306 Ga. 579
FINAL COPY
S19A0818. WALKER v. THE STATE.
MELTON, Chief Justice.
Following a jury trial, Rico Orlando Walker appeals his
convictions for the murder of Steven Harley and related crimes,
contending that he received ineffective assistance of counsel.1 For
the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdict, the
evidence shows that Tracey Harley, Steven’s wife, met Walker in a
Walmart parking lot in 2000 or 2001, exchanged numbers, and
1 On June 12, 2006, Walker was indicted for malice murder, criminal
attempt to commit murder, and tampering with evidence. Following a jury trial
that took place on May 14-17, 2007, Walker was found guilty on all counts. The
trial court sentenced Walker to life in prison for malice murder, ten years for
criminal attempt to commit murder to be served consecutively to the malice
murder sentence, and an additional five years for tampering with evidence to
be served consecutively with the other sentences. Walker filed a motion for outof-time appeal, which the trial court granted on January 17, 2012. Walker then
filed a motion for new trial on January 20, 2012, which he amended on
November 20, 2017 and July 17, 2018. Following a July 17, 2018 hearing, the
trial court denied the motion for new trial on August 6, 2018. Walker timely
filed a notice of appeal, and his case, submitted for a decision on the briefs, was
docketed to the April 2019 term of this Court.
began a years-long affair. Eventually, as the relationship grew,
Tracey and Walker discussed murdering Steven, though Walker did
not tell Tracey the details of what he was planning in order to
“protect” her. In the month before the murder, Tracey told Walker
about Steven’s daily routine and showed Walker where the home she
shared with Steven was located. In addition, Tracey cashed a $1,500
check and gave the money to Walker, who was going to use the cash
to hire someone who would help him with the murder.2
Walker originally planned to murder Steven on Friday, April
21, 2006. That day, Walker parked his truck outside Tracey’s home,
raised the truck’s hood, and waited for Tracey to leave to take her
child to school. After Tracey left, however, Walker called her and
told her that he could not go through with the planned murder. After
knocking on the door and telling Steven he was having car trouble,
Walker decided that the murder would have to happen a different
2 There was evidence that Walker may have planned to hire his cousin
to assist in the murder, but that plan apparently fell through.
2
day.3
On April 24, 2006, Walker told Tracey that he would murder
Steven that day. Walker texted Tracey, “I’m just so ready, baby.
Miss you. Will be over soon, count on it.” That night around 9:00
p.m., Walker and Tracey met at Walker’s cousin’s house. Walker got
into Tracey’s car with something wrapped in a sweatshirt, and the
two of them drove to Tracey’s home. Walker waited inside the car
and instructed Tracey to come and get him after Steven fell asleep.
Around 11:30 p.m., Tracey signaled Walker, who came inside the
house carrying his “bundle.” Walker told Tracey to make sure her
two young children stayed in their room, and then Walker entered
the master bedroom where Steven was sleeping. Tracey waited
outside and heard the sounds of beating. Afterwards, Walker exited
the bedroom with an axe handle. He told Tracey that Steven was “as
good as gone” and that he had slit Steven’s throat. Walker then
3 That day, Steven reported the event to the sheriff’s office, recounting
that a suspicious white extended-cab Chevrolet truck had parked in his
driveway that morning and two black males came up to his door and said their
truck was broken down.
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threw Tracey’s jewelry on the floor, took Steven’s wallet, and broke
the back window with a hammer in order to make it seem like there
had been a break-in. Walker told Tracey to “beat herself up,” so she
inflicted scratches on herself and cut her pajamas. Walker then took
Steven’s truck and left.
Forty-five minutes later, Tracey called 911 and frantically
reported a home invasion. She said that two men came into the
master bedroom while she and her husband were sleeping, and that
one of the men attacked Steven. When officers arrived, they
observed superficial scratches on Tracey’s chest and noticed that her
pajamas were torn. Steven was found lying on the floor of the
bedroom with his throat cut from ear to ear. He had also been struck
in the head three to four times while he was still in the bed, and he
displayed no defensive wounds. In addition, a knife was found in the
bedroom that matched the knives from the knife block in the
kitchen, and, at the scene, a GBI special agent noticed a card from a
florist shop in Tracey’s purse addressed to Tracey from “Ric.”
While being questioned by responding officers, Tracey received
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several calls from Walker. This prompted a GBI special agent to
contact Walker, who agreed to meet with the agent. At that meeting,
Walker said that he had come to Burke County on April 24 to buy
some lumber. Walker said that he spent time with his friends, and
also with Tracey, with whom he admitted he was having an affair.
Walker said that on the night of April 24, he met up with Tracey,
they hung out at his cousin’s house, and then she went home. Walker
denied going to neighboring Jenkins County that day and said that
he was not familiar with where Tracey lived in Jenkins County. He
stated that, after Tracey left, he hung out at a friend’s house, and
then left around 12:30 to 1:00 a.m. to head back to his home in Hart
County.
Contrary to Walker’s statements, however, police obtained
phone records and cell-site location information (“CSLI”) that placed
Walker in Millen (where the Harleys lived) around the time Steven
was killed. Phone records also showed that, on the night of the
murder, Walker and Tracey talked at 12:07 a.m., Walker called
Tracey at 12:26 a.m., and then Tracey called Walker at 12:51 a.m.,
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just minutes before calling 911. Tracey also sent Walker a text
message while on the phone with the 911 operator between 12:54
a.m. and 1:07 a.m. Walker told the police that Tracey seemed
completely “normal” during the 12:51 a.m. phone call to him. In the
ten days leading up to Steven’s death, Walker had over 1,300 calls
and text messages, most of which were to or from Tracey. Walker
was arrested on May 11, 2006, and Tracey was arrested shortly
thereafter. Although Tracey initially denied knowing anything
about the murder, she confessed following her arrest and described
the murder plot in full detail. She also testified at Walker’s trial.
The record also shows that, while Walker was in jail awaiting
trial, he became friends with Emory Bell, another inmate. The two
men confided in each other about their respective cases. Walker told
Bell that he had had a sexual relationship with a school teacher and
that he had killed her husband because she wanted her husband
“out of the picture.” Walker told Bell that he had slit the husband’s
throat and driven the husband’s truck somewhere.
This evidence was sufficient to enable the jury to find beyond a
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reasonable doubt that Walker was guilty of the crimes for which he
was convicted. See Jackson v. Virginia, 443 U. S. 307 (
99 SCt 2781,
61 LE2d 560) (1979).4
2. Walker contends that trial counsel rendered ineffective
assistance by failing to: (a) move to suppress the CSLI used against
him at trial; (b) object to certain evidence and statements allegedly
commenting on his right to remain silent; and (c) impeach Bell with
all of his former convictions.
In order to succeed on his claim of ineffective assistance,
[Walker] must prove both that his trial counsel’s
performance was deficient and that there is a reasonable
probability that the trial result would have been different
if not for the deficient performance. Strickland v.
Washington, 466 U. S. 668 (
104 SCt 2052, 80 LE2d 674)
(1984). If an appellant fails to meet his or her burden of
proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong. Id. at 697
(IV); Fuller v. State, 277 Ga. 505 (3) (
591 SE2d 782)
(2004). In reviewing the trial court’s decision, “‘[w]e
accept the trial court’s factual findings and credibility
determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.’
[Cit.]” Robinson v. State, 277 Ga. 75, 76 (
586 SE2d 313)
(2003).
4 Although Walker does not challenge the sufficiency of the evidence in
this case, it is our customary practice to review the sufficiency of the evidence
in murder cases. See Wainwright v. State, 305 Ga. 63 (1) (
823 SE2d 749) (2019).
7
Wright v. State, 291 Ga. 869, 870 (2) (
734 SE2d 876) (2012).
Furthermore, “[t]rial tactics and strategy . . . are almost never
adequate grounds for finding trial counsel ineffective unless they are
so patently unreasonable that no competent attorney would have
chosen them.” (Citation and punctuation omitted.) McNair v. State,
296 Ga. 181, 184 (2) (b) (
766 SE2d 45) (2014).
(a) Walker first contends that trial counsel rendered ineffective
assistance by failing to object to the CSLI used to track his location
at trial. Relying on Carpenter v. United States, ___ U. S. ___ (138
SCt 2206, 201 LE2d 507) (2018), Walker argues that trial counsel
should have moved to suppress the CSLI on the basis that it was
obtained through a court order rather than a warrant. Carpenter
holds that individuals maintain a legitimate expectation of privacy
in the record of physical movements captured by CSLI, and,
accordingly, a search warrant supported by probable cause is
generally required before acquiring CSLI from a wireless carrier.
See
id. at 2217 (III). Carpenter, however, was decided eleven years
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after Walker was tried.
[I]n making litigation decisions, there is no general duty
on the part of defense counsel to anticipate changes in the
law, and only in a rare case would it be ineffective
assistance by a trial attorney not to make an objection
that would be overruled under prevailing law. Rickman v.
State, 277 Ga. 277, 280 (2) (
587 SE2d 596) (2003).
Although this Court has held that [a new decision] applies
to the admission of evidence in cases pending on direct
review at the time that opinion was issued, that does not
alter the long-standing precedent that, when addressing
a claim of ineffectiveness of counsel, the reasonableness
of counsel’s conduct is examined from counsel’s
perspective at the time of trial. Thus, [a new decision]
does not apply in a manner that would require counsel to
argue beyond existing precedent and anticipate the
substance of the opinion before it was issued.
(Citation and punctuation omitted.) Perera v. State, 295 Ga. 880,
885-886 (3) (d) (
763 SE2d 687) (2014). Thus, Walker’s trial counsel
could not be deemed ineffective for failing to argue precedent that
was not in existence at the time of his trial.
Furthermore, Walker has not shown us that any objection to
the CSLI would have been successful if one had been made. And, in
fact, prior to the decision in Carpenter, our Court of Appeals held
that CSLI was admissible. Smarr v. State, 317 Ga. App. 584 (732
9
SE2d 110) (2012).5
(b) Next, relying on Mallory v. State, 261 Ga. 625 (5) (
409 SE2d
839) (1991), Walker contends that trial counsel was ineffective for
failing to object to the admission of two separate comments that
were allegedly made about his pre-arrest silence.
Under Georgia’s old Evidence Code, which governed the trial
of this case, this Court established a bright-line rule [in
Mallory6] prohibiting the State from commenting on a
defendant’s pre-arrest silence or failure to come forward, on the
ground that such comments were far more prejudicial than
probative.
(Citation and punctuation omitted.) Kennebrew v. State, 299 Ga.
864, 872 (2) (a) (2) (
792 SE2d 695) (2016).
(i) The first comment challenged by Walker was introduced
during the direct examination of Investigator Tom Woodrum, who
5 Similar rulings can be found in federal courts. See, e.g., United States
v. Skinner, 690 F3d 772, 779 (II) (A) (6th Cir. 2012) (because “cell-site data is
simply a proxy for the defendant’s visually observable location, and a
defendant has no legitimate expectation of privacy in his movements along
public highways, . . . DEA agents did not conduct a search within the meaning
of the Fourth Amendment”) (citation and punctuation omitted).
6 For cases subject to the new Evidence Code, the Mallory rule is no
longer applicable because it “is inconsistent with [OCGA § 24-4-403], and it
finds no home in any of the specific and detailed exclusionary rules included in
the new [Evidence] Code.” State v. Orr, 305 Ga. 729, 738 (2) (
827 SE2d 892)
(2019).
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questioned Walker shortly after the murder. Woodrum recounted
that he asked Walker about cell phone data showing that he called
Tracey right around the time of the 911 call on the night of the
murder, and Walker responded that Tracey seemed calm at the time
they were speaking. The following testimony was given at trial:
INVESTIGATOR WOODRUM: Well, I confronted him .
. . right then that I knew that there was a phone call
between the two of them within moments of that 911 call.
And how in the world could the [two] of them be on the
phone discussing what had happened to Steve Harley
when we knew that he was laying [sic] there on the floor
dead. . . . You and Tracey are sitting there discussing
things calmly but yet you tell me that he was laying [sic]
there on the floor with his throat cut. That’s what I said.
And he couldn’t respond.
STATE: And you based that assertion on the call records
and the time of death you knew that Steven had suffered.
INVESTIGATOR WOODRUM: That’s right[.]
STATE: And what did he say?
INVESTIGATOR WOODRUM: Nothing. He didn’t say
anything.
STATE: And what was his demeanor?
INVESTIGATOR WOODRUM: He was shocked. He kind
of stared off like he was, you know, just taken aback by
the whole thing and just kind of looked away, and I say I
gave up on it.
Based on Mallory, Walker argues that Woodrum should not have
been allowed to state that Walker did not say anything in response
11
to his question. Even if we assume without deciding that Woodrum’s
answer on direct examination violated the Mallory rule, and assume
further that counsel had no strategic reason for not objecting, the
evidence against Walker, including Tracey’s testimony, texts, and
Walker’s admission to Bell, was overwhelming, so the answer
caused no Strickland prejudice. See Ruiz v. State, 286 Ga. 146, 152
(3) n. 3 (
686 SE2d 253) (2009). Consequently, Walker cannot show
that he was prejudiced by trial counsel’s failure to object to the
testimony in question.
Id.
(ii) The second comment Walker contends is objectionable was
made by the prosecutor during closing arguments. Recounting
Walker’s testimony and demeanor when he was being examined at
trial by his own lawyer, the prosecutor argued:
[W]hen his attorney was going line after line and . . . he
said, When you told her, baby, I’m lost without you. Sorry
for not getting the job done. What did you mean by that?
. . . Everybody here could hear a pin drop. Y’all were
looking at him. [Walker’s] head dropped and he couldn't
give an answer . . . I could imagine that was the same
kind of expression that [Walker] gave Mr. Woodrum when
he said, [w]hat did y’all talk about for a hundred and
thirty-nine seconds while Steven Harley was laying [sic]
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dead in his bedroom. And he couldn’t give an answer.
Because any answer that would have contained a shred of
truth would be the answer of his guilt.
(Emphasis supplied.) Even if we assume that the prosecutor’s
statement was objectionable and that trial counsel was deficient for
failing to object, Walker must still prove that his defense was
prejudiced. He has not carried this burden. Here,
in light of the . . . strong evidence against [Walker], we
see no reasonable probability that an objection to this
[argument] would have produced a different and more
favorable outcome for [Walker]. See Blaine v. State, 305
Ga. 513, 521 (4) (
826 SE2d 82) (2019) (“[T]rial counsel
cannot be ineffective for failing to raise claims that would
not have . . . made any difference in the outcome of [the
defendant’s] case.”).
Spell v. State, 305 Ga. 822, 826 (2) (
828 SE2d 345) (2019).
(c) Finally, Walker maintains that trial counsel rendered
ineffective assistance by failing to impeach inmate Bell with all of
his former convictions, including one conviction for forgery that was
over ten years old. Again, this contention fails.
Under former OCGA § 24-9-84.1 (a) (1), (3) which is
applicable to this case, prior felony convictions could be
used to impeach a witness if the trial court determined
that the probative value of admitting the evidence
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outweighed its prejudicial effect to the witness. Id.
Subsection (a) (3) permitted the use of any conviction for
a crime involving dishonesty or making a false statement.
Subsection (b) governed the use of convictions that, like
[Bell’s], were more than ten years old, and required the
trial court to determine, “in the interests of justice, that
the probative value of the conviction supported by specific
facts and circumstances substantially outweigh[ed] its
prejudicial effect.”
(Footnote omitted.) Clark v. State, 299 Ga. 552, 555 (2) (b) (
787 SE2d
212) (2016). At the motion for new trial hearing, Walker introduced
certified copies of some of Bell’s prior convictions and generally
asked trial counsel about his strategy for not introducing them, but
he did not attempt to show
that the probative value of [any prior] conviction
supported by specific facts and circumstances
substantially outweighed its prejudicial effect, and, as a
result, he has failed to provide any basis for showing that
the convictions would have been admissible and that he
was harmed by his attorney’s failure to introduce them.
Id. Walker makes a specific argument only in regard to Bell’s prior
forgery conviction, contending that it should be automatically
admissible as a crime of dishonesty pursuant to former OCGA § 24-
9-84.1 (a) (3). However, because that conviction was more than ten
14
years old, it would only be admissible if “the probative value of the
conviction supported by specific facts and circumstances
substantially outweigh[ed] its prejudicial effect,” as required by
former OCGA § 24-9-84.1 (b). Again, Walker has not shown this
prerequisite for admissibility would have been satisfied.
Moreover, Walker’s trial counsel did cross-examine Bell about
the burglary charges he was facing at the time that he was Walker’s
prison mate, and he also asked Bell about former convictions for
aggravated assault and battery.7 Trial counsel then used these
convictions to draw Bell’s testimony into question during his closing
argument. So, Bell’s credibility was drawn into question, and
Walker has made no showing as to how he may have been prejudiced
by trial counsel’s failure to offer any other prior convictions (even if
we assume any such prior convictions might have been admissible).
Judgment affirmed. All the Justices concur.
7 Trial counsel also asked Bell whether he had any other convictions, but
Bell responded that he could not remember.
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DECIDED AUGUST 19, 2019.
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Murder. Jenkins Superior Court. Before Judge Peed.
David J. Walker, for appellant.
Richard A. Mallard, District Attorney, Keith A. McIntyre,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Elizabeth H. Brock,
Assistant Attorney General, for appellee.
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