Walker v. State

• Decision Date: 22 January 2007
• Docket Number: No. S06A1625.,S06A1625.
• Parties: WALKER v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 521

640 S.E.2d 274

WALKER v. The STATE.

No. S06A1625.

Supreme Court of Georgia.

January 22, 2007.

Charles H. Frier, Atlanta, GA, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Elizabeth A. Baker, Asst. Dist. Atty., Bettieanne C. Hart, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., for Appellee.

HUNSTEIN, Presiding Justice.

Chauncey Lopez Walker was convicted of felony murder and aggravated assault in the beating death of Alvin Roberts. He appeals from the denial of his motion for new trial.¹ Finding no reversible error, we affirm.

1. The evidence adduced at trial authorized the jury to find that two days before the charged crimes, Roberts robbed and humiliated appellant. Appellant reported the robbery but on the morning of the crimes he met with police and learned they had no immediate plan to arrest Roberts. Directly after this meeting, appellant had his girl-friend drive him to a neighborhood Roberts frequented. After appellant exited the car, he armed himself with a piece of metal fence pipe and walked to a home owned by Dorothy Mims, who was resting with her five-year-old nephew in a bedroom where Roberts sat asleep on a nearby chair. Appellant attacked the resting man with the metal pipe, hitting him at least twice and leaving Roberts limp and unable to defend himself. Mims testified that when Roberts inquired why appellant was hitting him, appellant cursed and replied that Roberts had robbed him. When Mims protested the attack, appellant apologized to her, then kicked and dragged Roberts outside, where he stripped Roberts of most of his clothing claiming it had been purchased with the money Roberts stole from him. Before appellant departed he left the police report of the robbery incident on Roberts' chest. Appellant voluntarily called police about the incident shortly thereafter. Roberts died from blunt force trauma of the head and brain; the forensic pathologist who examined the body found no defensive wounds to indicate any effort by Roberts to block the blows or fight back.

Although appellant, in statements to police and at trial, asserted that he did not expect to find Roberts at Mims' house and struck Roberts only after Roberts pulled out a hand gun, the credibility of witnesses and the question of justification are matters for resolution by the jury; therefore, the jury was free to reject the claim that appellant struck Roberts in self-defense. See Price v. State, 280 Ga. 193(2), 625 S.E.2d 397 (2006). The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the felony murder of Roberts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant enumerates two alleged errors arising out of voir dire. Contrary to appellant's argument, the trial court did not err by ruling it improper for appellant to ask the jury pool whether they would "give [appellant's] testimony less weight." See Cox v. State, 248 Ga. 713(3), 285 S.E.2d 687 (1982) (proper to disallow question that invades province of jury to determine individual credibility in context of entire case); Ganas v. State, 245 Ga.App. 645(2), 537 S.E.2d 758 (2000) (proper to disallow question regarding credibility of witnesses who are parties). We find no abuse of the trial court's discretion over the scope of voir dire when it declined to allow appellant to question a proposed juror regarding the irrelevant issue whether the juror had children of the same ages as appellant and the victim.² See generally Ramirez v. State, 279 Ga. 569(5), 619 S.E.2d 668 (2005) (trial court's discretion in voir dire upset only if manifestly abused).

3. Appellant contends the trial court erred by denying his Batson challenge³ regarding Jurors Nos. 3, 5 and 43, who, according to the prosecution, were struck, inter alia, because of their youth,⁴ the involvement of their friends or family members in criminal matters,⁵ or, in the case of Juror 43, the expression of an extreme personal bias against drug dealers in a case where the victim and most of the State's witnesses were involved in the drug trade.⁶ Assuming, arguendo, that appellant established a prima facie case of purposeful discrimination, and according the trial court's finding that there was no violation of Batson with the great deference to which it is entitled, see Scott v. State, 280 Ga. 466(2), 629 S.E.2d 211 (2006), we find that the trial court did not clearly err by concluding that the State's reasons for striking Jurors Nos. 3, 5 and 43 were race-neutral, non-discriminatory and sufficient. See generally Flanders v. State, 279 Ga. 35(2), 609 S.E.2d 346 (2005).

4. While the res gestae exception to the hearsay rule clearly did not support the trial court's decision to admit certain testimony by Officer Brown, in which he related statements made to him by witness Mims during his investigation of the crime regarding comments she claimed she overheard appellant make during the attack on the victim, see OCGA § 24-3-3; compare Cox v. State, 274 Ga. 204(3), 553 S.E.2d 152 (2001), no reversible error was committed by the admission of Officer Brown's hearsay testimony because it was cumulative of Mims' admissible testimony regarding the same comments. See Wiggins v. State, 280 Ga. 627(2)(b), 632 S.E.2d 80 (2006).

5. We agree with appellant that the prosecuting attorney engaged in improper argument during closing.⁷ The prosecutor's statement, claiming that appellant would have denied being at the crime scene had not crime lab testing revealed the presence of the victim's blood on appellant's pants, was not an inference reasonably drawn from the evidence, which showed that appellant spoke to an eyewitness he knew at the crime scene; left on top of the victim's body the police report regarding the robbery that identified appellant by name; and voluntarily telephoned police shortly after the incident about his involvement in the incident. The transcript also reveals that although the prosecutor's statement began as reasonable rebuttal to defense argument regarding the State's failure to test additional clothing for the victim's blood, the statement improperly expanded into matters not in evidence. Defense counsel objected to the misstatement when made but the trial court overruled the objection with no further comment or instruction to the jury. The trial court thus failed to perform the duty imposed by OCGA § 17-8-75. ⁸

However, "[a]lthough such a failure can constitute reversible error ([cit.]), the error is subject to application of harmless error analysis. [Cit.]" Fincher v. State, 276 Ga. 480, 482(4), 578 S.E.2d 102 (2003). Because the improper statement involved speculation about a potential defense appellant clearly did not assert at trial, because it consisted of only one sentence spoken simultaneously with defense counsel's prompt objection, and because the trial court in preliminary instructions before closing told the jury that the argument of counsel was not evidence, we conclude that it is highly probable that the trial court's error in failing to sustain appellant's objections and perform its duty under OCGA § 17-8-75 did not contribute to the verdict. See Fincher, supra.

6. Appellant contends the trial court erred by failing to charge the jury on the lesser included offense of voluntary manslaughter. Voluntary manslaughter occurs when a defendant kills a person "under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." OCGA § 16-5-2(a).

While jury charges on self-defense and voluntary manslaughter are not mutually exclusive ([cit.]), the provocation necessary to support a charge of voluntary manslaughter is different from that which will support a claim of self-defense. [Cit.] "The distinguishing characteristic between the two claims is whether the accused was so influenced and excited that he reacted passionately rather than simply in an attempt to defend himself. Only where this is shown will a charge on voluntary manslaughter be warranted." [Cit.]

Yates v. State, 274 Ga. 312, 317(3), 553 S.E.2d 563 (2001). We do not agree with appellant that his own testimony presented some evidence to support a voluntary manslaughter charge, as the transcript reveals only that appellant claimed he froze upon seeing Roberts; that he "protected [him]self" when he saw Roberts trying to pull a gun out of his pocket by swinging the pipe to make Roberts drop the gun; and that he removed Roberts' clothing because the items had been purchased with money Roberts obtained from appellant.

"A trial court is not required to give a charge on voluntary manslaughter when a defendant's own testimony shows unequivocally that he was not angered or impassioned when the killing occurred, and when the other evidence does not show otherwise. [Cits.]" Yates, supra, 274 Ga. at 317(3), 553 S.E.2d 563. See also Bell v. State, 280 Ga. 562(5)(a), 629 S.E.2d 213 (2006). We conclude that the trial court's refusal to charge on voluntary manslaughter was not error because evidence of a sudden, violent, and irresistible passion resulting from serious provocation was lacking.⁹

7. In his final enumeration, appellant contends his trial counsel was ineffective for failing to produce at trial the sworn testimony an unavailable witness had given at a preliminary hearing. The witness, Angela Hood, had testified that she and her friend, Angel Walker, were in Mims' house at the time of the crimes; that the two women saw Roberts, awake and on his feet, struggling with appellant; and that Roberts had a gun, which fell to the floor during the struggle and was kicked aside. At the hearing on appellant's motion for new trial, counsel was questioned about her decision not to use Hood's corroborating pre-trial testimony. Counsel...