Inee Lyman appeals his convictions and sentences for malice murder, possession of a firearm during the commission of a felony, and conspiracy to commit armed robbery, all in connection with the shooting death of Christopher Lynn. For the reasons that follow, we affirm.
After cashing the last check at the last bank branch visited, Adams was given $100 as her share of the proceeds, but it was less money than she had anticipated. On the way to the apartment complex where Adams wished to be let out, Adams sent a text message to a man and asked his help in getting her share of the proceeds. When the car arrived at the rear of the apartment complex, Lyman emerged from a building, approached the front passenger side window, grabbed Lynn by the shirt, pointed a pistol at his stomach, and demanded money Lynn denied having any money, and exited the car; he struggled with Lyman for the gun, and Lyman shot Lynn eight times. Adams, who together with her child and Napier had emerged from the car, urged Lyman to shoot Patrick as well; Patrick had also exited the car. However, Lyman did not shoot her, and Patrick was able to flee the area.
Adams was named as a defendant in the same indictment as Lyman, and pled guilty to voluntary manslaughter; she was sentenced to 20 years in prison, and testified at Lyman’s trial. She testified that, being displeased with the amount of money she was given from the cashed checks, after the last bank branch was visited, she sent a text message to a man named Moonk, and spoke with him on her cell phone; she told him to come and help her get the money she believed she was owed, “or send somebody to get me my money ”
The State also presented the testimony of Quinton Hightower, who testified that he had known Lyman for two or three years, but
1. Lyman does not contest the legal sufficiency of the evidence of his guilt. Nevertheless, in accordance with this Court’s general practice in appeals of murder cases, this Court has reviewed the record and concludes that the evidence at trial authorized the jury to find Lyman guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia,
2. The trial court instructed the jury that “[t]he testimony of a single witness, if believed, is sufficient to establish a fact. Generally, there is no legal requirement of corroboration of a witness provided you find the evidence to be sufficient.” The trial court did not instruct the jury that, in a felony case in which a witness is an accomplice, the testimony of the accomplice alone is not sufficient to warrant a conviction, and the testimony of the accomplice must be corroborated by other evidence. However, Lyman did not request such an “accomplice corroboration” instruction, or object to the failure to give one, and now asserts that the jury should have been informed that the testimony of Lyman’s accomplice, i.e., Adams, had to have been corroborated.
Under controlling precedent at the time of Lyman’s trial, it was not error for the trial court to refuse to give an “accomplice corroboration” instruction, even if requested, when an alleged accomplice’s testimony was “in fact corroborated by independent evidence. [Cits.]” Hamm v. State,
the sufficiency of the evidence corroborating an accomplice’s testimony, including whether the State has presented other witnesses to the same material facts as the accomplice, is an inquiry entirely distinct from whether a jury charge on the principle of accomplice corroboration is warranted. [It] is well-established that requested jury instructions must be given whenever there is “slight evidence” to support them. [Cit.] [Thus, when] there is slight evidence supporting a finding that a witness was an accomplice, the jury shouldbe given proper guidance not only on how to decide whether the witness was in fact an accomplice but also on the extent to which it can rely on that witness’ testimony by itself to support a conviction.
Hamm, supra at 796 (2). Accordingly, this Court overruled prior precedent, and held that it is 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.” Id. And, this Court specifically noted that when no request was made for such an “accomplice corroboration” instruction, reversal would be warranted only under the “plain error” standard. Id. at 798 n. 8. See also OCGA § 17-8-58 (b).
This Court has previously stated the test for a finding of plain error.
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. [Cit.]
Cheddersingh v. State,
Lyman did not intentionally relinquish his right to an accomplice corroboration instruction, see Cheddersingh, supra at 684, and there is no question that the failure to give an accomplice corroboration instruction is error under Hamm, supra. But, as noted, Hamm had not been decided at the time of Lyman’s trial, and controlling precedent at the time of trial did not require an accomplice corroboration instruction. The United States Supreme Court has made clear that, under Federal Rule of Criminal Procedure 52 (b), whether the trial court’s asserted error is considered “clear or obvious” for purposes of the second prong of the plain error rule is a matter judged not by the state of the law when the asserted error was made (i.e., the time of trial), but by the state of the law at the time of appellate review. See Henderson v. United States,
We reach this conclusion by examining our own precedent. When this Court adopted the plain error rule in State v. Kelly,
[g]iven that OCGA § 17-8-58 (b) adopts Rule 52 (b)’s language almost verbatim, we believe our Legislature intended, in the context of jury instruction errors, to embrace the federal plain error standard as stated in Rule 52 (b) and clarified in [United States v. Olano,507 U. S. 725 (II) (113 SCt 1770 , 123 LE2d 508) (1993)] and its progeny.
Id. Recognizing that Johnson, supra, was existing progeny of Olano at the time we made that statement, and that Henderson, supra, is based upon Johnson’s conclusion that “plain error” includes that which is recognized as error at the time of appeal, even though it was clearly not considered error under precedent controlling at the time of trial, looking at persuasive federal authority, we reach the same conclusion under our plain error rule as the United States Supreme Court did in Henderson under Rule 52 (b); whether an error is considered “clear or obvious” under the second prong of the plain error test is judged under the law existing at the time of appeal, regardless of whether the asserted error in the trial court was plainly incorrect at the time of trial, plainly correct at the time of trial, or an unsettled issue at the time of trial. Accordingly, Hamm applies to Lyman’s appeal. And, under that authority, the failure to give a corroborating accomplice instruction is clear error, and Lyman meets the second prong of the plain error test.
However, Lyman does not meet the third prong of the plain error test, as he fails to establish that omitting the instruction probably affected the outcome of his trial. Jones, supra. Lyman relies upon Stanbury, supra, to support his assertion that omitting the instruction affected the verdicts. In that case, it was noted that the omission of the accomplice corroboration instruction
impermissibly empowered the jury to find Stanbury guilty based solely on McKenzie’s accomplice testimony... because he was the only witness who affirmatively identified Stan-bury as the second man inside the house who robbed and shot [the victim].
Id. at 130-131 (2). Here, however, there was not merely one alleged accomplice of Lyman’s (i.e., Adams) who “affirmatively identified” him as the man who shot Lynn; rather, Patrick supplied her eyewitness testimony and identification of Lyman as the shooter, and evidence of Hightower’s statement to a law enforcement investigator relating Lyman’s admission of the murder was also provided to the jury Similar evidence was not presented in Stanbury; indeed, in that opinion, this Court specifically stated that
when a defendant is affirmatively identified as the . . . gunman in a murder based solely on accomplice testimony [it] undermines the fairness of the proceeding [due to the failure to give the accomplice corroboration instruction].
Id. at 131. (Emphasis in original.) Thus here, had the jury received a proper instruction, it would have had to reject evidence from two separate sources in order to find that Adams’s testimony was not corroborated. In similar circumstances, Hamm determined that the failure to give an accomplice corroboration instruction was harmless as Hamm made an admission, to someone other than the accomplice, that he had killed someone and that a prostitute in his control had “set up a lick”; additionally, he was seen with a weapon of the type used in the killing, and thus, it was highly likely
Lyman notes that during closing argument, the prosecutor stated that he believed that the court would instruct the jury that the testimony of a single witness, if believed, would be sufficient to prove guilt beyond a reasonable doubt, and argued that this was an important principle so as to avoid the requirement that everyone “walk around with a friend at all times [so that] someone sees exactly whatever]” happens, so that person could testify to those facts if one becomes the victim of a crime. Although Lyman asserts that this exacerbated the failure to give an accomplice corroboration instruction, in fact, the thrust of this portion of the prosecutor’s argument was that the jury did not need to believe any single witness; the prosecutor closed this portion of the argument by saying that “[i]n this case, we have multiple witnesses that saw the same thing. There were multiple witnesses that saw the same thing.”
Lyman further notes that, shortly after the jury began deliberations, it asked if it could be provided with a transcript or recording of Hightower’s interview with the investigator, as well as a copy of Patrick’s written statement; the jury was instructed that it had been provided with all the evidence in the case. However, after that response, and less than three-and-a-half hours after the jury had begun deliberations, the jury asked the court how long it had to deliberate before it could be considered a hung jury: at this point the court responded, by note, that the jury should continue to deliberate; four minutes after the court’s note was sent to the jury, the jury responded, by note, that it was split 7-5, stated that copies of the statements of Hightower and Patrick “would help,” and expressed confusion over why it had in its hands a copy of Hightower’s written acknowledgment that a video recording of his statement was being made, but no video of that statement; the court responded, again by note, that the jury must decide the case based upon the evidence before it;
Lyman contends that this sequence of events shows that, had the court given an accomplice corroboration instruction, his attempted impeachment of Patrick’s testimony based upon “inconsistencies” between her prior statement and her trial testimony,
3. Lyman contends that his trial counsel failed to provide effective assistance in several respects. In order to prevail on any such claim, he must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis,
(a) Lyman asserts that trial counsel was ineffective in failing to request a jury instruction on accomplice corroboration. See Division 2, supra.
In making litigation decisions, there is no general duty on the part of defense counsel to anticipate changes in the law, and only in a rare case would it be ineffective assistance by a trial attorney not to make an objection that would be overruled under prevailing law. Although this Court has held that a new decision applies to the admission of evidence in cases pending on direct review at the time that opinion was issued, that does not alter the long-standing precedent that, when addressing a claim of ineffectiveness of counsel, the reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial. Thus, a new decision does not apply in a manner that would require counsel to argue beyond existing precedent and anticipate the substance of the opinion before it was issued. [Cit.]
Williams v. Rudolph,
(b) Lyman contends that trial counsel was ineffective in consenting to the withdrawal of a limiting instruction regarding the use of Lyman’s status as a first offender probationer as regards the count of the indictment charging him with possession of a firearm by a first offender probationer, asserting that the jury was thus allowed to use his status as a first offender probationer against him generally However, Lyman does not show exactly what requested instruction was under the trial court’s consideration during the charge conference, see OCGA § 5-5-24 (b), and it is not discernible from the transcript of the charge conference what language
(c) Lyman further contends that trial counsel was ineffective in failing to object to an exhibit going out with the jury that was not actually entered into evidence; he describes the exhibit as the form that Hightower signed acknowledging that he understood that his interview with the investigator was being video recorded. However, Lyman has not caused the exhibit at issue to be placed in the record on appeal, making it difficult to either show that there was any deficiency on counsel’s part, or to meet his burden to show that prejudice resulted from counsel’s alleged deficiency. See Hayes v. State,
(d) Finally, Lyman asserts that the cumulative effect of trial counsel’s alleged errors deprived him of effective assistance of counsel. Of course, on appeal, this Court evaluates “only the effects of matters determined to be error, not the cumulative effect of non-errors.” Bulloch v. State,
Judgments affirmed.
Notes
The crimes occurred on September 20, 2010. On March 20, 2013, a Fulton County grand jury indicted Lyman, along with Zykia Adams, for: malice murder, felony murder while in the commission of aggravated assault, felony murder while in the commission of criminal attempt to commit armed robbery, aggravated assault with intent to rob, criminal attempt to commit armed robbery, and possession of a firearm during the commission of a felony; in separate counts, Lyman was charged with felony murder during the commission of the crime of possession of a firearm by a first offender probationer, possession of a firearm by a first offender probationer, and conspiracy to commit the crime of armed robbery; and, in a separate count, Adams was charged with conspiracy to commit the crime of armed robbery. Lyman was tried alone before a jury April 20, 2013 — May 3, 2013, and found guilty of all charges; on May 6, 2013, Lyman was sentenced to life in prison for malice murder, and consecutive sentences totaling 15 years for the crimes that were not merged or vacated by operation of law. See Malcolm v. State,
Adams’s first statement to an investigator did not reveal anything regarding a text or phone call; in a subsequent statement, she identified Lyman as the man she contacted from the car. Finally, during her plea hearing, she identified Moonk as the man she had contacted by text and cell phone call from the car.
The court instructed the jury that in assessing the credibility of a witness, it was “authorized to consider any . . . negotiated pleas ... or similar matters.” Adams testified that she pled guilty to voluntary manslaughter, and received a sentence of 20 years in prison, in exchange for her truthful testimony against Lyman.
The precedent addressed in Hamm was decided when former OCGA § 24-4-8 was in effect. As Ham m noted, the concepts contained in that former Code section were codified in the ne w Georgia Evidence Code at OCGA § 24-14-8, which was the Code section in effect at the time of Lyman’s trial. OCGA § 24-14-8 reads:
The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason.
OCGA § 17-8-58 reads:
(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate . Such objections shall be done outside of the jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.
We note that in this case, plain error is evaluated under OCGA § 17-8-58 (b), not OCGA § 24-1-103 (d). But see Crayton v. State,
In discussing the court’s response to this note, it was recognized by the parties and the court that no copy of Patrick’s first written statement to investigators, and no recording of Hightower’s statement, had been admitted into evidence, or played for the jury, during trial. At all times that the court addressed the jury’s notes, Lyman was present, as were his counsel and the prosecutor.
After the jury returned its verdicts finding Lyman guilty on all counts of the indictment, the jury was polled, and each juror stated that the verdicts reached were those they reached in the jury room, were freely and voluntarily made, and were still their verdicts.
In cross-examination, Lyman asked Patrick whether she had told an investigator in her original statement that the shooter came from “apartment 7,” noting that in her direct testimony at trial, she testified that he came from behind the car; Patrick responded that she had originally said that it “looked like” he came from that apartment, that the door to that apartment — which Adams had identified as her aunt’s — appeared to be open when they passed it, but that the shooter had come from that direction. Lyman also elicited Patrick’s testimony that she told the investigator that the shooter had a slim build, and argued at trial that Lyman’s build is not “slim.” Lyman also argued to the jury that Patrick’s version of events differed from that of Adams and Napier in the type of turn executed by the car before the shooting, and that Patrick had stated the color of Lyman’s hat to be blue or black, when a red one was found on the ground after the shooting.
In Count 8 of the indictment, Lyman was charged with the crime of felony murder during the commission of the crime of possession of a firearm by a first offender probationer. See footnote 1, supra.