Walker v. State, 090319 GASC, S19A0540

Docket Nº:S19A0540
Opinion Judge:BOGGS, JUSTICE.
Case Date:September 03, 2019
Court:Supreme Court of Georgia




No. S19A0540

Supreme Court of Georgia

September 3, 2019


Appellant Orsley Walker appeals his convictions for felony murder and a firearm offense in connection with the shooting death of his girlfriend, 53-year-old Constance Cox. He contends that the trial court erred in denying his motions for a mistrial after the State introduced evidence of hearsay statements by Cox through the testimony of Cox's daughters in violation of a trial court order and that he was denied the effective assistance of counsel due to his trial attorneys' failure to object and move for a mistrial when the State introduced evidence of another hearsay statement by Cox through the testimony of her son-in-law. Appellant also contends that the trial court erred in overruling his objections to the State's line of questioning on redirect examination of the lead detective about the detective's experiences with suspects in other cases. We affirm.1

1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. Appellant and Cox dated for about two years. Eight to ten times a year, Cox would call her younger daughter, Constance Nunnally, upset and sometimes crying, and ask to be picked up from Appellant's house. Nunnally would go or send her husband. About a year before the fatal shooting, Cox called Nunnally, very upset, and asked to be picked up again. When Nunnally's husband arrived at Appellant's house, Cox was crying and very emotional. As Nunnally's husband put it, "You could feel the tension," and because of Cox's crying and emotional state and the tense atmosphere at Appellant's house, he asked Appellant if Appellant had shot Cox. Appellant replied, "I have the right to defend my house." Nunnally's husband then asked Cox to show him where she was hurt, and she pulled up her shirt, revealing a wound in the middle of her back. He again asked Appellant if he had shot Cox, and Appellant again replied, "I have the right to defend my house." Cox then left with her son-in-law but refused to go to a hospital or police station.

At the time, Nunnally and her husband lived in the apartment directly above Cox's, and he took Cox to their apartment, where Nunnally was waiting. Cox, who was drunk, walked in and stumbled onto the couch. Nunnally saw a hole in the back of Cox's shirt and pulled up the shirt. When Nunnally saw the wound on Cox's back, she said, "We need to call the police and get him locked up." Nunnally called her older sister, Furaha Quinn, who came over. Nunnally, her husband, and Quinn kept checking the wound on Cox's back and tried without success to get Cox to go to the hospital. Nunnally eventually called for an ambulance, but when the emergency medical technicians ("EMTs") arrived, Cox refused treatment, instead going downstairs to her apartment and closing the door. A couple weeks later, Cox went back to Appellant, and the periodic calls asking to be picked up from his house resumed.

On Christmas Eve 2011, Appellant and Cox went to a get-together at the home of Michael Perkins, Appellant's friend of 30 years. On the way there, Appellant and Cox stopped at a liquor store. They bought cigarettes and what Appellant and Perkins described as "Christmas liquor" - a pint of brandy and a 12-pack of beer for Appellant and Cox to share on Christmas Day. Appellant and Cox spent the next several hours getting drunk with Perkins. Cox, who was described by a friend as "very loving" when she drank, went out to Appellant's car several times to get beer. Around midnight, Appellant and Cox left Perkins' house and got into an argument in the car. Cox asked Appellant to drop her off at her apartment, which was not far from Perkins' house. Appellant drove to the apartment complex and pulled into a parking space, and Cox got out of the car. She then went into the back seat and picked up her purse, what was left of the box of beer, the pint of brandy, and the bag containing the cigarettes. Appellant said, "You can't take this here," and tried unsuccessfully to stop her. Appellant then got out of the car with his loaded .38 revolver and confronted Cox. During the confrontation, he pulled the trigger on the revolver once, shooting Cox in the face at close range. The bullet traveled straight through Cox's head and lodged in the back of her brain, instantly incapacitating her. Appellant then walked back to his car, put the gun inside, and got out his cell phone. Appellant called Perkins and said that he had just shot Cox, and Perkins told him to hang up and call 911.

Appellant called 911 from his cell phone at 12:15 a.m. on Christmas Day. He told the 911 dispatcher, "I just shot my girlfriend," repeating the same sentence twice more. Appellant told the dispatcher that he thought Cox was dead and said, "I'm the one that shot her. I'm the one that shot," but he claimed that Cox "started fighting and tried to take the, take the gun away from me and it went off and it hit her in the head." Appellant said, "I'll tell the police what happened," gave the dispatcher the address, and described his car and what he was wearing. Appellant was still on the phone with 911 when the police arrived. No blood was visible on Appellant, he did not appear to be injured, and the police took him into custody. Cox was pronounced dead at the hospital at 12:45 a.m. Nunnally and her husband were still up wrapping Christmas presents at their house when Nunnally's aunt came to get Nunnally and take her to the hospital.

A few hours after the shooting, Appellant waived his Miranda rights and spoke with J. Thorpe, Jr., the lead detective on the case. See Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966). In the interview, which was video-recorded, Appellant claimed that when he told Cox to stop after she picked up her purse, the pint of brandy, the box of beer, and the bag with the cigarettes from the back seat, she "turned around," walked back to the car, opened the console in the front seat, and took out his .38 revolver. Appellant told Detective Thorpe, "Hey, I didn't want her to get ahold of that pistol." Appellant claimed that he climbed over the console and clambered out the passenger-side door after Cox and "took the pistol away from her." Appellant said that the two of them were "out there in that parking lot," and he heard a loud bang and saw Cox fall down.

At trial, the medical examiner who performed the autopsy on Cox testified that there was a ring of gunpowder and soot around the entry wound on Cox's face, which meant that the revolver was within a few inches of her face when it was fired. An expert in firearms identification testified that due to rust, dirt, and debris on the double-action revolver, it would have taken an unusually large amount of pressure - more than 15 pounds - to pull the trigger without the hammer cocked, but only 3.5 pounds of pressure to pull the trigger if the hammer was cocked. The State played an audio recording of the 911 call and the video recording of Appellant's interview for the jury, and numerous photographs of the crime scene showing the locations of the various objects that Cox picked up out of the back seat were admitted into evidence. In addition, Nunnally, Quinn, and a childhood friend of Cox testified that they had never seen Cox with a gun.

Appellant did not testify at trial. The defense's theory was that the shooting was an accident, and that the revolver went off during a struggle as Appellant tried to take it away from Cox for her own safety. The jury was instructed on accident.

Appellant does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citations omitted)).

2. Appellant's arguments on appeal primarily relate to hearsay statements that Cox made after she was wounded in the back at Appellant's house about a year before the fatal shooting. Before trial, the State filed a notice of intent to introduce evidence of several of those statements under the residual exception to the rule against hearsay, OCGA § 24-8-807.2 The relevant parts of the notice said that the State intended to present testimony from Nunnally that Cox refused treatment when the EMTs arrived at the Nunnallys' apartment; testimony from Quinn that Cox said that Appellant shot at her but missed; and testimony from Nunnally's husband that Cox told him when he arrived at Appellant's house that Appellant had fired a shot at her. In a motion in limine concerning other matters, Appellant responded to the State's notice.

After jury selection but before opening statements, the trial court heard argument on the State's notice and Appellant's response. The court took the issue under advisement during a lunch recess and then entered a written order finding that Cox's hearsay statements lacked sufficient circumstantial guarantees of trustworthiness to be admitted into evidence under OCGA § 24-8-807. The order concluded, "the State's request to introduce the statements [by Cox] referred to in the Notice is denied." After a brief recess to prepare its witnesses, the State sought clarification of the...

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