Pender v. State
311 Ga. 98
Ga.2021Background
- On September 19, 2013, a group including Christopher Pender and Christopher Whitaker used a stolen 2003 Ford F‑150 in a series of events that led to the shooting of Sergio Mayfield (survived) and David Scott (killed); several co‑defendants (Dixon, Wells, Fair) were also involved.
- Police linked the F‑150 to prior theft; Williams and Pender admitted involvement in stealing the truck; the truck was later burned after the shootings.
- Dixon pled guilty and testified for the State; Pender and Whitaker denied aspects of involvement in some interviews but made inculpatory statements in others; Pender was shot during the incident and taken to the hospital by Whitaker and Wells.
- At trial (jointly tried with some co‑defendants), the jury found Pender and Whitaker guilty of felony murder (predicated on aggravated assault), attempt to commit armed robbery, aggravated assault of Morris, possession of a firearm during a felony, and theft by receiving; Pender was also convicted of making a false report and false statement.
- Posttrial, Pender appealed challenging sufficiency of the theft‑by‑receiving conviction, Bruton issues, counsel effectiveness, evidentiary rulings (including expert peer‑review testimony and Miranda waiver), and cumulative error; Whitaker appealed arguing the trial court’s new‑trial ruling impermissibly held his silence against him and relied on inadmissible character evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for theft by receiving (Pender) | Pender: only self‑inculpatory statement showed knowledge; no evidence he later "received" stolen property | State: admissions by Pender and Williams, possession of keys and use of truck support receiving, knowledge, and lack of intent to restore | Court: Evidence sufficient under Jackson; jury could infer Pender received/retained the stolen truck and knew it was stolen; State not required to prove he was not the principal thief |
| Admission of non‑testifying co‑defendants’ statements (Bruton) | Pender: statements by Wells (knew Pender) and Whitaker (who was in truck/diagram) personally incriminated him in violation of Bruton | State: court redacted statements/diagram and limited testimony to avoid direct inculpation; any error was harmless | Court: Wells’s statement that he knew Pender violated Bruton but was harmless beyond a reasonable doubt given overwhelming corroborating evidence; Whitaker’s redacted statements/diagram did not directly implicate Pender and did not violate Bruton |
| Alleged improper bolstering, expert peer‑review testimony, and confrontation/hearsay challenges (Pender) | Pender: detective’s comparisons and expert’s statement that her work was "successfully peer reviewed" bolstered witnesses and (if testimonial) violated Confrontation/Hearsay rules | State: detective’s comparisons addressed consistency of investigation and did not vouch for witness credibility; expert’s peer‑review testimony described a process within her knowledge and was not testimonial hearsay | Court: No plain error in detective testimony on bolstering; expert’s peer‑review description was not hearsay, and any assumed Confrontation error was harmless beyond a reasonable doubt |
| Trial‑court new‑trial ruling and Fifth Amendment concerns (Whitaker) | Whitaker: trial court’s general‑grounds denial improperly penalized his failure to testify and cited evidence of crimes on which jury acquitted him | State: court may weigh credibility and consider all trial evidence when ruling under OCGA §§5‑5‑20/21; noting difference between judicial assessment and jury inference | Court: No Fifth Amendment violation — statements in order addressed credibility of Whitaker’s out‑of‑court statement (not his silence); trial court permissibly weighed testimony (including evidence the jury discounted) in exercising its role as a thirteenth juror |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (non‑testifying co‑defendant’s confession may violate Confrontation Clause if it directly implicates defendant)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- Miranda v. Arizona, 384 U.S. 436 (1966) (custodial‑interrogation warnings and waiver principles)
- Thomas v. State, 261 Ga. 854 (1992) (mutually exclusive verdicts; cannot convict for theft by taking and theft by receiving on same property)
- Middleton v. State, 309 Ga. 337 (2020) (discussion of elements and mutual‑exclusivity in theft cases)
- Weidendorf v. State, 215 Ga. App. 129 (1994) (State not required to prove defendant was not the thief to sustain theft‑by‑receiving conviction)
- Gray v. Maryland, 523 U.S. 185 (1998) (limits on redactions that still ‘‘obviously’’ incriminate defendant under Bruton)
- Collum v. State, 281 Ga. 719 (2007) (harmless‑error framework for Confrontation/Bruton violations)
- Ardis v. State, 290 Ga. 58 (2011) (Confrontation Clause harmlessness analysis)
- Simpkins v. State, 303 Ga. 752 (2018) (redaction must not leave an obvious blank that notifies jury a name was deleted)