Walker v. State

FINAL COPY

                 S19A1520. WALKER v. THE STATE.

      BENHAM, Justice.

      Appellant Otheron Walker was convicted of malice murder in

connection with the beating death of his ten-month-old daughter,

Daijah White.1 On appeal, Walker contends that the evidence was



      1 The crimes occurred on October 16, 2003.      In March 2005, an Upson
County grand jury indicted Walker and his girlfriend, Janice White, for the
following offenses: malice murder, felony murder predicated on aggravated
assault, two counts of aggravated assault (related to the trauma to Daijah’s
head and abdomen), and cruelty to children in the first degree. White was
separately indicted on an additional count of felony murder. Walker and White
were tried jointly in August 2005 in Spalding County after the trial court
granted the defendants’ motion for a change of venue. A jury returned guilty
verdicts on all counts with respect to Walker, and White was convicted of,
among other things, felony murder. The trial court sentenced Walker to life
imprisonment for malice murder. The remaining counts were vacated by
operation of law or were merged by the trial court for sentencing purposes;
those rulings have not been challenged on appeal. See Dixon v. State, 

 (

) (2017). In November 2006, this Court affirmed
White’s convictions and sentences, though we did correct a sentencing error.
See White v. State, 

 (

) (2006).
       Over a decade later, Walker successfully moved the trial court for leave
to file an out-of-time motion for new trial, and Walker filed a motion for new
trial on May 10, 2017, which he later amended numerous times. Following a
hearing, the trial court denied the motion (as amended) on March 1, 2019, and
Walker thereafter filed a timely notice of appeal to this Court. This appeal was
docketed in this Court to the August 2019 term and thereafter submitted for
consideration on the briefs.
insufficient, that the jury was improperly charged, and that trial

counsel was ineffective. We affirm.

      Walker was tried jointly with Daijah’s mother, Janice White,

and we previously summarized the evidence presented at their joint

trial as follows:

            Daijah[2] was ten months old at the time of her death.
      She lived with White, her father [Walker], and a brother,
      who was then 22 months old. On October 16, 2003, White
      left for work at 4:10 p.m.; a neighbor heard Daijah
      “whining” inside the apartment. The neighbor and
      Walker spoke outside the apartment for approximately 20
      minutes. No other adult was at the apartment.
            At 5:46 p.m., a physician was called to the
      emergency room of a hospital where Daijah had been
      taken by ambulance; Daijah was already dead. She was
      bruised on her face and head, shoulder, and chest, which
      appeared to have been squeezed by hands. There was a
      cut on her abdomen, and marks on her groin and a thigh,
      showing very recent blows. On the outside of her
      genitalia, there was bruising and some healing lesions,
      and there were bruises and lacerations on the back of her
      thighs, including the mark of a strap; these injuries had
      occurred two or three days before her death, while some
      of the injuries to the torso were the final blows before
      death. Walker told the physician that Daijah’s brother
      must have thrown her off the bed or against a wall.

      2 The record before us reflects that the victim’s name is spelled “Daijah.”

In our previous decision, we spelled the victim’s name “Daija.” We have
modified the earlier spelling of the victim’s name to match what is in the record
in this case.
                                       2
     Earlier, Walker had told the emergency personnel who
     came to the apartment that Daijah had fallen from the
     bed. Neither of these accounts was consistent with the
     observed injuries.
                                    ...
           The medical examiner testified that the cause of
     Daijah’s death was blunt force injuries to the head and
     body. Fatal abdominal bleeding had occurred due to
     internal bruising produced by exterior blows. Her final
     injuries also included two skull fractures, probably from
     two separate blows. A retinal injury indicated that Daijah
     was violently shaken a month before death. Bruising on
     her throat indicated that Daijah had been grasped firmly
     under the chin by an adult hand. Daijah’s buttocks
     revealed “bruising on top of bruising on top of bruising”
     that had occurred over the last two or three days before
     death; the majority of the bruises were very recent. She
     also had a bruise on her leg caused by an object such as a
     belt. Bruises covered 40 to 50 percent of Daijah’s body. It
     was “not plausible at all” that Daijah’s injuries were
     caused by a fall from a bed. The medical examiner opined
     that Daijah suffered her final injuries two to three hours
     before death; on cross-examination, the medical examiner
     agreed that there was an “80 or 90 percent chance” that
     death would have occurred “within an hour or
     thereabouts” after the final injuries.
           Daijah died on a Thursday. The previous weekend,
     from Friday night until Sunday evening, Daijah stayed
     with an aunt. At that time, Daijah had a bruise on her
     thigh, and a small bruise on her cheek, but no other
     injuries.

White v. State, 

 (

) (2006).

Additionally, the jury heard testimony that Walker, while in jail

                                 3
awaiting trial, sent a letter to White in which he wrote, “I’ve never

lost [any] of my five [children] before [Daijah]. I never hurt any of

them before her.”

     1. Walker first argues that the circumstantial case against him

was insufficient to sustain his conviction. Specifically, he asserts

that the evidence merely showed that he was present in the

residence when some of Daijah’s injuries were inflicted, leaving open

the possibility that someone other than Walker harmed Daijah or

that Daijah’s injuries were the result of a fall. We disagree.

          Under both former OCGA § 24-4-6, in effect at the
     time of [Walker’s] trial, and present OCGA § 24-14-6, in
     order to convict [Walker] of the crimes based solely upon
     circumstantial evidence, the proven facts had to be
     consistent with the hypothesis of [his] guilt and exclude
     every reasonable hypothesis save that of [his] guilt. Not
     every hypothesis is reasonable, and the evidence does not
     have to exclude every conceivable inference or hypothesis;
     it need rule out only those that are reasonable. The
     reasonableness of an alternative hypothesis raised by a
     defendant is a question principally for the jury, and when
     the jury is authorized to find that the evidence, though
     circumstantial, is sufficient to exclude every reasonable
     hypothesis save that of the accused’s guilt, this Court will
     not disturb that finding unless it is insupportable as a
     matter of law.


                                  4
(Citations omitted.) Akhimie v. State, 

 (1) (

) (2015).

        Here, the evidence showed that, at the time she died, Daijah

had sustained numerous injuries in the days and hours leading up

to her death. The jury heard testimony that Daijah was residing

with Walker and White during this time and, in fact, that Walker

was the sole adult with Daijah in the hours preceding her death.

Though Walker provided various accounts of a fall — and attempted

to place blame on Daijah’s toddler-age brother — the jury heard

expert testimony that Daijah’s injuries were not consistent with a

fall.     Finally, the jury learned that Walker had made an

incriminating statement in a letter to White while awaiting trial.

“Based upon this evidence, the jury was not required to find that

[Walker’s] hypothesis . . . was a reasonable one.” Black v. State, 

 (1) (

) (2015). See also Nixon v. State, 

 (

) (2009). The evidence was also sufficient as

a matter of constitutional due process to authorize a rational trier of

fact to find beyond a reasonable doubt that Walker was guilty of the

                                   5
crime of which he was convicted. See Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979).

      2. Walker next argues that the jury was improperly instructed

with respect to intent, malice murder, and the State’s burden of

proof.3 “In reviewing a challenge to the trial court’s jury instruction,

we view the charge as a whole to determine whether the jury was

fully and fairly instructed on the law of the case.” (Citations and

punctuation omitted.) Allaben v. State, 

 (3) (d) (

) (2016). We consider each of Walker’s four arguments in

turn.4


      3 Walker also challenges the trial court’s instructions with respect to

felony murder, aggravated assault, and cruelty to children in the first degree.
However, because those counts were either vacated by operation of law or
merged by the trial court for sentencing purposes, any claim of error with
respect to these offenses is moot. See Solomon v. State, 

 (3) (

) (2019).
      4 Walker suggests that these claims may not be preserved for appellate

review because trial counsel did not specifically object or ask for curative
instructions, and he argues that trial counsel may have been ineffective in this
regard. See OCGA § 17-8-58 (a) (“Any party who objects to any portion of the
charge to the jury or the failure to charge the jury shall inform the court of the
specific objection and the grounds for such objection before the jury retires to
deliberate. . . .”) (effective July 1, 2007). However, at the time of Walker’s trial
in August 2005, counsel was generally not required to object to jury
instructions to preserve potential errors; instead, as counsel did here, a party
was permitted to simply “reserve the right to object on motion for new trial or

                                         6
      (a)    The trial court gave the pattern jury instruction on

“definition of crime,” charging the jury as follows:

           Now, jurors, these defendants are charged with
      crimes against the laws of this state. And in that
      connection I charge you that these defendants are
      charged with these crimes, and a crime is a violation of a
      statute of this state in which there is a joint operation of
      an act or omission to act and an intention or criminal
      negligence.

(Emphasis supplied.) Walker argues that this reference to criminal

negligence was improper because it was not an element of any

offense and, further, that the instruction likely misled the jury on

the issue of intent. However, the trial court’s instruction was an

accurate statement of the law. See OCGA § 16-2-1 (a).5 Though the

instruction makes a passing reference to criminal negligence, there

was no further mention of the term in the jury charge, and the jury

was otherwise properly instructed on the general law of intent, as

well as the intent required to prove malice murder. Accordingly,




on appeal.” Rivers v. State, 

 (

) (1982). Thus, these
claims are preserved for our review.
      5 “A ‘crime’ is a violation of a statute of this state in which there is a joint

operation of an act or omission to act and intention or criminal negligence.”
                                          7
this argument is without merit. See Holmes v. State, 

(7) (

) (2000) (instruction on definition of crime not

erroneous where jury was otherwise properly instructed on the

elements of the relevant offense).

     (b)   Walker next argues that the trial court erred when it

instructed the jury as follows:

          The first of these offenses is malice murder, for
     which both of them are charged. And in that connection I
     charge you the Official Code of Georgia, Title 16-5-1,
     which reads in part that a person commits murder when
     that person unlawfully and with malice or forethought,
     either expressed or implied, causes the death of another
     human being.

(Emphasis supplied.)       According to Walker, this instruction

authorized the jury to convict on malice murder based on malice or

forethought rather than malice aforethought. However, “[a] mere

verbal inaccuracy resulting from a slip of the tongue which does not

clearly mislead or confuse the jury is not reversible error.” (Citations

and punctuation omitted.) Davenport v. State, 

 (

) (2008). Here, the trial court’s malaprop was a singular

occurrence, and the jury was otherwise properly and accurately

                                     8
charged on malice murder. Further, the jury was instructed that

the State was required to prove every material allegation of the

indictment — which includes the language “malice aforethought” —

and every essential element of the offenses charged therein.

Accordingly, considering the trial court’s instruction as a whole,

there is no reversible error.

     (c)   Walker next complains that the jury was misled and

confused when the trial court, before instructing the jury on felony

murder, mistakenly announced its intention to charge on malice

murder. Specifically, the trial court advised the jury as follows:

          Now, these defendants are also charged in Count 2
     with felony murder; and in this instance the underlying
     felony being aggravated assault. So what I’m going to do,
     I’m going to charge you first concerning malice murder;
     and then I’m going to charge you the offense of aggravated
     assault because it is the underlying offense in this charge.
          A person commits the crime of murder when in the
     commission of a felony that person causes the death of
     another human being with or without malice.

(Emphasis supplied.) Contrary to Walker’s assertion on appeal, this

language did not suggest to the jury that “the mere commission of

another felony was sufficient to convict of both malice and felony

                                  9
murder.” Instead, it would have been obvious that the trial court

had simply misspoken; the trial court referenced felony murder

before mistakenly mentioning malice murder and then the trial

court properly charged the jury on felony murder.             Again,

considering the trial court’s instruction as a whole, there is no

reversible error. See Delacruz v. State, 

 (5) (

) (2006).

     (d) Walker argues that the trial court committed reversible

error when it charged the jury that reasonable doubt “does not mean

a vague or arbitrary or capricious doubt, nor does it mean the

possibility that the defendants may be innocent.” (Emphasis

supplied.)     While Walker is correct that this Court has

“emphatically disapproved” this language, see Coleman v. State, 

 (8) (

) (1999), this instruction is not cause

for automatic reversal, see Anderson v. State, 

 (5) (

) (2009). Instead, “reversal is not required if, when viewing

the charge as a whole, the State’s burden of proof is adequately

defined.” White v. State, 

 (2) (

) (2018).

                                 10
Here, the trial court properly instructed on Walker’s presumption of

innocence, correctly charged that Walker had no burden of proof,

and properly advised that the State had the burden of proof to

establish the allegations and elements of the charged offenses

beyond a reasonable doubt. “We therefore conclude that, viewing

the charge as a whole, the jury instruction did not mislead the jury

as to the standard of proof required by due process.” Id.

     3. Finally, Walker alleges that trial counsel was ineffective in

five different ways. These claims have no merit.

     Walker succeeds on his claims only if he demonstrates both

that his trial counsel’s performance was deficient and that he

suffered prejudice as a result of counsel’s deficient performance.

Strickland v. Washington, 

 (III) (

, 80

LE2d 674) (1984). “To prove deficient performance, [an appellant]

must show that his lawyer performed at trial in an objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Romer v. State, 

(3) (

) (2013). With respect to prejudice, Walker must

                                 11
establish that “the deficient performance prejudiced the defense,

which requires showing that counsel’s errors were so serious that

they likely affected the outcome of the trial.” Jones v. State, 

 (4) (

) (2019).

     “[S]atisfaction of this test is a difficult endeavor. Simply

because a defendant has shown that his trial counsel performed

deficiently does not lead to an automatic conclusion that he was

prejudiced by counsel’s deficient performance.” Davis v. State, 

 (3) (

) (2019). And “[i]f an appellant is

unable to satisfy one prong of the Strickland test, it is not incumbent

upon this Court to examine the other prong.” (Citation and

punctuation omitted.) Id. at 143 (3). With these principles in mind,

we address each of Walker’s arguments in turn.

     (a) Walker first argues that trial counsel was ineffective for

failing to object to what he says are two instances of improper

testimony from his co-defendant, White, who testified in her own

defense at their joint trial.

     In the first instance, White testified that, before she received

                                  12
Walker’s jailhouse letter, she “didn’t know what had happened to

[Daijah],” but that, after reading the letter, she was convinced that

“he did it.” Walker contends that White’s testimony implied that

Walker was guilty and, as such, that trial counsel should have

objected on the basis that it was improper opinion testimony under

former OCGA § 24-9-65.6 In the second instance, White testified

during cross-examination that Walker “was more violent to” Daijah

than he was toward White.              White then apparently directed

comments toward Walker, stating, “You know, you could have did

that to me or to yourself; could have took yourself out, you didn’t

have to hurt her like that.” Walker asserts that this testimony was

improper character testimony and faults trial counsel for failing to

object and moving to strike.

      When asked why he failed to object, trial counsel testified that

he was cognizant that the trial was going “on and on” and that he




      6 “Where the question under examination, and to be decided by the jury,

shall be one of opinion, any witness may swear to his opinion or belief, giving
his reasons therefor. If the issue shall be as to the existence of a fact, the
opinions of witnesses shall be generally inadmissible.”
                                      13
was concerned that an objection would have given “validity” to the

testimony, as well as given it more “attention” and “focus.” Counsel

also testified that White’s testimony was, at least in part, non-

responsive. Finally, trial counsel explained that he expected White’s

testimony to be antagonistic toward Walker’s defense and that he

had decided not to object or move to strike “based on every little

statement” or “jab” that she made. The trial court credited trial

counsel’s testimony in this regard — noting that part of trial

counsel’s strategy was hoping the jury would be turned off by

White’s antagonism. The trial court’s factual determinations are

supported by the record; we agree with the trial court’s conclusion

that this was reasonable trial strategy and, thus, did not amount to

deficient performance. See Seabrooks v. State, 

 (2) (a)

(

) (2019).

     (b) White also argues that trial counsel should have objected

to two other instances of witness testimony.

     In the first instance, Daijah’s pediatrician testified concerning

her interaction with White and Walker on the evening Daijah

                                 14
arrived dead at the emergency room. The physician was asked if

“both” White and Walker had passed a “drug screen,” and she

answered, “No.” When asked about this comment, trial counsel

testified that he did not object because he did not want to highlight

the testimony with an objection and, also, because the testimony did

not squarely establish that Walker’s drug screen was positive. The

trial court credited trial counsel’s testimony in this respect. Again,

the trial court’s factual determinations are supported by the record,

and we agree with the trial court that this was reasonable trial

strategy. See Gomez v. State, 

 (7) (a) (

)

(2017).

     In the second instance, an Emergency Medical Technician

(“EMT”) who responded to the scene testified that she observed

Daijah on the floor of the master bedroom and that the child was

covered in bruises.    The EMT testified that, although Walker

reported Daijah had fallen off the bed, she and her partner found

this explanation “fishy” given the nature and locations of the child’s

injuries. Walker contends that trial counsel should have objected to

                                 15
this testimony on the basis that, under former OCGA § 24-9-80,7 the

testimony was an improper comment on Walker’s credibility. Trial

counsel could not recall why he did not object in this instance; the

trial court concluded that counsel was deficient for failing to object

but that Walker had suffered no prejudice. We agree with the trial

court’s conclusion concerning prejudice.8

      Though the EMT testified that Daijah appeared to have

suffered extensive bruising and, as such, that she was dubious of

Walker’s explanation that Daijah fell from the bed, the jury heard

similar testimony from two other experts — medical doctors — who

detailed Daijah’s numerous injuries and opined in great detail how

those injuries were wholly inconsistent with a mere fall from the

bed. In light of the extensive testimony from other expert witnesses



      7 “The credibility of a witness is a matter to be determined by the jury

under proper instructions from the court.”
      8 It appears that the trial court’s conclusion regarding deficient

performance was premised on trial counsel’s inability to recall a basis for not
objecting. However, when trial counsel cannot recall specifics about the trial,
including the reasons for his failure to make certain objections during the trial,
there remains a strong presumption that his decisions were a matter of
strategy and trial tactics rather than sheer neglect. See Brown v. State, 

 (5) (

) (2011).
                                       16
who also cast serious doubt on Walker’s explanation about Daijah’s

injuries, we agree with the trial court that counsel’s failure to object

here did not likely affect the outcome of the trial. See Smith v. State,

 (5) (

) (2019) (defendants not

prejudiced by erroneous admission of improper testimony where it

was “merely cumulative of other properly admitted evidence”).

      (c) The trial court ordered that no one be permitted to enter

or exit the courtroom during closing argument or the jury charge,

and Walker contends that trial counsel was ineffective for failing to

object to this closure of the courtroom.

     At the hearing on Walker’s motion for new trial, trial counsel

testified that he welcomed the trial court’s decision, as it facilitated

an unfettered and uninterrupted closing argument and jury charge.

We cannot say that counsel’s decision was patently unreasonable

trial strategy, as trial counsel may have reasoned that a less-

distracted jury would better suit his client. See Beasley v. State, 

 (4) (

) (2019) (trial counsel’s decision

against objecting during trial to the closure of the courtroom while

                                  17
the trial court questioned a juror reasonably strategic where it could

conceivably benefit defendant); Muse v. State, 

 (2) (a)

(

) (2013) (reasonable for trial counsel to conclude that

closing the courtroom during voir dire could have facilitated effort

to strike as favorable a jury as possible). Accordingly, counsel did

not act deficiently in this regard.

     Nevertheless, even if counsel did act deficiently, Walker has

failed to demonstrate prejudice. See Weaver v. Massachusetts, ___

U. S. ___ (IV) (

, 198 LE2d 420) (2017); Reid v. State,

 (3) (c) (

) (2010). The transcript reflects

that the public was permitted to be present in the courtroom during

trial and that, during closing argument and the jury charge,

individuals were present in the gallery. In short, the trial court

simply restricted movement in and out of the courtroom during the

time in question.     Walker has not identified anyone who was

excluded from the courtroom; likewise, he has not shown that the

trial court’s order rendered his trial fundamentally unfair or that it

somehow altered the outcome of trial. Accordingly, Walker is not

                                  18
entitled to relief on this claim. See Reid, 

.

     (d)    Walker also asserts that trial counsel was ineffective for

failing to lodge a timely objection to a portion of the State’s closing

argument. Closing argument was not taken down, but a transcribed

bench conference occurring after both closing argument and the jury

charge reflects that trial counsel claimed the prosecutor had argued

in closing that “he had not heard any evidence from the stand to

show that Mr. Walker was not guilty.” Trial counsel objected on the

basis that this was “impermissible burden shifting” and requested a

curative instruction. The prosecutor responded that, although he

had made the argument, it was in response to Walker’s closing

argument that “no one had testified that [Walker] did these things.”

Trial counsel’s objection and motion were plainly untimely, but the

trial court addressed the issue and, in effect, overruled it, explaining

to the parties that the jury had been properly instructed both on the

State’s burden of proof and that counsel’s argument was not

evidence.

     Trial counsel’s untimely objection notwithstanding, Walker

                                  19
has not demonstrated prejudice as the record exists here. For all

that appears, the State’s remark was a passing comment,9 the trial

court properly charged the jury on the respective burdens of proof

and non-evidentiary value of closing argument, and the evidence

against Walker was strong. As such, the closing argument did not

likely affect the outcome of Walker’s trial. See Mosley v. State, 

 (2) (

) (2014) (defendant suffered no

prejudice from trial counsel’s failure to object to closing argument

where evidence was strong and the jury was properly instructed).

      (e) As referenced above, the jury learned that Walker made

certain incriminating statements in a jailhouse letter to White.

Walker asserts that trial counsel was ineffective for failing to

request a jury instruction consistent with former OCGA § 24-3-53,

which states:     “All admissions shall be scanned with care, and

confessions of guilt shall be received with great caution.                  A

confession alone, uncorroborated by any other evidence, shall not


     9 Trial counsel testified at the hearing on Walker’s motion for new trial

that the remark was a “one-line comment” that was not “continued” during the
State’s closing.
                                     20
justify a conviction.” Trial counsel testified at the hearing on the

motion for new trial that he felt that the “letter spoke for itself” and

that, though he was familiar with former OCGA § 24-3-53, his

strategy was simply to address the letter during closing argument.

Further, given the indirect nature of the remark in the letter, it

would have been reasonable for trial counsel to decide against

having the jury instructed that the statement could be deemed an

admission or confession. “[A]s counsel articulated a valid strategic

decision regarding [this] instruction, failure to request [this] charge

is not ineffective assistance.” Conaway v. State, 

 (2)

(

) (2003).

     (f) Finally, the cumulative prejudice from any assumed

deficiencies discussed in Division 3 (b), (c), and (d) is insufficient to

show a reasonable probability that the results of the proceedings

would have been different in the absence of the alleged deficiencies.

See Jones v. State, 

 (4) (e) (

) (2019).

Accordingly, Walker is not entitled to relief under this theory.

     Judgment affirmed. All the Justices concur.

                                   21
                    DECIDED FEBRUARY 10, 2020.
     Murder. Upson Superior Court. Before Judge Sams.
     William A. Adams, Jr., for appellant.
     Benjamin D. Coker, District Attorney, B. Ashton Fallin,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Matthew D. O’Brien,
Assistant Attorney General, for appellee.




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