Walker v. State

• Decision Date: 01 June 2021
• Docket Number: S21A0424
• Citation: 311 Ga. 719,859 S.E.2d 25
• Court: Georgia Supreme Court
• Parties: WALKER v. The STATE.

311 Ga. 719

859 S.E.2d 25

WALKER

v.The STATE.

S21A0424

Supreme Court of Georgia.

Decided: June 1, 2021

The Beckwith Law Firm, Robert J. Beckwith, for Appellant.

Fani T. Willis, District Attorney, Lyndsey H. Rudder, Aslean Z. Eaglin, Dustin J. Lee, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for Appellee.

Nahmias, Presiding Justice.

Appellant O'Shaye Walker was convicted of felony murder, armed robbery, attempt to purchase marijuana, and a firearm offense in connection with the shooting death of Taquahn Jackson. In this appeal, he argues that the trial court erred by failing to instruct the jury on misdemeanor possession of marijuana as a lesser-included offense and by giving an overbroad instruction on the attempt to purchase marijuana charge. He also contends that his trial counsel provided ineffective assistance by failing to object to the admission of certain statements made by Appellant and a detective during Appellant's recorded interview. We affirm.¹

1. The evidence presented at trial showed the following. Shortly before 1:00 p.m. on November 12, 2014, Melissa Douse heard a loud bang and gunshots outside her apartment in Union City. She ran outside and saw that a Chevrolet Monte Carlo – Jackson's mother's car, which he was using that day – had crashed into her car. Douse saw two men inside the Monte Carlo; the driver (who was later identified as Jackson) looked unconscious, and the passenger (who was later identified as Appellant) appeared to be wounded. She went inside to call 911; when she returned, she saw a third man helping Appellant out of the car. When the third man saw Douse, he dropped Appellant and ran into the woods down a path that connected the apartment complex with another complex where Appellant's mother lived. The third man was never identified. When Douse approached Appellant, he told her that "the guy that was unconscious on the driver side tried to rob him and shot him and not to tell the officers about the guy that ran off in the woods."

Law enforcement and emergency medical personnel then arrived on the scene. Jackson, who had been shot five times, was pronounced dead.² He was wearing a Versace belt and Giuseppe Zanotti shoes and had $110 in his back pocket.³ A 9mm pistol was found between Jackson's feet in the Monte Carlo, along with two 9mm cartridge cases that had been fired from that pistol. Five .40-caliber shell casings that could not have been fired from the 9mm pistol were also found inside the car. There was a bag of marijuana and a scale in the back seat. Appellant was found lying on the ground about 30 feet from the car, near another bag of marijuana and a .40-caliber cartridge; he had a gunshot wound to his stomach. Both bags of marijuana weighed slightly less than an ounce.

Appellant told police officers at the scene, including lead Detective Gloria Hodgson, that he was buying marijuana from Jackson when Jackson robbed and shot him, and he shot Jackson in response. When asked where his gun was, Appellant claimed that he had thrown it into the bushes nearby, but the gun was never found. Appellant was taken to the hospital for surgery. Before he was moved into the operating room, he told an investigator, "I shot him, but I don't know if he dead," or "I don't know if he dead, but I shot him"; after a pause, Appellant added, "and I got the weed from him."

Text messages and call records from Appellant's cell phone showed that at 11:43 a.m., he had sent Jackson a text saying, "I need an oz for 275." Jackson asked for an address, and Appellant texted him the address of the apartment complex in Union City. After several more texts clarifying the address and four phone calls, the last communication between the two phones was a call from Jackson's phone to Appellant's phone at 12:54 p.m. Douse called 911 to report the shooting at 1:00 p.m. Other text messages showed that several weeks before the shooting, Appellant offered to sell Jackson a .40-caliber pistol.

After Appellant was released from the hospital, Detective Hodgson and Detective Cliff McClure interviewed him at his mother's apartment; the interview was audio-recorded, and parts of it were later played for the jury. Appellant told the detectives that he met Jackson in October 2014, when Jackson approached him outside a gas station and offered to sell him marijuana; Appellant bought $10 worth, and they exchanged phone numbers. They later exchanged text messages, but they did not meet again in person until the day of the shooting.

Appellant claimed that before Jackson arrived at the apartment complex, Jackson "kept asking me was I by myself." Appellant said that once Jackson arrived:

I got in the car with him. We shook hands and he had the weed right there on his lap and he was like, do you have the money. I like, yeah. I like, do you have a scale? And he was like, yeah. So, he was like, he gave me the weed and it looked off. So, I like, I need a scale. Like, just show me the money so I know you got it. So, I pulled out the money and then next thing you know he, I'm thinking he pulling out a scale, but he pulls out the gun and then that's when I tried to reach for the gun. Then that's when he shot me. And that's all, that's all I can remember.

Later in the interview, Appellant said that while they were in the Monte Carlo, he paid Jackson $275 for the marijuana, but he could not tell the detectives in which pocket Jackson put the money (and the only money found at the crime scene was the $110 in Jackson's back pocket). Appellant first denied having a gun at the scene, but he later admitted that he had a gun and claimed that he did not know where it ended up after he threw it into the bushes. Appellant also repeatedly claimed that he did not know who the third man was that Douse saw dragging Appellant away from the Monte Carlo.

2. At trial, Appellant requested a jury charge on misdemeanor possession of an ounce or less of marijuana as a lesser-included offense of attempt to purchase marijuana.⁴ The trial court denied the request, and Appellant objected to the omission of the instruction after the court charged the jury. We see no error.

" ‘[T]o authorize a jury instruction on a lesser included offense, there must be some evidence in the record that the defendant committed that offense.’ " Stepp-McCommons v. State , 309 Ga. 400, 403, 845 S.E.2d 643 (2020) (citation omitted). Where the evidence shows either the commission of the greater offense as charged or the commission of no crime at all, an instruction on a lesser-included offense is not required. See id. " ‘Whether the evidence was sufficient to warrant the requested instruction is a legal question, which we review de novo.’ " Id. (citation omitted).

Appellant argues that based on the evidence that the police found him at the scene near a bag containing less than an ounce of marijuana, the jury could have concluded that his purchase of the marijuana had been completed by the time of the shooting and, at that point, he was merely in possession of marijuana.⁵ Under this theory, however, Appellant possessed the marijuana only because he had completed the commission of the greater offense of attempting to purchase it. See OCGA § 16-4-2 ("A person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt ...."). Indeed, the evidence indicated that Appellant possessed the marijuana because he either purchased it from Jackson or he robbed Jackson after meeting him to purchase it. There was no evidence that Appellant possessed the marijuana when he arrived at the meeting or that he obtained possession without completing the commission of a charged greater offense. Thus, the trial court did not err by declining to instruct the jury on possession of marijuana as a lesser-included offense.⁶

3. Appellant argues next that the trial court's charge to the jury on the attempt to purchase marijuana count exceeded the scope of the indictment. In its final jury charge, the trial court read the indictment to the jurors, including the following:

Count seven charges [Appellant] with criminal attempt to purchase marijuana. On the 12th day of November, 2014, with intent to purchase marijuana did perform an act which constitutes a substantial step toward the commission of said crime, to wit: meeting with Taquahn Malik Jackson at 5300 State Route 138 in Union City, Georgia to purchase marijuana from Taquahn Malik Jackson.

The court later instructed:

A person commits the offense of criminal attempt to purchase marijuana when that person, with intent to commit the purchase of marijuana, performs any act that constitutes a substantial step toward the commission of the crime of the purchase of marijuana. Under the laws of Georgia, it is unlawful for any person to possess, have under his control, purchase, sell or possess with intent to distribute marijuana.

(Emphasis supplied.) When instructing the jury on the related felony-murder count and on the firearm-possession count, the court again referred to the marijuana count as "criminal attempt to purchase marijuana." And when discussing the verdict form, the court explained:

If, after considering the testimony and evidence presented to you, together with the charge of the court, you should find and believe beyond a reasonable doubt that the defendant in Fulton County, Georgia, on the dates in the indictment, did commit the offense or offenses charged, as alleged in the indictment, you would be authorized to find the defendant guilty.

Appellant did not object to these instructions at trial, but he now argues that the italicized language was improper based on the principle that " ‘a jury instruction [that] deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged...