WALKER v. The STATE.

A18A1439

Court of Appeals of Georgia.

November 19, 2018

James Todd Mitchell, Austell, for Appellant.

Joshua Bradley Smith, Augusta, Henry Wayne Syms Jr., for Appellee.

Ellington, Presiding Judge.

A Burke County jury found John Walker guilty beyond a reasonable doubt of possession of a knife during the commission of a crime involving the person of another, OCGA § 16-11-106 (b) (1) ; family violence battery, OCGA § 16-5-23.1 (a), (f) ; and cruelty to children in the third degree, OCGA § 16-5-70 (d). Following the denial of his motion for a new trial, Walker appeals, contending that the verdict must be set aside because it was based on perjured testimony. In addition, he contends that the evidence was insufficient to find that he possessed a knife during the offenses at issue, that the trial court erred in admitting his statement to investigators, and that the trial court erred in charging the jury regarding the elements of the offense of family violence battery. For the reasons explained below, we affirm.

1. Walker contends that the only evidence that he possessed a knife during a crime against a person, as charged, was the testimony of the battery victim, which she later testified had been a lie. He argues that, as a result, there was insufficient evidence to support a guilty verdict for possession of a knife during the commission of a crime. On appeal from a criminal conviction, the appellate court

In this case, even treating her guilty plea and receipt of probation as a first offender as a conviction,4 the victim pleaded guilty to committing perjury with respect to her *exculpatory* trial testimony, not her inculpatory testimony during the State's case-in-chief. Under the circumstances, the trial court could not conclude that the jury's guilty verdicts could not have been obtained without the victim's admittedly perjured exculpatory testimony for the defense. Conversely, stated in the positive, the trial court could only conclude that the guilty verdict could have been obtained without the perjured testimony. Walker contends, however, that OCGA § 17-1-4 speaks in terms of whether a verdict could have been obtained "without the evidence of the perjured *person* " (in this case, the victim), rather than in terms of the perjured *testimony* (in this case, the victim's exculpatory testimony) and, based on this, that there is no evidence that he possessed a knife. But, as quoted above, the Supreme Court has explained that the issue is whether the verdict could have been obtained without the perjured *testimony* . *Lewis v. State* , 301 Ga. at 762-763 (2), 804 S.E.2d 82. Because, in the words of the statute, the verdict in this case was not obtained "*in consequence of* corrupt and willful perjury,"5 but rather *despite* the victim's perjury, OCGA § 17-1-4 does not provide a basis for setting aside the judgment in this case. *Nations v. State* , 290 Ga. 39, 41 (2), 717 S.E.2d 634 (2011) ; *Richardson v. Roberts* , 25 Ga. 671, 675 (1858).

3. Walker contends that he invoked his right to remain silent midway through a custodial interrogation and that the trial court therefore erred in admitting into evidence his statement that he held a knife during the incident.6

> In examining the operation of the Fifth Amendment's privilege against self-incrimination, the United States Supreme Court has made clear that when an individual in custody indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, that individual has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion. In this regard, [the Supreme] Court [of Georgia] has held that an assertion of the right to remain silent during custodial interrogation must be unambiguous and unequivocal before interrogators are required to stop their questioning. Resolution of that question depends on whether the accused articulated a desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent. An accused will be found to have unambiguously and unequivocally asserted his right to remain silent where he declares that he is finished talking or otherwise expresses the clear desire for police questioning to cease.

(Citations and punctuation omitted.) *Mack v. State* , 296 Ga. 239, 242 (1), 765 S.E.2d 896 (2014).7

Walker points to the following colloquy during his custodial interrogation:

> *572Investigator A: Do you wish to talk to us about what happened on the 23rd?

> Walker: Man. I don't know if I should talk ... I don't want to commit myself at the same time.

> Investigator A: It's totally up to you.

> Investigator B: It's totally up to you as far as you making a statement.

> Walker: I want to defend myself at the same time.

> Investigator B: Right.

> Investigator A: You can do that through your lawyer, if that's what you want. Or you can talk to us.

> Investigator B: It's totally up to you. We can't force you to answer questions. We can ask you questions. If you want to answer, you can answer. You don't have to answer, if you don't want to, if it's something you don't want to answer. But we're just here to try to get your side of what happened and go from there.

> Walker: I ain't trying to get in no trouble, sir.

> Investigator B: Well, we understand that. Most people don't try to get in trouble, but things happen that lead to trouble.

> Walker: Yes, sir.

Having reviewed the recording, we discern no declaration that Walker was finished talking or other expression of the clear desire for police questioning to cease. *Williams v. State* , 290 Ga. 418, 420 (2), 721 S.E.2d 883 (2012) (An arrestee's statement " 'I can't go on answering these questions' was not an unambiguous and unequivocal assertion of the right to remain silent."); *Perez v. State* , 283 Ga. 196, 200-201, 657 S.E.2d 846 (2008) ; *State v. Andrade* , 342 Ga. App. 228, 231, 803 S.E.2d 118 (2017). Accordingly, Walker has shown no basis for reversal.

4. Walker contends that the trial court's jury instructions failed to include all of the elements of the offense of family violence battery as charged, specifically the definition of "visible bodily harm" under OCGA § 16-5-23.1.

Because Walker made no objection at the time of the charge, we review this claim of error under the "plain error" standard of review. *Hughley v. State* , 330 Ga. App. 786, 788 (2), 769 S.E.2d 537 (2015).8 Walker has the heavy burden of demonstrating the following four elements:

> First, there must be an error or defect-some sort of deviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error-discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation, punctuation and footnote omitted.) Id. at 789 (2), 769 S.E.2d 537.

The indictment charged that Walker committed family violence battery by intentionally causing the victim "visible bodily injury" by slapping and hitting her. OCGA § 16-5-23.1 (a) provides: "A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another." OCGA § 16-5-23.1 (f) defines "family violence battery," inter alia, as the offense of battery committed between "persons who are parents of the same child." OCGA § 16-5-23.1 does not define "substantial physical harm" but in subsection *573(b) defines "visible bodily harm" as "bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts."

The trial court charged the jury as follows:

> [Walker] is ... charged with family violence. I charge you that the Official Code of Georgia defines family violence as meaning the occurrence of one or more of the following acts between persons who are the parents of the same child: any felony or commission of offense of battery. ... [I]t's alleged that Mr. Walker committed the crime of family violence battery, a misdemeanor, for that [he] ... did intentionally cause physical bodily injury to [the victim], who has a child with the accused, by slapping and hitting [the victim.]

The trial court did not define "battery" or "visible bodily harm."

Because Walker was charged with committing the offense of family violence battery by causing "visible bodily injury," the court misspoke when it instructed the jury that Walker was charged with committing the offense by cause "physical bodily injury." This flaw was ameliorated by the fact that the court instructed the jury that it was authorized to find Walker guilty only if it found beyond a reasonable doubt that he committed the offense as charged in the indictment and sent both the indictment and the instructions out with the jury. In addition, because the Criminal Code provides a definition of "visible bodily harm," it is preferable to charge the jury as to that definition, as in the pattern instructions.9 Having reviewed the entire record, however, we do not find it likely that these technical errors and omissions affected the outcome of the trial court proceedings. *Hornbuckle v. State* , 300 Ga. 750, 755 (4), 797 S.E.2d 113 (2017) ; *Christensen v. State* , 245 Ga. App. 165, 166 (1) (a), 537 S.E.2d 446 (2000) ; see *Green v. State* , 291 Ga. 287, 294 (8) (a), 728 S.E.2d 668 (2012) ("The general rule ... is that the existence of a mere verbal inaccuracy in a jury instruction, resulting from a palpable 'slip of the tongue' and which could not have misled or confused the jury will not provide a basis for reversal of a defendant's conviction.") (citation and punctuation omitted). Because Walker failed to establish all four prongs of the applicable test for plain error, we affirm.

*Judgment affirmed.*

Gobeil and Coomer, JJ., concur.

4

Under Georgia law,

> [a] first offender's guilty plea does not constitute a "conviction" as that term is defined in the Criminal Code of Georgia. Rather, under the first offender statute, until an adjudication of guilt is entered, there is no conviction. The case has, in effect, been suspended during the period of probation until eventually the probation is either revoked or it is discharged; unless it is revoked, there is no conviction.

(Citations, punctuation, and emphasis omitted.) *Collins v. State* , 338 Ga. App. 886, 889 (1), 792 S.E.2d 134 (2016).

5

OCGA § 17-1-4 (emphasis supplied).

6

The record shows that during his custodial statement Walker admitted that he slapped the victim and knew that it was wrong and said that he took a knife from her during the ensuing altercation in order to prevent her from committing suicide but stated that he put the knife down on the table as soon as he got it away from her.

7

See *Miranda v. Arizona* , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

8

The State contends that, because Walker "never argued that the trial court's failure to charge on the definition of battery was plain error," this Court is "preclud[ed] from passing on this issue now[,]" citing *State v. Easter* , 297 Ga. 171, 773 S.E.2d 181 (2015). This argument is disingenuous at best. As explained in *State v. Easter* , the appellate court is "required to consider whether the [trial] court's jury instruction constitutes plain error" where the appellant "properly enumerate[s] and argue[s] the issues on appeal." (Citation and punctuation omitted.) 297 Ga. at 173 (1), 773 S.E.2d 181. Although Walker did not expressly refer to the plain-error standard of review in his enumeration of errors, he did refer to it in his brief when listing the standards of review and in the argument section of his brief.

9

See *Suggested Pattern Jury Instructions* , Vol. II: Criminal Cases, 2.22.11 (4th ed., 2007, updated August 2018).