Walker v. State
| Decision Date | 14 March 1985 |
| Docket Number | No. 41246,41246 |
| Citation | 254 Ga. 149,327 S.E.2d 475 |
| Parties | WALKER v. The STATE. |
| Court | Georgia Supreme Court |
Richard A. Malone, Dist. Atty., Swainsboro, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., for the State.
This is a death penalty case. Richard Walker was convicted in Washington County of murder, burglary, and first degree arson. He was sentenced to death for the murder. The case is here on direct appeal, for review under the Unified Appeal Procedure (252 Ga. A-13 et seq.), and for the sentence review required by OCGA § 17-10-35. 1
In late April of 1983, Walker's wife filed for divorce. When Walker was served with the divorce papers, he became very angry and upset and stated that he had to "get out of town ... fast" or he would "do something bad." Walker told two co-workers that if his wife got custody of the kids, he would kill her.
On May 11, a temporary order was issued in the divorce case, awarding custody of the marital residence and the children to the wife. In addition, Walker was "restrained and enjoined" from going to his wife's residence and from "harrassing or contacting her in any manner."
Notwithstanding this order, Walker called his wife several times on May 12. He told her he "hated her ... guts." The calls ended around 11:30 p.m. Mrs. Walker put her two children to bed and locked the doors and windows.
Shortly before midnight, Walker arrived and demanded entry. He was refused, and he broke into the front door. Mrs. Walker heard something being poured onto the floor and smelled a strong odor of gasoline.
She ran across the hall to get her oldest son, Tony, but couldn't find him in the dark. As she ran to get her other son, she called to her husband, saying "please don't do it." Walker replied, "God damn it, it's too late now."
She heard a "whoosh," and soon the whole house was in flames. She threw her youngest son out the window and turned to get Tony, but the flames were too intense. She jumped out the window.
She had called her mother, Willie Mae Pearson, when Walker had first driven up. Mrs. Pearson lived nearby, and as she ran to the scene, she heard Tony saying: Then the house was on fire. When she learned that Tony was still inside, she went in after him. Walker left the house just before she entered, his hands and arms on fire.
Mrs. Pearson located Tony and brought him outside. His night-clothes had burned off him, and strips of skin hung from his body.
Four-year-old Tony was taken to a special burn unit at Humana Hospital in Augusta with third-degree burns (i.e., the skin was totally destroyed) over virtually the entire surface area of his body. Despite efforts there and later at the Shrine Burn Institute in Galveston, Texas, Tony died 21 days later.
Walker's burns were serious enough that he went to a hospital for treatment. The treating physician noted a smell of gasoline on Walker, and treated him for first and second degree burns on his face, his arms, and the backs of his hands.
Expert testimony was offered that the fire was started in the kitchen area by means of a large quantity of flammable liquid thrown about the room and ignited by an open flame, and that the kind of flash burns that Walker received were consistent with his having started such a fire.
A small pair of shoes found in the kitchen area was sent to the crime lab for analysis which confirmed the presence of gasoline.
It was shown that in 1972, Walker had shot his former wife in the back six times, killing her.
1. The evidence was sufficient to support the jury's verdict of guilty on Count 1 (murder), Count 2 (arson in the first degree), and Count 3 (burglary). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, Walker contends that since the jury was charged on both felony murder and malice murder and returned a verdict which did not specify which type of murder (malice or felony) it found, the verdict must be construed as a finding of felony murder, with the result that the underlying felony must be set aside.
The jury's verdict recited, in part, that it found Walker "guilty of Count 1--murder."
Count 1 of the indictment alleged that Walker did "unlawfully and with malice aforethought cause the death of Antonio Darrell Thompson, a human being, by means of arson ..."
The allegation that the murder was committed "by means of arson" was unnecessary to a charge of malice murder, and Count 1 therefore alleges both felony murder and malice murder. 2
In these circumstances, the jury's verdict of "guilty of Count 1--murder" was not an unambiguous finding of malice murder, and must be construed as one for felony murder, the underlying felony being that alleged in the indictment, i.e., arson. Burke v. State, 248 Ga. 124, 281 S.E.2d 607 (1981); Blankenship v. State, 247 Ga. 590(2), 277 S.E.2d 505 (1981).
The general rule is that "[a] defendant may not be convicted lawfully of felony murder and the underlying felony." Stone v. State, 253 Ga. 433, 434, 321 S.E.2d 723 (1984). See also, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). The state argues that this rule is inapplicable here since the felony murder and the underlying felony were committed on different victims, citing Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981). We disagree.
The rationale of Satterfield is not applicable to a case where, as here, "the count of the indictment alleging felony murder sets forth the underlying felony or felonies supporting the charge of felony murder." Id. at 541, 285 S.E.2d 3. Walker's 15th enumeration of error is meritorious, and his conviction on Count 2 must be reversed. Bolton v. State, 253 Ga. 116(1), 318 S.E.2d 138 (1984).
2. In enumeration 16, Walker contends that the conviction of burglary must be set aside because in this case it is a lesser included offense as a matter of fact of the arson and the felony murder. We disagree, and find no merit to this enumeration of error. Haynes v. State, 249 Ga. 119(2), 288 S.E.2d 185 (1982).
3. In his 17th enumeration, Walker complains of the admission in evidence at the guilt-phase of the trial that he had murdered his former wife in 1972. We find no error.
Both the prior incident and the crime on trial involved acts of violence by Walker towards his wives, stemming from marital difficulties. The prior incident was admissible to show malice, intent, motive and bent of mind. Gentry v. State, 250 4. Prior to trial, Walker moved for disclosure by the state of his parole file. This motion was denied, and in his first four enumerations of error, Walker complains of the court's denial of disclosure and the court's refusal to conduct an in-camera inspection of the file or to have the file sealed and preserved for appellate review. Walker further contends that OCGA § 42-9-53, on which the trial court relied to deny Walker's disclosure motion, is unconstitutional if it allows the suppression of exculpatory or potentially mitigating evidence in a death penalty case.
Ga. 802(1), 301 S.E.2d 273 (1983); Burke v. State, 250 Ga. 235, 297 S.E.2d 247 (1982).
We need not resolve the constitutional question, since the trial court has now reviewed the parole file (which has been sealed and forwarded to this court for appellate review) and has found that the only evidence therein that was substantially exculpatory or potentially mitigating was either "known to defendant's counsel prior to trial, ... or obtainable by defendant's counsel by other means." 3 Therefore, the court found, any possible error in the non-disclosure of the file was harmless.
The court's five-page findings are supported by the record, and we find no reversible error here.
5. Prior to trial, Walker requested funds for an examination by a private psychiatrist. Absent any showing that an examination at Central State Hospital would be inadequate, the court refused the request for funds. However, based on Walker's contention of a need for an examination, the court ordered that an evaluation be conducted by Central State. 4
Walker was examined for over three weeks at Central State by Dr. Gerald Lower. Besides personally observing and interviewing Walker, Dr. Lower talked to Walker's sister and to a deputy sheriff who knew Walker; he reviewed information which Walker's attorney had obtained from the Florida parole board, including previous mental evaluations conducted while Walker was in the Florida prison system; and he talked to several Georgia "parole officials."
Dr. Lower testified on behalf of the defense at the sentencing phase of the trial.
(a) In enumerations 5 and 6, Walker contends that the state failed to perform an adequate mental examination and that the court erred by refusing to grant funds for an examination by a private psychiatrist of Walker's own choosing.
Very recently, the United States Supreme Court addressed the question of psychiatric assistance for an indigent defendant, in an Oklahoma death penalty case. Ake v. Oklahoma, --- U.S. ----, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
Prior to trial, Ake underwent an evaluation at a state mental hospital to determine his competence to stand trial. He was found to be incompetent. However, with treatment his condition improved and he was pronounced ready for trial. At this point, his attorney moved for a psychiatric evaluation addressing defendant's sanity at the time of the crime. This motion was denied. As a result, no expert examination was ever conducted on the issue of Ake's sanity, and there was no expert testimony on this issue at trial. The jury rejected his sanity defense and found him guilty.
The Supreme Court held that where a defendant can demonstrate that the issue of sanity will be a "significant factor" at trial, the state must provide an indigent defendant with expert...
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