¶1In the Supreme Court of Georgia
¶2 Decided: April 5, 2021
¶3 S21A0034. JOHNSON v. THE STATE.
¶4 BOGGS, Justice.
¶5 This is the fourth appearance of this case before this Court. At
¶6a 2014 jury trial, John “Shug” Johnson was found guilty of malice
¶7murder and other offenses in connection with the shooting death of
¶8Brandon Scott. Johnson’s motion for new trial was granted on the
¶9basis of plain error in the jury instructions, and this Court affirmed
¶10that order. Upon return of the case to the trial court, Johnson filed
¶11a plea in bar, asserting that the evidence presented in the original
¶12trial was insufficient to support his conviction. We conclude that the
¶13trial court did not err in denying his plea in bar, though not for the
¶14reasons recited in its order, and we therefore affirm.
¶15 The State originally indicted Johnson, Albert Reaux, and
¶16Michael Williams for the murder of Brandon Scott and related crimes. According to the evidence presented at Johnson’s trial, the
¶17three men were driving around with the victim on New Year’s Eve
¶18in 2005 when Johnson shot Scott in the head, neck, and chest. Scott
¶19was pushed out of the car and crawled to a nearby house, where he
¶20bled to death on the front porch and was discovered by a resident
¶21the following morning.
¶22 The State, after further investigation, requested an order of
¶23nolle prosequi on the charges against Reaux and Williams, who
¶24promptly disappeared and were not located for several years.
¶25Johnson’s motion to dismiss on speedy trial grounds was granted,
¶26but this Court reversed in State v. Johnson, 291 Ga. 863 (734 SE2d
¶2712) (2012) (“Johnson I”), and the case proceeded to trial. Reaux
¶28testified at Johnson’s trial; Williams refused to testify and was held
¶29in contempt. The jury found Johnson guilty of malice murder, felony
¶30murder, aggravated assault, and possession of a firearm during the
¶31commission of a crime, but after a short bifurcated trial found him
¶32not guilty of possession of a firearm by a convicted felon. The jury
¶33was not given any instructions regarding accomplices or accomplice
¶34 2 corroboration.
¶35 Johnson filed a motion and an amended motion for new trial
¶36asserting numerous grounds, including that the State failed to
¶37present sufficient evidence to support the convictions, see Jackson
¶38v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SCt 2781, 61 LE2d
¶39560) (1979), and that the trial court erred in failing to include the
¶40accomplice-corroboration charge when giving the single-witness
¶41charge, see Stanbury v. State, 299 Ga. 125, 130-131 (2) (786 SE2d
¶42672) (2016); OCGA § 24-14-8. In its order on Johnson’s motion for
¶43new trial, the trial court held the evidence sufficient but granted a
¶44new trial on the basis of failure to give the accomplice-corroboration
¶45charge. The State appealed. Almost two months later, Johnson filed
¶46a motion for an out-of-time cross-appeal, seeking appellate review of
¶47the trial court’s determination that the evidence was sufficient to
¶48support his conviction. The trial court denied that motion, finding
¶49that Johnson had failed to show good cause for the delay. Johnson
¶50did not seek to appeal that ruling.
¶51 This Court affirmed the grant of a new trial in State v. Johnson,
¶52 3 305 Ga. 237 (824 SE2d 317) (2019) (“Johnson III”). 1 Applying the
¶53plain error test of State v. Kelly, 290 Ga. 29, 33 (2) (718 SE2d 232)
¶54(2011), we concluded that the trial court’s failure to instruct the jury
¶55sua sponte on accomplice corroboration in tandem with the single-
¶56witness charge was plain error, and that the trial court therefore did
¶57not err in granting Johnson’s motion for new trial. See Johnson III,
¶58305 Ga. at 241-242. In a footnote, this Court stated, “We need not
¶59review the trial court’s determination that the evidence at the first
¶60trial was legally sufficient, and we express no opinion on that issue.”
¶61Id. at 242 n.7.
¶62 After the case returned to the trial court, Johnson filed a plea
¶63in bar on double jeopardy grounds, which the trial court denied,
¶64finding that the evidence presented at trial was sufficient to
¶65corroborate Reaux’s testimony. Johnson appeals, asserting that the
¶66evidence was insufficient to support his convictions because Reaux’s
¶67 1 In Johnson v. State, 304 Ga. 369 (818 SE2d 601) (2018) (“Johnson II”), this Court affirmed the trial court’s denial of Johnson’s request for a supersedeas bond during the pendency of the State’s appeal of the grant of Johnson’s motion for new trial. See id. at 376. 4 testimony was uncorroborated. The State responds that Johnson
¶68has waived his sufficiency claim; that the evidence at the first trial
¶69would have allowed a properly instructed jury to conclude that
¶70Reaux was not an accomplice; and that the evidence was sufficient
¶71in any event to corroborate Reaux’s testimony. We need not address
¶72the State’s waiver argument or the sufficiency of the corroborating
¶73evidence, because we conclude that, based on the evidence presented
¶74at Johnson’s trial, a properly instructed jury could have found that
¶75Reaux was not an accomplice. The State therefore is not barred from
¶76retrying Johnson.
¶77 [T]he constitutional protection against double jeopardy does not preclude the State from retrying a criminal defendant whose conviction is set aside due to improper instructions, if the evidence at the original trial was legally sufficient for a properly instructed jury to have found the defendant guilty beyond a reasonable doubt.
¶78(Citation and punctuation omitted; emphasis supplied.) Wetzel v.
¶79State, 298 Ga. 20, 28 (3) (779 SE2d 263) (2015) (citing State v. Caffee,
¶80291 Ga. 31, 34 (3) (728 SE2d 171) (2012)).2 And if the evidence at the
¶81 2 While Georgia law prohibits conviction on the uncorroborated
¶82 5 original trial would have authorized a properly instructed jury to
¶83find that a witness was not an accomplice, that finding would
¶84eliminate the need for corroboration under OCGA § 24-14-8, and the
¶85witness’ testimony alone could be sufficient to convict. See State v.
¶86Grier, 309 Ga. 452, 456 (2) (847 SE2d 313) (2020); see also Fisher v.
¶87State, 309 Ga. 814, 819 (2) (a) (848 SE2d 434) (2020); Kelly v. State,
¶88270 Ga. 523, 525 (2) (511 SE2d 169) (1999).
¶89 At Johnson’s trial, evidence was presented that, on New Year’s
¶90Eve in 2005, Reaux, Williams, and Johnson went to a club and
¶91encountered Scott there. According to Reaux, Scott rode with them
¶92to drop Reaux off at the home of Kevia Eaglin, his girlfriend at the
¶93time. On the way there, Johnson and Scott “went to fussing” over
¶94some drugs and a gun that Scott had taken from Johnson. Johnson
¶95suddenly pulled out a pistol, turned around, and shot Scott in the
¶96chest. Reaux, “totally shocked,” jumped out of the car and ran to
¶97testimony of an accomplice, see OCGA § 24-14-8, the question of sufficiency of the evidence to satisfy federal constitutional due process under Jackson v. Virginia has no such requirement. See State v. Grier, 309 Ga. 452, 456 (2) (847 SE2d 313) (2020).
¶98 6 Eaglin’s house. According to Eaglin, Reaux told her that “him and
¶99John had just killed Brandon,” that Johnson “turned around and
¶100shot” Scott, and that “they” then pushed him out of the car.3 In
¶101Reaux’s statement to the detective, however, he denied having a
¶102firearm or firing a shot. The State’s ballistic expert testified that the
¶103bullets recovered from Scott’s body were fired from the same
¶104firearm. Eaglin also testified that Reaux and Scott were friends.
¶105 Eaglin’s testimony that Reaux admitted participating in the
¶106shooting constituted slight evidence to support the giving of the
¶107accomplice-corroboration instruction. 4 See Doyle v. State, 307 Ga.
¶108609, 612 (2) (a) (837 SE2d 833) (2020) (“It is error to fail to give a
¶109jury instruction on accomplice liability where there is slight
¶110evidence supporting a finding that a witness was an accomplice.”
¶111(Citation and punctuation omitted; emphasis supplied.)) Although
¶112 3 Eaglin also gave a statement to a police detective in which she said that Reaux told her that Johnson shot Scott first and that Reaux then fired a shot. But Eaglin stated that she did not believe this, because Reaux was known for “telling stories about himself, making himself look like a big guy.” 4 As we observed in Johnson III, 305 Ga. at 241, “virtually all of the
¶113incriminating evidence flowed from Reaux,” either through his testimony at trial, his statements to the police, or his statements to Eaglin. 7 the jury could have found that Reaux was an accomplice, it was also
¶114authorized to rely on other evidence, including inconsistencies in
¶115Reaux’s and Eaglin’s testimony and their statements to the police,
¶116to conclude that Reaux had no knowledge that Johnson intended to
¶117shoot Scott, did not share Johnson’s criminal intent to do so, fled the
¶118scene out of fear and surprise, and thus was not an accomplice.
¶119 In Fisher, this Court drew the distinction between Fisher’s first
¶120trial, in which the jury was not instructed on accomplices or
¶121accomplice corroboration, and Fisher’s retrial, in which the trial
¶122court gave the pattern jury instructions on accomplice corroboration,
¶123including the instruction that a witness is not an accomplice if his
¶124participation in the crime was unknowing or coerced, and that no
¶125corroboration would then be required. See 309 Ga. at 819 (2) (a); see
¶126also Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal
¶127Cases, §§ 1.31.92, 1.31.94 (4th ed. 2020). We concluded that the
¶128properly charged jury could rely upon the witness’ testimony that he
¶129did not know Fisher was going to shoot the victim, that “he was
¶130afraid and in shock” after seeing his friend killed, and that he drove
¶131 8 Fisher away from the scene out of fear. See Fisher, 309 Ga at 819 (2)
¶132(a). As a result, the jury was authorized to determine that the
¶133witness was not an accomplice and his testimony did not need to be
¶134corroborated. See id. Moreover, “[i]t was for the jury to determine
¶135the credibility of the witnesses and to resolve any conflicts or
¶136inconsistencies in the evidence.” (Citations and punctuation
¶137omitted). Id. See also Kelly, 270 Ga. at 525 (2) (when witness
¶138testified that he acted out of fear and coercion and did not know
¶139defendant intended to murder victim, it was for jury to determine
¶140whether witness was accomplice). Here, as in Fisher, a properly
¶141charged jury could have determined from the evidence presented
¶142that Reaux was not an accomplice and that corroboration of his
¶143testimony was not necessary.
¶144 Johnson argues that the trial court found that Reaux was an
¶145accomplice in its order denying Johnson’s plea in bar, as well as
¶146contending that this Court did likewise in Johnson III. But in its
¶147order, the trial court made no such finding; rather, it initially
¶148referred to Reaux as “Defendant’s alleged accomplice, Albert Reaux
¶149 9 (the ‘Accomplice.’)” (Emphasis supplied.) And in Johnson III, in
¶150determining whether the accomplice and corroboration charges
¶151should have been given, we considered only whether there was slight
¶152evidence presented at trial that was sufficient to warrant the charge,
¶153a wholly different analysis from that required in this double
¶154jeopardy context where we are determining whether the evidence
¶155was sufficient for a properly instructed jury to convict. See Doyle,
¶156307 Ga. at 612 (2) (a); see also Grier, 309 Ga. at 456 (2) (evidence at
¶157trial authorized jury to find witness was not an accomplice
¶158“notwithstanding that the trial judge in his capacity as a thirteenth
¶159juror found otherwise.”).
¶160 Despite some evidence to the contrary presented at Johnson’s
¶161trial, a properly instructed jury could have found that Reaux was
¶162not an accomplice, and corroboration of his testimony therefore was
¶163not required. And under the Jackson due-process standard, viewing
¶164the evidence in the light most favorable to the jury’s verdict, the
¶165evidence presented at trial, particularly Reaux’s testimony, was
¶166legally sufficient to support the jury’s verdicts as a matter of federal
¶167 10 constitutional due process. For these reasons, we therefore affirm
¶168the trial court’s denial of Johnson’s plea in bar.
¶169 Judgment affirmed. All the Justices concur, except LaGrua, J., disqualified.
¶170 11