Walker v. State

312 Ga. 232

862 S.E.2d 285

WALKER

v.The STATE.

S21A0779

Supreme Court of Georgia.

Decided: August 10, 2021

Ashleigh Bartkus Merchant, The Merchant Law Firm, P.C., 701 Whitlock Avenue Suite J43, Marietta, Georgia 30064, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Michael Alexander Oldham, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., David K. Getachew-Smith, Sr., Chief A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, for Appellee.

LaGrua, Justice.

Appellant Hezekiah Walker was convicted of felony murder and other offenses in connection with the May 2018 shooting death of Samuel Davis, IV.¹ On appeal, Appellant contends that (1) the evidence was insufficient to support his convictions and to overcome his justification defense; (2) the prosecutor's closing argument violated his right to a fair trial; (3) the trial court erred by excluding certain photographs of the victim offered by the defense while allowing the State to offer a different photograph of the victim; and (4) trial counsel rendered ineffective assistance in various respects. We see no error, and thus we affirm.

Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial established that, at 2:15 a.m. on May 16, 2018, Davis was shot and killed in the parking lot of a Shell gas station in Fairburn. Two of Davis's friends, who were interviewed by police at the scene, described the shooter as a heavy-set man with dreadlocks who fled in a red Mustang with white stripes. In the parking lot, crime scene investigators found ten nine-millimeter shell casings, eight .40-caliber shell casings, a counterfeit $100 bill, and an iPhone, which was later determined to be Davis's. Davis died from multiple gunshot wounds. The bullets and bullet jacket recovered from Davis's body were later determined to have been fired from a nine-millimeter pistol. Ballistics testing determined that all of the nine-millimeter shell casings had been fired from a single weapon and, likewise, all of the .40-caliber shell casings had been fired from a single weapon.

Witness Christopher Stodghill, a close friend of Davis, testified that he had been with Davis and another friend, Cerdon Abeny, during the day and evening preceding the shooting. At some point during the evening, Davis arranged to buy some marijuana. The trio drove to a Waffle House for this purpose, but the seller never showed up. Stodghill and Abeny then dropped Davis off at Davis's apartment and drove to the Shell gas station across the street. After exiting the car, Stodghill noticed a man with dreadlocks, whom he recognized as having previously sold marijuana to Davis; the man had a gun tucked under his arm. Stodghill went into the gas station's convenience store and was soon joined by his brother, Daniel, and another friend, Chalyne Tolbert, who had just arrived at the gas station. While they were in the convenience store, they heard gunshots coming from outside. Stodghill ran out to find Davis face down in the parking lot next to the convenience store. Daniel also ran outside, saw Davis on the ground, and returned fire with a .40-caliber handgun in the direction of the shooter, who fled in a red Mustang.

Video from the gas station's security camera, which was played at trial, shows a red Mustang with white stripes driving up to a gas pump at 2:12 a.m. A man, identified as Appellant, gets out of the front passenger side, walks out of the frame, and then walks back and begins pumping fuel. Another man, identified as Davis, is seen approaching the gas station on foot and walking up to Appellant. The men walk to the side of the convenience store, outside the view of the camera. Seconds later, Appellant comes into view, rapidly backing up and firing shots. Appellant jumps into the Mustang, which speeds off. Immediately after the shots are heard, a man identified as Daniel exits the store, surveys the scene, and begins firing at the fleeing Mustang. A man identified as Stodghill runs over to Davis.

Stodghill confirmed during his testimony that the video also shows him removing a gun from Davis's lower body. Stodghill testified that this gun was his, that he removed it from either Davis's pocket or a fanny pack and gave it to Tolbert, and that Tolbert then ran from the scene. He acknowledged that he had initially failed to tell investigators about removing the gun and that it was only after questioning by an investigator several months later that he admitted having done so.

Davis's girlfriend, Sydni Jordan, testified that she drove Daniel and Tolbert to the gas station on the night of the shooting and that she stayed in the car while they went inside to buy drinks and snacks. While she sat there, she saw Davis walk past the car with a man and shortly thereafter heard shots and saw gunfire.

South Fulton Police Detective Terrence Jackson testified that the call log from Davis's cell phone showed the last received call was at approximately 2:05 a.m. The associated phone number was listed in Davis's contacts as "plug," which, Detective Jackson testified, is street slang for a drug dealer. Detective Jackson ran the phone number through a police database, which linked the number to Appellant. From a photographic lineup shown on the morning of the shooting, Stodghill identified Appellant as the man with dreadlocks he had seen before entering the convenience store, and Jordan identified Appellant as the man she had seen walking with Davis just before the shooting.

Appellant admits that he shot Davis but claims he did so in self-defense. At trial, the defense theory was that Davis lured Appellant to the gas station with the intent to rob him and brandished a gun first. Appellant testified that he met Davis a few weeks before the shooting, that Davis contacted him on May 15 about purchasing marijuana, and that, because he was "picky" about those he did business with, he was planning to meet Davis only "to get to know him more" and took no marijuana with him to the meeting. According to Appellant, when he arrived at the gas station, Davis approached and invited him to "take a walk." Davis ushered Appellant over to the side of the convenience store, where Davis pulled out what looked like a $100 bill with one hand and a gun with the other. Appellant pulled his gun and fired, then ran back to his red Mustang, where his girlfriend Tamyah Clark was waiting. With gunshots hitting the car, Clark drove off. The next day, Appellant drove to a wooded area and threw his gun into the woods.

Clark admitted that she knew Appellant was a marijuana dealer. She testified, however, that she had not seen any drugs in the car or in Appellant's possession on the night of the shooting and had not overheard Appellant's phone conversations that evening. Clark admitted that they did not call the police after leaving the scene. On cross-examination, Clark testified that Appellant told her during a post-arrest phone conversation to give a police statement saying that she had seen a gun in Davis's possession at the gas station. Clark refused because she was unsure of what she had seen. That jail phone call was recorded, and the recording was played for the jury.

The jury also heard a recording of Appellant's jail phone conversation with his friend Michael Dixon. In the recording, Appellant can be heard telling Dixon that Clark saw him "weigh that sh*t up" before they left for the gas station, and Dixon remarks that Clark knew they were going to the gas station to "sell weed" and "make a transaction."

1. Appellant contends that the evidence was insufficient to overcome his justification defense and support his convictions. We disagree.

When evaluating the sufficiency of evidence, we must determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. In making that determination, we view the evidence in the light most favorable to the verdict, and we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the jury. As long as there is some competent evidence, even if contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

Thomas v. State , 311 Ga. 573, 575 (1), 858 S.E.2d 504, 507 (2021) (citations and punctuation omitted).

Here, Appellant admits that he shot Davis. Thus, the only question as to the sufficiency of the evidence supporting Appellant's convictions for felony murder and firearm possession was whether the shooting was committed in self-defense. Although Appellant testified that he fired his gun only after Davis brandished his, the jury was entitled to disbelieve this testimony, and ample corroborating evidence exists to support the convictions. See Daughtie v. State , 297 Ga. 261, 263-264 (2), 773 S.E.2d 263 (2015). Though it is undisputed that Davis had a gun on his person at the time of his encounter with Appellant, there was no evidence – apart from Appellant's own testimony – that Davis drew the gun. It is clear that Davis never fired his gun, as the ballistics evidence established that only two guns were fired, and the surveillance video showed that the second shooter was Daniel, not Davis. Further, Stodghill testified that the gun he removed from Davis's body was either in Davis's pocket or in his fanny pack. The jury was thus authorized to find beyond a reasonable doubt that Appellant was not acting in self-defense at the time he shot Davis. See Carter v. State , 310 Ga. 559, 561-562 (1) (b), 852 S.E.2d 542 (2020) (affirming jury's rejection of appellant's self-defense claim); Shaw v. State , 292 Ga. 871, 872 (1), 742...