In the Supreme Court of Georgia
Decided: June 1, 2021
S21A0424. WALKER v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant O’Shaye Walker was convicted of felony murder,
armed robbery, attempt to purchase marijuana, and a firearm
offense in connection with the shooting death of Taquahn Jackson.
In this appeal, he argues that the trial court erred by failing to
instruct the jury on misdemeanor possession of marijuana as a
lesser-included offense and by giving an overbroad instruction on
the attempt to purchase marijuana charge. He also contends that
his trial counsel provided ineffective assistance by failing to object
to the admission of certain statements made by Appellant and a
detective during Appellant’s recorded interview. We affirm. 1
1The crimes occurred on November 12, 2014. In March 2015, a Fulton County grand jury indicted Appellant for malice murder, three counts of felony murder, armed robbery, aggravated assault, criminal attempt to purchase
1. The evidence presented at trial showed the following.
Shortly before 1:00 p.m. on November 12, 2014, Melissa Douse heard
a loud bang and gunshots outside her apartment in Union City. She
ran outside and saw that a Chevrolet Monte Carlo – Jackson’s
mother’s car, which he was using that day – had crashed into her
car. Douse saw two men inside the Monte Carlo; the driver (who was
later identified as Jackson) looked unconscious, and the passenger
(who was later identified as Appellant) appeared to be wounded. She
went inside to call 911; when she returned, she saw a third man
helping Appellant out of the car. When the third man saw Douse, he
dropped Appellant and ran into the woods down a path that
connected the apartment complex with another complex where
marijuana, and possession of a firearm during the commission of a felony. Appellant was tried from May 3 to 5, 2016, and the jury found him not guilty of malice murder but guilty of the other charges. The trial court sentenced Appellant to serve life in prison for felony murder based on aggravated assault, 20 consecutive years for armed robbery with 10 years probated, five concurrent years for attempt to purchase marijuana, and five consecutive years probated for the firearm offense. The remaining counts were vacated or merged. Appellant filed a timely motion for new trial, which he later amended with new counsel. After an evidentiary hearing, the trial court denied the motion in June 2019. Appellant filed a timely notice of appeal, which he later amended. The case was docketed to the term of this Court beginning in December 2020 and submitted for decision on the briefs.
2
Appellant’s mother lived. The third man was never identified. When
Douse approached Appellant, he told her that “the guy that was
unconscious on the driver side tried to rob him and shot him and not
to tell the officers about the guy that ran off in the woods.”
Law enforcement and emergency medical personnel then
arrived on the scene. Jackson, who had been shot five times, was
pronounced dead. 2 He was wearing a Versace belt and Giuseppe
Zanotti shoes and had $110 in his back pocket.3 A 9mm pistol was
found between Jackson’s feet in the Monte Carlo, along with two
9mm cartridge cases that had been fired from that pistol. Five .40-caliber shell casings that could not have been fired from the 9mm
pistol were also found inside the car. There was a bag of marijuana
and a scale in the back seat. Appellant was found lying on the
ground about 30 feet from the car, near another bag of marijuana
2 The medical examiner who conducted Jackson’s autopsy testified that although Jackson would have died within minutes, he “would . . . have still been maybe . . . mobile and able to grab for something” like a gun after he was shot.
3 Jackson was an aspiring rap artist who had recently signed a record
deal and made money performing shows.
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and a .40-caliber cartridge; he had a gunshot wound to his stomach.
Both bags of marijuana weighed slightly less than an ounce.
Appellant told police officers at the scene, including lead
Detective Gloria Hodgson, that he was buying marijuana from
Jackson when Jackson robbed and shot him, and he shot Jackson in
response. When asked where his gun was, Appellant claimed that
he had thrown it into the bushes nearby, but the gun was never
found. Appellant was taken to the hospital for surgery. Before he
was moved into the operating room, he told an investigator, “I shot
him, but I don’t know if he dead,” or “I don’t know if he dead, but I
shot him”; after a pause, Appellant added, “and I got the weed from
him.”
Text messages and call records from Appellant’s cell phone
showed that at 11:43 a.m., he had sent Jackson a text saying, “I need
an oz for 275.” Jackson asked for an address, and Appellant texted
him the address of the apartment complex in Union City. After
several more texts clarifying the address and four phone calls, the
last communication between the two phones was a call from
4
Jackson’s phone to Appellant’s phone at 12:54 p.m. Douse called 911
to report the shooting at 1:00 p.m. Other text messages showed that
several weeks before the shooting, Appellant offered to sell Jackson
a .40-caliber pistol.
After Appellant was released from the hospital, Detective
Hodgson and Detective Cliff McClure interviewed him at his
mother’s apartment; the interview was audio-recorded, and parts of
it were later played for the jury. Appellant told the detectives that
he met Jackson in October 2014, when Jackson approached him
outside a gas station and offered to sell him marijuana; Appellant
bought $10 worth, and they exchanged phone numbers. They later
exchanged text messages, but they did not meet again in person
until the day of the shooting.
Appellant claimed that before Jackson arrived at the
apartment complex, Jackson “kept asking me was I by myself.”
Appellant said that once Jackson arrived:
I got in the car with him. We shook hands and he had the
weed right there on his lap and he was like, do you have
the money. I like, yeah. I like, do you have a scale? And
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he was like, yeah. So, he was like, he gave me the weed
and it looked off. So, I like, I need a scale. Like, just show
me the money so I know you got it. So, I pulled out the
money and then next thing you know he, I’m thinking he
pulling out a scale, but he pulls out the gun and then
that’s when I tried to reach for the gun. Then that’s when
he shot me. And that’s all, that’s all I can remember.
Later in the interview, Appellant said that while they were in
the Monte Carlo, he paid Jackson $275 for the marijuana, but he
could not tell the detectives in which pocket Jackson put the money
(and the only money found at the crime scene was the $110 in
Jackson’s back pocket). Appellant first denied having a gun at the
scene, but he later admitted that he had a gun and claimed that he
did not know where it ended up after he threw it into the bushes.
Appellant also repeatedly claimed that he did not know who the
third man was that Douse saw dragging Appellant away from the
Monte Carlo.
2. At trial, Appellant requested a jury charge on misdemeanor
possession of an ounce or less of marijuana as a lesser-included
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offense of attempt to purchase marijuana. 4 The trial court denied
the request, and Appellant objected to the omission of the
instruction after the court charged the jury. We see no error.
“‘[T]o authorize a jury instruction on a lesser included offense,
there must be some evidence in the record that the defendant
committed that offense.’” Stepp-McCommons v. State, 309 Ga. 400,
403 (845 SE2d 643) (2020) (citation omitted). Where the evidence
shows either the commission of the greater offense as charged or the
commission of no crime at all, an instruction on a lesser-included
offense is not required. See id. “‘Whether the evidence was sufficient
to warrant the requested instruction is a legal question, which we
review de novo.’” Id. (citation omitted).
Appellant argues that based on the evidence that the police
found him at the scene near a bag containing less than an ounce of
4 OCGA § 16-13-30 (j) generally makes it a felony for “any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” OCGA § 16-13-2 (b) says that “[n]otwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor[.]”
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marijuana, the jury could have concluded that his purchase of the
marijuana had been completed by the time of the shooting and, at
that point, he was merely in possession of marijuana. 5 Under this
theory, however, Appellant possessed the marijuana only because
he had completed the commission of the greater offense of
attempting to purchase it. See OCGA § 16-4-2 (“A person may be
convicted of the offense of criminal attempt if the crime attempted
was actually committed in pursuance of the attempt . . . .”). Indeed,
the evidence indicated that Appellant possessed the marijuana
because he either purchased it from Jackson or he robbed Jackson
after meeting him to purchase it. There was no evidence that
Appellant possessed the marijuana when he arrived at the meeting
or that he obtained possession without completing the commission
of a charged greater offense. Thus, the trial court did not err by
5 At trial, Appellant’s counsel presented this theory that Appellant had already completed the purchase as part of an argument that Appellant was not committing a felony when he shot Jackson to defend himself. See OCGA § 16-3-21 (b) (2) (“A person is not justified in using force [for self-defense] if he . . . [i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony[.]”). The jury was instructed on self-defense.
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declining to instruct the jury on possession of marijuana as a lesserincluded offense. 6
3. Appellant argues next that the trial court’s charge to the jury
on the attempt to purchase marijuana count exceeded the scope of
the indictment. In its final jury charge, the trial court read the
indictment to the jurors, including the following:
Count seven charges [Appellant] with criminal attempt to
purchase marijuana. On the 12th day of November, 2014,
with intent to purchase marijuana did perform an act
which constitutes a substantial step toward the
commission of said crime, to wit: meeting with Taquahn
6 At trial and on appeal, Appellant has relied on Johnson v. State, 296 Ga. App. 697 (675 SE2d 588) (2009), for the proposition that possession of a controlled substance is always a lesser-included offense of the purchase of the same controlled substance. See id. at 699 (“We see no logical distinction between the purchase of a controlled substance and the sale of a controlled substance for purposes of charging possession as a lesser included offense.”). The Court of Appeals’s statement in Johnson that there is no “logical distinction” between sale and purchase in this context is overbroad at best. We need not decide whether Johnson was correctly decided, however, because its unusual facts are distinguished from the facts of this case. In Johnson, the defendant sheriff’s deputy testified that she did not intend to purchase or pay for the marijuana she was found with; she claimed that she was given a change purse containing a small amount of marijuana, and when told that the purse contained drugs, she placed it in the evidence crate of her patrol car and drove straight to the sheriff’s house to report the incident, only to be stopped and arrested en route. See id. at 697-698. In this case, by contrast, there was no evidence to support a finding that Appellant possessed the marijuana except intentionally as a result of a charged greater offense. We also need not decide today whether there are any circumstances in which possession of marijuana could be a lesser-included offense of attempt to purchase the same marijuana.
9
Malik Jackson at 5300 State Route 138 in Union City,
Georgia to purchase marijuana from Taquahn Malik
Jackson.
The court later instructed:
A person commits the offense of criminal attempt to
purchase marijuana when that person, with intent to
commit the purchase of marijuana, performs any act that
constitutes a substantial step toward the commission of
the crime of the purchase of marijuana. Under the laws of
Georgia, it is unlawful for any person to possess, have
under his control, purchase, sell or possess with intent to
distribute marijuana.
(Emphasis added.) When instructing the jury on the related felonymurder count and on the firearm-possession count, the court again
referred to the marijuana count as “criminal attempt to purchase
marijuana.” And when discussing the verdict form, the court
explained:
If, after considering the testimony and evidence presented
to you, together with the charge of the court, you should
find and believe beyond a reasonable doubt that the
defendant in Fulton County, Georgia, on the dates in the
indictment, did commit the offense or offenses charged, as
alleged in the indictment, you would be authorized to find
the defendant guilty.
10
Appellant did not object to these instructions at trial, but he now
argues that the italicized language was improper based on the
principle that “‘a jury instruction [that] deviates from the indictment
violates due process where there is evidence to support a conviction
on the unalleged manner of committing the crime and the jury is not
instructed to limit its consideration to the manner specified in the
indictment.’” Pippen v. State, 299 Ga. 710, 713 (791 SE2d 795) (2016)
(citation omitted).
Because Appellant did not raise this claim at trial, we review
it only for plain error, meaning that he must show that “the alleged
instructional error was not affirmatively waived; was clear and
obvious, rather than subject to reasonable dispute; likely affected
the outcome of the trial; and seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Knighton v.
State, 310 Ga. 586, 591 (853 SE2d 89) (2020). “An appellant must
establish all four elements of the test in order to demonstrate plain
error, so satisfying this test is difficult, as it should be.” Id. (citations
and punctuation omitted). Appellant’s claim was not affirmatively
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waived, and we can assume without deciding that the trial court
clearly erred in its one mention of unlawful acts involving marijuana
with which Appellant was not charged, because his claim fails on
the third part of the plain error test.
“[W]hen we are presented with a claim that a particular
instruction is misleading, ‘[w]e do not evaluate jury charges in
isolation, but rather consider them as a whole to determine whether
there is a reasonable likelihood the jury improperly applied a
challenged instruction.’” Carpenter v. State, 305 Ga. 725, 728 (827
SE2d 250) (2019) (citation omitted). In this case, the jury
instructions as a whole – which included reading the indictment,
instructing the jury to decide if Appellant was guilty of the offenses
charged “as alleged in the indictment,” and referring to the charged
marijuana offense no less than eight times in terms of a “purchase”
of marijuana – left no doubt that the jury could find Appellant guilty
only if the State proved that he had attempted to purchase
marijuana as charged. Thus, the alleged error did not likely affect
the outcome of Appellant’s trial, and he has failed to demonstrate
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plain error. See, e.g., Pippen, 299 Ga. at 713-714 (holding that the
appellant failed to establish that the trial court’s mention of an act
not charged in the indictment likely affected the outcome of the
proceedings because the court read the indictment to the jury and
instructed the jurors that they could find the defendant guilty of the
charged crime only if they found that she committed the offense as
alleged in the indictment).
4. Finally, Appellant argues that his trial counsel provided
ineffective assistance by failing to object to certain statements made
by Appellant and Detective McClure during Appellant’s interview.
We disagree.
At trial, after the State indicated its intention to introduce into
evidence Appellant’s audio-recorded interview with the detectives at
his mother’s house, Appellant’s counsel moved to redact the last part
of the interview, starting at page 18 of the interview transcript
through the end of the transcript on page 24. This part included
statements made by Appellant and Detective McClure about
Appellant’s job status, disability checks, father, and “thug life.”
13
Appellant’s counsel argued that the statements were irrelevant,
improper and prejudicial character evidence, and hearsay, and that
the officers were “editorializing.” In response, the trial court directed
the redaction of some of the objected-to statements, instructing the
prosecutor to mute the recording and to redact the portion of the
interview transcript from page 19, line 2 through page 20, line 1 that
included the statements about Appellant’s disability and “thug life.”
When the prosecutor tendered the redacted interview into evidence,
Appellant’s counsel objected again, asserting that the redaction
should have continued past page 20 to the end of the interview. 7
Appellant now argues, as he did in his motion for new trial,
that his trial counsel provided ineffective assistance by failing to
object to seven statements made during the interview on the
grounds that they were irrelevant, prejudicial, and bad character
evidence. 8 See OCGA §§ 24-4-401, 24-4-403, 24-4-404 (a). To prove
7 The interview transcript was given to the jury for reference while the recording was played and it was entered into the record, but it was not sent back with the jury during deliberations.
8 In one sentence in his brief, Appellant also asserts that these
statements were hearsay and improper comments on the evidence. To the
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ineffective assistance of counsel, Appellant must show that his
counsel’s performance was deficient and that the deficient
performance resulted in prejudice. See Strickland v. Washington,
466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
To show deficient performance, Appellant must prove
that his lawyer performed his duties in an objectively
unreasonable way, considering all the circumstances and
in the light of prevailing professional norms. In
particular, decisions regarding trial tactics and strategy
constitute deficient performance only if they were so
patently unreasonable that no competent attorney would
have followed such a course. To establish prejudice,
Appellant must prove that there is a reasonable
probability that, but for counsel’s deficiency, the result of
the trial would have been different.
Carter v. State, 310 Ga. 559, 562 (852 SE2d 542) (2020) (citation
omitted). “We need not address both parts of the inquiry if Appellant
makes an insufficient showing on one.” Barboza v. State, 309 Ga.
319, 326 (845 SE2d 673) (2020).
extent Appellant is actually arguing that his trial counsel should have made certain hearsay and improper-comment objections, those arguments were not preserved for review on appeal because he did not make them in his amended motion for new trial filed by his appellate counsel. See Cross v. State, 309 Ga. 705, 710 n.6 (848 SE2d 455) (2020) (“[W]here a claim of ineffective assistance of trial counsel was not raised at the earliest practicable moment, it is not preserved for appellate review.”).
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(a) Five of the seven statements to which Appellant asserts
trial counsel should have objected were on pages 18 to 21 of the
interview transcript, which is part of the interview to which counsel
did object at trial. Because counsel did in fact object on the same
grounds now asserted, those statements cannot be the basis for an
ineffective assistance claim. See Slaton v. State, 303 Ga. 651, 653
(814 SE2d 344) (2018) (explaining that a claim that counsel
performed deficiently based on counsel’s failure to perform in a
particular way lacks merit where counsel actually performed in that
way). 9
(b) The two remaining statements were as follows. First,
Detective McClure said to Appellant, “Your mom said you weren’t
living here. She wouldn’t let you stay here ‘cause you didn’t have a
job.” Appellant replied, “yeah.” Second, when discussing further
treatment for his gunshot wound, Appellant said, “I was supposed
to go [to the doctor] yesterday but I don’t have no insurance.”
9 Appellant does not enumerate as error the trial court’s ruling on the objections that trial counsel made.
16
As to the first statement, Appellant’s unemployment was
relevant to his motive for the charged armed robbery. See Priester v.
State, 309 Ga. 330, 333 (845 SE2d 683) (2020) (explaining that
evidence regarding a lull in the appellant’s drug-dealing business
was relevant to his motive for attempting to rob the victim). And the
statement that Appellant could not live with his mother and did not
have a job was not unfairly prejudicial or improper character
evidence. See Snipes v. State, 309 Ga. 785, 793 (848 SE2d 417) (2020)
(holding that the appellant had not shown how testimony that she
“‘wasn’t working or nothing’” was “evidence of her bad character or
otherwise prejudicial”). Thus, an objection to this statement would
have failed, and “Appellant’s trial counsel did not perform
deficiently by failing to make a meritless objection.” Carter, 310 Ga.
at 564.
Trial counsel also did not perform deficiently by failing to object
to the second statement. Appellant has not explained how a passing
statement about his lack of medical insurance was harmful to him.
Instead, at the hearing on the motion for new trial, trial counsel
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acknowledged that the statement about insurance could have
engendered sympathy from the jury because Appellant was unable
to continue to have his gunshot wound treated. Thus, a competent
lawyer could reasonably have chosen not to object to the statement.
See Jones v. State, 300 Ga. 543, 546 (796 SE2d 659) (2017) (holding
that a reasonable lawyer may decide not to object to statements that
may create sympathy for his client). Accordingly, Appellant has
failed to show that his trial counsel’s performance was deficient.
Judgment affirmed. All the Justices concur, except LaGrua, J., disqualified.
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