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Walker v. State

Court of Appeals of Georgia, Third Division

March 6, 2019

WALKER
v.
THE STATE v.

          GOBEIL, J., COOMER and HODGES, JJ.

          Hodges, Judge.

         Andre Pearre Walker was convicted of three counts of aggravated sodomy (OCGA § 16-6-2 (a) (2)), two counts of aggravated sexual battery (OCGA § 16-6-22.2 (b)), two counts of aggravated assault (OCGA § 16-5-21 (b)) (July 1, 2015), three counts of false imprisonment (OCGA § 16-5-41 (a)), two counts of impersonating an officer (OCGA § 16-10-23), one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)), and one count of kidnapping (OCGA § 16-5-40 (a)).[1] Walker was sentenced to life in prison with the possibility of parole plus 75 years. Walker appeals his convictions, contending that (1) the trial court improperly advised him prior to trial about the minimum sentence he was facing; (2) the jury was not properly charged on his theory of defense and was not charged as to alternate crimes; (3) the trial court erred in refusing to excuse certain biased members of the venire; and (4) he received ineffective assistance of counsel. For the reasons stated below, we find no error and affirm.

         "On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict." (Citation and punctuation omitted.) Scarborough v. State, 317 Ga.App. 523, 523 (731 S.E.2d 396) (2012).

         So viewed, the evidence here shows that on December 4, 2012, C. F. was released from the Clayton County jail. As C. F. was walking home, Walker drove up to him, asked if him he needed a ride, and asked C. F. if he could sell him some marijuana. C. F. got in Walker's car, and after Walker drove away he either told C. F. that he was an undercover police officer or led C. F. to that impression, and ordered C. F. to exit the vehicle. Walker told C. F. to put his hands on the car and told him he was going to search his private areas to see if C. F. was in possession of anything that could hurt him. Walker then showed C. F. a gun and told him that if he ran away he would be shot. Walker forced C. F. to lie down in the back seat of his car, applied a Vaseline-like substance in C. F.'s anus, and then penetrated C. F.'s anus with his penis. Afterward, C. F. reported the crime to his mother and went to the hospital. C. F. testified that he is heterosexual, never engaged in anal intercourse before, and was not working as a prostitute. His mother also testified that her son was heterosexual and that she never knew of him working as a prostitute. Walker stipulated that his semen was collected from C. F.'s anus.

         On January 30, 2013, B. T. was walking home from the library after taking his G. E. D. test. Walker pulled up next to B. T. and asked him if he knew where to buy marijuana. B. T. got in the car with Walker, but instead of going where B. T. directed, Walker drove to an apartment complex where B. T. happened to live at the time. Walker then told B. T. that he was a police officer, asked B. T. if he had anything that would stick him, and patted him down. After that, Walker forced B. T. down in the car and, when B. T. resisted and made noise, Walker asked B. T. if he had ever been shot before and threatened to shoot B. T. in the back of the head. B. T. felt something hard against the back of his head as Walker said this. Walker stuck his finger in B. T.'s anus and then penetrated B. T.'s anus with his penis. After Walker was finished, B. T. asked him for a cigarette in an attempt to stall Walker so he could get information to give the police. B. T. reported the crime to his aunt and called the police. B. T. testified that he had never previously engaged in anal intercourse and was not a prostitute. Walker stipulated that his semen was collected from the anus of B. T.

         On May 14, 2013, Q. F. was walking from the home of his child's mother to his home when Walker drove up next to him and asked him if he knew where to buy marijuana. Q. F. got in the back seat of Walker's car and, instead of taking Q. F. to the location identified, Walker drove to the same complex where he took B. T. Walker told Q. F. that he was a police officer and started searching him. During the process of searching Q. F., Walker inserted his finger in Q. F's anus. Walker then put a gun to the back of Q. F.'s head and told Q. F. that he was going to let Walker do what he is going to do. Walker inserted his finger in Q. F.'s anus again and then penetrated his anus with his penis. Q. F. reported the crime to his mother and the police. Q. F. testified that he is not homosexual and had never before engaged in anal intercourse. Q. F.'s mother also testified that her son never sold his body for sex. Walker stipulated that his semen was collected from the anus of Q. F.

         Walker testified in his own defense at trial. Walker alleged that all three men were prostitutes who consensually had sex with him in the car he was driving based upon the promise of payment that he never made and never intended on making. Walker admitted to patting all three down to look for weapons before having sex.

         The jury convicted Walker of three counts of aggravated sodomy, two counts of aggravated sexual battery, two counts of aggravated assault, three counts of false imprisonment, two counts of impersonating an officer, one count of possession of a firearm during the commission of a crime, and one count of kidnaping. Walker was sentenced to a total of life in prison with the possibility of parole plus 75 years. Walker now appeals.

         1. Walker contends that the trial court erred in misinforming him prior to the start of the trial about the minimum sentence he faced. We find no reversible error.

         "[A] defendant has no constitutional right to enter a guilty plea." Sanders v. State, 280 Ga. 780, 782 (2) (631 S.E.2d 344) (2006). Georgia law, likewise, provides no statutory right to enter a guilty plea. Id. at 783-784 (2). Even so, here the State offered Walker the chance to plead guilty to one count of aggravated sodomy and one count of aggravated assault and be sentenced to 30 years with 25 to serve. In discussing this offer with Walker, the trial court noted that he could be facing a lengthy sentence if convicted, and incorrectly stated that some charges, such as aggravated sodomy, have a mandatory minimum sentence of ten years, even though the actual mandatory minimum for that charge is 25 years. OCGA § 16-6-2 (b) (2). Against counsel's advice, Walker rejected the plea deal and went to trial.

         Walker had no constitutional or statutory right to the guilty plea he rejected. He does not allege his counsel was ineffective in advising him during the plea deal process. Indeed, not only did his counsel suggest he take the plea deal, Walker's counsel also told him after the pre-trial hearing that he was likely to be convicted and was facing multiple life sentences. The trial court's misstatement about the mandatory minimum for a single charge, among the other charges faced by Walker, did not deprive him of any legal right, and thus it does not form the basis for reversal.

         2. Walker argues that the trial court erred by failing to charge the jury both on his theory of defense and other possible crimes. We disagree.

         a. Walker's Sole Defense

         "It is true, as alleged by [Walker], that a trial court is required to charge the jury on the defendant's sole defense, even without a written request, if some evidence has been presented to support the charge." Wilson v. State, 255 Ga.App. 497, 499 (2) (565 S.E.2d 847) (2002). Here, Walker's sole defense to the charge of aggravated sodomy was that the victims were prostitutes who consented to their sexual encounter with him. Walker requested the following charge, which the trial court did not give:

Consent is an affirmative defense to a charge of Aggravated Sodomy, in that acts of sexual intimacy between persons legally able to consent is protected by the individuals' constitutional right to privacy. Therefore, if it is determined that the sexual intimacy was consensual, one cannot be convicted of Aggravated Sodomy under O.C.G.A. § 16-6-2. . Consent, however, is an element of the crime of aggravated sodomy, which provides that "[a] person commits the offense of aggravated sodomy when he or she commits sodomy with force and ...

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