Byers v. State

B
In the Supreme Court of Georgia



                                     Decided: April 5, 2021


                  S21A0296. BYERS v. THE STATE.


      PETERSON, Justice.

      Christopher Byers appeals his convictions for malice murder,

aggravated battery, concealing the death of another, abandonment

of a dead body, and tampering with evidence, all related to the

killing of Ray Walnoha. 1 Byers’s primary enumeration of error is


      1 Walnoha was killed sometime in late July 2014. On December 7, 2016,
a Pickens County grand jury indicted Byers and Arnold Griffith, Jr., for malice
murder and other crimes. On February 2, 2018, the grand jury returned a new
indictment of Byers alone, charging him with malice murder, three counts of
felony murder, three counts of aggravated assault, aggravated battery,
concealing the death of another, abandonment of a dead body, and four counts
of tampering with evidence. After a trial held from July 30 through August 6,
2018, a jury found Byers guilty on all counts. On August 6, 2018, the trial court
sentenced Byers to life in prison for malice murder, along with concurrent
prison sentences of 20 years for aggravated battery, five years for concealing
the death of another, three years for abandonment of a dead body, and five
years for tampering with evidence. The felony murder counts were vacated by
operation of law, and the trial court merged the remaining counts. Byers filed
a motion for new trial on August 17, 2018, and amended the motion on
February 24, 2020. Following a hearing, the trial court denied the motion in
an order entered on August 10, 2020. Byers filed a timely notice of appeal on
that the trial court erred by excluding inculpatory statements by

another man involved in the crimes, overheard by a defense witness.

Byers also argues that his conviction for aggravated battery was not

supported by sufficient evidence, and that, alternatively, that count

should have merged into his malice murder conviction, and that his

sentence for the crime of tampering with evidence should have been

that of a misdemeanor. We agree that the tampering count should

have been treated as a misdemeanor, and so we vacate Byers’s

conviction on that count and remand the case for resentencing. We

conclude that any error in failing to admit the defense witness

testimony at issue was harmless, and that the evidence was

sufficient to support a conviction for aggravated battery on which

the trial court properly entered a separate sentence, and we

therefore affirm Byers’s other convictions.

     Byers’s convictions are predicated on evidence that he killed

Walnoha with an ax at the Pickens County home of Arnold Griffith,



August 18, 2020, and the case was docketed to this Court’s term beginning in
December 2020 and submitted for a decision on the briefs.
                                     2
Jr. The killing occurred sometime in late July 2014. Walnoha’s body

was never found.

     After Byers was taken into custody on an unrelated warrant in

the fall of 2016, he admitted to an investigator that he twice struck

Walnoha in the head with an ax while Walnoha slept on a couch on

Griffith’s porch, claiming that Walnoha intended to kill and rob

Griffith and his family. Byers claimed that he then told Griffith that

Walnoha was dead; Walnoha was still alive, however, having

managed to crawl into the yard. After finding Walnoha in the yard,

Byers claimed, Griffith struck Walnoha with the ax in the back of

the neck. Byers admitted that he buried Walnoha’s body in the

woods with Griffith, cleaned up the crime scene, and took Walnoha’s

car, while Griffith cleaned off the ax. Byers also made incriminating

statements to fellow inmates; one inmate testified that Byers told

him that Walnoha was “twitching” or “kind of convulsing” when

Byers and Griffith found him in the yard.

     Griffith, who pleaded guilty to various charges related to

Walnoha’s death prior to Byers’s trial, testified that, on the day

                                  3
Walnoha was killed, Byers summoned him to look out into the yard,

where, Byers reported, Walnoha was “dying.” Griffith testified that

he observed that Walnoha was sitting in the yard, “swaying.”

Griffith testified that he told Byers he would have to “do something”

and then looked away, whereupon he heard what he presumed to be

the sound of Byers killing Walnoha with an ax. Griffith admitted

that he helped Byers clean up the crime scene, including using

bleach on the porch, cleaning off the ax, and burying the body in the

woods nearby. Griffith testified that Byers later told Griffith that he

had moved the body but did not say where.

     Byers’s admissions and Griffith’s statements as to Byers’s

involvement in Walnoha’s death were corroborated by other

evidence. On July 23, 2014, Byers’s sister and mother saw Walnoha

and Byers together in Walnoha’s car. Sometime in the next few days,

Byers’s mother saw Byers driving Walnoha’s car. Byers showed his

mother that he had Walnoha’s wallet, driver’s license, and cell

phone, and reported that Walnoha had given him the car and was

with his girlfriend in Tennessee. Byers, who was acting strangely,

                                  4
showed his mother what she called a “hatchet” that was in the trunk

of the car. On July 28, 2014, Walnoha’s car was involved in an

accident and found abandoned about two miles from the crash site.

Byers’s DNA was recovered from blood on the driver’s side airbag of

the car.

     Several months after Walnoha disappeared, Byers visited

Walnoha’s brother and the brother’s girlfriend, telling her, “I don’t

think you’ll ever have to worry about Ray knocking on the door

again.” In March 2016, Byers asked Walnoha’s sister for help with

legal trouble involving a car accident, asking her to testify that

Walnoha never let anyone drive his car. Byers told the sister that

her brother had met “some girl” and was in Kentucky.

     The investigation into Walnoha’s disappearance was sparked

in earnest in May 2016 when sheriff’s deputies visited Griffith’s

home       while   investigating   an   unrelated   matter.   William

Bartlebaugh, who was staying at Griffith’s house, showed deputies

a purported burial site near the home. Griffith also went with police

and identified a place on a trail near the home as the place where

                                    5
Walnoha had been buried. A cadaver dog alerted to the same

location. In a nearby burn barrel, agents found small bones,

consistent with finger or foot bones, but too small for agents to test

for DNA or even determine whether they were human remains.

Agents also saw an area of the ground that appeared to have been

disturbed, consistent with a very shallow grave.

     GBI agents found that floorboards of a porch on Griffith’s house

had been bleached and that a wall was discolored and tested positive

for the presence of blood. Inside the house, agents found a license

plate that matched Walnoha’s car. They also collected an ax from

the nearby home of Griffith’s sister, Marjorie Babcock, that matched

the description of the murder weapon later given by Byers.

     After his arrest in the fall of 2016, Byers identified as

Walnoha’s burial site the same place near Griffith’s home that

Griffith and the cadaver dog had identified.

     1.   Byers first argues that the trial court erred in excluding

evidence proffered by the defense that Griffith had admitted killing

Walnoha. We conclude that any error in this evidentiary ruling was

                                  6
harmless.

     The defense proffered that Griffith’s brother-in-law, Wesley

Babcock, would testify that he overheard Griffith’s inculpatory

statements over a baby monitor that Wesley had set up in the room

of his wife, Marjorie. Wesley testified that he used the baby monitor

as part of his efforts to care for his wife, who was unwell, and he

began to testify about a visit by Griffith to his sister in her bedroom

about a month before her death in December 2017. Citing OCGA §

16-11-62 and general expectations of privacy in a bedroom, the trial

court sustained the State’s objection to Wesley’s testimony about

what he overheard via the baby monitor that day. The defense

proffered for the record that Wesley would have testified that he

heard Griffith tell his sister that Byers hit Walnoha with the ax first,

before Griffith “finished him off and put him out of his misery.”

     We need not, and do not, decide whether the trial court

properly concluded that Wesley’s overhearing constituted a violation




                                   7
of OCGA § 16-11-62,2 whether the State even had standing to raise

such a violation in the scenario presented here, or whether a party

may forfeit a challenge to standing of this sort by not raising it in a

timely way before the trial court. 3

      It is fundamental that harm as well as error must be
      shown for reversal. The test for determining
      nonconstitutional harmless error is whether it is highly
      probable that the error did not contribute to the verdict.

      2  OCGA § 16-11-62 (1) prohibits “[a]ny person in a clandestine manner
intentionally to overhear, transmit, or record or attempt to overhear, transmit,
or record the private conversation of another which shall originate in any
private place[.]” Since 2015, before the overhearing at issue in this case,
“private place” has been defined for purposes of this provision as “a place where
there is a reasonable expectation of privacy.” OCGA § 16-11-60 (3).
       3 Byers does not challenge the State’s standing to seek exclusion of

Wesley’s testimony. OCGA § 16-11-67 provides that “[n]o evidence obtained in
a manner which violates any of the provisions of this part [which includes
OCGA § 16-11-62] shall be admissible in any court of this state except to prove
violations of this part.” We previously held that Fourth Amendment standing
principles apply to attempts to exclude evidence on the ground that it was
obtained in violation of OCGA § 16-11-62. See Hampton v. State, 

295 Ga. 665

,
668-670 (2) (763 SE2d 467) (2014) (defendant did not have standing to seek
suppression under OCGA §§ 16-11-66.1 (a) and 16-11-67 of text messages
associated with account that he had not shown was his; “[T]he focus of OCGA
§§ 16-11-62 through 16-11-67 is the protection of individuals from invasion of
their privacy. A Fourth Amendment analysis is appropriate, and as noted,
rights under the Fourth Amendment are personal, and in order to challenge
the validity of a government search an individual must actually enjoy the
reasonable expectation of privacy, that is, the individual must have standing.”
(citations omitted)); see also Nuckles v. State, __ Ga. __, __ (2) (853 SE2d 81)
(2020) (concluding that Fourth Amendment law is particularly instructive in
construing the term “reasonable expectation of privacy” as used in OCGA § 16-
11-62 (2) (B) “because that phrase had developed into a term of art relating to
privacy rights” by the time that provision was enacted in 2000).
                                       8
     In determining whether trial court error was harmless,
     we review the record de novo, and we weigh the evidence
     as we would expect reasonable jurors to have done so as
     opposed to viewing it all in the light most favorable to the
     jury’s verdict.

Henderson v. State, __ Ga. __, __ (3) (__ SE2d __) (Case No.

S20A1571, decided Feb. 1, 2021) (citations and punctuation

omitted). See also OCGA § 24-1-103 (a) (“Error shall not be

predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected. . . .”). Any error in

excluding Wesley’s testimony about what he overheard over the

baby monitor was harmless, because it was highly probable that

exclusion of the testimony did not contribute to the verdicts. The

proffered testimony was cumulative of other evidence as to Griffith’s

involvement. Moreover, even if the jury had concluded that Griffith

dealt the final blow to Walnoha, it still would have had strong

evidence on which to convict Byers of the charged offenses, at least

as a party to the crimes.

     Even without Wesley’s proffered testimony about Griffith’s

involvement, the jury heard other evidence, in addition to Byers’s

                                  9
statements, that Griffith may have dealt the final blow that felled

Walnoha in the yard. See Mitchell v. State, 

293 Ga. 1

, 3 (2) (742 SE2d

454) (2013) (exclusion of evidence harmless when cumulative of

other evidence admitted at trial). Prior to Wesley’s testimony,

another witness who was housed with Griffith in jail testified that

Griffith had referred to himself as “the ax murderer.” Although that

witness indicated that Griffith was “kidding,” the defense also was

able to elicit Wesley’s testimony for the jury that on one occasion

when he visited Griffith in jail, Griffith was “screaming and yelling

and saying he murdered somebody.”

     Moreover, even if the jury had heard and credited Wesley’s

testimony about Griffith’s involvement, and found that Griffith

dealt the final blow, it is still highly probable that the jury would

have concluded that Byers was guilty of Walnoha’s murder and the

other crimes of conviction, at least as a party to the crimes, as the

evidence of Byers’s guilt was very strong. See Keller v. State, 

308 Ga.

492

, 503 (5) (842 SE2d 22) (2020) (in the “light of the strong evidence

of [appellant’s] guilt,” refusal to allow appellant’s witness to testify

                                  10
was “harmless error, if error at all,” because it was highly probable

that exclusion of evidence did not contribute to verdict (citations and

punctuation omitted)). “Conviction as a party to a crime requires

proof that the defendant shared a common criminal intent with the

principal perpetrator of the crime, which may be inferred from

presence, companionship, and conduct before, during, and after the

offense.” Hood v. State, 

309 Ga. 493

, 498 (1) (847 SE2d 172) (2020)

(citation and punctuation omitted). Here, Byers admitted striking

Walnoha in the head with an ax twice, claiming that he did so to

protect Griffith and Griffith’s family. Byers claimed that he then

consulted with Griffith about what to do next, telling Griffith that

Walnoha was dead. Byers claimed that Griffith then hit Walnoha

with an ax himself and that the two then worked together to bury

the body and clean up the crime scene and murder weapon. Byers

also admitted taking Walnoha’s car; his own mother testified that

she saw him with Walnoha’s car and other property around the time

Walnoha is believed to have been killed; and DNA evidence showed

that Byers had been driving Walnoha’s car after his death. Physical

                                  11
evidence such as the condition of the alleged crime scene and the ax

found at the Babcock home also was consistent with Byers’s

admissions. Although Byers argues that there was no evidence that

he and Griffith worked in concert to murder Walnoha, Byers’s own

statement, corroborated by other evidence, would have strongly

supported such a conclusion. See Eller v. State, 

303 Ga. 373

, 378 (II)

(811 SE2d 299) (2018) (evidence that appellant went to great lengths

to conceal victim’s death, working with co-defendant to dispose of

his body, get rid of murder weapon, clean up and destroy evidence

at the crime scene, then lie to victim’s family and law enforcement

supported finding that appellant aided and abetted assault).

Therefore, even if Wesley had been permitted to testify that he

overheard Griffith say that he inflicted the final blow to Walnoha,

and even if the jury had credited that testimony, the jury still would

have been highly likely to have found Byers guilty of murder and

the other crimes charged.

     Byers also argues that he was not indicted for being a party to

a crime but rather “was indicted and convicted of malice murder for

                                 12
causing Walnoha’s death.” But a defendant need not be charged

specifically as a party to the crime in order to support a conviction

based on that theory. See Byrum v. State, 

282 Ga. 608

, 609-610 (2)

(652 SE2d 557) (2007). The State specifically argued to the jury in

closing that Byers could be convicted as a party to the crimes. And

the trial court instructed the jury on the concept of party to a crime,

explaining that every party to a crime may be charged with and

convicted of commission of the crime — an instruction to which

Byers affirmatively agreed at the charge conference and did not

object when the instruction was given. Any error in excluding

Wesley’s proffered testimony was therefore harmless.

     2.      Byers next argues that the evidence was insufficient to

sustain his conviction for aggravated battery. At the very least, he

argues, his conviction for aggravated battery should be vacated,

because that count merges into his conviction for malice murder. We

disagree.4


     4 Although the Attorney General says that it appears that the aggravated
battery count should have merged, the District Attorney does not agree. In a

                                     13
      The indictment charged Byers with aggravated battery for

“maliciously caus[ing] bodily harm to . . . Walnoha, by seriously

disfiguring his body, by striking . . . Walnoha on and about his head

with an axe[.]” See OCGA § 16-5-24 (a). Byers argues that the

evidence is insufficient to support his aggravated battery conviction

because the State introduced no evidence of serious disfigurement of

Walnoha. We evaluate the sufficiency of evidence as a matter of

federal due process under the Fourteenth Amendment to the United

States Constitution by determining whether a rational trier of fact

could have found the defendant guilty beyond a reasonable doubt.




reply brief, Byers challenges the State’s practice of filing two response briefs
in murder cases, arguing that the practice is not supported by this Court’s rules
and allows the State to exceed the page limit on briefs, and that he is faced
with inconsistent positions on the merger issue. But the State’s practice of
filing two briefs in murder cases is simply the result of overlapping statutory
responsibilities of the Attorney General and district attorneys. The Attorney
General has the statutory responsibility to “represent the state in all capital
felony actions before the Supreme Court.” OCGA § 45-15-3 (5). And district
attorneys have the statutory responsibility to “attend before the appellate
courts when any criminal case emanating from their respective circuits is
tried” and “to argue the same.” OCGA § 15-18-6 (6). As a matter of comity
between branches, we decline to require two different constitutional officers
both exercising executive powers to combine their arguments into a single brief
hundreds of times a year. (And Byers overestimates the benefit to any party
that more pages affords.)
                                       14
See Jackson v. Virginia, 

443 U.S. 307

, 319 (99 SCt 2781, 61 LE2d

560) (1979). In conducting that evaluation, “[i]t is not the job of this

Court to weigh the evidence on appeal or resolve conflicts in trial

testimony but rather to examine the evidence in the light most

favorable to the verdict[.]” Browder v. State, 

294 Ga. 188

, 191 (1)

(751 SE2d 354) (2013) (citation and punctuation omitted).

     Although the Criminal Code does not define “seriously

disfiguring” as used in the aggravated battery statute, see OCGA §

16-5-19, that term generally has been construed as meaning

“gravely or greatly impairing or injuring the appearance of a

member of a victim’s body, even if only temporarily.” Byrd v. State,

251 Ga. App. 83

, 84 (1) (553 SE2d 380) (2001); see also Baker v.

State, 

246 Ga. 317

, 318 (2) (271 SE2d 360) (1980) (construing

predecessor statute). “Aggravated battery predicated upon serious

disfigurement, whether temporary or permanent, requires proof

that the injury inflicted was more than a superficial wound, that is,

a scrape, bruise, discoloration, or swelling.” Yearwood v. State, 

297

Ga. App. 633

, 634 (1) (678 SE2d 114) (2009) (citation and

                                  15
punctuation omitted). “Inasmuch as the circumstances inevitably

vary in each case of aggravated battery, whether disfigurement is

serious is best resolved by the factfinder on a case-by-case basis and

is almost always a question for the jury.”

Id. at 634-635 (1)

(citation

and punctuation omitted).

     Even assuming that serious disfigurement requires evidence

that the victim’s outward appearance was altered in some way, see

Weaver v. State, 

351 Ga. App. 167

, 176-179 (830 SE2d 618) (2019)

(Rickman, J., concurring in part and dissenting in part), we conclude

that the evidence was sufficient to support Byers’s aggravated

battery conviction. A reasonable juror might readily infer that two

blows to the head with an ax, hard enough that the assailant

initially believed them to be fatal, leaving the victim, twitching,

convulsing, or swaying, and able only to crawl, would cause a

significant, outwardly visible head wound. And the evidence that

Walnoha bled from the head so profusely that there was blood on the

couch, floor, and wall authorized the jury to infer that Walnoha in

fact suffered disfigurement that was not merely superficial, but

                                  16
serious. See 

Baker, 246 Ga. at 318

(2) (aggravated battery statute’s

prohibition against maliciously causing bodily harm to another by

serious disfigurement gave defendant due notice that his acts were

prohibited where evidence showed that he broke victim’s nose and

caused extensive bruising and deep lacerations to victim’s face and

head, with arterial bleeding flowing from one laceration).

     Byers also argues that, even if there were sufficient evidence

to find him guilty of aggravated battery, that count should have

merged into his malice murder conviction. He contends that “there

was no evidence of Walnoha living for a period of time after the

disfigurement for there not to be a merger with the murder” and that

a “plain reading of the indictment makes clear that the same facts

used to establish aggravated battery were used for malice murder”

in that both counts were based on allegations that Byers struck

Walnoha on the head with an ax. Where a victim suffers a series of

injuries, there must be a deliberate interval separating the infliction

of the initial injury from the infliction of a subsequent injury in order

to authorize separate convictions for malice murder and aggravated

                                   17
battery. See Howell v. State, 

307 Ga. 865

, 873 (2) (838 SE2d 839)

(2020); Edwards v. State, 

301 Ga. 822

, 828 (4) (a) (804 SE2d 404)

(2017).5

      Here, both the malice murder and the aggravated battery

charges, as indicted, required proof that Byers (either personally or

as a party to the crime) struck Walnoha on and about the head with

an ax. But the guilty verdicts were not necessarily predicated on the

same act, as there was evidence that Byers inflicted blows on

Walnoha on the couch, resulting in serious disfigurement, before he

(or Griffith) inflicted a final blow in the yard. And there was

evidence of a deliberate interval between the blows inflicted on the

couch and the blow inflicted in the yard, as the evidence showed

that, before Byers or Griffith inflicted the final blow, Byers took the

time to consult with Griffith about what to do next, during which

time Walnoha staggered into the yard. See White v. State, 

297 Ga.

5

The order of the injuries is not controlling; a fatal injury supporting a
malice murder conviction may precede a non-fatal assault supporting an
assault or battery conviction. See White v. State, 

297 Ga. 218

, 221 (4) (773 SE2d
219) (2015).
                                       18
218, 221 (4) (773 SE2d 219) (2015) (evidence sufficient to sustain

finding of deliberate interval between shooting and subsequent

beating, given testimony that victim took a “long time” to fall to the

ground after the shooting and beating did not occur until after this

long time, while victim was still alive and conscious); Lowe v. State,

267 Ga. 410

, 412 (1) (b) (478 SE2d 762) (1996) (separate convictions

for aggravated assault and malice murder authorized where, after

defendant fired a shot and inflicted a non-fatal wound to the victim’s

arm, there was an ensuing interval during which defendant walked

around car and, before firing the fatal shot, took deliberate aim at

the wounded and pleading victim). Although the failure to recover

Walnoha’s body presumably precluded the presentation of medical

evidence as to which blow or blows caused or contributed to

Walnoha’s death, the evidence that Walnoha was able to move into

the yard authorized the jury to conclude that the subsequent blow

in the yard was at least a proximate cause of Walnoha’s death.

Therefore, the jury could infer that there was a completed, non-fatal

assault, followed by a deliberate interval and a later battery that

                                 19
was the proximate cause of death, such that the earlier battery did

not merge into Byers’s murder conviction. See Cordero v. State, 

296

Ga. 703

, 709-713 (3) (770 SE2d 577) (2015) (crime of cruelty to

children, based on injuries that occurred weeks or months before

child’s death, did not merge with the crime of felony murder, even

though medical examiner and child abuse expert both testified that

the death was not caused by any one blow but by the accumulation

of beatings over the course of many months). The trial court properly

entered separate convictions and sentences for aggravated battery

and malice murder.

     3.   Finally, Byers argues that his felony sentence for

tampering with evidence should be vacated and the case remanded

so that he can be sentenced for misdemeanor tampering with

evidence. The State properly concedes that the trial court erred in

this regard. Each charged count of felony tampering with evidence

related to concealing Walnoha’s body “with intent to prevent the

apprehension of” Byers. These counts did not mention any intent to

prevent the apprehension of anyone other than Byers. A person who

                                 20
tampers with evidence of his own crime is guilty of only a

misdemeanor. See White v. State, 

287 Ga. 713

, 717 (1) (d) (699 SE2d

291) (2010).6

    Judgment affirmed in part and vacated in part, and case
remanded. All the Justices concur.




      6 Although not raised by the parties, it is possible that the tampering
count might merge into Byers’s conviction for concealing the death of another.
Given our remand and the absence of briefing, we express no view on the issue
in this posture. But Byers is not prohibited from raising that issue on remand
for resentencing. We note the parameters that OCGA § 17-10-1 (f) places on
the correction of a sentence on remand.
                                     21

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