 S.E.2d 555 (2007) (citation omitted). In this case, “the jury, after considering all of the evidence, chose to believe the State's version and that [Faulkner's] witnesses were not credible.” Martinez v. State, 289 Ga. 160, 161(1), 709 S.E.2d 797 (2011). In all, the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Faulkner was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(b) Faulkner also contends that the State failed to prove that venue as to the murder lay in Houston County. A criminal case must be tried “in the county where the crime was committed,” Ga. Const. of 1983, Art. VI, Sec. II, Par. VI, and a murder generally is “considered as having been committed in the county in which the cause of death was inflicted.” OCGA § 17–2–2(c). “If it cannot be determined in which county the cause of death was inflicted, it shall be considered that it was inflicted in the county in which the death occurred.” Id. And [i]f a dead body is discovered in this state[,] and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.” Id. Moreover, if a crime is committed in any vehicle “traveling within this state [,] and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the ... vehicle ... has traveled.” OCGA § 17–2–2(e). See also Bulloch v. State, 293 Ga. 179, 188(4), n. 11, 744 S.E.2d 763 (2013) (OCGA § 17–2–2(e) applied where crime was murder). Faulkner has conceded that the homicide of Dawson was committed in a moving vehicle and that Dawson's body was found in Houston County. There was no clear evidence that the fatal injury was inflicted anywhere other than Houston County. Accordingly, the State sufficiently proved venue as to the murder. See Walton v. State, 293 Ga. 607, 609(2), 748 S.E.2d 866 (2013).

Faulkner argues, however, that the State could not have proven venue under the provisions OCGA § 17–2–2(c) (homicide) or OCGA § 17–2–2(e) (moving vehicle) because there was no jury charge on those provisions. But any deficiency in the jury charge does not control the separate question of whether the proof of venue was sufficient. See Lanham v. State, 291 Ga. 625, 626–627(2), (3), 732 S.E.2d 72 (2012). Cf. Thompson v. Brown, 288 Ga. 855, 856, 708 S.E.2d 270 (2011) (a habeas appeal where the warden's argument based on OCGA § 17–2–2(e) was waived because it was neither raised in a jury charge at trial nor argued by the warden before the habeas court). And to the extent that Faulkner is complaining of the lack of a jury charge on OCGA § 17–2–2(c) and (e), it appears that such a complaint is not properly before us because, unlike the allegedly insufficient evidence of venue, it was not enumerated as error. See Scott v. State, 302 Ga.App. 111, 113(1)(b), 690 S.E.2d 242 (2010) (relying on Felix v. State, 271 Ga. 534, 539, n. 6, 523 S.E.2d 1 (1999)). Even if Faulkner has properly complained about the jury charge, his claim is without merit. While we continue to urge trial courts to give appropriate charges on venue tailored to the facts of the case, see Lynn v. State, 275 Ga. 288, 290(3), 565 S.E.2d 800 (2002), the failure to give such a charge on venue does not require a new trial. See Lanham, 291 Ga. at 627(3), 732 S.E.2d 72;Shahid v. State, 276 Ga. 543, 544(2), 579 S.E.2d 724 (2003). In this case, the trial court did charge that “criminal actions shall be tried in the county in which the crime was committed. Venue, that is that the crime was committed in Houston County, is a jurisdictional fact that must be proved by the State beyond a reasonable doubt, as to each crime charged in the Indictment, just as any element of the offense.” Additional clarification that venue could be proper in the county where Dawson's body was found or in a county through which the vehicle traveled would only have benefitted the State.

2. We turn next to Faulkner's claim that the trial court erred when it excluded an officer's expected testimony that Crew would do anything to be placed in the same disciplinary “pod” at the jail as Faulkner. Crew did not make any statement to this effect; the officer was merely expected to testify to his opinion based on behavioral problems with Crew. And after a proffer of that testimony, the trial court excluded it as an improper and speculative opinion about Crew's state of mind. See former OCGA § 24–9–65.2 The opinions of lay witnesses “are admissible only when it is necessary in order for a witness to convey those same observations to the jury. A lay witness may not state his opinion when the facts relied upon by the witness can be clearly described for the jury, and the jury can rely upon those same facts and reach its own opinion.” Hines v. State, 276 Ga. 491, 494(4), 578 S.E.2d 868 (2003) (punctuation and footnotes omitted). The admission or exclusion of lay opinion evidence is committed to the sound discretion of the trial court, and we will not interfere with such a ruling absent an abuse of that discretion. See Durham v. State, 281 Ga. 208, 211(4), 636 S.E.2d 513 (2006); Hines v. State, 320 Ga.App. 854, 862(3), 740 S.E.2d 786 (2013).

In this case, the opinion testimony that Faulkner sought to introduce related to the intent or motivation for Crew's misbehavior in jail. “While opinion evidence of state of mind or mental condition may be admissible, usually opinion evidence as to one's motives or intent is not. Intent is something which exists in the human mind and can be manifested only by external acts from which an inference of intent will arise.” Michaels v. Gordon, 211 Ga.App. 470, 473(2)(a), 439 S.E.2d 722 (1993) (citations and punctuation omitted). See also Cohen v. Hartlage, 179 Ga.App. 847, 849–850, 348 S.E.2d 331 (1986); Paul S. Milich, Ga. Rules of Evidence § 15:2 (“lay witnesses are usually not allowed to render opinions as to the intent or motives of others”) (footnote omitted). We find no abuse of discretion in the ruling that excluded opinion testimony that the intent or motive for Crew's misbehavior in jail was to obtain placement in the same part of the jail as Faulkner.

3. Faulkner also contends that the trial court erred when it denied a new trial based on newly discovered evidence. At a hearing on Faulkner's motion for new trial, Gregory Fields testified that he first met and talked with Faulkner in prison, but that some years ago, he had seen...

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