Walker v. State

• Decision Date: 19 November 2018
• Docket Number: A18A1439
• Citation: 348 Ga.App. 273,821 S.E.2d 567
• Court: Georgia Court of Appeals
• Parties: WALKER v. The STATE.

348 Ga.App. 273

821 S.E.2d 567

WALKER

v.The STATE.

A18A1439

Court of Appeals of Georgia.

November 19, 2018

James Todd Mitchell, Austell, for Appellant.

Joshua Bradley Smith, Augusta, Henry Wayne Syms Jr., for Appellee.

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, OCGA § 16-11-106 (b) (1) ; family violence battery, OCGA § 16-5-23.1 (a), (f) ; and cruelty to children in the third degree, OCGA § 16-5-70 (d). Following the denial of his motion for a new trial, Walker appeals, contending that the verdict must be set aside because it was based on perjured testimony. In addition, he contends that the evidence was insufficient to find that he possessed a knife during the offenses at issue, that the trial court erred in admitting his statement to investigators, and that the trial court erred in charging the jury regarding the elements of the offense of family violence battery. For the reasons explained below, we affirm.

1. Walker contends that the only evidence that he possessed a knife during a crime against a person, as charged, was the testimony of the battery victim, which she later testified had been a lie. He argues that, as a result, there was insufficient evidence to support a guilty verdict for possession of a knife during the commission of a crime. On appeal from a criminal conviction, the appellate court

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 S.Ct. 2781, 61 L.Ed.2d 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 S.E.2d 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 testified that, as a result of the blows to her head, her eardrums were ruptured and she had a black eye, a split lip, and facial swelling. This beating was the culmination of four years of physical abuse which often included threats with weapons, with each attack being followed by a cooling off period and an apology from Walker. The victim testified that she stayed with Walker despite the abuse because she loved him and wanted the children to have their father. She also testified that she felt that she provoked Walker’s abuse. The victim stated that she did not want to testify against Walker and was only in court because the police went and brought her in after she failed to report to court per the subpoena. She testified that prosecutors threatened to lock her up and put her children in foster care if she did not testify.

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 Walker’s defense attorney and members of his family and decided to testify in Walker’s defense. Upon being called by the defense, the victim testified that parts of her testimony on the first day of the trial had been a lie. She reiterated that she felt pressured to testify against Walker by threats that her children would be taken away from her if she changed her story from her pretrial statement. The victim confirmed that she woke up that day to Walker slapping her in the face, but she blamed a fistfight with another woman for the visible injuries to her face. She testified that her son who testified on the first day did see Walker hit her that day, but also testified that her son was a liar. She specifically denied that Walker had used a knife and threatened to kill her and the baby, and she stated that she did not want him prosecuted for that.

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 day while the trial was still in progress, the jury was authorized to find Walker guilty beyond a reasonable doubt of the crimes charged. Pierre v. State , 330 Ga. App. 782, 784 (1), 769 S.E.2d 533 (2015).

2. Walker contends that the verdict was based on the perjured testimony of the battery victim and must be set aside pursuant to OCGA § 17-1-4.² As the Supreme Court of Georgia has explained,

[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 S.E.2d 82 (2017). See also Fugitt v. State , 251 Ga. 451, 452-453 (1), 307 S.E.2d 471 (1983) (considering OCGA § 17-1-4 in conjunction with former OCGA § 24-9-85³ ).

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 that Walker threatened to kill her and the children and brandished a knife at her and that she testified falsely to the opposite effect on the second day of trial. The victim entered a negotiated guilty plea to the second count of perjury and received probation under the First Offender Act, OCGA § 42-8-60 et seq.

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 OCGA § 17-1-4 speaks in terms of whether a verdict could have been obtained "without the evidence of the perjured person " (in this case, the victim), rather than in terms of the perjured testimony (in this case, the victim’s exculpatory testimony) and, based on this, that there is no evidence that he possessed a knife. But, as quoted above, the Supreme Court has explained that the issue is whether the verdict could have been obtained without the perjured testimony . Lewis v. State , 301 Ga. at 762-763 (2), 804 S.E.2d 82. Because, in the words of the statute, the verdict in this case was not obtained "in consequence of corrupt and willful perjury,"⁵ but rather despite the victim’s perjury, OCGA § 17-1-4 does not provide a basis for setting aside the judgment in this case. Nations v. State , 290 Ga. 39, 41 (2), 717 S.E.2d 634 (2011) ; Richardson v. Roberts , 25 Ga. 671, 675 (1858).

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 clear that when an individual in custody indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, that individual has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion. In this regard, [the Supreme] Court [of Georgia] has held that an assertion of the right to remain silent during custodial interrogation must be unambiguous and unequivocal before interrogators are required to stop their questioning. Resolution of that question depends on whether the accused articulated a desire to cut off

...