Walker v. State

• Decision Date: 07 October 2013
• Docket Number: No. S13A0861.,S13A0861.
• Parties: WALKER v. The STATE.
• Court: Georgia Supreme Court

293 Ga. 709

749 S.E.2d 663

WALKER

v.The STATE.

No. S13A0861.

Supreme Court of Georgia.

Oct. 7, 2013.

Gary Wilson Jones, Marietta, 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, Amelia Greeson Pray, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Cobb County District Attorney's Office, for appellee.

NAHMIAS, Justice.

Appellant Macques Antonio Walker was found guilty of the felony murder of Evangelina Hernandez–Contreras based on aggravated assault; two counts of homicide by vehicle, one based on reckless driving and one based on the failure to stop and render aid to Hernandez–Contreras after being involved in an automobile accident; failure to stop and render aid to Hernandez–Contreras; aggravated assault of Roberto Contreras; and driving with no proof of insurance.¹ The trial court treated the guilty verdicts on both counts of homicide by vehicle and the failure to stop and render aid count as merged into the felony murder conviction and entered judgment of convictions for felony murder, aggravated assault, and no proof of insurance.

On appeal, we affirm the convictions for aggravated assault and driving with no proof of insurance. However, because the guilty verdicts for felony murder based on aggravated assault (a criminal intent crime) and homicide by vehicle based on reckless driving (a criminal negligence crime) are mutually exclusive under our established precedent, we must reverse Appellant's conviction for felony murder, set aside the guilty verdicts for felony murder and homicide by vehicle based on reckless driving, and remand the case for a possible new trial on those charges.² We also conclude that there was insufficient evidence to support the guilty verdict for homicide by vehicle based on the failure to stop and render aid, so on remand no conviction may be entered on that count.

1. Viewed in the light most favorable to the verdict, the evidence at trial showed the following. On July 27, 2003, Appellant was driving his Oldsmobile with his girlfriend, Markenna Ramsby, in the passenger's seat when he cut in front of Contreras, who was driving in his minivan with his wife, Hernandez–Contreras, and his grandson. Appellant then moved one lane to the left of Contreras, and the two vehicles came to a stop at a traffic light.

When the vehicles stopped, Contreras got out of his minivan, went to the driver's side window of Appellant's car, and yelled at him. Hernandez–Contreras got out of the minivan to pull her husband away from Appellant's window. As Contreras and Hernandez–Contreras passed behind Appellant's car on their way back to the minivan, Appellant looked back toward them, shifted his car into reverse, and backed into the couple. Contreras was knocked down on the road out of the car's path, but Hernandez–Contreras was knocked down behind the car, which continued backward over her, trapping her under the rear axle. Appellant accelerated his car backward very fast and swerved to miss another car, dragging Hernandez–Contreras underneath and leaving a two-foot wide, 98–foot long trail of her skin tissue, blood, and clothing on the road. Hernandez–Contreras was eventually dislodged and her body lay about 20 feet in front of Appellant's car. Appellant then shifted his car into drive and ran over her again, dragging her body forward another 48 feet before she was dislodged and Appellant sped away from the scene.

The medical examiner testified at trial that Hernandez–Contreras died from generalized trauma. She had several areas of hemorrhage around her brain and neck; all of her front ribs and most of her back ribs were fractured, along with her right elbow and both bones in her lower right leg; her liver was lacerated; and about 70 percent of her skin was abraded.

A witness chased Appellant as he fled. The witness drove as fast as 85 miles per hour to keep up with Appellant's car and got close enough for his wife to write down the Oldsmobile's license plate number before he broke off the chase. Appellant drove to Ramsby's grandmother's apartment building, parked the Oldsmobile outside, and removed the license plate. A security officer at the building later identified the car, and the police seized it on July 28. They found hair and blood on the underside of the car; a sample of the blood was matched to Hernandez–Contreras by DNA testing. After being identified by police as a suspect, Appellant turned himself in on July 30.

At trial, Appellant testified that he accidentally ran over Hernandez–Contreras as he was trying to get away from Contreras because his girlfriend told him that Contreras had a gun, although he never saw a gun or other weapon. Appellant said that Contreras approached his car, reached through his window, and tried to pull him out, and he then tried to escape by driving away. Appellant claimed that he did not know how the car shifted into reverse (although one eyewitness testified that she saw him shift the car into reverse), that he did not have his hands on the steering wheel when he was backing up (although his car swerved to avoid another car), and that he did not see Hernandez–Contreras either when he backed into her or when he shifted the car into drive and ran over her again (although he admitted he was sitting up in the car by that time). Appellant also testified that he drove at 45 miles per hour while leaving the scene and that he removed the license plate from his car when he arrived at Ramsby's grandmother's apartment because that was his standard practice when leaving the car at someone else's house. Appellant maintained that he did not know that Hernandez–Contreras had been hit and that he did not immediately report to the police that he had been threatened by a man with a gun because he did not know who Contreras was, although he admitted on cross-examination that he saw on the news that there had been a homicide at the intersection where the incident occurred.

With the exception of homicide by vehicle based on the failure to stop and render aid, which we will address below in Division 3, when viewed in the light most favorable to the verdict, 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 the jury returned guilty verdicts. 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.” (citation omitted)).

2. (a) Six eyewitnesses, including Contreras and his grandson, testified at trial that they saw Appellant's car hit and drive over Hernandez–Contreras, dragging her up and down the road. So the main issue at trial was not whether Appellant had struck and killed Hernandez–Contreras with his car but rather what his intent was at the time. Covering its bases, the State charged Appellant with both crimes that required criminal intent (malice murder and felony murder based on aggravated assault) and a crime that required only criminal negligence (homicide by vehicle based on reckless driving). See Dryden v. State, 285 Ga. 281, 282, 676 S.E.2d 175 (2009) (explaining that “reckless driving, OCGA § 40–6–390, is a crime founded upon an act of criminal negligence, rather than an intentional act”). Unfortunately for the State, the trial court failed to instruct the jury that it could not find Appellant guilty of both types of crimes, and the court then accepted the jury's guilty verdicts for both felony murder based on aggravated assault and homicide by vehicle based on reckless driving. Appellant contends that, under this Court's precedents, those guilty verdicts were mutually exclusive and must be set aside. He is correct.

In Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003), which was decided the year before Appellant was tried, this Court reversed verdicts finding the defendant guilty of both felony murder based on aggravated assault and involuntary manslaughter based on reckless conduct on the ground that the verdicts were mutually exclusive. See id. at 408, 577 S.E.2d 570. We concluded that such verdicts reflected an “illogical finding by the jury that [the defendant] acted with both criminal intent and criminal negligence in shooting the victim,” id. at 411, 577 S.E.2d 570, and we held that “a jury may not properly render verdicts of guilt as to both [criminal intent and criminal negligence] offenses in those factual situations involving the same act by the accused as to the same victim at the same instance of time.” Id. at 412 n. 4, 577 S.E.2d 570. See also Flores v. State, 277 Ga. 780, 783–785, 596 S.E.2d 114 (2004) (holding that guilty verdicts for felony murder based on aggravated assault and involuntary manslaughter based on reckless conduct were mutually exclusive where the defendant pointed a gun he allegedly believed was unloaded at the victim and pulled the trigger, killing the victim).

Jackson noted that guilty verdicts for crimes that require criminal intent and crimes that require criminal negligence do not exclude each other in every instance, explaining that “in those situations where the offenses underlying the convictions can be reconciled by looking to either the legal requirements for each underlying offense or to the unique facts adduced at trial,” the convictions are not mutually exclusive. 276 Ga. at 411, 577 S.E.2d 570. The State seizes on this caveat to make several arguments seeking to distinguish this case from Jackson, but those arguments are unavailing.

(b) The State first argues that the verdicts here were not mutually exclusive because the jury could have found that the aggravated assault that was the predicate for the felony murder...