Walter v. State

• Decision Date: 10 December 2018
• Docket Number: S18A1241
• Citation: 822 S.E.2d 266,304 Ga. 760
• Court: Georgia Supreme Court
• Parties: WALTER v. The STATE.

304 Ga. 760

822 S.E.2d 266

WALTER

v.The STATE.

S18A1241

Supreme Court of Georgia.

Decided: December 10, 2018

Michael W. Tarleton, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Stephany J. Luttrell, Arthur C. Walton, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.

Peterson, Justice.

Jeneral Walter appeals his convictions for felony murder and possession of a firearm during the commission of a felony. Both convictions stem from the shooting death of T'Shanerka Smith on February 14, 2010.¹

Walter argues that the trial court erred in denying his motion to sever his trial from that of his co-defendants. He also argues that the trial court committed plain error by instructing the jury that it could consider a witness’s "level of certainty" in assessing the reliability of the witness’s identification and by failing to instruct the jury that accomplice testimony must be corroborated. The trial court did not abuse its discretion in denying the motion to sever, however, as Walter has not shown a clear prejudice and denial of due process resulting from the joint trial. Walter also has not shown plain error in the jury instructions, since any error in the level of certainty instruction did not likely affect the outcome, and no accomplice-corroboration instruction was required on this record. We therefore affirm.

The victim’s death can be traced to a dispute between her brother (Eddie Edwards) and a group that included Walter, Darron Cato, Omari Smith, Andrew Neloms, and Derek McCarter. Edwards lived at the Fulton County apartment complex where he performed maintenance, while McCarter was squatting in another unit at the complex. The night before the shooting, McCarter, Walter, and others gathered to party in that apartment.

The next day, Edwards arrived at the unit and began removing the locks from the doors, telling McCarter and Cato that they needed to leave. Walter became involved in the discussion; he had a firearm and picked up another that had been on a couch. After Edwards returned to his own apartment, a group of four men drove up in a car, and Walter began shooting through one of the backseat windows at a group of Edwards’s cousins gathered outside Edwards’s apartment.

No one was injured by the shooting. After the shooting, Edwards and a cousin found McCarter and beat him up.

Walter and his friends left the apartment complex but returned later that day to retaliate. Walter’s girlfriend, Angelica Mitchell, drove Walter, Cato, Neloms, and Omari Smith to the apartment complex. Mitchell dropped off her four passengers outside the complex. Mitchell testified that she saw that at least Walter and Cato had guns when they got out of the car, but she did not know what the men were planning and proceeded directly to work after she dropped them off. Once outside the car, Walter, Cato, and Omari Smith shot in the direction of Edwards’s apartment, where the victim had been standing on the porch. The victim was shot and was pronounced dead after being taken to a hospital.

Several eyewitnesses to the fatal shooting testified at trial. Priscilla Cofer testified that she was standing on Edwards’s porch with the victim when she saw Mitchell drive Walter, Cato, Neloms, and Omari Smith through the neighborhood. A few minutes later, she saw Walter, Cato, and Omari Smith shooting toward the apartment. Edwards’s next-door neighbor, Sharyetta Thomas, and the victim’s boyfriend, Derrick Thompson, both testified that they saw a shooter who was a light-skinned African-American man with dreadlocks, a description that matched Walter’s appearance; Thomas also picked Walter out of a photo array "because he looked like the guy that was shooting."

One of Edwards’s neighbors, Tamika Campbell, testified that after hearing the gunshots, she saw three men running through a field, as well as a fourth man putting a gun in his pants; she picked Walter out of a photo array as the man with the gun. Two witnesses testified that Walter asked them to lie to police by saying that he was with them at the time of the shooting.

1. Although Walter does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the trial evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Walter argues that the trial court erred in denying his motion to sever his trial from that of his co-defendants. We disagree.

When two or more defendants are jointly indicted for non-capital offenses or a capital offense where the State does not seek the death penalty, "such defendants may be tried jointly or separately in the discretion of the trial court." OCGA § 17-8-4 (a). The trial court’s discretion to grant or deny a motion for severance in such circumstances is broad.

Herbert v. State, 288 Ga. 843, 845 (2), 708 S.E.2d 260 (2011). "In ruling on a severance motion, the court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses." Id. A defendant who requests severance bears the burden to "make a clear showing that a joint trial would lead to prejudice and a consequent denial of due process." Marquez v. State, 298 Ga. 448, 449 (2), 782 S.E.2d 648 (2016) (citation and punctuation omitted). A showing that a separate trial merely would give that defendant a better chance of acquittal is insufficient. Id.

Walter has not shown that severance was required. Walter points to statements by counsel for his co-defendants in pre-trial proceedings and closing arguments implicating Walter while contending their clients were not present for or did not participate in the shooting. Acknowledging that a co-defendant’s use of antagonistic defenses does not itself require severance, see Kennedy v. State, 253 Ga. 132, 135 (2), 317 S.E.2d 822 (1984), Walter argues on appeal that the trial court erred because these defenses were "not merely antagonistic" but were "mutually exclusive" of an acquittal of Walter. But that is a distinction without a difference under our case law; we have characterized as "antagonistic" a defendant’s position that a crime was committed not by him but by a co-defendant. See, e.g., Metz v. State, 284 Ga. 614, 616 (2) (a), 669 S.E.2d 121 (2008) (appellant argued that co-defendants stabbed victim, while they accused appellant), overruled on other grounds by State v. Kelly, 290 Ga. 29, 32 (1), 718 S.E.2d 232 (2011) ; Loren v. State, 268 Ga. 792, 795 (2), 493 S.E.2d 175 (1997) (co-defendants "each presented vigorous defenses attempting to show that the other caused the fatal injuries").

In order to obtain a new trial based on the trial court’s denial of severance, Walter must show a "clear prejudice and denial of due process" as a result of his co-defendants' antagonistic defenses that might have been avoided by separate trials. Kennedy, 253 Ga. at 134-135 (2), 317 S.E.2d 822 ; see also Palmer v. State, 303 Ga. 810, 815 (III), 814 S.E.2d 718 (2018) ("In case after case where co-defendants acted in concert, we have found that severance was not required simply because the defendant argued about identity or the co-defendant blamed—or even put forth evidence against—the defendant."). Walter cannot make the showing necessary to prevail. None of the defendants testified, and Walter points to no particular testimony elicited by defense counsel or otherwise presented by his co-defendants in support of his argument that severance was required. Compare Barge v. State, 294 Ga. 567, 571 (3) (b), 755 S.E.2d 166 (2014) (considering necessity of severance where co-defendant introduced a videotape at odds with appellant’s testimony, and finding trial court did not abuse its discretion in denying severance where the videotape was redundant of previously admitted evidence). Moreover, there was substantial evidence of Walter’s guilt that would have come in regardless of severance. The jury heard evidence that multiple eyewitnesses identified Walter as one of the men who shot at the victim or gave a description of the shooter matching Walter’s appearance. It also heard evidence that Walter tried to persuade others to offer false alibi evidence to police, which provided additional evidence of Walter’s guilt. See Kell v. State, 280 Ga. 669, 671 (2) (a), 631 S.E.2d 679 (2006) (a defendant’s attempt to influence a witness can serve as circumstantial evidence of guilt). The trial court did not abuse its discretion in denying severance. See Loren, 268 Ga. at 795 (2), 493 S.E.2d 175 (no harm in co-defendant’s antagonistic defense where co-defendant’s evidence against appellant was cumulative of State’s evidence against appellant, which was "substantial").

3. Walter also argues that the trial court committed plain error by instructing the jury that it could consider a witness’s "level of certainty" in assessing the reliability of the witness’s identification and by failing to instruct the jury that accomplice testimony must be corroborated. Walter has not demonstrated plain error in either of these aspects of the court’s instructions.

Because Walter did not raise these objections to the court’s charge at trial,² we review these challenges to the jury charge only for plain error. See Simpson v. State, 298 Ga. 314, 316 (3), 781 S.E.2d 762 (2016). Under plain error review, "we will reverse the trial court only if the alleged instructional error was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the...