Pender v. State
311 Ga. 98
Ga.2021Background
- On Sept. 19, 2013, a group including Pender, Whitaker, Wells, Dixon, and Fair used a stolen 2003 Ford F-150 in a series of planned robberies; earlier the F-150 had been taken after its window was smashed and keys removed.
- During attempted robberies the group shot Sergio Mayfield (he survived) and later fired on an Impala occupied by David Scott and Eric Morris; Scott died from a gunshot to the head.
- Dixon pled guilty, cooperated, and testified at trial; Pender, Whitaker, Wells, Fair were tried jointly (Dixon’s case not before this Court).
- The jury convicted Pender and Whitaker of felony murder (predicated on aggravated assault), attempt to commit armed robbery, aggravated assault (Morris), possession of a firearm during the commission of a felony, and theft by receiving (the truck); Pender also convicted for making a false report and false statement.
- Pender and Whitaker appealed multiple evidentiary rulings, Bruton challenges to co-defendant statements, Miranda/Miranda-waiver issues, alleged bolstering by police and an expert’s testimony about peer review; Whitaker also challenged the trial court’s general-grounds new-trial rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for theft by receiving (Pender) | Pender: only confession showed knowledge; no proof he later received stolen property. | State: Pender admitted involvement in theft, was present when window was smashed, had keys and possessed the truck. | Court: Evidence sufficient under Jackson; State need not exclude that defendant was an original thief when reviewing sufficiency. |
| Bruton — Wells’s statement that he knew Pender | Pender: statement directly implicated him re: false-statement charge. | State: admissible and cumulative; other evidence showed Pender knew Wells. | Court: Admission violated Bruton but error was harmless beyond a reasonable doubt given overwhelming corroborating evidence. |
| Bruton — Whitaker’s statements & redacted diagram | Pender: redacted statements/diagram placed Pender in truck and directly implicated him. | State: redactions and vagueness avoided direct inculpation; any link required other evidence. | Court: No Bruton violation; redactions and testimony did not facially incriminate Pender. |
| Ineffective assistance for failing to object to redacted statements/diagram | Pender: counsel should have objected despite pretrial rulings. | State: objections would have been meritless because no Bruton violation. | Court: Claim fails; no deficient performance where underlying objection lacked merit. |
| Alleged improper bolstering by detective (OCGA §24-6-620) | Pender: detective’s testimony compared suspects and used “bluffing,” improperly bolstering Dixon. | State: detective may describe investigation and consistency among statements; did not opine on witness truthfulness. | Court: No plain error; testimony compared statements and was permissible investigative testimony, not direct bolstering of witness credibility. |
| Expert’s testimony that her work was "successfully" peer reviewed — hearsay/Confrontation/Bolstering | Pender: statement contained inadmissible hearsay, violated Confrontation Clause, and bolstered expert. | State: expert testified from personal knowledge about peer-review process and completion. | Court: Not hearsay; even if isolated phrase were error, any error was harmless beyond a reasonable doubt and not improper bolstering. |
| Miranda — failure to re-read warnings before Oct. 4 custodial statement | Pender: officers should have re-read Miranda before the October interview; statements therefore inadmissible. | State: Pender had knowingly waived on Sept. 26 and was reminded and asked if he wanted counsel on Oct. 4; no need to re-issue warnings. | Court: No error — waiver on Sept. 26 remained valid; officers twice referenced prior warnings and asked about counsel; statement admissible. |
| Whitaker — trial court "held against" him that he didn’t testify in denying new-trial general grounds | Whitaker: trial court relied on his not being cross-examined and effectively penalized him for not testifying. | State: court merely weighed credibility of Whitaker’s out-of-court, self-serving statement against Dixon’s cross-examined testimony. | Court: No Fifth Amendment violation; trial court’s comments were proper credibility assessments in general-grounds review. |
| Whitaker — trial court relied on evidence of acquitted counts | Whitaker: court improperly considered evidence of Counts 8 & 9 (of which he was acquitted). | State: trial court may consider the entire trial record when acting as thirteenth juror on general grounds. | Court: No abuse of discretion; trial court permissibly weighed all trial evidence in new-trial analysis. |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (co-defendant’s non-testimonial statements that facially incriminate another defendant are barred in joint trials)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for appellate review of sufficiency of the evidence)
- Miranda v. Arizona, 384 U.S. 436 (1966) (requirements for custodial warnings and waiver)
- Thomas v. State, 261 Ga. 854 (1992) (mutual exclusivity of theft-by-taking and theft-by-receiving convictions based on same property)
- Middleton v. State, 309 Ga. 337 (2020) (discusses mutual-exclusivity and sufficiency review for theft-by-receiving)
- Collum v. State, 281 Ga. 719 (2007) (harmless-error standard for Bruton violations)
- Simpkins v. State, 303 Ga. 752 (2018) (redaction that obviously signals a deleted co-defendant reference can trigger Bruton/Gray problems)
- Ardis v. State, 290 Ga. 58 (2011) (harmless-beyond-a-reasonable-doubt standard when Confrontation violations are implicated)