S13A1696. HAMM v. THE STATE.
S13A1696
Supreme Court of Georgia
DECIDED MARCH 17, 2014.
756 SE2d 507
HUNSTEIN, Justice.
Viewed in the light most favorable to the jury‘s verdict, the еvidence adduced at trial established as follows. On the morning of December 14, 2008, Hamm was at his grandmother‘s home in the Regal Park apartments in Forest Park with Brittany O‘Kelly. O‘Kelly, who testified for the State, testified that Hamm had taken an Ecstasy pill and began behaving erratically, threatening her with a large black gun and demanding that she prostitute herself to earn money with which he could purchase more drugs. O‘Kelly walked to a nearby gas station, where she came upon Ruiz-Mendieta, who engaged her services. The two drove back in the victim‘s vehicle to the Regal Park complex and exited the car, heading for a vacant apartment. O‘Kelly testified that Hamm then appeared, pointing a gun at the victim, who tried to grab the gun. O‘Kelly ran away and, after hearing gunshots, reversed course to try to assist the victim. Hamm intercepted her and forced her back into his grandmother‘s apartment, where he required her to change clothes. The victim died at the scene from his gunshot wounds.
Hamm‘s brother-in-law, Damian Mitchell, testified that Hamm called him on the evening of December 14, 2008, imploring Mitchell to come pick him up at the Regal Park apartments “as soon as
Once news of the murder became public, Raymond drove Hamm and O‘Kelly to West Point, Georgia to relocate. During the drive to West Point, O‘Kelly testified, Raymond and Hamm threatened to harm her and her grandfather, who lived in West Point, if she told anyone about the murder.2 While in West Point, O‘Kelly testified, Hamm forced her to prostitute herself to earn money to pay for lodging. They eventually took up residence in a vacant home, where they were discovered by the property owner, Aberdella Scott, who allowed them to stay and brought them food from time to time. Scott testified that she witnessed Hamm bullying O‘Kelly and that she saw two guns, one silver and one black, in Hamm‘s possession.
On the morning of Fеbruary 8, 2009, Hamm shot O‘Kelly in the head and arm with a silver handgun after she threatened to leave. Once at the hospital out of Hamm‘s presence, O‘Kelly told police about the shooting of Ruiz-Mendieta. During Hamm‘s interview with West Point police in the aftermath of O‘Kelly‘s shooting, police discovered there was an arrest warrant outstanding for Hamm in connection with the Ruiz-Mendieta shooting, and Hamm was arrested.
At trial, in addition to the above, the State adduced the testimony of Ronald Daniel, a friend of Hamm, who testified that he was at Regal Park with Hamm and O‘Kelly watching football on the day of the Ruiz-Mendieta shooting. Daniel testified that at one point Hamm emerged from a bedroom and told Daniel that “his girl [O‘Kelly] had a lick set up.” Daniel testified that a “lick” meant a robbery, and that Hamm asked whether Daniel wanted to accompany him. Daniel testified that he declined, at which point Hamm left the apartment. According to Daniel, approximately 20 to 30 minutes later Hamm returned with O‘Kelly, and Hamm was carrying an AK-47, which Daniel had seen in Hamm‘s possession on prior occasions. Daniel testified that Hamm said he had “tried to rob the amigo” but that
A resident of the Regal Park apartments testified that, on the day of the shooting, she observed a black woman and an Hispanic man in the parking lot exiting a truck and walking toward the apartment building. A short timе later, this witness testified, she heard a gunshot. The State also adduced that a spent 7.62 caliber shell casing was recovered from the scene of the Ruiz-Mendieta shooting and that an AK-47 is capable of firing that model of bullet.
1. Though Hamm has not enumerated the general grounds, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conсlude beyond a reasonable doubt that Hamm was guilty of all the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Hamm contends that the trial court erred in declining to instruct the jury, at his request, regarding the need for corroboration of an accomplice‘s testimony. As we have explained, under former
[i]n felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient and must be supported by the testimony of at least one other witness or by “corroborating circumstances.” The additional evidence may be circumstantial and it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged. It must, however, be independent of the accomplice testimony and must directly connect the defendant with the crime, оr lead to the inference that he is guilty.
(Citations and punctuation omitted.) Johnson v. State, 288 Ga. 803, 805 (2) (708 SE2d 331) (2011); see also Kesler v. State, 249 Ga. 462, 465 (2) (291 SE2d 497) (1982) (to corroborate accomplice‘s testimony, State must adduce independent evidence as to “the identity and participation of the defendant“). Hamm claims that the bulk of the testimony implicating him as Ruiz-Mendieta‘s assailant came from O‘Kelly; that Daniel‘s testimony supports a finding that O‘Kelly was actually an accomplice in the shoоting; and that therefore the trial
“To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge.” Hicks v. State, 287 Ga. 260, 262 (2) (695 SE2d 195) (2010); accord Scott v. State, 291 Ga. 156 (2) (728 SE2d 238) (2012); Webb v. State, 284 Ga. 122 (4) (663 SE2d 690) (2008). It is a question of law whether the evidence presented is sufficient to authorize the giving of a particular charge. Hicks, 287 Ga. at 262. Thus, where a particular charge is requested, it is the duty of the trial court to determine whether there is slight evidence to support the charge. In this case, implicit in the trial court‘s refusal to give the charge Hamm requested was the conclusion that there was not even slight evidence to support it. In fact, earlier in the trial when ruling on Hamm‘s motion for directed verdict, the trial court had expressly stated thаt it “did not find that [O‘Kelly] was an accomplice in this case. And so... there is no requirement of corroboration for her testimony.”
Contrary to this conclusion, however, there was evidence to support a finding that O‘Kelly was an accomplice: Daniel testified that Hamm told him O‘Kelly had “set up a lick,”4 and O‘Kelly admitted to having brought the victim to the scene of the shooting by offering to engage in sexuаl acts, to fleeing the scene immediately after the shooting, to leaving town in its aftermath, and to failing to report the crime until both she and Hamm had been found by investigators. Such evidence is clearly the type of evidence our courts view as supporting the finding that one is an accomplice. See, e.g., Jones v. State, 268 Ga. 12 (1) (483 SE2d 871) (1997) (witness’ presence at crime and subsequent flight can support finding that witness was аn accomplice); Jones v. State, 242 Ga. 893 (1) (252 SE2d 394) (1979) (witness’ presence, companionship, and conduct after the crime are circumstances from which her intent to participate in a criminal act can be inferred).
Given this evidence, it was error for the trial court to refuse to give the requested instruction. Whether O‘Kelly was an accomplice, and the weight to be afforded her testimony if she was, should have been submitted for the jury‘s determination. See Johnson, 288 Ga. at 806-807 (trial court properly submitted to the jury the question of whether witness who pled guilty was an accomplice, rejecting contention that trial court should have made determination as a matter
We acknowledge that this holding stands at odds with precedent from this Court establishing that there is no error in declining to give an instruction on accomplice corroboration, even if such a charge is requested, where the accomplice‘s testimony is in fact corroborated by independent evidence. See Fleming v. State, 269 Ga. 245 (2) (497 SE2d 211) (1998) (no reversible error in trial court‘s failure to give requested instruction on accomplice corroboration where State relied in part on defendant‘s statements to police); Hall v. State, 241 Ga. 252 (7) (244 SE2d 833) (1978) (no error in declining defendant‘s request to charge on accomplice corroboration where State relied on testimony of other witnesses as well); see also Jackson v. State, 294 Ga. 34, 36 (2) (751 SE2d 63) (2013) (stating in dicta that an accomplice corroboration instruction is not required, even when it is requested, where the accomplice‘s testimony is in fact independently corroborated).5 This line of precedent appears to have originated with Hall v. State, supra, in which this Court held that the trial court had not erred in refusing to give the requested instruction, on the ground that “there were othеr witnesses to the crime so that the State did not rely solely on [the alleged accomplice‘s] testimony” and thus
the mere fact that there is other evidence which could serve as corroboration does not dispense with the need for the requested charge because the jury, as the exclusive judges of credibility, could have rejected the other evidence and convicted solely on the accomplice‘s testimony.
269 Ga. at 250 (Benham, C. J., dissenting). A trial сourt‘s failure to give the instruction where the State relies in part on the testimony of a possible accomplice thus leaves open the possibility of a conviction in violation of
Accordingly, we now overrule Hall v. State, supra, and its progeny,7 to the extent these cases hold that it is not error for a trial court to refuse to give a requested instruction on accomplice corroboration so long as the State relies in part on other evidence connecting the defendant to the crime. In so doing, we reaffirm the pre-Hall Court of Appeals line of cases holding that the failure to give such an instruction, when it is requested, is error. See Herrin v. State, 138 Ga. App. 729, 735 (11) (227 SE2d 498) (1976) (opining that “[t]he mere fact that the accomplice‘s testimony was corroborated by the testimony of [other witnesses] is no reason for refusing to give such written request“); Maddox v. State, 136 Ga. App. 370 (4) (221 SE2d 231) (1975) (thоugh the circumstantial corroborative evidence was sufficient to sustain the conviction, the trial court‘s failure to instruct the jury on accomplice corroboration was error). See also Johnson, 288 Ga. at 806
The fact that the failure to give the instruction where warranted is error does not, of course, necessarily demand reversal. “A conviction in a criminal case will not be reversed when it is highly probable that an erroneous jury instruction did not contribute to the verdict.” Francis v. State, 266 Ga. 69, 72 (3) (463 SE2d 859) (1995). Under the circumstances presented here, we find that the error was in fact harmless. In addition to O‘Kelly‘s testimony, the State adduced, through Daniel,8 Hamm‘s own admission that he had “killed an amigo” and Hamm‘s statement that “his girl had set up a lick.” The State also presented independent evidence that on the night of the shooting Hamm fled his apartment, having implored his brother-in-law to retrieve him “as soon as possible,” and ultimately relocated with O‘Kelly to West Point. Further, the State adduced evidence that, on the day аnd in the vicinity of the shooting, Hamm was in possession of an AK-47, a model which is capable of ejecting the particular type of shell casing recovered from the scene, and that Hamm had asked Daniel to take his AK-47 after telling Daniel that he had shot someone.
Moreover, though O‘Kelly was clearly the State‘s star witness, for the jury to believe she was an accomplice it would necessarily have had to credit Daniel‘s testimony, as he was the only witness to testify to her complicity in an attempted armed robbery. Daniel was also the only witness to affirmatively corroborate Hamm‘s participation in the Ruiz-Mendieta shooting, by recounting Hamm‘s incriminating statement that he had “shot... the amigo.” Thus, the same witness whose testimony would have provided the basis for a finding that O‘Kelly was an accomplice also provided the corroboration necessary to support her testimony as an accomplice.9 We therefore find it highly probable that the jury either (1) believed all of Daniel‘s testimony, in which case, had it been instructed on the need for accomplice corroboration, it would have found Hamm‘s incriminating statement to be sufficient corrоboration; or (2) rejected all of Daniel‘s testimony, in
3. Hamm separatеly enumerates as error the trial court‘s refusal to give his requested instruction regarding parties to a crime. Insofar as Hamm contends that this instruction was necessary because the pattern jury charge on corroboration of accomplice testimony does not include a definition of “accomplice,” this enumeration fails in light of our conclusion in Division 2 that the failure tо instruct on accomplice corroboration was not reversible error.
Judgment affirmed. All the Justices concur.
DECIDED MARCH 17, 2014.
Leslie R. Lowry, for appellant.
Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Michael D. Thurston, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine T. Parvis, Assistant Attorney General, for appellee.