Walker v. State, S07P0687.

• Decision Date: 09 October 2007
• Docket Number: No. S07P0687.,S07P0687.
• Parties: WALKER v. The STATE.
• Court: Georgia Supreme Court

653 S.E.2d 439

WALKER v. The STATE.

No. S07P0687.

Supreme Court of Georgia.

October 9, 2007.

Reconsideration Denied December 13, 2007.

Ramon Javier Fajardo, Leesburg, Mark Tyson Phillips, Albany, Herbert L. Wells, Perry, for Appellant.

Richard E. Nettum, Asst. Dist. Atty., Cecilia Marie Cooper, Dist. Atty., Thurbert E. Baker, Atty. Gen., Theresa Marie Schiefer, Asst. Atty. Gen., for Appellee.

Thomas Howard Dunn, Georgia Resource Center, Holly Lynn Geerdes, Geerdes & Kim, LLC, Richard A. Malone, Prosecuting Attorneys' Council, Atlanta, for Other Parties.

BENHAM, Justice.

Artemus Rick Walker was convicted by a jury of murder and related offenses.¹ The jury fixed Walker's sentence for the murder at death, after finding beyond a reasonable doubt the existence of multiple statutory aggravating circumstances. See OCGA § 17-10-30(b). For the reasons set forth below, we affirm Walker's convictions and sentences.

General Grounds

1. The evidence adduced at Walker's trial showed that he devised a plan to rob Lynwood Ray Gresham, who was the vice president of the bank that was next door to the service station Walker owned. Walker hired Gary Lee Griffin several days before the crimes to work at his service station and asked Griffin if he would help "rob and kill" a "rich" man. On May 12, 1999, Walker borrowed an automobile that belonged to another of his employees and drove with Griffin to the hotel where Griffin was staying. They picked up Griffin's bicycle at the hotel and then traveled in the automobile to Walker's apartment. Walker gave Griffin black pants to change into and gave him a knife and a stun gun. Walker also changed into black clothing. They also loaded Walker's bicycle into the automobile.

Walker drove the pair with their bicycles to a place near Gresham's house, parked, and they rode the bicycles to Gresham's house. Griffin waited at the side of the house as Walker went to the door and engaged Gresham in a conversation in the front yard. Walker and Gresham began struggling. Walker told Griffin to use the stun gun on Gresham, but Griffin refused. Griffin also refused when Walker told him to stab Gresham with the knife. Griffin gave Walker the knife, and Walker stabbed Gresham 12 times in the chest and back. Walker told Griffin to pick up things that had fallen during the struggle, which included Gresham's keys and wallet. Walker dragged Gresham, who was still alive, to the side of the house and hid him in some bushes, where he was later found dead. Walker then told Griffin that he had "one more to kill" and asked Griffin for Gresham's keys. Walker tried to open the door to Gresham's house, but Gresham's wife, Roberta Gresham, locked a chain lock and a foot lock from inside. Roberta Gresham called the police, and she observed Walker, with whom she was familiar, through a window with "something on his hip that looked like a gun." Roberta Gresham's daughter, Allison, yelled to Walker that she had a gun. Walker and Griffin then rode away on their bicycles. Griffin was arrested nearby after he crashed his bicycle. The victim's wallet was found in Griffin's pocket, and a broken stun gun was found on Griffin's belt. Walker was arrested a few hours later after he was discovered in the woods nearby. The victim's blood was on Walker's clothes, and he had the victim's keys. The knife used to kill Gresham and a pistol were discovered near the site of Walker's arrest.

Construing the evidence in the light most favorable to the State, including Griffin's testimony and the eyewitness testimony of Roberta Gresham, we find that the evidence was sufficient to authorize a rational trier of fact to find Walker guilty on all of the charges. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). From our review of the record, it appears Walker failed to obtain a ruling on his motion for a directed verdict in the guilt/innocence phase; accordingly, the issue is waived. Butts v. State, 273 Ga. 760(31), 546 S.E.2d 472 (2001). Furthermore, even if the issue were preserved for appeal, we would apply "[t]he same standard of review of the evidence" as we have just applied and would conclude that there was no reversible error in the trial court's not granting the motion. Wilson v. State, 271 Ga. 811(1), 525 S.E.2d 339 (1999).

Jury Selection

2. Walker argues that the trial court erred in excusing a number of prospective jurors for hardship, some of whom he names and some whose excusals appear in pages of the record he cites. See OCGA § 15-12-1(a)(1); McClain v. State, 267 Ga. 378(1)(c), 477 S.E.2d 814 (1996) (noting trial courts' "broad discretion" in applying statutory exemptions for hardship). Our review of the record reveals that Walker failed to object to any of these excusals, despite the fact that the trial court indicated that it had prepared notes regarding its reasons for each excusal that the parties were free to inspect. By failing to object, Walker has waived his right to complain on appeal. See Blankenship v. State, 258 Ga. 43(3), 365 S.E.2d 265 (1988) (not addressing the excusal of two jurors about which the defendant had not objected at trial).

3. Walker argues that the trial court erred in limiting his voir dire of two prospective jurors. With respect to juror Dubose, Walker affirmatively indicated that he had no further questions for the juror, and he, therefore, has waived his right to complain on appeal. Braley v. State, 276 Ga. 47(18), 572 S.E.2d 583 (2002). Pretermitting whether Walker also waived his right to complain on appeal regarding any limitation placed on his voir dire of juror Reynolds, we hold that the trial court did not abuse its discretion in not continuing what was already an extensive voir dire of that juror, particularly with respect to his death penalty views. Rhode v. State, 274 Ga. 377(4), 552 S.E.2d 855 (2001).

Guilt/Innocence Phase

4. Walker argues that the trial court made improper comments during the guilt/innocence phase that constituted expressions of opinion. See OCGA § 17-8-57. We find no reversible error.

Because he failed at trial to object or move for a mistrial, Walker has waived his right to complain on appeal regarding most of the comments, including references to the trial as a "murder case," an estimate of the time that would be required for the guilt/innocence phase, reference to the trial court and the parties collectively using the word "we," comments regarding the nature of cross-examination, and questions propounded by the trial court to a witness. See Paul v. State, 272 Ga. 845(2), 537 S.E.2d 58 (2000). This Court has applied a "plain error" standard to comments by a trial judge that violate OCGA § 17-8-57, reversing despite the waiver of the issue where the comments in question "`seriously affected the fairness, integrity, and public reputation of th[e] judicial proceedings.'" Id. at 848-849, 537 S.E.2d 58 (quoting Almond v. State, 180 Ga.App. 475; 480, 349 S.E.2d 482 (1986)). The comments subject to waiver in Walker's case clearly do not meet this standard.

Walker did move for a mistrial after the trial court, in ruling on the admissibility of an item of evidence, commented on whether the item was identifiable without expert testimony as being a gun silencer. However, comments made in the course of ruling on objections are generally not the type of comments prohibited by OCGA § 17-8-57. See Appling v. State, 281 Ga. 590(4), 642 S.E.2d 37 (2007); Watson v. State, 278 Ga. 763(4), 604 S.E.2d 804 (2004). We find that the trial court's comments were not improper under the circumstances, including Walker's failure to request that his objection be heard outside the jury's presence.

5. Walker argues that the State introduced improper testimony about the victim during the guilt/innocence phase. We have held that background information about the victim that is not relevant to the issues in the guilt/innocence phase, particularly the sort of background information likely to engender the jury's sympathies, should not be presented to the jury during that phase. See Lucas v. State, 274 Ga. 640(2)(b), 555 S.E.2d 440 (2001). In the context of this particular case, the trial court should have sustained Walker's objection to testimony by the victim's wife in the guilt/innocence phase about the victim's church membership and his being a deacon. However, after the trial court overruled Walker's objection and Walker objected to similar, subsequent testimony, the trial court sustained Walker's new objection. Upon our review of the record, we find that the trial court's initial error with respect to this testimony was harmless beyond a reasonable doubt. See id. at 644, 555 S.E.2d 440.

6. Walker argues that the State failed to show chain of custody of a blood sample taken from his body; however, he waived his right to complain on appeal regarding this issue, because he failed to object at trial. See Welch v. State, 257 Ga. 197(3), 357 S.E.2d 70 (1987).

7. Walker argues that items seized during a search of his apartment, including tools and a gun silencer, were improperly admitted, because their probative value was outweighed by undue prejudice. We find that the trial court did not abuse its discretion in admitting these items of evidence. See Brooks v. State, 281 Ga. 514(3), 640 S.E.2d 280 (2007).

8. Walker argues that the prosecutor made impermissible burden-shifting arguments in three portions of his closing argument in the guilt/innocence phase. Walker objected after the first portion of the argument he cites in his brief; however, he made no further objection after the trial court gave a curative instruction. Walker made no objection at all regarding the other two portions of the argument that he cites in his brief. Accordingly, we find that this issue was waived at trial with regard to all three portions of the argument Walker cites insofar as the issue concerns his guilt. See Gissendaner v. State, 272 Ga. 704(10)(b), 532 S.E.2d 677 (2000). We also...