Walker v. the State , 329 Ga. App. 369 ( 2014 )

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
October 28, 2014
In the Court of Appeals of Georgia
A14A1252. WALKER v. THE STATE. DO-046 C
DOYLE, Presiding Judge.
Following a jury trial, Furman Walker appeals from his conviction of armed
robbery1 and possession of a firearm during the commission of a felony.2 He contends
that the trial court erred because (1) the evidence was insufficient to support the
guilty verdict, (2) the indictment failed to allege an essential element of the crime and
was therefore void, and (3) he received ineffective assistance of counsel. For the
reasons that follow, we affirm.
1. On appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict and an appellant no longer enjoys
1
OCGA § 16-8-41 (a).
2
OCGA § 16-11-106 (b) (1).
the presumption of innocence. This Court determines whether the
evidence is sufficient under the standard of Jackson v. Virginia,3 and
does not weigh the evidence or determine witness credibility. Any
conflicts or inconsistencies in the evidence are for the jury to resolve. As
long as there is some competent evidence, even though contradicted, to
support each fact necessary to make out the State’s case, we must uphold
the jury’s verdict.4
So viewed, the evidence shows that during an overnight shift at a Sonic fast-
food restaurant, a man in a ski mask appeared at the door and entered the restaurant,
demanding money and threatening to shoot someone. At the robber’s insistence, an
employee opened a cash register and put money into a plastic Sonic salad bag. The
robber then ordered an employee to open the safe, but the employee explained that
he did not know how, so the robber fled in a dark colored sedan with a vinyl top that
was parked next door to the restaurant.
Employees called 911 and described the robbery and vehicle to the police
operator. A police officer who was responding to another call happened to be a block
away from the Sonic. The officer immediately spotted a dark sedan driving at an
3
443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
4
(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
2
excessive rate of speed with no lights, and the officer requested a description of the
robber’s vehicle. The vehicle matched the description given to him by dispatch, so
the officer pursued it at a high rate of speed for some time. Ultimately, the officer lost
sight of the vehicle, but soon spotted it again parked at a nearby residence. As the
officer got out of his vehicle to approach the residence, Walker appeared at the door
of the residence, sweating and breathing heavily. As the officer walked past the
sedan, he saw in the front floorboard a black ski mask. The officer explained that he
was investigating an armed robbery, and Walker denied any knowledge of the
robbery. In light of the ski mask, the matching vehicle, and Walker’s sudden
appearance at the door, the officer, along with other arriving backup, briefly detained
Walker for further investigation. A Sonic salad bag was also found in Walker’s
vehicle.
Shortly thereafter, witnesses from the Sonic were asked to identify Walker, and
although one later said that he was 90 percent sure Walker was the robber, none of
the witnesses could positively identify him at that time because the robber was
wearing a mask.5
5
One witness did recognize Walker’s gray goatee and distinctive rings as
matching those of the robber.
3
Police later asked Walker to make a recording of his voice, and based on this
recording, two Sonic witnesses were able to positively identify Walker’s voice as that
of the robber. The witnesses recognized the voice as “just like” and “exactly” like the
robber’s. Both witnesses described a peculiarity about the robber’s speech – that he
spoke with a thick-tongued lisp – which was also present in the recording. Based on
the police investigation, Walker was charged with armed robbery and possession of
a firearm during a felony, and following his conviction by a jury, he appeals.
1. Walker now contends that the evidence was insufficient to support the
verdict, citing inconsistencies and the largely circumstantial nature of the State’s case.
But conflicts in the evidence are for the jury to resolve,6 and this Court is not
authorized to second-guess the jury’s credibility determinations.7
Walker nevertheless urges that “[t]o warrant a conviction on circumstantial
evidence, the proved facts shall not only be consistent with the hypothesis of guilt,
but shall exclude every other reasonable hypotheses save that of the guilt of the
6
See id.7
See Hazelwood v. State, 265 Ga. App. 709, 711 (595 SE2d 564) (2004).
4
accused.”8 But this rule applies where the conviction is based solely on circumstantial
evidence,9 and here, there was direct evidence based on the witness’s recognition of
Walker’s voice that Walker was the robber.
It is well settled that
[w]hether the evidence excludes every other reasonable hypotheses is
ordinarily a question for the jury, whose finding shall not be disturbed
unless the verdict of guilt is unsupportable as a matter of law. Further,
circumstantial evidence must exclude only reasonable inferences and
hypotheses and it is not necessary that such evidence be devoid of every
inference or hypothesis except that of the defendant’s guilt. The
question of whether there was a reasonable hypothesis favorable to the
accused is a question for the jury. If a jury is authorized to find that the
evidence, circumstantial though it may be, is sufficient to exclude every
reasonable hypothesis save that of guilt, the verdict of the jury will not
be disturbed by the appellate court unless the verdict is insupportable as
a matter of law.10
8
Former OCGA § 24-4-6. This evidentiary rule is now found at OCGA §
24-14-6.
9
See Zapien-Chavez v. State, 285 Ga. App. 319, 320 (1) (646 SE2d 311)
(2007), citing Lane v. State, 255 Ga. App. 274, 276 (564 SE2d 857) (2002).
10
(Citations and punctuation omitted.) Reeves v. State, 294 Ga. 673, 674 (1)
(755 SE2d 695) (2014).
5
Based on the witnesses’ positive identification of Walker’s distinctive speech;
the ski mask and salad bag found in Walker’s vehicle; and the sudden, labored, and
sweaty appearance of Walker immediately after the robbery and high speed chase, the
jury was authorized to find Walker guilty of the offenses.
2. Walker also contends that the trial court erred by convicting him on a void
indictment because, he argues, it lacked an essential element of the offense of armed
robbery. The indictment alleged as follows:
The Grand Jurors . . . charge and accuse Furman Walker with the
offense of Armed Robbery for that the said accused in Lowndes County,
Georgia, on or about the 25th day of September 2010, then and there
with intent to commit a theft, did unlawfully take lawful U.S. Currency,
from the immediate presence of [the victim], by the use of an offensive
weapon, to-wit: a pistol, contrary to the laws of said State, the good
order, peace and dignity thereof.
OCGA § 16-8-41 (a) defines the offense as follows: “A person commits the
offense of armed robbery when, with intent to commit theft, he or she takes property
of another from the person or the immediate presence of another by use of an
6
offensive weapon, or any replica, article, or device having the appearance of such
weapon.”11
Walker correctly points out that the fact that the currency was the property of
another was not alleged in the indictment under which he was convicted. But he did
not raise this issue in the trial court by a timely general demurrer, or after trial by a
timely motion in arrest of judgment.12 “The failure to file a general or special
demurrer, or a timely motion in arrest of judgment, waives any claim that could have
been raised in a general or special demurrer.”13 Accordingly, this enumeration
presents nothing for review.
3. Walker next contends that he received ineffective assistance of counsel on
several grounds: (a) failure to challenge the defective indictment, (b) failure to
11
(Emphasis supplied.)
12
See State v. Wilson, 318 Ga. App. 88, 91 n. 10 (1) (732 SE2d 330) (2012)
(“Because a person cannot be lawfully convicted on an invalid indictment, a general
demurrer may be raised orally or in writing at any time before judgment is entered on
his or her conviction.”); Coleman v. State, 318 Ga. App. 478, 479 (1) (735 SE2d 788)
(2012) (“Because a general demurrer attacks the legality of an indictment, it may be
raised any time during the trial and may even be raised after the verdict by a motion
in arrest of judgment; however, a motion in arrest of judgment must be made during
the term when the judgment was obtained.”).
13
Coleman, 318 Ga. App. at 479 (1).
7
adequately prepare for trial, (c) failure to object to hearsay and bolstering testimony,
(d) failure to object to opinion testimony on the ultimate issue, and (e) failure to
obtain transcripts of the 911 call and radio calls or an expert in the field of voice
identification.
Under Strickland v. Washington,14 to succeed on an ineffective assistance
claim, a criminal defendant must demonstrate 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.15 “There is a
strong presumption that the performance of trial counsel falls within the wide range
of reasonable professional assistance. The reasonableness of the conduct is viewed
at the time of trial and under the circumstances of the case.”16 If an appellant fails to
meet his burden of proving either prong of the Strickland test, the reviewing court
need not examine the other prong.17 In reviewing the trial court’s decision, “[w]e
14
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
15
See id. at 687-688, 694 (III) (A)-(B).
16
(Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6)
(596 SE2d 597) (2004).
17
See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507
(3) (591 SE2d 782) (2004).
8
accept the trial court’s factual findings and credibility determinations unless clearly
erroneous, but we independently apply the legal principles to the facts.”18
(a) Failure to challenge the indictment. As noted in Division 2, the indictment
did not allege that the currency Walker stole was the property of another, and
Walker’s trial counsel failed to challenge this omission. But even if we assume that
the indictment was fatally flawed and therefore susceptible to a general demurrer,19
“the grant of a general demurrer due to a finding that the indictment was void ab
initio . . . does not automatically bar the reindictment of the defendant.”20
Moreover, when trial has been had before the appellate court reviews
the merits of the motion to quash, where no prejudice to defendant has
occurred though the indictment . . . is not perfect, reversal is a mere
windfall to defendant and contributes nothing to the administration of
justice. Convictions are no longer reversed because of minor and
technical deficiencies which do not prejudice the accused. Upon a
18
(Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313)
(2003).
19
See, e.g., Cooks v. State, 325 Ga. App. 426, 428 (1) (750 SE2d 765) (2013)
(indictment was void because the defendant “could admit all the allegations of the
indictment and still not be guilty of the robbery charged since there would be no
admission that he took the property of another”) (physical precedent only).
20
State v. Wilson, 318 Ga. App. 88, 97 (3) (732 SE2d 330) (2012), citing
Armstrong v. State, 281 Ga. App. 297, 298 (635 SE2d 880) (2006).
9
proceeding after verdict, no prejudice being shown, it is enough that
necessary facts appear in any form, or by fair construction can be found
within the terms of the indictment . . . Thus a defendant who was not
misled to his prejudice by any imperfection in the indictment . . . cannot
obtain reversal of his conviction on that ground.21
Here, the indictment set out the date of the offense and the facts necessary to
inform Walker of the charged offense, allow him to prepare his defense, and protect
him from double jeopardy for the charged offense. The trial evidence showed no
dispute as to the robber’s lack of authority to take the money from the Sonic
restaurant at gunpoint, so Walker was not misled by the wording of the indictment
about the nature of the property he stole. Based on the record before us, this argument
presents no ground for reversal.
(b) Walker argues that his trial counsel did not adequately prepare for trial
because he failed to subpoena and secure testimony from two witnesses (Vincent
Flanders and Micah Edwards) who gave initial statements to police describing the
robber as having light skin and the getaway vehicle as a tan pickup truck (instead of
a dark sedan).
21
(Punctuation omitted; emphasis supplied.) Coleman v. State, 318 Ga. App.
478, 482 (2) (735 SE2d 788) (2012).
10
With respect to Edwards, Walker’s trial counsel testified that he attempted to
reach him several times, but was never successful. Trial counsel also pointed out that
despite a subpoena issued by the State, Edwards was never successfully contacted by
either him or the State, nor did he testify at the hearing on trial counsel’s
effectiveness. Even assuming that trial counsel performed deficiently, absent further
evidence that Edwards was available to testify and what his testimony would have
been, Walker cannot make the required showing of harm resulting from his trial
counsel’s efforts to obtain testimony from Edwards.22
With respect to Flanders, he was located and did testify at the hearing on
Walker’s ineffective assistance claim. His testimony was equivocal about the type of
vehicle used by the robber, and Flanders concluded that he was “not sure what type
of vehicle it was.” Such testimony does not give rise to a reasonable probability that
the trial result would have been different if this testimony had been elicited at trial.
22
See Robinson v. State, 278 Ga. 31, 35 (3) (b) (597 SE2d 386) (2004) (“In
assessing the prejudicial effect of counsel’s failure to call a witness (whether that
failure resulted from a tactical decision, negligent oversight, or otherwise), a
petitioner is required to make an affirmative showing that specifically demonstrates
how counsel’s failure would have affected the outcome of his case.”) (punctuation
omitted).
11
(c) Failure to object on hearsay and bolstering grounds. Walker points to his
trial counsel’s failure to object to certain testimony given by Detective Stephen
Thompson about what he saw on a Sonic security video that was played for the jury.
Thompson spoke to what he saw on the videotape to explain how he narrowed his
investigation to Walker. Despite the cumulative nature of the testimony, Walker
asserts that his trial counsel should have objected on hearsay and bolstering grounds.
While the testimony may have served the State’s case, Walker does not demonstrate
how the testimony amounted to improper bolstering by commenting on the veracity
of another witness’s testimony.23 Therefore, trial counsel’s failure to object did not
amount to ineffective assistance.24
(d) Failure to object to comment on ultimate issue. During trial, the following
colloquy took place during testimony by a detective:
Walker’s counsel: Did you at any time tell Mr. Walker, ‘You may not
have done this, Mr. Walker, but you know who did?
23
See, e.g., Bly v. State, 283 Ga. 453, 459 (3) (660 SE2d 713) (2008) (“a
witness . . . can never bolster the credibility of another witness as to whether the
witness is telling the truth”).
24
See Williams v. State, 292 Ga. 844, 848 (3) (a) (742 SE2d 445) (2013)
(failure to object to cumulative hearsay is not grounds for reversal).
12
Detective: That’s a possible statement I might have said.
Counsel: So, you said to him, “you may not have done it, but we think
you know who did do it.”?
Detective: That’s a possible statement I would have made to him.
Counsel: Nothing further.
State: [on redirect] . . . [D]o the statements that [trial counsel] asked you
about, . . . is that a typical thing you do to get people to talk?
Detective: That would be a tactic used during the course of an interview
to get somebody to speak to me, yes.
State: Do you think anybody else did it based on what you have?
Detective: Absolutely not.
At the motion for new trial hearing, Walker’s trial counsel testified that he did
not specifically recall the testimony, but he would not have objected because “he did
not want to draw the jurors’ attention to it anymore than that[, but] I probably should
have objected.” To the extent that this was a tactical decision not to object, it does not
require reversal because “decision of whether to interpose certain objections is a
13
matter of trial strategy and tactics.”25 And “when one is considering matters of trial
strategy and tactics, the effectiveness of trial counsel must not be judged by hindsight
or the ultimate result of the trial.”26
To the extent that trial counsel’s poor memory or equivocation takes this out
of the realm of trial strategy, we note that the comment was an isolated statement on
re-direct to explain the interview tactic challenged by Walker’s trial counsel during
cross-examination. The Sonic witnesses consistently identified Walker as the robber,
and in light of the other evidence of Walker’s guilt, we conclude that the comment
was not such that it gave rise to a reasonable probability that the trial outcome would
have been different had an objection been interposed.27
25
(Punctuation omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d
339) (2008), citing Boyt v. State, 286 Ga. App. 460, 463 (2) (b) (649 SE2d 589)
(2007) (failure to object to investigator’s opinion testimony allegedly concerning
ultimate issues of fact deemed reasonable trial strategy). See also Glass v. State, 255
Ga. App. 390, 403 (10) (g) (565 SE2d 500) (2002) (reasonable trial strategy to avoid
drawing attention to comment on ultimate issue).
26
Williams v. State, 280 Ga. 539, 543 (2) (630 SE2d 410) (2006).
27
See Birkbeck v. State, 292 Ga. App. 424, 429 (2) (b) (665 SE2d 354) (2008)
(failure to object to a single comment on the ultimate issue did not result in sufficient
prejudice for reversal in light of isolated nature of comment, jury’s ability to evaluate
the witnesses, and the other evidence of guilt), disapproved of on other grounds by
State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010); Usher v. State, 258 Ga.
App. 459, 463 (1) (f) (574 SE2d 580) (2002) (no reasonable probability of different
14
(e) Failure to obtain transcripts or a voice identification expert. Finally,
Walker asserts that his trial counsel should have obtained transcripts from the 911 call
and radio dispatches, as well as a voice identification expert. But Walker did not call
such an expert to proffer how such an expert may have helped, nor did he explain
how the 911 transcripts would have exculpated him. Absent a proffer of evidence or
testimony from any uncalled witness or a legally recognized substitute, appellant
cannot meet his burden under Strickland to meet the prejudice element of his
ineffective assistance claim.28
Judgment affirmed. Miller and Dillard, JJ., concur.
trial outcome because witness consistently identified defendant as perpetrator).
28
See Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014).
15