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Walker v. State

Supreme Court of Georgia

June 19, 2017


          NAHMIAS, Justice.

         Appellant Gregory Malik Walker, Jr. was convicted of malice murder and other crimes in connection with the shooting death of Roger Clark. Appellant contends that the evidence was insufficient to support his convictions; that the trial court committed plain error in failing to charge the jury on voluntary manslaughter and defense of habitation; that the trial court abused its discretion in excluding testimony at trial and at the motion for new trial hearing; and that Appellant received ineffective assistance of trial counsel. We affirm.[1]

          1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On April 29, 2013, Appellant agreed to buy a 2004 Ford Explorer SUV from Clark's wife for $3, 000. Appellant and Mrs. Clark signed a handwritten bill of sale reciting that Appellant had paid $1, 800 towards the purchase price, that he would pay the remaining $1, 200 by May 3, and that he understood and agreed that he was not yet the owner of the SUV. Appellant told the Clarks that he needed to finance the $1, 200 balance due through a title pawn, although he actually had enough cash to pay it. During the first week of May, the Clarks accompanied Appellant to a title pawn store. Mrs. Clark signed over the SUV's title to Appellant, who went into the store while the Clarks waited outside. When Appellant came out, he said that the store was low on cash and that he would have to come back the next day to get the money. He returned the title and bill of sale to the Clarks, who kept possession of the SUV. Appellant never paid the balance due on the vehicle.

         On May 9, Appellant called the police and reported the SUV stolen. He then went with the police to the barbershop where Clark worked, and the police allowed Appellant to leave with the SUV because the title was in his name; the police told Clark and Appellant that they had a civil dispute that needed to be resolved in court. A few days later, the barbershop owner noticed the SUV parked at the gas station next door. The owner then saw Appellant drive the SUV up close to the barbershop door, yell something insulting at Clark, who was inside working, and speed off when Clark began to walk outside.

         On May 14, Appellant obtained ex parte temporary protective orders against the Clarks, and a show cause hearing was set for June 5. On May 15, Mrs. Clark filed a lawsuit against Appellant for repossession of the SUV and an application to have him arrested for taking possession of the SUV without making full payment. At the show cause hearing on June 5, the magistrate court dismissed the temporary protective orders for lack of evidence. The court also dismissed the application for arrest filed by Mrs. Clark but allowed her to serve Appellant with her repossession lawsuit. After the hearing ended at 1:00 p.m., Mrs. Clark drove Clark to the barbershop. Appellant drove the SUV to the apartment complex where he was living with his cousin, her husband, and their children. When the husband left with the children, Appellant stole his .380 handgun from a hiding place under a mattress and drove in the SUV to the gas station next door to the barbershop where Clark worked.

         Appellant arrived at the gas station around 2:00 p.m. He parked the SUV at one of the pumps closest to the barbershop, but with the gas tank on the opposite side from the pumps. The SUV's gas tank was almost full, and at no point did Appellant put gas into it. Instead, he went into the gas station convenience store for a couple of minutes and then stopped and spoke with a man in the parking lot before walking back to the SUV. As Appellant walked back to the SUV, he gestured to Clark, who was standing outside the barbershop talking on his cellphone. Appellant yelled at Clark, "try me now mother f**ker." Clark, who was unarmed and still on the phone, slowly walked over to the gas station and stood a few feet away from the SUV for 20 to 25 seconds. Clark told Appellant, "You should have said that in court, now you have to give me my truck back." When Clark got off the phone, he approached Appellant, who had opened the door of the SUV, removed the steering wheel lock, retrieved the stolen handgun and put the magazine in it, closed the door, and then remained outside the SUV.

         The two men argued briefly about the vehicle. Appellant told Clark that he had a gun, and Clark said that Appellant would have to show it to him. Appellant then stepped back, raised the gun, and shot Clark. Clark lurched forward to try to grab the gun, and Appellant began backing away while shooting Clark two more times. Clark was hit in the head, torso, and leg. He still tried to wrestle the gun away from Appellant, and both men fell to the ground; only Appellant got up. A bystander called 911, and the police arrived within minutes. Appellant was arrested at the scene. Clark was taken to a hospital and died from his injuries that evening.

         At trial, associates of Appellant and Clark testified about the two men's interactions, and eyewitnesses from the gas station testified about the shooting and the events leading up to it. The jury also viewed surveillance videos from the gas station. A detective who interviewed Appellant after the shooting testified that Appellant denied making any statements to Clark right before the shooting and claimed that he went to the gas station to top off his tank and did not see Clark in the parking lot.

         Appellant also testified, admitting that he shot Clark multiple times but claiming that he did so in self-defense. Appellant, who has Crohn's disease, said that Clark, who was younger and much bigger, had sent him threatening text messages about the SUV, and that he was worried that Clark might be armed and was afraid for his life when he shot Clark. On cross-examination, Appellant acknowledged that he chose to go to the gas station next door to the barbershop about an hour after the June 5 court hearing, despite there being three other gas stations within close proximity. He also admitted that during the approximately 30 seconds when he was back at the SUV and Clark had not yet reached him, he could have called 911, gotten in the SUV and shut the door, or simply driven away, but he did not.

         Appellant claims that the evidence presented at trial was insufficient to support his convictions, because in his view the evidence showed that Clark had threatened and acted aggressively towards Appellant and was moving towards Appellant when he shot. However,

"[a]s we have explained many times before, conflicts in the evidence, questions about the credibility of witnesses, and questions about the existence of justification are for the jury to resolve." The jury is free to reject any evidence in support of a justification defense and to accept the evidence that the shooting was not done in self-defense.

Anthony v. State, 298 Ga. 827, 829 (785 S.E.2d 277) (2016) (citation omitted). When properly 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, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Appellant contends that the trial court erred in failing to instruct the jury on voluntary manslaughter as a lesser included offense of murder and on an alternate theory of justification in addition to self-defense, namely, defense of habitation. Because Appellant did not object on these grounds before the jury retired to deliberate, his claims may be reviewed on appeal only for "plain error." OCGA § 17-8-58 (b).

         In State v. Kelly, 290 Ga. 29 (718 S.E.2d 232) (2011), this Court adopted the federal plain error ...

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