Walker v. State

FINAL COPY

               S19A0540. WALKER v. THE STATE.


     BOGGS, Justice.

     Appellant Orsley Walker appeals his convictions for felony

murder and a firearm offense in connection with the shooting death

of his girlfriend, 53-year-old Constance Cox. He contends that the

trial court erred in denying his motions for a mistrial after the State

introduced evidence of hearsay statements by Cox through the

testimony of Cox’s daughters in violation of a trial court order and

that he was denied the effective assistance of counsel due to his trial

attorneys’ failure to object and move for a mistrial when the State

introduced evidence of another hearsay statement by Cox through

the testimony of her son-in-law. Appellant also contends that the

trial court erred in overruling his objections to the State’s line of

questioning on redirect examination of the lead detective about the
detective’s experiences with suspects in other cases. We affirm.1

      1.    Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. Appellant and Cox dated for

about two years. Eight to ten times a year, Cox would call her

younger daughter, Constance Nunnally, upset and sometimes

crying, and ask to be picked up from Appellant’s house. Nunnally

would go or send her husband. About a year before the fatal

shooting, Cox called Nunnally, very upset, and asked to be picked

up again. When Nunnally’s husband arrived at Appellant’s house,

Cox was crying and very emotional. As Nunnally’s husband put it,

“You could feel the tension,” and because of Cox’s crying and




      1  The fatal shooting occurred shortly after midnight on the night of
December 24-25, 2011. On December 17, 2013, a Fulton County grand jury
indicted Appellant for felony murder, aggravated assault with a deadly
weapon, and possession of a firearm during the commission of a felony. At a
trial from February 9 to 12, 2016, the jury found Appellant guilty of all charges.
On February 15, 2016, the trial court sentenced Appellant, who by then was
73 years old, to serve life in prison for felony murder and a suspended
consecutive term of five years for the firearm conviction; the aggravated
assault verdict merged. On February 29, 2016, Appellant filed a motion for new
trial, which he amended with new counsel on May 1, 2018. After an evidentiary
hearing, on October 4, 2018, the trial court entered an order denying the
motion. Appellant filed a timely notice of appeal, and the case was docketed in
this Court for the April 2019 term and submitted for decision on the briefs.
                                        2
emotional state and the tense atmosphere at Appellant’s house, he

asked Appellant if Appellant had shot Cox. Appellant replied, “I

have the right to defend my house.” Nunnally’s husband then asked

Cox to show him where she was hurt, and she pulled up her shirt,

revealing a wound in the middle of her back. He again asked

Appellant if he had shot Cox, and Appellant again replied, “I have

the right to defend my house.” Cox then left with her son-in-law but

refused to go to a hospital or police station.

     At the time, Nunnally and her husband lived in the apartment

directly above Cox’s, and he took Cox to their apartment, where

Nunnally was waiting. Cox, who was drunk, walked in and stumbled

onto the couch. Nunnally saw a hole in the back of Cox’s shirt and

pulled up the shirt. When Nunnally saw the wound on Cox’s back,

she said, “We need to call the police and get him locked up.”

Nunnally called her older sister, Furaha Quinn, who came over.

Nunnally, her husband, and Quinn kept checking the wound on

Cox’s back and tried without success to get Cox to go to the hospital.

Nunnally eventually called for an ambulance, but when the

                                   3
emergency medical technicians (“EMTs”) arrived, Cox refused

treatment, instead going downstairs to her apartment and closing

the door. A couple weeks later, Cox went back to Appellant, and the

periodic calls asking to be picked up from his house resumed.

     On Christmas Eve 2011, Appellant and Cox went to a get-

together at the home of Michael Perkins, Appellant’s friend of 30

years. On the way there, Appellant and Cox stopped at a liquor

store. They bought cigarettes and what Appellant and Perkins

described as “Christmas liquor” — a pint of brandy and a 12-pack of

beer for Appellant and Cox to share on Christmas Day. Appellant

and Cox spent the next several hours getting drunk with Perkins.

Cox, who was described by a friend as “very loving” when she drank,

went out to Appellant’s car several times to get beer. Around

midnight, Appellant and Cox left Perkins’ house and got into an

argument in the car. Cox asked Appellant to drop her off at her

apartment, which was not far from Perkins’ house. Appellant drove

to the apartment complex and pulled into a parking space, and Cox

got out of the car. She then went into the back seat and picked up

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her purse, what was left of the box of beer, the pint of brandy, and

the bag containing the cigarettes. Appellant said, “You can’t take

this here,” and tried unsuccessfully to stop her. Appellant then got

out of the car with his loaded .38 revolver and confronted Cox.

During the confrontation, he pulled the trigger on the revolver once,

shooting Cox in the face at close range. The bullet traveled straight

through Cox’s head and lodged in the back of her brain, instantly

incapacitating her. Appellant then walked back to his car, put the

gun inside, and got out his cell phone. Appellant called Perkins and

said that he had just shot Cox, and Perkins told him to hang up and

call 911.

     Appellant called 911 from his cell phone at 12:15 a.m. on

Christmas Day. He told the 911 dispatcher, “I just shot my

girlfriend,” repeating the same sentence twice more. Appellant told

the dispatcher that he thought Cox was dead and said, “I’m the one

that shot her. I’m the one that shot,” but he claimed that Cox

“started fighting and tried to take the, take the gun away from me

and it went off and it hit her in the head.” Appellant said, “I’ll tell

                                  5
the police what happened,” gave the dispatcher the address, and

described his car and what he was wearing. Appellant was still on

the phone with 911 when the police arrived. No blood was visible on

Appellant, he did not appear to be injured, and the police took him

into custody. Cox was pronounced dead at the hospital at 12:45 a.m.

Nunnally and her husband were still up wrapping Christmas

presents at their house when Nunnally’s aunt came to get Nunnally

and take her to the hospital.

     A few hours after the shooting, Appellant waived his Miranda

rights and spoke with J. Thorpe, Jr., the lead detective on the case.

See Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966). In the interview, which was video-recorded, Appellant

claimed that when he told Cox to stop after she picked up her purse,

the pint of brandy, the box of beer, and the bag with the cigarettes

from the back seat, she “turned around,” walked back to the car,

opened the console in the front seat, and took out his .38 revolver.

Appellant told Detective Thorpe, “Hey, I didn’t want her to get ahold

of that pistol.” Appellant claimed that he climbed over the console

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and clambered out the passenger-side door after Cox and “took the

pistol away from her.” Appellant said that the two of them were “out

there in that parking lot,” and he heard a loud bang and saw Cox

fall down.

     At trial, the medical examiner who performed the autopsy on

Cox testified that there was a ring of gunpowder and soot around

the entry wound on Cox’s face, which meant that the revolver was

within a few inches of her face when it was fired. An expert in

firearms identification testified that due to rust, dirt, and debris on

the double-action revolver, it would have taken an unusually large

amount of pressure — more than 15 pounds — to pull the trigger

without the hammer cocked, but only 3.5 pounds of pressure to pull

the trigger if the hammer was cocked. The State played an audio

recording of the 911 call and the video recording of Appellant’s

interview for the jury, and numerous photographs of the crime scene

showing the locations of the various objects that Cox picked up out

of the back seat were admitted into evidence. In addition, Nunnally,



                                  7
Quinn, and a childhood friend of Cox testified that they had never

seen Cox with a gun.

     Appellant did not testify at trial. The defense’s theory was that

the shooting was an accident and that the revolver went off during

a struggle as Appellant tried to take it away from Cox for her own

safety. The jury was instructed on accident.

     Appellant does not contest the legal sufficiency of the evidence

supporting his convictions. Nevertheless, in accordance with this

Court’s practice in murder cases, we have reviewed the record and

conclude that, when viewed in the light most favorable to the

verdicts, the evidence presented at trial and summarized above was

sufficient to authorize a rational jury to find Appellant guilty beyond

a reasonable doubt of the crimes for which he was convicted. See

Jackson v. Virginia, 

 (

, 61 LE2d 560)

(1979). See also Vega v. State, 

 (

) (2009)

(“‘It was for the jury to determine the credibility of the witnesses and

to resolve any conflicts or inconsistencies in the evidence.’” (citations

omitted)).

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     2.    Appellant’s arguments on appeal primarily relate to

hearsay statements that Cox made after she was wounded in the

back at Appellant’s house about a year before the fatal shooting.

Before trial, the State filed a notice of intent to introduce evidence

of several of those statements under the residual exception to the

rule against hearsay, OCGA § 24-8-807.2 The relevant parts of the

notice said that the State intended to present testimony from

Nunnally that Cox refused treatment when the EMTs arrived at the

Nunnallys’ apartment; testimony from Quinn that Cox said that

Appellant shot at her but missed; and testimony from Nunnally’s


     2 OCGA § 24-8-807 says:

            A statement not specifically covered by any law but having
     equivalent circumstantial guarantees of trustworthiness shall not
     be excluded by the hearsay rule, if the court determines that:
            (1)     The statement is offered as evidence of a material fact;
            (2)     The statement is more probative on the point for which
            it is offered than any other evidence which the proponent can
            procure through reasonable efforts; and
            (3)     The general purposes of the rules of evidence and the
            interests of justice will best be served by admission of the
            statement into evidence.
     However, a statement may not be admitted under this Code section
     unless the proponent of it makes known to the adverse party,
     sufficiently in advance of the trial or hearing to provide the adverse
     party with a fair opportunity to prepare to meet it, the proponent’s
     intention to offer the statement and the particulars of it, including
     the name and address of the declarant.
                                       9
husband that Cox told him when he arrived at Appellant’s house

that Appellant had fired a shot at her. In a motion in limine

concerning other matters, Appellant responded to the State’s notice.

     After jury selection but before opening statements, the trial

court heard argument on the State’s notice and Appellant’s

response. The court took the issue under advisement during a lunch

recess and then entered a written order finding that Cox’s hearsay

statements    lacked   sufficient    circumstantial   guarantees     of

trustworthiness to be admitted into evidence under OCGA § 24-8-

807. The order concluded, “the State’s request to introduce the

statements [by Cox] referred to in the Notice is denied.” After a brief

recess to prepare its witnesses, the State sought clarification of the

court’s order. The State said that it still intended to call Nunnally,

her husband, and Quinn, “not to get into any hearsay,” but to testify

“about their observations, what they saw.” Appellant responded that

the State would be well within its rights to do so, and the court then

said, “They can testify to the facts of what they know.” After another



                                    10
short recess for the State to prepare its witnesses, the parties made

their opening statements to the jury.

     (a)   Appellant first argues that the trial court erred in

denying his motions for a mistrial after the State introduced

evidence of hearsay statements by Cox through the testimony of

Nunnally and Quinn. “Whether to declare a mistrial is a question

committed to the discretion of the trial judge . . . .” Wilson v. State,

 (

) (2014) (citation and punctuation

omitted). We see no abuse of discretion.

     (i)   Nunnally testified on direct examination that after the

incident about a year before Cox’s death, she ended up calling an

ambulance for Cox. The State asked Nunnally, “What, if anything,

happened after that?,” and Nunnally said, “They came, [and] she

refused to go with them.” Appellant immediately made a hearsay

objection and indicated to the court that he had a motion to make

outside the presence of the jury. The State disputed that the

testimony was hearsay, arguing that what Nunnally was referring

to was what she saw Cox do when the EMTs arrived, not necessarily

                                  11
what Cox said. Appellant replied, “[Y]ou do it by saying something.”

The court then excused the jury and Nunnally, and Appellant moved

for a mistrial on the ground that the testimony violated the court’s

order on the State’s notice. After hearing arguments, the court

denied the motion, explaining that “you can refuse by your actions

without having to say a word.” When the jury and Nunnally

returned to the courtroom, the State asked, “[W]hen you say your

mom refused treatment[,] without saying anything she said, what,

if anything, did she do?” Nunnally replied that Cox, despite the

EMTs’ entreaties to go with them due to the risk of imminent

infection, “continued to try to make her own way back to [her]

apartment. We eventually let her go. She went to her apartment and

. . . she wouldn’t even answer the door for like two days for us.”

     Quinn testified on direct examination that when she went to

the Nunnallys’ apartment, she “observed” that Cox was upset,

appeared to have been drinking, and had an injury “[a]long the

spinal center of her back.” The State asked Quinn if she saw or spoke

to Cox on the day that Cox died, and Quinn said, “No.” The State

                                  12
then asked, elliptically, “How did you learn?,” and Quinn replied

that she received a phone call from her aunt. The State said,

“Without going into what your aunt said, what was your response?,”

and Quinn answered, “Let me know how she is, and that was it.”

The State asked, “Why did you respond that way?,” and Quinn

replied, “Because she had been through it before and I just didn’t

think it was serious.” The State said, “When you say ‘through it

before,’ [do you mean] with this defendant?,” and Quinn answered,

“Yes.” Appellant then made a hearsay objection and indicated to the

court that he had another motion to make outside the presence of

the jury. The court excused the jury and Quinn, and Appellant

moved for a mistrial on the ground that the testimony violated the

court’s order on the State’s notice. Appellant argued that the “it” in

Quinn’s testimony that Cox “had been through it before” was a

reference to the fact that Appellant shot Cox about a year before the

fatal shooting, which Appellant claimed Quinn knew about only

from what Cox told her at the time. The State responded in part that

Quinn’s testimony was based not on anything that Cox said, but

                                 13
instead on what Quinn had just told the jury that she observed at

the Nunnallys’ apartment. The trial court denied the motion without

explanation.

     (ii)   Appellant argues that the trial court abused its discretion

in denying his mistrial motions because Nunnally’s testimony that

Cox “refused” to go with the EMTs, and Quinn’s testimony that Cox

“had been through it before” with Appellant, violated the court’s

order on the State’s notice. We disagree.

     Recall that the trial court’s order concluded, “the State’s

request to introduce the statements [by Cox] referred to in the

Notice is denied.” Specifically, the State’s notice of intent to

introduce certain hearsay statements by Cox said that Nunnally

would testify that Cox refused treatment when the EMTs arrived at

the Nunnallys’ apartment and that Quinn would testify that Cox

said that Appellant shot at Cox but missed. But at trial, Nunnally

did not testify that Cox said that she did not want medical treatment

or that Cox told the EMTs to go away. Instead, she testified that Cox

“refused to go with them [i.e., the EMTs],” and as the trial court

                                   14
correctly explained, “you can refuse by your actions without having

to say a word” — which the evidence showed that Cox did. Thus,

contrary to Appellant’s argument, and as the trial court found,

Nunnally’s testimony that Cox “refused” to go with the EMTs did

not violate the court’s order on the State’s notice.3 Cf. Kirby v. State,

 (

) (2018) (holding that testimony

that ring had jewelry manufacturer’s mark was hearsay when

offered to prove ring had mark and testimony made clear that

witness had no personal knowledge of mark and knew about it solely

based on someone else’s statement to her). It is not an abuse of

discretion to deny a motion for a mistrial based on an alleged

violation of an order that was not violated. See Allen v. State, 

 (

) (2015) (finding no abuse of discretion




      3 Appellant did not argue in the trial court that Cox’s conduct was a

statement covered by the court’s order. See OCGA § 24-8-801 (a) (2) (defining
“[s]tatement” to include “[n]onverbal conduct of a person, if it is intended by
the person as an assertion”). See also State v. Orr, 

 (

) (2019) (noting that “the key to the definition of ‘statement’ is that
nothing is an assertion unless intended to be one, [such as] . . . the act of an
eyewitness pointing to identify a suspect in a lineup as the perpetrator of a
crime” (citation and punctuation omitted)).
                                      15
in denial of mistrial motion for alleged violation of order when no

violation of order was shown).

     Appellant’s argument concerning Quinn’s testimony that Cox

“had been through it before” with Appellant fails for the same

reason. The State’s notice said that Quinn would testify that Cox

told her that Appellant shot at Cox but missed. But Quinn did not

testify about anything that Cox said to her. Instead, Quinn testified

that when her aunt called her on the day that Cox died, Quinn’s only

response to her aunt was, “Let me know how she is.” When the State

asked why, Quinn testified that Cox “had been through it before”

with Appellant and that Quinn therefore did not think that the

situation was serious. Quinn knew from her own observations at the

Nunnallys’ apartment, which she had just recounted to the jury,

that Cox sustained a serious but non-fatal back wound at

Appellant’s house about a year before the fatal shooting. Quinn also

had personal knowledge that Cox went back to Appellant after that

incident, which she told the jury. Cf. Kirby, 

. The

trial court was authorized to conclude that Quinn’s testimony about

                                 16
why she reacted to her aunt’s call the way she did suggested that

her lackadaisical response — just “[l]et me know how she is” —

reflected not a lack of concern for her mother, but rather resignation

about the choice that Cox had made to stay with Appellant. Thus,

contrary to Appellant’s argument, Quinn’s testimony that Cox “had

been through it before” with Appellant did not violate the court’s

order on the State’s notice, and the trial court therefore did not

abuse its discretion in denying his mistrial motion. See Allen, 

.

     (b)   Appellant next argues that he was denied the effective

assistance of counsel due to his trial attorneys’ failure to object and

move for a mistrial when the State introduced evidence of another

hearsay statement by Cox through the testimony of Nunnally’s

husband. To prevail on this claim, Appellant must prove both that

his counsel’s performance was professionally deficient and that the

deficiency resulted in prejudice to his case. See Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984).

To establish deficient performance, Appellant must show that his

                                  17
counsel’s   acts   or   omissions   were   objectively   unreasonable,

considering all the circumstances at the time and in the light of

prevailing professional norms. See 

. To establish

prejudice, Appellant must show “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” 

. A

reviewing court need not “address both components of the inquiry if

the defendant makes an insufficient showing on one.” 

.

     At trial, Nunnally’s husband testified that when he arrived at

Appellant’s house, Cox was crying and very emotional, and the

atmosphere was very intense, which prompted him to ask Appellant

if he had shot Cox, to which Appellant replied that he had a right to

defend his house. Nunnally’s husband further testified that after

Cox pulled up her shirt and he saw the wound on her back, he again

asked Appellant if Appellant had shot Cox, and Appellant again

replied that he had a right to defend his house. Appellant contends

that his trial attorneys were professionally deficient in failing to

                                    18
make a hearsay objection and move for a mistrial on the ground that

the testimony of Nunnally’s husband that he twice asked Appellant

if Appellant shot Cox violated the court’s order on the State’s notice.

     The State’s notice of intent to introduce hearsay statements by

Cox said that Nunnally’s husband would testify that Cox told him

when he arrived at Appellant’s house to pick her up about a year

before the fatal shooting that Appellant had fired a shot at her. And

the trial court’s order concluded, “the State’s request to introduce

the statements [by Cox] referred to in the Notice is denied.”

Appellant contends that the testimony of Nunnally’s husband that

he twice asked Appellant if Appellant had shot Cox violated the

court’s order, because the only way that Nunnally’s husband knew

to ask Appellant that question was because Cox had told him that

Appellant fired a shot at her. But Nunnally’s husband testified that

what prompted him to ask Appellant if Appellant had shot Cox was

Cox’s crying and emotional state and the tense atmosphere at

Appellant’s house.



                                  19
      Moreover, aside from certain unusual circumstances — for

example, questions of the infamous “When did you stop beating your

wife?” variety4 — questions are not hearsay, because they do not

assert anything, nor are they intended as assertions. See OCGA

§ 24-8-801 (a) (1), (2); United States v. Lewis, 902 F2d 1176, 1179

(5th Cir. 1990) (“The questions asked by the unknown caller, like

most questions and inquiries, are not hearsay because they do not,

and were not intended to, assert anything.”). Thus, Nunnally’s

husband’s testimony that he twice asked Appellant if Appellant had

shot Cox was not hearsay, so there was no basis for a hearsay

objection, and the failure to make a meritless objection is not

deficient performance. See Watson v. State, 

 (

) (2018). Likewise, Appellant’s trial counsel were not

professionally deficient in failing to make a mistrial motion based


      4 See United States v. Felix-Jerez, 667 F2d 1297, 1303 (9th Cir. 1982)

(referring to “the well known cliche question of ‘When did you stop beating your
wife?’”). See also United States v. Check, 582 F2d 668, 678 (2d Cir. 1978)
(finding, after extensively quoting prosecution’s examination of undercover
officer who was prosecution’s principal witness, that “for much of his testimony
[the officer] was serving as a transparent conduit for the introduction of
inadmissible hearsay information obviously supplied by and emanating from
the informant,” who did not testify at trial).
                                      20
on a violation of the court’s order, because the testimony by

Nunnally’s husband did not violate the order, so a mistrial would

not have been warranted. See Koonce v. State, 

 (

) (2019). Accordingly, Appellant’s ineffective assistance of

counsel claim fails.

     3.   Finally, Appellant contends that the trial court erred in

overruling his relevancy objection to the State’s line of questioning

to the lead detective on redirect examination about his experience

with suspects in other cases. “Decisions regarding relevance are

committed to the sound discretion of the trial court,” Smith v. State,

 (

) (2016), and we see no abuse of

discretion.

     OCGA § 24-4-401 defines “relevant evidence” as “evidence

having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less

probable than it would be without the evidence.” OCGA § 24-4-401

tracks the language of Federal Rule of Evidence 401 as that rule

read in 2011, so in interpreting OCGA § 24-4-401, “we properly look

                                 21
to the decisions of the federal appellate courts — particularly the

United States Supreme Court and the Eleventh Circuit —

interpreting Rule 401, rather than to cases discussing relevance

under the old Evidence Code.” Smith, 

. “The fact to

which the evidence is directed need not be in dispute.” Federal Rule

of Evidence 401, Advisory Committee Note.5

      On cross-examination, Appellant questioned the lead detective

at length about the fact that on the night of the fatal shooting,

Appellant called 911, waited for the police to arrive on the scene, and

agreed to give a custodial statement. On redirect examination, the

State asked the lead detective roughly how many arrests he had

made in his career, if suspects always run, if Appellant was his first

murder suspect who was still on the scene when he arrived, if

Appellant was the detective’s first defendant to sit down and give a


      5 Put another way, “Evidence is relevant if: (a) it has any tendency to

make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.” That is how Federal
Rule of Evidence 401 now puts it, following a rewording in December 2011 as
part of a general restyling of the federal court rules designed to make them
easier to understand without altering the result of any ruling on the
admissibility of evidence. See Parker v. State, 

, 592 n.10 (

) (2015).
                                      22
cooperative statement or agree to be videotaped, and if this was the

first time that the detective had sought an arrest warrant after a

defendant gave a statement. Appellant objected to each of the State’s

questions on the ground that it called for irrelevant information, but

the trial court denied his objections and allowed the lead detective

to answer.

     Appellant asked the lead detective a series of questions on

cross-examination designed to suggest that Appellant’s claims about

how the fatal shooting occurred should be believed, because he

stayed on the scene instead of fleeing and cooperated with the police,

and he therefore must have had nothing to hide, which is how

Appellant framed the information in his opening statement. The

State responded on redirect examination with a brief series of

questions to the lead detective about his experience with suspects in

other cases. The trial court did not abuse its discretion in overruling

Appellant’s relevancy objections to this brief line of questioning,

which was designed to elicit testimony that undermined the

strength of the inferences that the defense was asking the jury to

                                  23
draw from Appellant’s actions. See Jones v. State, 

(

) (2019) (holding that trial court did not abuse its

discretion in allowing lead detective to testify about whether it was

common for investigators to have to seek out witnesses in homicide

cases). See also Strother v. State, 

 (

)

(2019) (explaining how evidence not otherwise relevant can

“‘bec[o]me relevant,’” or be “made relevant,” as result of how trial

unfolds).

     Judgment affirmed. All the Justices concur.




                                 24
                      DECIDED SEPTEMBER 3, 2019.
     Murder. Fulton Superior Court. Before Judge Campbell.
     Jerry W. Chappell II, for appellant.
     Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Stephany J. Luttrell, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, Scott
O. Teague, Assistant Attorney General, for appellee.




                                25