Walter v. State
Walter v. State
Opinion of the Court
Jeneral Walter appeals his convictions for felony murder and possession of a firearm during the commission of a felony. Both convictions stem from the shooting death of T'Shanerka Smith on February 14, 2010.
*269Walter argues that the trial court erred in denying his motion to sever his trial from that of his co-defendants. He also argues that the trial court committed plain error by instructing the jury that it could consider a witness's "level of certainty" in assessing the reliability of the witness's identification and by failing to instruct the jury that accomplice testimony must be corroborated. The trial court did not abuse its discretion in denying the motion to sever, however, as Walter has not shown a clear prejudice and denial of due process resulting from the joint trial. Walter also has not shown plain error in the jury instructions, since any error in the level of certainty instruction did not likely affect the outcome, and no accomplice-corroboration instruction was required on this record. We therefore affirm.
The victim's death can be traced to a dispute between her brother (Eddie Edwards) and a group that included Walter, Darron Cato, Omari Smith, Andrew Neloms, and Derek McCarter. Edwards lived at the Fulton County apartment complex where he performed maintenance, while McCarter was squatting in another unit at the complex. The night before the shooting, McCarter, Walter, and others gathered to party in that apartment.
The next day, Edwards arrived at the unit and began removing the locks from the doors, telling McCarter and Cato that they needed to leave. Walter became involved in the discussion; he had a firearm and picked up another that had been on a couch. After Edwards returned to his own apartment, a group of four men drove up in a car, and Walter began shooting through one of the backseat windows at a group of Edwards's cousins gathered outside Edwards's apartment. No one was injured by the shooting. After the shooting, Edwards and a cousin found McCarter and beat him up.
Walter and his friends left the apartment complex but returned later that day to retaliate. Walter's girlfriend, Angelica Mitchell, drove Walter, Cato, Neloms, and Omari Smith to the apartment complex. Mitchell dropped off her four passengers outside the complex. Mitchell testified that she saw that at least Walter and Cato had guns when they got out of the car, but she did not know what the men were planning and proceeded directly to work after she dropped them off. Once outside the car, Walter, Cato, and Omari Smith shot in the direction of Edwards's apartment, where the victim had been standing on the porch. The victim was shot and was pronounced dead after being taken to a hospital.
Several eyewitnesses to the fatal shooting testified at trial. Priscilla Cofer testified that she was standing on Edwards's porch with the victim when she saw Mitchell drive Walter, Cato, Neloms, and Omari Smith through the neighborhood. A few minutes later, she saw Walter, Cato, and Omari Smith shooting toward the apartment. Edwards's next-door neighbor, Sharyetta Thomas, and the victim's boyfriend, Derrick Thompson, both testified that they saw a shooter who was a light-skinned African-American man with dreadlocks, a description that matched Walter's appearance; Thomas also picked Walter out of a photo array "because he looked like the guy that was shooting."
One of Edwards's neighbors, Tamika Campbell, testified that after hearing the gunshots, she saw three men running through a field, as well as a fourth man *270putting a gun in his pants; she picked Walter out of a photo array as the man with the gun. Two witnesses testified that Walter asked them to lie to police by saying that he was with them at the time of the shooting.
1. Although Walter does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the trial evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. See Jackson v. Virginia,
2. Walter argues that the trial court erred in denying his motion to sever his trial from that of his co-defendants. We disagree.
When two or more defendants are jointly indicted for non-capital offenses or a capital offense where the State does not seek the death penalty, "such defendants may be tried jointly or separately in the discretion of the trial court." OCGA § 17-8-4 (a). The trial court's discretion to grant or deny a motion for severance in such circumstances is broad. Herbert v. State,
Walter has not shown that severance was required. Walter points to statements by counsel for his co-defendants in pre-trial proceedings and closing arguments implicating Walter while contending their clients were not present for or did not participate in the shooting. Acknowledging that a co-defendant's use of antagonistic defenses does not itself require severance, see Kennedy v. State,
In order to obtain a new trial based on the trial court's denial of severance, Walter must show a "clear prejudice and denial of due process" as a result of his co-defendants' antagonistic defenses that might have been avoided by separate trials. Kennedy,
3. Walter also argues that the trial court committed plain error by instructing the jury that it could consider a witness's "level of certainty" in assessing the reliability of the witness's identification and by failing to instruct the jury that accomplice testimony must be corroborated. Walter has not demonstrated plain error in either of these aspects of the court's instructions.
Because Walter did not raise these objections to the court's charge at trial,
(a) Walter argues that the trial court plainly erred when it instructed the jury that it could consider "the level of certainty shown by the witness about his or her identification" in assessing the reliability of a witness's identification. Well before Walter's trial, we disapproved the pattern instruction containing that language. See Brodes v. State,
Here, Walter complains that both Cofer and Thomas "expressed some degree of certainty or positivity in their identification" of Walter. But Cofer testified that she had known Walter for about two years and saw him "every day or every other day" during a one-year period in which she worked at a fast food restaurant that he frequented, so the instructional error was harmless as to her testimony. See Jones,
(b) Finally, pointing to evidence he says indicated Mitchell was an accomplice, Walter argues that the trial court committed plain error when it failed to instruct the jury that accomplice testimony must be corroborated. We disagree.
Under the old Evidence Code, applicable in this case, as well as the new Code, in "felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient" to establish a fact; rather, corroborating circumstances or other witness testimony is needed. See OCGA § 24-4-8 (2010); see also OCGA § 24-14-8 (2018).
Walter argues that Mitchell's act of driving Walter and his co-defendants to the scene and failure to call police immediately upon seeing a gun meant that the trial court was required to instruct the jury that accomplice testimony must be corroborated, given that the court did charge the jury that "the testimony of a single witness, if believed, is generally sufficient to establish a fact." But Mitchell testified that she did not know a shooting was going to occur, and Walter points to no evidence that Mitchell knew what he and the other men were planning or otherwise shared their criminal intent. Mitchell's knowledge that at least two of the men had guns is not knowledge that a shooting was about to occur. Moreover, shortly after learning of the shooting, Mitchell telephoned police and told them that she had dropped off the four men at the apartment complex. Walter suggests that our decision in Hamm requires an accomplice-corroboration instruction here. But that case involved strong evidence that a State's witness was an accomplice: there was evidence that she arranged a robbery, lured the victim to the scene of the shooting, fled the scene immediately after the shooting, left town in its aftermath, and failed to report the crime until investigators located her. See Hamm,
Judgment affirmed.
All the Justices concur.
A Fulton County grand jury indicted Walter along with co-defendants Darron Cato, Andrew Neloms, and Omari Smith on May 7, 2010, charging them with malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. The four co-defendants were tried together in November 2010, although the trial court declared a mistrial as to Cato when his counsel began experiencing medical problems mid-trial. The trial of Walter, Neloms, and Omari Smith continued, and the jury found Walter and Omari Smith not guilty of malice murder but guilty of felony murder and the other charges, while acquitting Neloms of all charges. Cato's case was tried separately to verdict in August 2011; we recently affirmed his convictions. See Cato v. State,
Walter's counsel did not submit any requested instructions but told the trial court he was adopting those submitted by Cato and Neloms. Neloms's counsel requested the accomplice-corroboration charge but, in arguing against a charge on conspiracy requested by the State, later contended that the accomplice charge was not appropriate because no accomplice ever testified. Walter's counsel objected to the charge that the testimony of a single witness generally is sufficient to establish a fact, but Walter does not contend on appeal that the objection to that charge amounted to an objection to the failure to give an accomplice-corroboration charge.
Our new OCGA § 24-14-8 does not have an analog in the Federal Rules of Evidence, so case law under the old, substantially identical rule continues to apply even in cases governed by the new rule. See Foster v. State, --- Ga. ----, ---- (2) n.6,
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