In the Supreme Court of Georgia



                                                  Decided: September 22, 2014


                     S14A0882. WALKER v. THE STATE.
                     S14A0883. FLOWERS v. THE STATE.

       NAHMIAS, Justice.

       Appellants Robert Walker and Tasha Flowers were tried together and

convicted of felony murder and possession of a firearm during the commission

of a felony following a drive-by shooting into a bar in Columbus, Georgia. On

appeal, Walker contends only that the trial court erred in failing to give the

complete pattern instruction on circumstantial evidence. Flowers contends that

the trial court erred in failing to grant her motion for new trial because the jury’s

verdict was against the weight of evidence; in overruling her motion to exclude

identification testimony; in failing to give a proper curative instruction regarding

a detective’s testimony; and in failing to grant her motion for mistrial because

a witness violated the court’s pretrial ruling limiting his testimony. We affirm

the convictions of both Appellants.1


       1
          The crimes occurred on October 4, 2002. On April 22, 2003, Walker and Flowers were
indicted together by a Muscogee County grand jury on charges of malice murder, felony murder,
        1.      (a)     Viewed in the light most favorable to the verdict, the evidence

presented at trial showed the following. On the night of October 4, 2002, the



aggravated assault, and possession of a firearm during the commission of a felony. Walker was also
charged with possession of a firearm by a convicted felon, but that charge was later dead-docketed.
At a joint trial held on September 15-18, 2003, the jury found both Appellants not guilty of malice
murder but guilty of the remaining charges. The aggravated assault verdicts merged into the felony
murder convictions for sentencing purposes.
        The trial court sentenced Walker to life in prison without the possibility of parole for felony
murder and five consecutive years for the firearm offense. On October 26, 2004, the court granted
Walker’s motion for an out-of-time appeal, and two days later, he filed a motion for new trial, which
was amended more than five years later on July 29, 2009, and again on December 6, 2012. The trial
court held an evidentiary hearing on March 29, 2013, and on May 6, 2013, the court re-sentenced
Walker on the murder count to life with the possibility of parole because the relevant statute in effect
at the time of sentencing excepted capital felonies from mandatory no-parole punishment. On
January 9, 2014, the court denied Walker’s motion for new trial, and he filed a timely notice of
appeal.
        The trial court sentenced Flowers to life in prison with the possibility of parole for felony
murder and five consecutive years for the firearm offense. She filed her first motion for new trial
through trial counsel on October 15, 2003; a pro se motion for new trial (after her trial counsel
withdrew) on October 17, 2007; another motion for new trial through new counsel on December 9,
2008; and an amended motion for new trial through her trial counsel, who had been retained again,
on January 5, 2010. The trial court held evidentiary hearings on March 29, 2010, and December 11,
2012, and denied the motion for new trial on January 22, 2013. Flowers then timely filed a notice
of appeal.
        The two appeals were docketed to the April 2014 Term of this Court, consolidated for
decision, and submitted for decision on the briefs. Given that we received these direct appeals more
than a decade after this murder case was tried, it is appropriate to reiterate, once again, that

        extended delays in proceedings on motions for new trial “put at risk the rights of
        defendants and crime victims and the validity of convictions obtained after a full
        trial,” and . . . “it is the duty of all those involved in the criminal justice system,
        including trial courts and prosecutors as well as defense counsel and defendants, to
        ensure that the appropriate post-conviction motions are filed, litigated, and decided
        without unnecessary delay.”

Arnold v. State, 292 Ga. 268, 273 & n.5 (737 SE2d 98) (2013) (citation omitted). “Nevertheless,
any failure to discharge that duty in this case ‘does not affect the outcome of this appeal . . . because
[Appellants have] enumerated no error associated with the delay.”’ Id. (citation omitted).


                                                   2
victim, Robert Stephens, walked to the Interlude Bar from his house down the

street. While he was at the bar, a man came inside and said that someone was

trying to break into cars in the parking lot. A patron then brought a bicycle

inside the bar so it would not be stolen. The bicycle belonged to Carlos

Flowers. When Carlos came into the bar to retrieve his bike, he was confronted

by patrons about the attempted break-ins. He went back outside, but was

followed by patrons and beaten up in the parking lot. Stephens, who lived next

door to Carlos, broke up the fight and helped Carlos get away. Carlos ran down

the street to his house.

      Carlos’s cousin, Robert Walker, and his sister, Latasha Flowers, were at

the house. Shortly after Carlos came home, a neighbor, Nicolas Perry, saw two

people get into a car parked by the house and drive down the street to the bar.

The car stopped in front of the bar, and a patron heard a female voice yell that

everyone inside the bar was going to die. The car then turned around, and as it

passed the bar again, at least six shots were fired with a 9mm pistol out of the

passenger window toward the open doorway of the bar. Stephens, who was

sitting on a barstool, was struck under the eye by one of the bullets; he died on

the way to the hospital. Perry then saw the car return to the Flowers house, saw

                                        3
Walker and Flowers standing by the car once it parked, and then heard Walker

say something about family business.

       Another witness from the neighborhood, Hanalei Kaililaau, had also seen

the car drive out of the cul de sac where the Flowers home was located;

Kaililaau then heard gunshots and saw the car stopped in front of the bar with

smoke coming out of the passenger side. When the car returned to the Flowers

house moments later, Kaililaau saw Flowers and Walker get out, with Walker

holding a gun and saying “we took care of the family, we took care of business.”

After Walker was arrested, he bragged to another inmate, Charles Edge, while

they were in a holding cell together at the Sheriff’s Office, that he had killed a

man during a drive-by shooting in revenge for a fight.

               (b)     Although only Flowers disputes the sufficiency of the

evidence supporting her convictions, we address the issue as to both Appellants,

in accordance with this Court’s practice in murder cases.2 After reviewing the

       2
         We note that Flowers frames her argument as a claim that the verdict was against the weight
of the evidence, which is a general ground on which the trial court may grant a new trial. See OCGA
§ 5-5-21. However,

       “[t]he decision to grant a new trial on the grounds that the verdict is against the
       weight of evidence is one that is solely in the discretion of the trial court. . . .
       Whether an appellant is asking this court to review a [trial] court’s refusal to grant
       a new trial or its refusal to grant a motion for directed verdict, this court can only

                                                 4
record, we conclude that, when viewed in the light most favorable to the verdict,

the evidence presented at trial and summarized above was sufficient to authorize

a rational jury to find both Walker and Flowers guilty beyond a reasonable

doubt of the crimes for which they were convicted. See Jackson v. Virginia, 443

U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also OCGA § 16-2-21

(defining parties to a crime).

       Flowers argues that the family members and friends who testified on her

behalf that she was at a friend’s house at the time of the shooting were more

believable than the witnesses who implicated her in the crimes. That was,

however, a matter to be decided by the jury that saw and heard the testimony,

not by an appellate court reviewing a transcript. See Vega v. State, 285 Ga. 32,

33 (673 SE2d 223) (2009) (“‘It was for the jury to determine the credibility of

the witnesses and to resolve any conflicts or inconsistencies in the evidence.”’

(citation omitted)).




       review the case under the standard espoused in Jackson v. Virginia, 443 U.S. 307 (99
       SCt 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the
       light most favorable to the prosecution, supports the verdict.”

Batten v. State, ___Ga.___ (___SE2d___) (Case No. S14A0941, decided June 30, 2014) (citation
omitted).

                                                5
                      Case No. S14A0882 (Walker v. The State)

       2.      During the charge conference, the trial court said that it would give

the “definition of direct and circumstantial evidence” from the pattern jury

instructions. The court then instructed the jury as follows:

       Evidence under the law may be either direct or circumstantial or
       both. Evidence may also be used to prove a fact by inference. This
       is referred to as circumstantial evidence. Circumstantial evidence
       is the proof of facts or circumstances, by direct evidence, from
       which you may infer other related or connected facts that are
       reasonable and justified in the light of your experience.

       The court did not give the remainder of the pattern charge on

circumstantial evidence, which said: “To warrant a conviction on circumstantial

evidence the proven facts should not only be consistent with the hypothesis of

guilt, it [sic] shall exclude every other reasonable hypothesis as to the guilt of

the accused.”3 After the court finished the jury instructions, Walker reserved the

right to make objections, which under the law at the time of this trial in 2003

was generally sufficient to allow instructional errors to be raised for the first

time on motion for new trial or on appeal. See Pruitt v. State, 282 Ga. 30, 33 &

n.2 (644 SE2d 837) (2007); White v. State, 243 Ga. 250, 250 (253 SE2d 694)

       3
        This part of the pattern charge was based on the text of former OCGA § 24-4-6; that statute
has been repealed, but the same text is included in the new Evidence Code as OCGA § 24-14-6.

                                                6
(1979). Compare OCGA § 17-8-58 (effective for trials after July 1, 2007).

Walker’s only contention on appeal is that the trial court erred in failing to give

the complete pattern jury instruction on circumstantial evidence.

      However, as the trial court noted in its order denying Walker’s motion for

new trial, he never made a written request that the court give the entire pattern

charge on circumstantial evidence; we also note that the court said at the charge

conference only that it would instruct the jury on the definition of circumstantial

evidence, not that it would give the entire pattern charge. Absent a written

request, a trial court is required to charge on the law of circumstantial evidence

as set forth in former OCGA § 24-4-6 and current § 24-14-6 only if the State’s

case against the defendant is wholly circumstantial. See Massey v. State, 270

Ga. 76, 77 (508 SE2d 149) (1998); Stubbs v. State, 265 Ga. 883, 884 (463 SE2d

686) (1995). In this case, the State presented both direct and circumstantial

evidence against Walker. Indeed, Walker concedes that the State presented

direct evidence of his guilt from two eyewitnesses and from the inmate to whom

Walker admitted committing the drive-by murder. Walker contends that these

witnesses were impeached, making the direct evidence less than overwhelming;

that may be, but it is clear that this was not a wholly circumstantial case.

                                        7
Because the State presented direct evidence that Walker committed the crimes

and he did not request the circumstantial evidence instruction in writing, the trial

court did not commit reversible error in failing to give that charge, particularly

where the court instructed the jury on the definition of circumstantial evidence

and gave a full instruction on reasonable doubt. See Evans v. State, 288 Ga.

571, 576 (707 SE2d 353) (2011); Thompson v. State, 283 Ga. 581, 582 (662

SE2d 124) (2008).

                  Case No. S14A0883 (Flowers v. The State)

      3.    Flowers argues first that the trial court erred in denying her motion

to exclude identification testimony from Hanalei Kaililaau, because the police

showed him only a single photograph of Flowers rather than her photo among

photos of other women.

      If an out-of-court identification by a witness is suggestive and
      conducive to a “‘very substantial likelihood”’ of misidentification,
      evidence of that out-of-court identification violates due process and
      is inadmissible at trial. Similarly, if the same suggestive
      out-of-court identification can be said to lead to ‘“a very substantial
      likelihood of irreparable misidentification,”’ an in-court
      identification of the defendant would also violate due process and
      would be inadmissible. With regard to evidence of either the
      out-of-court or in-court identification, “[i]t is the likelihood of
      misidentification which violates a defendant’s right to due process.”

                                         8
      In determining whether there is a substantial likelihood of
      misidentification, the “totality of the circumstances” is to be
      considered. Under this test,
            “the factors to be considered in evaluating the
            likelihood of misidentification include the opportunity
            of the witness to view the criminal at the time of the
            crime, the witness’ degree of attention, the accuracy of
            the witness’ prior description of the criminal, the level
            of certainty demonstrated by the witness at the
            confrontation, and the length of time between the crime
            and the confrontation.”
      Moreover, whether the witness knows the defendant is a critical
      factor in determining the reliability of an identification.
State v. Hattney, 279 Ga. 88, 89 (610 S.E.2d 44) (2005) (footnotes omitted).

      Applying these standards in Gibson v. State, 283 Ga. 377 (65 SE2d 372)

(2008), this Court held that where the witness knew the defendant’s street and

legal names and had known and had regular contact with him for seven years,

the trial court did not err in refusing to suppress the witness’s identification,

because “showing [the witness] a single photograph of [the] defendant merely

confirmed her previous identification of him” and thus created no substantial

likelihood of misidentification. Id. at 378-379. Similarly, in Leeks v. State, 309

Ga. App. 724 (710 SE2d 908) (2011), the Court of Appeals held that even

though the police used a single photograph for identification, there was no

substantial likelihood of misidentification because, among other reasons, the

                                        9
witness knew the defendant from the neighborhood. See id. at 726-727. See

also Pruitt v. State, 270 Ga. 745, 751-752 (514 SE2d 639) (1999) (holding that

there was no substantial likelihood of misidentification even though the witness

may have been subjected to an impermissibly suggestive photo lineup, since the

witness testified that she recognized the defendant as a regular customer at her

store).

      Here, Kaililaau testified that, before identifying Flowers’s photo, he had

lived down the street from her for 11 years and had spent a lot of time with the

Flowers family; he went to school with Flowers’s sister and knew what Flowers

looked like. Kaililaau went to the Flowers house right after the shooting, and

she walked past him as she got out of the car used in the drive-by shooting.

Kaililaau gave Flowers’s first and last name to the police, who only then showed

him her photo to confirm that he was in fact referring to Flowers. Under these

circumstances, the presentation to the witness of a single photograph of the

defendant created no substantial likelihood of misidentification, and the trial

court correctly denied the motion to exclude the witness’s identification

testimony. See Gibson, 283 Ga. at 378-379.

      4.    Flowers argues next that the trial court erred in failing to give a

                                       10
proper curative instruction regarding a detective’s improper testimony. At trial,

the detective was asked if he “ever [made] an arrest in the case involving Carlos,

the beating?” He replied, “Because once I established that Mr. Robert Walker

and Latasha Flowers were the persons that conducted this drive-by shooting of

the Interlude Club –.” Flowers interrupted with an objection, arguing that the

answer was an improper conclusion and asking the court to strike the answer

and give a limiting instruction to the jury. The court sustained the objection and

instructed the jury, “You may disregard, jury, please, the conclusion made by

the officer about what he established.” Flowers did not take exception to the

court’s curative action, and her acquiescence in it waives any claim of error on

appeal. See Jeffers v. State, 290 Ga. 311, 315 (721 SE2d 86) (2012). In any

event, given the sustaining of Flowers’s objection, the prompt curative

instruction for the jury to disregard the detective’s non-responsive and

conclusory statement, and the testimony the jury heard from other witnesses

establishing Flowers’s role in the drive-by shooting, we would find no harmful

error with respect to this enumeration.

      5.    Before trial, Flowers moved to exclude as hearsay any testimony by

Charles Edge, the inmate who had been locked up with co-defendant Walker,

                                        11
implicating her based on what Walker had told him. The trial court ruled that

Edge would be limited to testifying that Walker said that he had done the drive-

by shooting as a passenger in a moving vehicle, and the prosecutor notified

Edge of the court’s ruling before he testified at trial.4 Nevertheless, when asked

by the prosecutor if Walker was a passenger in the car during the drive-by

shooting, Edge replied, “He was a passenger in the car because he said it was

some lady – was driving the car.” The prosecutor tried to interrupt Edge after

he said “lady,” but he completed the answer.

      Flowers then moved for a mistrial based on violation of the pretrial ruling

and objected on the ground of hearsay. The trial court denied the motion for

mistrial but instructed the jury to disregard Edge’s statement, saying:

      Members of this Jury, during a portion of the testimony on direct
      examination of this witness on the witness stand some remark was
      made by him where he said something to the effect that he was told
      that a lady was driving the car. I instruct you, Members of this
      Jury, that you may not consider that testimony in connection with
      this case. You shall disregard that portion of his answer. You will
      give it no weight whatsoever in your consideration of the evidence
      in this case.

Flowers made clear that she was preserving her motion for mistrial, and on


      4
          Neither party challenges this ruling on appeal, and we express no opinion about it.

                                                12
appeal she argues that the trial court erred in failing to grant it.

      ‘“Whether to grant a motion for mistrial is within the trial court’s sound

discretion, and the trial court’s exercise of that discretion will not be disturbed

on appeal unless a mistrial is essential to preserve the defendant’s right to a fair

trial.”’ Watson v. State, 289 Ga. 39, 42 (709 SE2d 2) (2011) (citation omitted).

Here, there is no indication that the prosecutor intended to elicit the fleeting

testimony at issue; the witness never identified the “lady” and never mentioned

Flowers at all; the court immediately gave the jury a strong curative instruction;

and there was substantial other evidence that Flowers was driving the car during

the drive-by shooting. Under these circumstances, a mistrial was not essential

to preserve Flowers’s right to a fair trial, and the trial court did not abuse its

discretion in denying her motion. See Jones v. State, 277 Ga. 36, 40 (586 SE2d

224) (2003) (holding that the trial court did not abuse its discretion in denying

a motion for mistrial where a curative instruction was given to the jury to

disregard the testimony of a police officer who used the term “barricade” in

violation of a pretrial ruling).

      Judgment affirmed. All the Justices concur.



                                         13
