Walker v. State

FINAL COPY

                S19A0177. WALKER v. THE STATE.


      MELTON, Chief Justice.

      Following a jury trial, Harvey Walker was found guilty of

murder and related crimes in connection with the shooting and

stabbing death of his ex-girlfriend, Kateria Benton.1 On appeal,

Walker contends, among other things, that the evidence was

insufficient to support the verdict and that the trial court erred by



      1 On October 7, 2015, Walker was indicted by a Clayton County grand

jury for malice murder, felony murder (predicated on aggravated assault), five
counts of aggravated assault, possession of a knife during the commission of a
felony, and possession of a firearm during the commission of a felony.
Following an April 2016 jury trial, Walker was found guilty on all counts and
sentenced to serve life without parole for malice murder and twenty years
consecutive for one of the aggravated assault counts. The trial court also
sentenced Walker to five consecutive years each for the possession of a knife
count and for the possession of a firearm count. The trial court merged the
remaining aggravated assault counts into the malice murder count for
sentencing purposes, and the felony murder count was vacated by operation of
law. See Malcolm v. State, 

 (4) (

) (1993). On May 2,
2016, Walker filed a motion for new trial, which he amended with new counsel
on May 4, 2017. The trial court denied Walker’s motion on July 23, 2018.
Walker filed a timely notice of appeal on August 21, 2018, and his appeal was
docketed to this Court for the term beginning in December 2018 and submitted
for a decision on the briefs.
allowing improper testimony and evidence of prior bad acts to be

admitted at trial. For the reasons set forth below, we affirm.

     1. In the light most favorable to the verdict, the evidence

presented at trial revealed that, around December 2014, Walker and

Benton broke up over allegations of Walker cheating. However, in

January 2015, Benton invited Walker to move into her apartment

and stay in a separate bedroom. At that time, Benton lived with her

niece, Shanise McGill. Around early March 2015, McGill overheard

Benton and Walker arguing over Benton’s password-protected

cellular telephone.

     On Friday, March 27, 2015, Benton told her neighbor, Blanche

Holloway, that Walker was jealous and “too controlling,” so she had

told him to move out. Sometime that night, Walker attacked Benton

in her master bedroom with a blunt object, leaving a pool of blood in

the corner of the bedroom. Walker then fired a shot from a handgun

that went into the bedroom ceiling. When Benton tried to escape to

the kitchen, Walker fired a second shot, but this shot missed Benton.

Walker fired a third time, and this time hit Benton in her back.
When Benton fell to the kitchen floor, she was still alive, and Walker

stabbed her repeatedly until she died. After stabbing Benton to

death, Walker destroyed her phone, covered her with a sheet, and

attempted to clean himself up in the bathroom. He then shot himself

in the hand and cut his own wrist. The blood pattern on the floor of

Benton’s bedroom was consistent with someone standing over her

and hitting her repeatedly with an object or a fist. A spent shell

casing was found on Benton’s bed, and there was a bullet hole in the

ceiling consistent with a gun being pointed upward. In addition,

blood marks on the walls of the kitchen, the dishwasher, and the

stove were consistent with those left by someone struggling or

attempting to escape. Lastly, DNA from an ammunition box found

in the home matched Walker’s, and Benton’s blood was found on the

magazine of the firearm.

     On the morning after the murder, Walker called a friend and

told her, “I might be going to jail,” before calling 911. Around 7:30

a.m., emergency personnel responded to Walker’s 911 call

summoning them to Benton’s apartment, where they found Benton
dead, lying on her back in a pool of blood and partially covered with

a sheet. When police arrived, Walker came out of the front door with

his arms raised. Walker said to the responding officer, “I f**ked up,

I f**ked up, I stabbed her” and “[s]he’s in the kitchen.” The officer

observed two bloody knives on the floor, a handgun on the dining

room table, and a spent shell casing under the table. Walker had a

gunshot wound on his left hand and a deep laceration to his left

wrist.

     On the way to the hospital, Walker told a paramedic that he

and Benton had gotten into an altercation where she shot him, and

he then had to wrestle a butcher knife out of her hand. Walker

testified at trial that he stabbed Benton “a couple” of times in self-

defense. However, a medical examiner confirmed that Benton

suffered one gunshot wound to her back right shoulder and a total

of 27 sharp-force injuries, which included both stab wounds and

incised wounds. In all, Benton suffered six stab wounds to her torso,

one stab wound and nine incised wounds to her extremities, and

three stab wounds and eight incised wounds to her head. One of the
stab wounds to Benton’s torso, which fractured her rib and hit an

artery near her heart, killed her. The medical examiner also

explained that many of Benton’s wounds were consistent with

defensive injuries suffered by someone trying to ward off an attack.2

      The evidence presented at trial was sufficient to enable a

rational trier of fact to reject Walker’s claim that he had been acting

in self-defense at the time that he shot and stabbed Benton and find

him guilty beyond a reasonable doubt of malice murder and the

other crimes of which he was convicted. Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). See also, e.g., Roper v.

State, 

 (1) (

) (2007) (witness credibility is

for the jury to decide, as is the question of justification; therefore,

the jury is free to reject claim that defendant acted in self-defense).


      2  Evidence was also introduced, as discussed further in Division 3,
showing that Walker was previously married to Bessie Wilson, who described
Walker as often “very jealous” and someone who frequently accused her of
cheating. On September 26, 2007, Wilson told Walker that she wanted a
divorce. Later that night, Wilson woke up to Walker holding a hammer and
saying, “someone’s going to die tonight.” Walker then hit Wilson on her head
and legs with the hammer, dragged her to the kitchen, said, “I can’t do this,”
and left. Wilson saw an assortment of knives, including a butcher knife, set out
on the kitchen counter.
      2. Walker contends that the trial court erred by excluding his

sister Helen Walker’s potential testimony in which she would have

stated that Walker told her after the shooting that “[Benton] tried

to kill me.” However, pretermitting the question of whether the trial

court erred in excluding this testimony, any error was rendered

harmless.3 To begin with, the testimony was somewhat cumulative

of Walker’s own testimony in which he claimed that he acted in self-

defense and his statement to the paramedic and the responding

officer in which he claimed that Benton had shot him and that he

had to wrestle a knife out of her hand. See Nix v. State, 

(5) (

) (2006) (the trial court’s error, if any, in excluding




      3 We note that, while the trial court excluded the testimony categorically

as “self-serving,” the “blanket policy against ‘self-serving’ statements” might
not have survived the passage of Georgia’s new Evidence Code. See State v.
Hodges, 

, 422 n.6 (

) (2012) (Nahmias, J., concurring).
See also Jack Goger, Daniel’s Georgia Handbook on Criminal Evidence § 8:1
(2011 ed.) (noting that the State Bar’s comment on OCGA § 24-8-801 (c) states,
“[t]he proposed new rules would not retain the self-serving statement rule. If
a hearsay statement of a party is admissible under a hearsay exception, the
fact that it is self-serving should go to weight, not admissibility.”). However,
we need not address the continued viability of the self-serving statement rule
or whether Helen’s statements would fall under an exception to the rule
against hearsay, as the exclusion of Helen’s testimony resulted in no harm to
Walker.
hearsay testimony of defendant’s mother, was harmless where the

excluded testimony was largely cumulative of other evidence

introduced at trial). Moreover, the evidence of Walker’s guilt was

overwhelming, including (1) evidence showing that Walker shot

Benton in the back while she was trying to get away from him, which

directly undermined his claim of self-defense; and (2) Walker’s own

admission to police that he had “f**ked up” and stabbed Benton,

where the evidence showed that Benton was stabbed or cut nearly

30 times. The overwhelming evidence showed that Walker shot

Benton when she could no longer have been a threat to him and that

he continued to brutally stab her to death after she had fallen as a

result of being shot, not that he acted in self-defense.4

      3. Walker argues that the trial court erred in admitting

evidence of the 2007 domestic violence incident with his ex-wife,




      4 Walker argues, outside of a formal enumeration of error, that his trial

counsel was ineffective for not recalling Helen to testify once Walker himself
had testified. However, because Walker did not raise or argue this specific
ground of ineffective assistance of counsel prior to this appeal, it cannot be
reviewed here. See Rickman v. State, 

 (3) (

) (2018); Wilson
v. State, 

 (2) (

) (2003).
Wilson. Pretermitting whether it was error for the trial court to

admit this evidence at trial, the error does not require the reversal

of his conviction. Kirby v. State, 

 (4) (c) (

) (2018) (finding that although the trial court erred in admitting

evidence of the defendant’s prior aggravated assault and armed

robbery, the error was harmless in light of the other compelling

evidence against the defendant).

     Here, the State filed a notice of its intent to introduce evidence

of Walker’s prior aggravated assault of his ex-wife pursuant to

OCGA § 24-4-404 (b) (“Rule 404 (b)”). Rule 404 (b) provides, in

pertinent part:

     Evidence of other crimes, wrongs, or acts shall not be
     admissible to prove the character of a person in order to
     show action in conformity therewith. It may, however, be
     admissible for other purposes, including, but not limited
     to, proof of motive, opportunity, intent, preparation, plan,
     knowledge, identity, or absence of mistake or accident. . .
     .

     The trial court granted the State’s request on the ground that

the evidence was relevant to the issue of Walker’s intent to commit

the crimes that he had been accused of perpetrating, and specifically
instructed the jury with regard to its consideration of the evidence

that,

        [i]n order to prove its case the State must show intent. To
        do so the State will offer evidence of another crime
        allegedly committed by the accused. You are permitted to
        consider that evidence only insofar as it may relate to that
        issue and not for any other purpose. You may not infer
        from the evidence that the defendant is of a character that
        would commit such crimes. The evidence may be
        considered only to the extent that it may show the issue
        that the State is required to prove in the crimes charged
        in the case now on trial. Such evidence, if any, may not be
        considered by you for any other purpose.

        Any error in the admission of the prior acts evidence was

rendered harmless in light of the overwhelming evidence of Walker’s

guilt. See Parks v. State, 

 (2) (

) (2016)

(citing United States v. Hosford, 782 F2d 936, 939 (11th Cir. 1986)

(where evidence of guilt is “overwhelming,” erroneous admission of

Rule 404 (b) evidence is harmless)). Walker not only admitted to

having “f**ked up” by stabbing Benton, he also called a friend the

morning after the murder and indicated that he knew that he “might

be going to jail” for what he did. Furthermore, “in stark contrast to

[the defendant’s] testimony that his intent was merely to prevent
the victim from harming him,” the evidence showed that Walker

shot Benton in the back while she was trying to get away from him

and that some of the 27 sharp-force injury wounds that she suffered

occurred after she had already fallen from the gunshot wound. See

Lamb v. Jernigan, 683 F2d 1332, 1342 (3) (11th Cir. 1982).

Accordingly, the overwhelming evidence against Walker, completely

independent of the evidence offered by Wilson, pointed directly to an

intentional and malicious killing committed by him in this case

rather than one that was committed in self-defense. See Parks, 

 (2).

     4. Lastly, Walker contends that the trial court erred in denying

his request for a mistrial after the court erroneously admitted into

evidence, as a prior “conviction,” his first-offender guilty plea

relating to the 2007 domestic violence incident with Wilson. See

Davis v. State, 

 (

) (1998) (“A first

offender’s guilty plea does not constitute a ‘conviction’ as that term

is defined in the Criminal Code of Georgia.”). We disagree.

     Even though the trial court denied defense counsel’s request
for a mistrial, it agreed with defense counsel that it had erroneously

admitted the evidence of the first-offender guilty plea. To cure the

error, the trial court instructed the jury that, “after further

consideration this court agrees with the defendant’s counsel that

[the guilty plea] should not have been admitted[;] therefore you may

not consider that exhibit in any way when you deliberate this case

as it will be removed from your consideration.” This Court has found

that the trial court can negate the potentially harmful effect of

improperly introduced evidence by prompt curative instructions

rather than by granting a mistrial. Rucker v. State, 

(2) (

) (2013) (finding no abuse of discretion in the trial

court’s denial of defendant’s motion for mistrial because the court’s

curative instructions were sufficient to correct any error in the

introduction of evidence relating to the defendant’s alleged

propensity for violence). Indeed, “[t]he decision to grant a mistrial is

within the discretion of the trial court and will not be disturbed on

appeal unless there is a showing that a mistrial is essential to the

preservation of the right to a fair trial.” (Citation omitted.) Jackson
v. State, 

 (4) (

) (2013). Here, the trial

court gave an appropriate curative instruction and even polled the

jury to make sure that all of the jurors understood the instruction.

And, we “ordinarily presume that a jury follows [curative]

instructions.” Coleman v. State, 

 (3) (

)

(2017). We find no abuse of discretion in the trial court’s decision to

deny the motion for a mistrial, as the curative instruction was

sufficient to correct any error and to preserve Walker’s right to a fair

trial. Jackson, 

 (4).

     Judgment affirmed. All the Justices concur.
                       Decided June 3, 2019.

     Murder. Clayton Superior Court. Before Judge Mack.

     Stanley W. Schoolcraft III, for appellant.

     Tracy Graham Lawson, District Attorney, Elizabeth A. Baker,

Christopher D. Sperry, Assistant District Attorneys; Christopher M.

Carr, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Matthew M. Youn, Assistant Attorney General, for

appellee.