Appellant Jahvon Pittman was tried and convicted of murder and related offenses in connection with the shooting death of Maxwell Fiandt.
Viewed in the light most favorable to the jury’s verdict, the evidence shows that, at all relevant times, Melville “Teddy” Reid frequently bought drugs from the victim, Maxwell Fiandt. On the evening of March 3, 2010, Reid and his co-worker Hector Marquez agreed to rob Fiandt after Reid’s shift ended. Marquez left work and returned with his cousin, Jahvon Pittman; thereafter, the three men drove to Fiandt’s apartment complex. To gain entry to the building, Reid contacted Fiandt about purchasing marijuana; after Fiandt let Reid into the complex, Reid let Marquez and Pittman in through a back gate. Reid then went alone to Fiandt’s apartment
During this time, Marquez sent Reid numerous text messages and eventually called him; Reid told those in Fiandt’s apartment that the caller was his mother who was waiting outside with some money for his drug purchase. Reid left the apartment but remained in a stairwell. Marquez and Pittman proceeded to knock on Fiandt’s door; after Fiandt answered the door, a skirmish ensued. Fiandt’s roommate, Kyle Barrett, saw two men dressed in all black struggling with the victim. One was restraining Fiandt in a bear hug while the other pointed a handgun at Barrett, who retreated to a closet. Moments later a shot was fired. Police officers responded to the scene and found Fiandt lying on the floor; he was later pronounced dead from a gunshot wound to his head.
Law enforcement spoke to Reid on many occasions; he eventually implicated himself, Marquez and Pittman in the crimes. Barrett also identified Marquez as the man that had Fiandt in a bear hug and provided a description of the man with the gun. Police found some drugs, a shell casing, and Marquez’s DNA at the scene. Cell phone records showed numerous communications between Reid and Marquez leading up to Fiandt’s murder, and video surveillance from the night of the murder showed two men dressed in all black enter the apartment complex from the back entrance prior to the shooting.
During Marquez’s case-in-chief, Marquez testified that he, Reid and Pittman went to Fiandt’s apartment to procure marijuana and that Pittman accidentally shot Fiandt after a disagreement concerning the form of payment. Pittman presented alibi witnesses during his case-in-chief but did not testify.
1. At the close of the State’s case-in-chief, Pittman moved for a directed verdict of acquittal on all counts, arguing that the State failed to corroborate Reid’s accomplice testimony as required under former OCGA § 24-4-8.
in felony cases in which the State relies on the testimony of an accomplice to the crimes, in order to justify submitting the case for the jury’s determination, the State must present the testimony of at least one other witness or evidence of corroborating circumstances. [Cit.] The additional evidence that is required “may be circumstantial and it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged.” [Cits.] It must, however, be independent of the accomplice’s testimony and either directly connect the defendant with the crime or justify an inference that he is guilty [Cits.] In addition, the independent evidence must corroborate both the identity of the defendant and the fact of his participation in the crime. [Cits.] In other words, corroboration of only the chronology and details of the crimes is not sufficient, and there must be some independent evidence tending to show that the defendant himself was a participant in the crimes. [Cit.] Once the State adduces such evidence, it is “peculiarly a matter for the jury to determine” whether the evidence sufficiently corroborates the accomplice’s testimony and warrants a conviction. [Cits.]
(Citations omitted.) Id. at 900-901. While slight evidence is required, “[i]t is not necessary that the corroborating evidence correspond to the accomplice’s testimony in every particular.” (Citation omitted.) Benbow v. State,
Reviewing the entirety of the evidence presented at trial, Reid’s accomplice testimony that Marquez and Pittman robbed and shot the victim was clearly corroborated by cell phone records, DNA evidence, video surveillance, Barrett’s pre-trial identification, numerous eyewitness accounts of what had occurred inside the apartment, and Marquez’s testimony implicating Pittman as the shooter. Though Pittman presented an alibi defense at trial, the jury was allowed to disbelieve that evidence and credit the testimony of Pittman’s accomplices, as “[r]esolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court.” (Citation and punctuation omitted.) McNeely v. State,
Pursuant to the standard set forth in Jackson v. Virginia,
2. Pittman also contends that his trial counsel rendered ineffective assistance for failing to file a motion to sever his trial from that of his co-defendant Hector Marquez. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different,. See Strickland v. Washington,
Pittman contends, as he did below, that the motion for severance was necessary because his defense was antagonistic to that of his co-defendant and because the insurmountable evidence against Marquez prejudiced Pittman’s right to a fair trial. At the hearing on Pittman’s motion for new trial, counsel testified that he looked into filing a motion to sever, but chose not to because he felt it would have been unsuccessful. Moreover, during his pre-trial investigation, counsel received information from Pittman, his client, that Marquez planned to testify and exonerate Pittman at trial. Based upon the foregoing, trial counsel made the strategic decision not to file a motion to sever. This decision was reasonable. See Strickland,
3. While the evidence was sufficient to support the jury’s guilty verdicts, we have noted an error with respect to Pittman’s sentence. Though neither party has raised this issue on appeal, “if we notice a merger issue in a direct appeal, as we have here, we regularly resolve that issue, ‘even where (it) was not raised in the trial court and is not enumerated as error on appeal.’ ” (Citation omitted.) Hulett v. State,
Pittman was charged with three counts of felony murder, but was only found guilty of one: felony murder predicated on aggravated assault. The trial court properly merged the underlying aggravated assault verdict into Pittman’s felony murder sentence. However, it erred in also merging Pittman’s conspiracy to commit armed robbery verdict into the felony murder, as these two crimes require proof of an element that the other does not. See Favors v. State,
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Notes
On July 2, 2010, a Fulton County grand jury jointly indicted Jahvon Pittman, Hector Marquez and Melville Reid in an eight count indictment as follows: malice murder (Count 1); felony murder predicated on aggravated assault (Count 2); felony murder predicated on criminal attempt to commit armed robbery (Count 3); felony murder predicated on conspiracy to commit armed robbery (Count 4); criminal attempt to commit armed robbery (Count 5); conspiracy to commit armed robbery (Count 6); aggravated assault (Count 7); and possession of a firearm during the commission of a crime (Count 8).
Prior to trial, co-indictee Reid pled guilty to the lesser offense of voluntary manslaughter in exchange for testifying as a witness for the State. Pittman and Marquez were tried together from January 26 through February 4, 2011. The jury found Pittman guilty of felony murder predicated on aggravated assault (Count 2), conspiracy to commit armed robbery (Count 6), aggravated assault (Count 7), and possession of a firearm during the commission of a crime (Count 8). The jury acquitted Pittman of malice murder (Count 1) and could not reach a verdict on the remaining charges (Counts 3, 4 and 5); the State later nolle prossed these three counts.
On February 4, 2011, the trial court sentenced Pittman to life imprisonment for felony murder (Count 2) and five years consecutive for the weapons charge (Count 8) for a total sentence of life plus five years to serve. The trial court merged the conspiracy to commit armed robbery and aggravated assault charges (Counts 6, 7) with the felony murder. However, as observed in Division 3, the merger of the conspiracy charge with the felony murder was error.
Pittman filed a motion for new trial on February 14, 2011, which was amended through new counsel on September 15, 2014. After a hearing, the trial court denied the motion as amended on January 22, 2015. Pittman filed a notice of appeal to this Court on February 18, 2015. The appeal was docketed to the term of this Court beginning in December 2016 and was thereafter submitted for decision on the briefs. We previously affirmed Marquez’s convictions and sentences in Marquez v. State,
Because Pittman was tried prior to the enactment of the new Evidence Code, we review this case under the former applicable Code section; we note, however, that this provision has been carried over into Georgia’s new Evidence Code. See OCGA § 24-14-8.