Pender v. StatePender v. State
A Muscogee County jury found Christopher Pender and Christopher Whitaker guilty of felony murder and other offenses in connection with the shooting death of David Scott and the assault of Eric Morris. In his appeal, Pender argues that the evidence presented at trial was insufficient to support the jury‘s verdict on a count of theft by receiving, that the trial court erred by admitting statements from non-testifying co-defendants in violation of Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968), that his trial counsel‘s failure to make certain objections under Bruton constituted ineffective assistance of counsel, and that the trial court erred by admitting certain other evidence. Whitaker
The police later interviewed Deandre Williams in connection with the theft of the truck. In the interview, Williams stated that he threw a rock through the truck‘s window, rummaged through the truck, and found the keys. Pender was with him at the time. Pender later had the keys to the truck.
As set forth in this Court‘s opinion when it considered the appeal of co-defendant Tyrecquiss Wells, the evidence also showed that
[o]n September 19, 2013, [Pender, Whitaker, Wells, and Jaylin Dixon] planned to rob Sergio Mayfield. Whitaker arranged a meeting with Mayfield on the pretense of purchasing some marijuana. Wells drove Dixon and Pender toward Mayfield‘s residence in [the] Ford F-150 that . . . had [been] stolen a few days earlier.2 Dixon was armed with an AR-15 rifle that Wells had provided, while Pender had a .45-caliber pistol. On the way, the men saw Mayfield driving his vehicle and followed him to his house. Once there, Dixon and Pender quickly exited the truck and approached Mayfield. Dixon pointed his gun at Mayfield‘s face and demanded that Mayfield “give it up.” Mayfield gave Dixon and Pender about $400, but when Mayfield flinched, Dixon and Pender began shooting, hitting Mayfield in the stomach. Mayfield sped off in his
vehicle, ended up at a hospital, and survived the shooting. Dixon and Pender returned to the truck, and Wells drove them to meet up with Whitaker and Donald Fair. Wells proposed that the group rob a gambling house, and the other four agreed. Dixon drove the group in the stolen Ford F-150. Wells had a 9mm pistol with an extended magazine clip, Pender still had the .45-caliber pistol, Fair had the AR-15 that was used to shoot Mayfield, and Whitaker had a Jimenez 9mm pistol. A few blocks from the gambling house, Wells instructed Dixon to block a white Chevy Impala that was occupied by David Scott and Eric Morris. Once the truck stopped, Wells exited the truck, approached the driver‘s side of the Impala, pointed his gun at the car, and demanded that Scott and Morris get out. Scott, who was driving the Impala, attempted to flee in reverse, at which point Wells, Pender, Whitaker, and Fair began firing at the vehicle. Scott was struck multiple times and crashed into a tree; he died as a result of a gunshot wound to the head. Wells and the rest of his group fled and later set the stolen truck on fire.
Dixon was later arrested and gave a statement to the police after waiving his rights. Dixon confessed to his role in the two shootings, and helped the police apprehend Wells by calling Wells to ask for a ride. Officers had been at an apartment complex from which Wells‘s cell phone was pinging, and had received reports that Wells had been driving a grey Chevy sedan. After Dixon made the call, officers followed Wells and attempted to conduct a traffic stop, but Wells fled and led officers on a high-speed chase. Wells abandoned his vehicle and was ultimately apprehended. Police found a bag in the vehicle containing a black ski mask. About the same time, Latisa Murray called to report that the vehicle had been stolen. Murray
said that she lent the car to Wells but he never returned, and that she sometimes let him stay at her apartment. Officers obtained Murray‘s consent to search her apartment, and during the search recovered another black ski mask and an empty box of Winchester .223 caliber ammunition that was consistent with the brand and caliber of some of the rounds found at the scene of the Scott shooting. Murray said that these items belonged to Wells. Police also searched Wells‘s residence and found an AR-15 rifle and several rounds of Blazer 9mm ammunition, which was the brand and caliber of other ammunition recovered from the Scott shooting.
After being advised of his Miranda3 rights and waiving them, Wells told police that he was present for the Mayfield shooting. He claimed that he thought they were there only to buy marijuana, not rob Mayfield. Wells denied participating in or being present for the Scott shooting.
Wells v. State, 307 Ga. 773, 774-775 (838 SE2d 242) (2020). Wells also told the police that he knew Pender because they had lived in the same neighborhood.
During the encounter in which Scott was shot and killed, Pender suffered a gunshot wound, and Whitaker and Wells drove him to the hospital. The police interviewed Pender at the hospital
After giving these statements, Pender was arrested. Whitaker was also arrested several days later. After receiving Miranda warnings and signing waivers of their rights, Pender and Whitaker gave separate custodial interviews to the police.4
Over the course of two interviews, Pender admitted that he and Williams had planned to steal a truck to use during future robberies, that he was involved in the theft of the F-150 truck, and that he was in that truck in the neighborhood where the shootings occurred earlier in the day to burglarize a gambling house. He claimed that Dixon accidentally shot him while playing with a gun. Pender initially told the police that he did not know Wells but later admitted
During his interview, Whitaker admitted calling Mayfield about two hours before the shooting to set up a deal to buy marijuana. He also admitted being in the Ford F-150 during the Scott shooting. He admitted having a gun at the time but denied that he fired it.
A firearms expert testified that the police recovered .45-caliber, .223-caliber, and 9mm cartridges and bullet fragments from the crime scenes and during the autopsy of Scott. Each of the .45-caliber bullets was fired from a single weapon, and each of the .223-caliber bullets was fired from a single weapon.
(a) Pender argues that the evidence presented at trial was insufficient to support the jury‘s verdict as to the charge of theft by receiving the F-150 truck. He argues that the only evidence of his knowledge that the truck had been stolen was his statement confessing to stealing the truck himself and that there was no evidence that he subsequently received stolen property. We
A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.
Count 7 of the indictment charged Pender, Dixon, Fair, Wells, and Whitaker as parties to the crime of retaining stolen property — a 2003 Ford F-150 truck — which they knew to be stolen, and without the intent to restore it to its owner.
The State presented evidence at trial that Pender admitted “being involved in the theft of the truck” and that he and Williams had planned to steal a truck that could be used to commit other robberies. The State also presented evidence that Williams admitted to the police that “he was the one who stole the [truck,] . . . him and [Pender].” The detective who interviewed Williams testified that Williams admitted smashing the truck‘s window and retrieving the keys from inside the truck and that Pender was present when this
Based on the statements Williams and Pender made to the police and evidence of Pender‘s possession of the truck, the jury was authorized to determine that Pender was guilty of theft by receiving. The evidence authorized the jury to determine that Pender knew or should have known that the truck was stolen and that he retained the truck with no intention of returning it to its owner. See Middleton v. State, 309 Ga. 337, 344-345 (3) (846 SE2d 73) (2020) (discussing statutory requirement of knowledge that property was stolen). Cf. Sharpe v. State, __ Ga. __ (850 SE2d 54, 57 (1)) (2020) (evidence was insufficient where State presented evidence of possession of stolen item but no evidence from which the jury could infer that defendant knew or should have known that item was stolen).
Nevertheless, Pender argues that his conviction for theft by receiving cannot stand under Phillips v. State, 269 Ga. App. 619, 631 (10) (604 SE2d 520) (2004), because there was direct evidence that
Phillips and similar decisions of the Court of Appeals, see, e.g., Marriott v. State, 320 Ga. App. 58, 60-63 (1) (739 SE2d 68) (2013); Fields v. State, 310 Ga. App. 455, 456-457 (1) (714 SE2d 45) (2011), purport to apply the principle that when there is direct evidence that the defendant was the original or principal thief of the stolen
However, we read Phillips and similar decisions of the Court of Appeals to be conflating two related, but distinct, roles for a court in reviewing the evidence presented at trial. Trial courts must instruct juries that they cannot simultaneously convict a defendant of both theft by taking and theft by receiving, and a new trial must be granted when a defendant is convicted of two offenses that are mutually exclusive. See Middleton, 309 Ga. at 348 (3); Thomas, 261 Ga. at 855 (2).6 But that is distinct from a court‘s role in reviewing the sufficiency of evidence under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Under Jackson, the court determines only whether the evidence presented at trial authorized
A conviction for the offense of theft by receiving, as set forth in
Applying these principles, we clarify that, for purposes of
(b) Pender has not challenged the legal sufficiency of the evidence presented as to the remaining counts of which he was convicted — felony murder of Scott, criminal attempt to commit armed robbery, aggravated assault of Morris, possession of a firearm during the commission of a felony, making a false report of a crime, and making a false statement. However, in accordance with this Court‘s soon-to-end practice in appeals of murder cases,7 we have
(c) Likewise, Whitaker has not challenged the sufficiency of the evidence presented as to the crimes of which he was convicted — felony murder of Scott, criminal attempt to commit armed robbery, aggravated assault of Morris, possession of a firearm during the commission of a felony, and theft by receiving. As with Pender, we have reviewed the record and determined that the evidence, as summarized above, was sufficient to enable a rational trier of fact to find Whitaker guilty beyond a reasonable doubt of these crimes. See Jackson, 443 U. S. at 319 (III) (B).
2. Pender argues that the trial court erred by admitting several statements from non-testifying co-defendants through the testimony of a detective, in violation of Bruton. Specifically, Pender argues that
Before trial, each co-defendant objected to the admission of the other co-defendants’ statements to the police under Bruton. The trial court ruled that redacted versions of the statements given by Wells and Whitaker could be admitted through the testimony of a detective.8
(a) The detective testified that Wells told him that he knew Pender and that they had lived in the same neighborhood. Pender argues that this statement directly incriminated Pender in the false-statement charge, which was based on Pender‘s statement to the police that he did not know Wells.
In isolation, a person‘s mere statement that he knows a defendant does not typically implicate the defendant in a crime. Where, however, the charged crime is that the defendant made a false statement to law enforcement indicating that he did not know that person, the statement by the person that he does know the
However, this error was harmless beyond a reasonable doubt.
In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [non-testifying co-defendant‘s] admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.
(Citations and punctuation omitted.) Collum v. State, 281 Ga. 719, 721-722 (2) (642 SE2d 640) (2007). “A Bruton violation may not be prejudicial when the complained-of statements are substantially similar to evidence properly admitted at trial.” Battle v. State, 301 Ga. 694, 700 (4) (804 SE2d 46) (2017).
Here, the jury could have determined that Pender‘s statement to the police that he did not know Wells was false based on other evidence presented at trial. First, and most significant, after
(b) Pender also argues that the trial court should have excluded the detective‘s testimony about statements Whitaker made to the police and the redacted version of a diagram Whitaker drew of the scene of the Scott shooting. Pender asserts that, considered together, those statements and the diagram incriminated Pender by placing
The detective testified that Whitaker said that on September 19, 2013, the day of the shootings, Dixon, Wells, and Pender came to his neighborhood in a truck. Whitaker told the detective that he drove Pender to the hospital to be treated for a gunshot wound and stayed with Pender for a short time.
Later, Whitaker told the detective that he had not been involved in the Scott shooting and denied being with Dixon. Then, without identifying who else was in the truck at the time, Whitaker admitted to the detective that he had been in the truck earlier in the day, that the “vibe of the group” was “that they were planning on doing something illegal,” and that he did not want to be part of that. Whitaker again denied any involvement in the Scott shooting.
The detective testified that Whitaker later admitted he had been in the truck at the time of the Scott shooting. At that point in his interview, Whitaker drew a diagram of the intersection where
After talking about the guns, the detective asked Whitaker “why he thought they were getting the truck.” Whitaker replied that he thought “they” were “getting into the truck to go handle their issues” with some people from a different neighborhood but ended
Whitaker then told the detective that he learned that the truck he was in during the Scott shooting had later been burned but that “he didn‘t know anything else because he was at the hospital with Pender.” Whitaker then stated that after the Scott shooting, “they” went back to their neighborhood and then he went to the hospital with Pender.
Pender argues that these statements and the redacted diagram, considered together, directly placed each co-defendant, including Pender, in the truck during the shooting of Scott. He argues that Bruton was violated because the jury was not required to infer that Pender participated in the shooting when Whitaker‘s statements placed Pender in the truck before, during, and after the shooting. Pender also argues that the trial court should have excluded the redacted version of the diagram. He argues that it
However, considered together, Whitaker‘s statements and the redacted diagram did not directly implicate Pender in any crime. Whitaker initially told the detective that a truck with Dixon, Wells, and Pender inside came to his neighborhood on the day of the shootings. But he never specified when that event occurred. That statement, standing alone, does not implicate Pender in any crime. Likewise, the references to Pender being shot and Whitaker taking Pender to the hospital do not implicate Pender in any crime. Whitaker‘s statements were vague as to the circumstances and timing of Pender‘s shooting and indicated only that Whitaker took Pender to the hospital after returning to the neighborhood from the Scott shooting.
Moreover, Whitaker‘s statements that “they” went to settle
The latter reference to “they” was made by Whitaker to the detective in the context of the diagram Whitaker drew of the Scott shooting. Based on our review of the redacted exhibit, it would not have been evident to the jury that redactions were made. Moreover, nothing in the redacted diagram shown to the jury or the detective‘s testimony about the diagram indicated that Pender was in the truck at the time of the Scott shooting. Rather, the fact of Pender‘s presence in the truck at the time depicted in the diagram could only be determined by inference or from other evidence presented by the
Finally, Pender takes issue with Whitaker‘s statement indicating that there were six people in the truck at the time of the Scott shooting. However, in addition to naming a larger number of people than had even been charged with crimes relating to this incident, the statement did not name, refer to, or describe Pender. Nor had any part of the detective‘s testimony about Whitaker‘s statement referenced Pender, other than, as noted above, to indicate that Whitaker had seen Pender in a truck at some point on the day of the shootings and that Whitaker had taken Pender to the hospital to be treated for a gunshot wound after Whitaker returned from the Scott shooting. See Simpkins, 303 Ga. at 756 (II) (no Bruton violation where co-defendant‘s statement referenced multiple unnamed assailants and the State did not clearly and contemporaneously link the defendant with the omitted names of the assailants).
(c) Although Pender objected to the admission of the diagram and Whitaker‘s statements to the police before trial, which resulted in only limited and redacted versions of the diagram and those statements being presented to the jury, Pender now claims that his trial counsel provided constitutionally ineffective assistance by not objecting to the admission of the redacted form of the diagram or the testimony actually offered by the detective at trial about Whitaker‘s statements. Pender argues that even with the redactions to the diagram and the efforts made at the court‘s direction to limit the testimony of the detective about Whitaker‘s statements, Bruton was
3. Pender argues that the trial court plainly erred when it allowed the investigating officer to provide testimony that bolstered statements made by the co-defendants, in violation of
When reviewing evidentiary rulings to which the appellant did not object at trial, we apply the following standard:
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.
(Citations and punctuation omitted.) Gates v. State, 298 Ga. 324, 327 (3) (781 SE2d 772) (2016). See also
Here, Pender argues that the trial court should not have permitted the detective to testify about the interrogation tactic of “bluffing” and how he employed it while questioning the co-defendants, including Pender. In his testimony, the detective stated that when an interrogator bluffs, “individuals who are oftentimes lying will fabricate a story to make the evidence fit their story. Someone who isn‘t lying will generally just adamantly deny the fact that the evidence exists.” The detective then testified that, in the course of his interrogation, he told Pender that Pender‘s blood had
The detective later compared Pender‘s statements, specifically the timeline of events on the day of the shootings, with the timelines described by Dixon and Fair and commented on Fair‘s demeanor during his interrogation. The detective also testified that some of Whitaker‘s statements about the Scott shooting were consistent
As an initial matter, we note that of the five charged assailants, only Dixon testified at trial after he pled guilty and agreed to cooperate with the State. Pender, Whitaker, Wells, and Fair did not testify. In Sawyer v. State, 308 Ga. 375, 382 (2) (a) (839 SE2d 582) (2020), we noted that we could locate “no authority for the proposition that
Dixon, on the other hand, testified at trial and was clearly a “witness” within the meaning of
Here, Pender complains that the detective compared Dixon‘s statements to those given by Pender and Fair and that he later characterized Dixon‘s statements as being consistent with Whitaker‘s. While it would have been improper for the detective to testify about whether he believed Dixon was telling the truth, it was permissible for the detective to discuss whether Dixon‘s statements to him (and, by implication, Dixon‘s testimony at trial) were consistent with other information he had received in the course of his investigation, including statements made by other suspects in
Moreover, even though the detective‘s testimony about “bluffing” Pender indicated that Pender tailored responses to the detective‘s suggestions that his blood had been found and that he had been seen on video, that line of questioning went solely to Pender‘s concocted stories in response to those statements by the detective. The detective‘s testimony about his questioning of Pender on this topic never directly implicated Dixon‘s credibility because the detective never suggested that he had ever asked Dixon about the statements Pender made in response to the bluffs. Even though the detective‘s trial testimony later compared some of the statements made by Pender and Dixon, such comparisons “did not speak directly to [Dixon‘s] truthfulness,” because it appears those comparisons were made about their statements on other issues. See Davis, 306 Ga. at 147 (3) (f). Rather, the “testimony was responsive to questions about the manner in which the detective conducted his investigation and whether that investigation produced other
4. Pender also argues that the trial court plainly erred when it permitted the State‘s firearms expert to testify that her work in the case had been “successfully” peer reviewed. Pender first argues that this testimony should have been excluded because it contained inadmissible hearsay and violated the Confrontation Clause of the Sixth Amendment to the United States Constitution.11 He also argues that this testimony constituted improper bolstering.
(a) We first consider Pender‘s argument that the witness‘s
At trial, the State presented a video recording of a deposition given by its firearms expert.12 During voir dire regarding her qualifications as an expert, the following exchange occurred:
STATE: In . . . your position, is there an opportunity for you to be peer reviewed?
WITNESS: Yes, sir. We‘re peer reviewed on each case that we handle.
STATE: And what does that mean in lay language?
WITNESS: Peer review for a firearms examiner means that I have a scientist that, number one, he or she would verify my work. That means that she would put hands on the evidence that I examined, look at my conclusions, and
look at any identifications or eliminations that I made. If the verifier agreed with me, then the case was passed to a peer reviewer. If it did not, more work was done. Then the peer review process ensures that all policies were followed, that all evidence examined is documented in the report and everything was documented correctly. STATE: How many times have you been — your work matter has been peer reviewed in that way?
WITNESS: Each case.
The State later tendered the firearms examiner as an expert in firearms identification, tool mark identification, and ballistics science without objection from the defendants. Later in her testimony, the witness had the following exchange with the prosecutor:
STATE: So are you confident of those findings that you made as a ballistics expert in this case?
WITNESS: Yes sir, I am.
STATE: Was it indeed peer reviewed?
WITNESS: Yes sir, it was.
After discussing her identification and comparisons of several bullet fragments recovered from the crime scene, the following exchange occurred:
STATE: Thank you. And was that peer reviewed as well?
WITNESS: Yes, sir.
STATE: And I hate to ask the same question. Were all of
your results and findings in this same report that we‘re referring to peer reviewed? WITNESS: Yes, sir.
STATE: And successfully peer reviewed at that?
WITNESS: Yes, sir.
First, the witness‘s testimony about the peer-review process and the fact that her work was peer reviewed was not hearsay. The witness merely explained the peer-review process for firearms examinations, with which the witness was personally familiar, and testified that her work had been peer reviewed, a fact also within her personal knowledge. None of her testimony about that process included or restated any out-of-court statement, and thus the trial court did not plainly err by failing to exclude her statements about the peer review process as inadmissible hearsay or under the Confrontation Clause.
Pender raises the same claims regarding the witness‘s testimony that her work had been “successfully” peer reviewed. But even assuming this one statement by the witness constituted inadmissible hearsay and was “testimonial” within the meaning of the Confrontation Clause as Pender argues, any error in the
In this case, the admission of the isolated statement that the expert‘s work in identifying and comparing bullet fragments recovered from the crime scenes had been “successfully” peer reviewed was entirely harmless. The evidence presented at trial identifying Pender as one of the assailants and detailing his involvement in the crimes was strong, and the identification of the caliber of bullets found at the crime scenes was not a significant issue in the case as to Pender. Nothing in the expert‘s testimony directly connected the bullets or the guns that fired them to Pender. Moreover, neither Pender nor any of the other co-defendants made any meaningful challenge to the expert‘s testimony about her qualifications, the peer review process, or the analysis of the bullet fragments found at the crime scenes and during Scott‘s autopsy.13
(b) Pender also argues that the witness‘s statements about the peer review process constituted improper bolstering under
5. Before trial, Pender moved to suppress a custodial statement he gave to the police on October 4, 2013, because the law enforcement officers who interviewed him failed to read the
The trial court determines the admissibility of a defendant‘s statement under the preponderance of the evidence standard considering the totality of the circumstances. Although we defer to the trial court‘s findings of disputed facts, we review de novo the trial court‘s application of the law to the facts.
(Citations and punctuation omitted.) Ellis v. State, 299 Ga. 645, 647 (2) (791 SE2d 16) (2016).
The trial court conducted a pre-trial Jackson-Denno14 hearing on Pender‘s motion to suppress and heard testimony from Officer Gregory Anderson, Detective Katina Williams, and Sergeant Murry Gunderson. Officer Anderson met with Pender on September 19,
Before the September 23 interview, Detective Williams had received a tip that Pender had been shot by Wells and had been with Wells during the Scott shooting. But when Williams spoke with Pender on September 23, Pender denied knowing Wells. Detective Williams testified that, after the interview, she decided that Pender should be placed into custody as a suspect. Although he remained hospitalized, Pender was arrested for making false statements and for filing a false police report.
Pender was next interviewed by Detective Williams and Sergeant Gunderson on September 26, 2013, at the hospital while in police custody. Detective Williams read the Miranda warnings to
Eight days later, on October 4, 2013, Sergeant Gunderson and Detective Williams conducted a custodial interview of Pender at a police station immediately after he was released from the hospital. Sergeant Gunderson testified at the Jackson-Denno hearing that he told Pender the following at the police station:
I said you remember how we talked previously about the rights you had, you signed the form and stuff. He said yes. And I said, okay, do you want to still talk to us without your attorney present or do you just need to have them transport you over to the county jail. He said no, I want to talk to y‘all. At that point, we put him in an interview room and set up the recording device.
At that point, [Pender], when he had given us three different stories, our patience was pretty thin. We were working on something else. And so if [Pender] was going to sit there and waste our time, we‘d just take him to the jail. But he said he wanted to talk. I verbally spoke to him again about his rights and he said, yeah. Oh, I want to tell you what happened. And so we sat him down.
Pender then made a number of self-incriminating statements. Sergeant Gunderson testified about those statements at trial, which were admitted over Pender‘s objection. Pender now argues that this was error because the statements given on October 4 did not follow the giving of the Miranda warnings that day. We disagree.
The evidence presented at the Jackson-Denno hearing supported the trial court‘s findings that Miranda warnings had been given to Pender on September 26, that the officers did not threaten Pender or promise anything to him in exchange for his testimony,
Because evidence in the record supports the trial court‘s finding that Pender made a knowing, intelligent, and voluntary waiver of his rights on September 26, we conclude that the officers were not required to re-read the Miranda warnings to Pender before commencing their questioning on October 4. “Neither federal nor Georgia law mandates that an accused be continually reminded of his rights once he has intelligently waived them.” (Citation and punctuation omitted.) Ellis, 299 Ga. at 648 (2). Moreover, Pender has made no showing that the Miranda warnings he received on September 26 became stale in the eight days between receiving them and the incriminating statements he made to the police on October
6. Pender also argues that the cumulative effect of the trial court‘s actual and assumed errors in this case prejudiced him. We disagree.
The trial court‘s errors require reversal of Pender‘s convictions unless the errors can be deemed harmless. See Strong v. State, 309 Ga. 295, 316 (4) (845 SE2d 653) (2020). “In determining whether trial court error was harmless, we review the record de novo, and we
We recently held that “Georgia courts considering whether a criminal defendant is entitled to a new trial should consider collectively the prejudicial effect of trial court errors . . . at least where those errors by the court . . . involve evidentiary issues.” State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020). We determined in Division 2 (a) that the trial court erred by admitting Wells‘s statement in violation of Bruton. We also assumed in Division 4 (a) that testimony by the firearms expert that her work in the case had been “successfully” peer reviewed constituted inadmissible hearsay and violated Pender‘s rights under the Confrontation Clause.
Both errors implicate Pender‘s rights under the Confrontation Clause, and, with regard to the expert‘s testimony about “successful” peer review, Georgia‘s rules of evidence regarding hearsay. We have yet to decide how multiple standards for assessing prejudice may interact under cumulative review of different types of errors, see
First, these errors addressed entirely different issues in the case. Wells‘s statement about knowing Pender implicated only the false-statement charge, and, as noted above, there was plenty of other evidence from which the jury could have determined that Pender lied to the police when he said he did not know Wells. As explained above, the testimony of the firearms expert concerned the identification of the bullets found at the crime scene and during the autopsy and the weapons from which they had been fired, which was a separate and insignificant issue as to Pender, as none of her testimony directly linked Pender to the bullets or the weapons that fired them. We are therefore persuaded beyond a reasonable doubt that the cumulative effect of these actual and assumed
7. We now turn to the arguments Whitaker asserts on appeal, He first argues that, in denying his motion for new trial, the trial court deprived him of his constitutional right against self-incrimination by “holding against him” that he did not testify. We disagree that that is what the trial court did in ruling on the general grounds.
The Fifth Amendment to the United States Constitution provides, in relevant part, that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]” Embodied within that right is the right of a criminal defendant to elect not to testify in his defense. The United States Supreme Court has held that the Fifth Amendment effectuates this right by barring adverse comment by the prosecution on the defendant‘s silence and by barring the trial court from instructing the jury that such silence is evidence of guilt. See Griffin v. California, 380 U. S. 609, 615 (85 SCt 1229, 14 LE2d 106) (1965). Upon request by the defendant, trial
Whitaker challenged the jury‘s verdicts under
The trial court found that Whitaker‘s statement about his ignorance of the plan was not credible. In explaining why it reached that conclusion, the trial court listed seven reasons. Among them, the trial court noted that “[t]he only evidence supporting [Whitaker‘s] claim that he was ignorant of the robbery plan is his own self-serving statement, not subject to cross-examination.” The court went on to note that it gave more credence to Dixon‘s
Whitaker argues that the trial court‘s reference to the lack of cross-examination of his statement deprived him of his Fifth Amendment right not to testify at trial because the trial court held it against him that he chose not to subject himself to cross-examination. But these statements in the trial court‘s order were made in passing and in the context of the court‘s assessment of the credibility of Whitaker‘s own self-serving statement to law enforcement and how that statement should be judged against the other evidence presented at trial, including Dixon‘s cross-examined testimony. Those statements in the trial court‘s order were not an adverse comment regarding — or adverse inference from — Whitaker‘s election not to testify. Rather, the statements were part
8. Whitaker also argues that the trial court erred by citing evidence of crimes for which he was found not guilty by the jury as a rationale for denying his motion for new trial on the counts for which he was found guilty. Specifically, Whitaker argues that the trial court should not have cited evidence that he committed Counts 8 and 9, the armed robbery and aggravated assault of Mayfield, in
The State offered evidence, namely through Dixon‘s testimony, that Whitaker had been involved in the planning and setup of the robbery of Mayfield. Although the jury ultimately acquitted Whitaker for the armed robbery and aggravated assault of Mayfield, the trial court, when considering the general grounds, was free to consider all of the evidence presented at trial.15 As noted above, in its general-grounds analysis, the trial court appears to have given great weight to Dixon‘s testimony, especially when compared to the self-serving statements made by Whitaker to the police concerning his involvement in the crimes. Even though the trial court may have given weight to some testimony that the jury discounted, that type of assessment fits comfortably within the trial court‘s discretion and
Judgments affirmed. All the Justices concur.
Notes
Dixon pled guilty to voluntary manslaughter and testified at trial as a witness for the State. His case is not part of this appeal.
Pender, Whitaker, Fair, and Wells were tried jointly from February 29 to March 16, 2016. A jury found Pender not guilty on Counts 1 and 10 and was unable to reach a verdict on Counts 8 and 9 as to Pender. The jury found Whitaker not guilty on Counts 1, 8, and 9. Pender and Whitaker were both found guilty on Counts 2 through 7. Pender was also found guilty on Counts 13 and 14.
Fair was found not guilty on Counts 1, 11, and 12. As to Counts 2 through 7, the jury was not able to reach a verdict as to Fair. Wells was found not guilty on Count 1 but guilty on Counts 2 through 10 and 15, for which he was sentenced to life imprisonment without parole for felony murder and additional sentences for the remaining charges that did not merge. The trial court entered an order of nolle prosequi on Counts 17 and 18. This Court affirmed his convictions and sentences. See Wells v. State, 307 Ga. 773 (838 SE2d 242) (2020). Wells‘s and Fair‘s cases are not part of this appeal.
On April 5, 2016, the trial court sentenced Pender to life in prison on Count 2, a concurrent term of imprisonment of 30 years on Count 4, a concurrent term of imprisonment of 20 years on Count 5, terms of 5 years each on Counts 6 and 7 to be served consecutively to Count 2, and terms of 12 months on Count 13 and 5 years on Count 14, to be served concurrently with Count 2. The same day, the trial court sentenced Whitaker to life in prison on Count 2, a concurrent term of imprisonment of 30 years on Count 4, a concurrent term of imprisonment of 20 years on Count 5, and terms of 5 years each on Counts 6 and 7 to be served consecutively to Count 2. As to both Pender and Whitaker, Count 3 merged with Count 2 for sentencing.
Pender filed a motion for new trial through new counsel on April 18, 2016, which he amended through his current appellate counsel on January 10, 2020. Following a hearing, the trial court denied Pender‘s motion on March 4, 2020. Pender filed a notice of appeal on March 10, 2020. His case was docketed to this Court‘s August 2020 term and was orally argued on November 4, 2020. Whitaker filed a motion for new trial through trial counsel on April 13, 2016. Through new counsel, Whitaker filed amended motions for new trial on August 25 and November 5, 2019. Following a hearing, the trial court denied Whitaker‘s motion on February 19, 2020. Whitaker filed a notice of appeal on February 20, 2020, and his case was docketed to this Court‘s August 2020 term and submitted for a decision on the briefs. These cases have been consolidated for opinion.
Sosbee v. State, 155 Ga. App. 196, 196 (270 SE2d 367) (1980).[t]heft by receiving is not a lesser included offense of theft by taking. They are two completely different crimes, having different elements, and are, in fact, so mutually exclusive that the thief and the receiver cannot even be accomplices.