Walker v. State

327 S.E.2d 475, 254 Ga. 149, 1985 Ga. LEXIS 626
CourtSupreme Court of Georgia
DecidedMarch 14, 1985
Docket41246
StatusPublished
Cited by73 cases

This text of 327 S.E.2d 475 (Walker v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. State, 327 S.E.2d 475, 254 Ga. 149, 1985 Ga. LEXIS 626 (Ga. 1985).

Opinions

Smith, Justice.

This is a death penalty case. Richard Walker was convicted in [150]*150Washington County of murder, burglary, and first degree arson. He was sentenced to death for the murder. The case is here on direct appeal, for review under the Unified Appeal Procedure (252 Ga. A-13 et seq.), and for the sentence review required by OCGA § 17-10-35.1

In late April of 1983, Walker’s wife filed for divorce. When Walker was served with the divorce papers, he became very angry and upset and stated that he had to “get out of town . . . fast” or he would “do something bad.” Walker told two co-workers that if his wife got custody of the kids, he would kill her.

On May 11, a temporary order was issued in the divorce case, awarding custody of the marital residence and the children to the wife. In addition, Walker was “restrained and enjoined” from going to his wife’s residence and from “harassing or contacting her in any manner.”

Notwithstanding this order, Walker called his wife several times on May 12. He told her he “hated her . . . guts.” The calls ended around 11:30 p.m. Mrs. Walker put her two children to bed and locked the doors and windows.

Shortly before midnight, Walker arrived and demanded entry. He was refused, and he broke into the front door. Mrs. Walker heard something being poured onto the floor and smelled a strong odor of gasoline.

She ran across the hall to get her oldest son, Tony, but could not find him in the dark. As she ran to get her other son, she called to her husband, saying “please don’t do it.” Walker replied, “God damn it, it’s too late now.”

She heard a “whoosh,” and soon the whole house was in flames. She threw her youngest son out the window and turned to get Tony, but the flames were too intense. She jumped out the window.

She had called her mother, Willie Mae Pearson, when Walker had first driven up. Mrs. Pearson lived nearby, and as she ran to the scene, she heard Tony saying: “[B]addy, please don’t burn my momma. Leave my momma alone.” Then the house was on fire. When she learned that Tony was still inside, she went in after him. Walker left the house just before she entered, his hands and arms on fire.

Mrs. Pearson located Tony and brought him outside. His nightclothes had burned off him, and strips of skin hung from his body.

Four-year-old Tony was taken to a special burn unit at Humana Hospital in Augusta with third-degree burns (i.e., the skin was totally destroyed) over virtually the entire surface area of his body. Despite [151]*151efforts there and later at the Shrine Burn Institute in Galveston, Texas, Tony died 21 days later.

Walker’s burns were serious enough that he went to a hospital for treatment. The treating physician noted a smell of gasoline on Walker, and treated him for first and second degree burns on his face, his arms, and the backs of his hands.

Expert testimony was offered that the fire was started in the kitchen area by means of a large quantity of flammable liquid thrown about the room and ignited by an open flame, and that the kind of flash burns that Walker received were consistent with his having started such a fire.

A small pair of shoes found in the kitchen area was sent to the crime lab for analysis which confirmed the presence of gasoline.

It was shown that in 1972, Walker had shot his former wife in the back six times, killing her.

1. The evidence was sufficient to support the jury’s verdict of guilty on Count 1 (murder), Count 2 (arson in the first degree), and Count 3 (burglary). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). However, Walker contends that since the jury was charged on both felony murder and malice murder and returned a verdict which did not specify which type of murder (malice or felony) it found, the verdict must be construed as a finding of felony murder, with the result that the underlying felony must be set aside.

The jury’s verdict recited, in part, that it found Walker “guilty of Count 1 — murder.”

Count 1 of the indictment alleged that Walker did “unlawfully and with malice aforethought cause the death of Antonio Darrell Thompson, a human being, by means of arson ...”

The allegation that the murder was committed “by means of arson” was unnecessary to a charge of malice murder, and Count 1 therefore alleges both felony murder and malice murder.2

In these circumstances, the jury’s verdict of “guilty of Count 1 — murder” was not an unambiguous finding of malice murder, and must be construed as one for felony murder, the underlying felony being that alleged in the indictment, i.e., arson. Burke v. State, 248 Ga. 124 (281 SE2d 607) (1981); Blankenship v. State, 247 Ga. 590 (2) (277 SE2d 505) (1981).

The general rule is that “[a] defendant may not be convicted law[152]*152fully of felony murder and the underlying felony.” Stone v. State, 253 Ga. 433, 434 (321 SE2d 723) (1984). See also Harris v. Oklahoma, 433 U. S. 682 (97 SC 2912, 53 LE2d 1054) (1977). The state argues that this rule is inapplicable here since the felony murder and the underlying felony were committed on different victims, citing Satterfield v. State, 248 Ga. 538 (285 SE2d 3) (1981). We disagree.

The rationale of Satterfield is not applicable to a case where, as here, “the count of the indictment alleging felony murder sets forth the underlying felony or felonies supporting the charge of felony murder.” Id. at 541. Walker’s 15th enumeration of error is meritorious, and his conviction on Count 2 must be reversed. Bolton v. State, 253 Ga. 116 (1) (318 SE2d 138) (1984).

2. In enumeration 16, Walker contends that the conviction of burglary must be set aside because in this case it is a lesser included offense as a matter of fact of the arson and the felony murder. We disagree, and find no merit to this enumeration of error. Haynes v. State, 249 Ga. 119 (2) (288 SE2d 185) (1982).

3. In his 17th enumeration, Walker complains of the admission in evidence at the guilt-phase of the trial that he had murdered his former wife in 1972. We find no error.

Both the prior incident and the crime on trial involved acts of violence by Walker towards his wives, stemming from marital difficulties. The prior incident was admissible to show malice, intent, motive and bent of mind. Gentry v. State, 250 Ga. 802 (1) (301 SE2d 273) (1983); Burke v. State, 250 Ga. 235 (297 SE2d 247) (1982).

4. Prior to trial, Walker moved for disclosure by the state of his parole file. This motion was denied, and in his first four enumerations of error, Walker complains of the court’s denial of disclosure and the court’s refusal to conduct an in-camera inspection of the file or to have the file sealed and preserved for appellate review. Walker further contends that OCGA § 42-9-53

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Bluebook (online)
327 S.E.2d 475, 254 Ga. 149, 1985 Ga. LEXIS 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-state-ga-1985.