Walker v. State

• Decision Date: 10 February 2020
• Docket Number: S19A1520
• Citation: 838 S.E.2d 792,308 Ga. 33
• Court: Georgia Supreme Court
• Parties: WALKER v. The STATE.

308 Ga. 33

838 S.E.2d 792

WALKER

v.The STATE.

S19A1520

Supreme Court of Georgia.

Decided: February 10, 2020

William Allen Adams, Jr., GRIFFIN CIRCUIT PUBLIC DEFENDER OFFICE, P. O. Box 1145, Thomaston, Georgia 30286, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Benjamin David Coker, District Attorney, GRIFFIN JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, P.O. Box 871, Thomaston, Georgia 30286, Brittany Ashton Fallin, A.D.A., GRIFFIN JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, P.O. Box 57, Griffin, Georgia 30224, for Appellee.

Benham, Justice.

Appellant Otheron Walker was convicted of malice murder in connection with the beating death of his ten-month-old daughter, Daijah White.¹ On appeal, Walker contends that the evidence was insufficient, that the jury was improperly charged, and that trial counsel was ineffective. We affirm.

Walker was tried jointly with Daijah's mother, Janice White, and we previously summarized the evidence presented at their joint trial as follows:

Daijah^{[2 ]} was ten months old at the time of her death. She lived with White, her father [Walker], and a brother, who was then twenty-two months old. On October 16, 2003, White left for work at 4:10 p.m.; a neighbor heard Daijah "whining" inside the apartment. The neighbor and Walker spoke outside the apartment for approximately 20 minutes. No other adult was at the apartment.

At 5:46 p.m., a physician was called to the emergency room of a hospital where Daijah had been taken by ambulance; Daijah was already dead. She was bruised on her face and head, shoulder, and chest, which appeared to have been squeezed by hands. There was a cut on her abdomen

, and marks on her groin and a thigh, showing very recent blows. On the outside of her genitalia, there was bruising and some healing lesions, and there were bruises and lacerations on the back of her thighs, including the mark of a strap; these injuries had occurred two or three days before her death, while some of the injuries to the torso were the final blows before death. Walker told the physician that Daijah's brother must have thrown her off the bed or against a wall. Earlier, Walker had told the emergency personnel who came to the apartment that Daijah had fallen from the bed. Neither of these accounts was consistent with the observed injuries.

....

The medical examiner testified that the cause of Daijah's death was blunt force injuries to the head and body. Fatal abdominal bleeding had occurred due to internal bruising produced by exterior blows. Her final injuries also included two skull fractures, probably from two separate blows. A retinal injury indicated that Daijah was violently shaken a month before death. Bruising on her throat indicated that Daijah had been grasped firmly under the chin by an adult hand. Daijah's buttocks revealed "bruising on top of bruising on top of bruising" that had occurred over the last two or three days before death; the majority of the bruises were very recent. She also had a bruise on her leg caused by an object such as a belt. Bruises covered 40 to 50 percent of Daijah's body. It was "not plausible at all" that Daijah's injuries were caused by a fall from a bed. The medical examiner opined that Daijah suffered her final injuries two to three hours before death; on cross-examination, the medical examiner agreed that there was an "80 or 90 percent chance" that death would have occurred "within an hour or thereabouts" after the final injuries.

Daijah died on a Thursday. The previous weekend, from Friday night until Sunday evening, Daijah stayed with an aunt. At that time, Daijah had a bruise on her thigh, and a small bruise on her cheek, but no other injuries.

White v. State , 281 Ga. 276, 277-278, 637 S.E.2d 645 (2006). Additionally, the jury heard testimony that Walker, while in jail awaiting trial, sent a letter to White in which he wrote, "I've never lost [any] of my five [children] before [Daijah]. I never hurt any of them before her."

1. Walker first argues that the circumstantial case against him was insufficient to sustain his conviction. Specifically, he asserts that the evidence merely showed that he was present in the residence when some of Daijah's injuries were inflicted, leaving open the possibility that someone other than Walker harmed Daijah or that Daijah's injuries were the result of a fall. We disagree.

Under both former OCGA § 24-4-6, in effect at the time of [Walker's] trial, and present OCGA § 24-14-6, in order to convict [Walker] of the crimes based solely upon circumstantial evidence, the proven facts had to be consistent with the hypothesis of [his] guilt and exclude every reasonable hypothesis save that of [his] guilt. Not every hypothesis is reasonable, and the evidence does not have to exclude every conceivable inference or hypothesis; it need rule out only those that are reasonable. The reasonableness of an alternative hypothesis raised by a defendant is a question principally for the jury, and when the jury is authorized to find that the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of the accused's guilt, this Court will not disturb that finding unless it is insupportable as a matter of law.

Akhimie v. State , 297 Ga. 801, 804 (1), 777 S.E.2d 683 (2015).

Here, the evidence showed that, at the time she died, Daijah had sustained numerous injuries in the days and hours leading up to her death. The jury heard testimony that Daijah was residing with Walker and White during this time and, in fact, that Walker was the sole adult with Daijah in the hours preceding her death. Though Walker provided various accounts of a fall—and attempted to place blame on Daijah's toddler-age brother—the jury heard expert testimony that Daijah's injuries were not consistent with a fall. Finally, the jury learned that Walker had made an incriminating statement in a letter to White while awaiting trial. "Based upon this evidence, the jury was not required to find that [Walker's] hypothesis ... was a reasonable one." Black v. State , 296 Ga. 658, 660 (1), 769 S.E.2d 898 (2015). See also Nixon v. State , 284 Ga. 800, 671 S.E.2d 503 (2009). The evidence was also sufficient as a matter of constitutional due process to authorize a rational trier of fact to find beyond a reasonable doubt that Walker was guilty of the crime of which he was convicted. See Jackson v. Virginia , 443 U. S. 307 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Walker next argues that the jury was improperly instructed with respect to intent, malice murder, and the State's burden of proof.³ "In reviewing a challenge to the trial court's jury instruction, we view the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case." (Citations and punctuation omitted.) Allaben v. State , 299 Ga. 253, 259 (3) (d), 787 S.E.2d 711 (2016). We consider each of Walker's four arguments in turn.⁴

(a) The trial court gave the pattern jury instruction on "definition of crime," charging the jury as follows:

Now, jurors, these defendants are charged with crimes against the laws of this state. And in that connection I charge you that these defendants are charged with these crimes, and a crime is a violation of a statute of this state in which there is a joint operation of an act or omission to act and an intention or criminal negligence .

(Emphasis supplied.) Walker argues that this reference to criminal negligence was improper because it was not an element of any offense and, further, that the instruction likely misled the jury on the issue of intent. However, the trial court's instruction was an accurate statement of the law. See OCGA § 16-2-1 (a).⁵ Though the instruction makes a passing reference to criminal negligence, there was no further mention of the term in the jury charge, and the jury was otherwise properly instructed on the general law of intent, as well as the intent required to prove malice murder. Accordingly, this argument is without merit. See Holmes v. State , 272 Ga. 517 (7), 529 S.E.2d 879 (2000) (instruction on definition of crime not erroneous where jury was otherwise properly instructed on the elements of the relevant offense).

(b) Walker next argues that the trial court erred when it instructed the jury as follows:

The first of these offenses is malice murder, for which both of them are charged. And in that connection I charge you the Official Code of Georgia, Title 16-5-1, which reads in part that a person commits murder when that person unlawfully and with malice or forethought , either expressed or implied, causes the death of another human being.

(Emphasis supplied.) According to Walker, this instruction authorized the jury to convict on malice murder based on malice or forethought rather than malice aforethought. However, "[a] mere verbal inaccuracy resulting from a slip of the tongue which does not clearly mislead or confuse the jury is not reversible error." (Citations and punctuation omitted.) Davenport v. State , 283 Ga. 171, 172, 656 S.E.2d 844 (2008). Here, the trial court's malaprop was a singular occurrence, and the jury was otherwise properly and accurately charged on malice murder. Further, the jury was instructed that the State was required to prove every material allegation of the indictment – which includes the language "malice aforethought" – and every essential element of the offenses charged therein. Accordingly, considering the trial court's instruction as a whole, there is no reversible error.

(c) Walker next complains that the jury was misled and confused when the trial court, before instructing the jury on felony murder, mistakenly announced its intention to charge on malice murder. Specifically, the trial court advised the jury as...