311 Ga. 232 - Pindling v. State

¶2 Decided: April 5, 2021

¶3 S21A0084. PINDLING v. THE STATE.

¶4 PETERSON, Justice.

¶5 Michael Pindling was convicted of malice murder and other

¶6crimes in connection with the shooting death of Robert Pett.1 On

¶7 1 Pett was found dead on July 13, 2013. In September 2013, a Lowndes County grand jury indicted Pindling and Deron Wallace for malice murder, felony murder predicated on aggravated assault, aggravated assault, armed robbery, possession of a firearm during the commission of a felony, and two counts of theft by taking. The grand jury also indicted Kathryn Cortez for armed robbery and possession of a firearm during the commission of a felony. After Pindling and Wallace’s joint trial in May 2014, a jury found Pindling guilty on all counts and Wallace guilty on all counts except malice murder. On July 27, 2014, the trial court sentenced Pindling to life in prison without the possibility of parole for malice murder, a consecutive life term for armed robbery, and a consecutive five-year term for the firearm count; the trial court initially entered sentences on the theft counts but later vacated the sentences for these counts, and the remaining counts were vacated by operation of law or merged for sentencing purposes. Pindling filed a motion for a new trial on July 14, 2014. Pindling filed a notice of appeal before his motion was decided, and we dismissed his appeal as premature. Pindling thereafter amended his motion for new trial, which the trial court denied on December 8, 2017, following a hearing. Pindling timely appealed, and his case was docketed to this Court’s term beginning in December 2020 and submitted for a decision on the briefs. appeal, Pindling argues that the trial court plainly erred when

¶8instructing the jury that a single witness’s testimony was sufficient

¶9to prove a fact without also instructing the jury on the requirement

¶10that an accomplice’s testimony must be corroborated. We agree and

¶11reverse.2

¶12 1. The evidence at trial showed the following. 3 Pett met Deron

¶13Wallace and Pindling in the ammunition section of an Academy

¶14Sports store on July 2, 2013. On the afternoon of July 13, Pett and

¶15his sister drove to a location where he said he was to meet some men

¶16from New York that he had previously met at Academy Sports. On

¶17the way to the meeting, Pett received a call from a woman (later

¶18identified as Kathryn Cortez) saying that the meeting would be

¶19delayed. Pett and his sister returned home. Pett left again later that

¶20 2 Pindling also enumerates another error. Given our reversal of his conviction, we need not decide that other claim today because it is unlikely to reoccur on retrial. 3 Because this case turns on whether an error likely affected the outcome

¶21of the trial, we present the evidence as reasonable jurors would have viewed it, rather than in the light most favorable to the jury’s verdicts. 2 night but did not tell his sister where he was going. She never saw

¶22him alive again.

¶23 That night, a police officer found Pett’s dead body on the back

¶24porch of a house at 213 Walnut Street in Valdosta. Pett was shot

¶25three times, once in the shoulder and twice in the back, and died as

¶26a result of the gunshot wounds. One police officer examined the

¶27contents of Pett’s cell phone and found text messages directing Pett

¶28to the area; phone records showed that those text messages came

¶29from a phone number linked to Wallace. The phone records also

¶30showed a series of calls and text messages exchanged between

¶31Wallace’s phone and Pett’s throughout July 13, and that Wallace’s

¶32phone number made several calls to different rental car agencies on

¶33July 12.

¶34 Further investigation revealed that Pindling and Wallace

¶35visited a rental car agency on July 12, and Pindling completed an

¶36application for a rental car, which Cortez paid for in part. Police

¶37officers obtained and executed a search warrant for the address

¶38Pindling listed on the application. Police officers found, among other

¶39 3 things, a gun that belonged to Pett in a rear living room that

¶40connected to Pindling’s bedroom; police officers found a

¶41disassembled, silver-colored handgun hidden in a chimney in

¶42Pindling’s bedroom. The gun recovered from Pindling’s bedroom

¶43was later reassembled for ballistics testing and discovered to be the

¶44same gun used to shoot and kill Pett.

¶45 Police tracked the rental car using the vehicle’s GPS device,

¶46noting that the vehicle traveled to New York. Police conducted a stop

¶47of the car once it returned to Georgia. Inside the car were Pindling,

¶48Wallace, Cortez, and another woman from New York. Police

¶49searched the rental car but did not find any of Pett’s possessions.

¶50Pindling and Wallace were arrested. Wallace waived his Miranda4

¶51rights and agreed to speak to a detective. Wallace admitted being

¶52involved in crimes against Pett, but claimed that he was not the

¶53shooter and did not know anyone else was going to shoot Pett.

¶54 Cortez was also arrested following the traffic stop but was soon

¶55released. She later agreed to be interviewed by the police, initially

¶56 4 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 4 denied participating in the armed robbery of Pett, but later admitted

¶57that she was the “bait” that lured Pett to the back of the house for

¶58the purpose of robbing him. Cortez said that she took direction from

¶59Wallace.

¶60 Cortez provided more details about the crimes at the joint trial

¶61of Pindling and Wallace, testifying as follows. Soon after Pindling

¶62and Wallace began working at the same restaurant where Cortez

¶63worked, she began a relationship with Wallace. Pindling and

¶64Wallace said they were both from New York and described

¶65themselves as cousins. They lived at the same property address.

¶66Cortez said that Wallace lived in quarters separate from the main

¶67house that Pindling shared with his father. Cortez had seen Wallace

¶68and Pindling shoot a silver-colored gun at their residence.

¶69 Cortez also testified that to help pay for their planned trip to

¶70New York, she, Pindling, and Wallace devised a plan to rob Pett,

¶71who previously had sold marijuana to Pindling and Wallace. Wallace

¶72called Pett under the guise of purchasing marijuana and directed

¶73Pett to meet at an abandoned house located at 213 Walnut Street.

¶74 5 Cortez, Wallace, and Pindling went to the location, but when they

¶75saw a woman standing nearby, they decided to cancel the meeting.

¶76Cortez talked to Pett, but did not give him another time to meet. The

¶77trio returned home, and Pindling went to the liquor store. Later,

¶78Wallace called Pett to meet, and Cortez, Wallace, and Pindling again

¶79went to the abandoned house on Walnut Street.

¶80 Cortez waited in front of the house for Pett and directed him to

¶81the back porch; Wallace was on the back porch waiting and Pindling

¶82was inside the house. Pett gave her marijuana, and as she looked at

¶83it, she heard gunshots. Cortez ran back to the car. Wallace took

¶84Pett’s bag that contained Pett’s wallet and a handgun and left the

¶85scene with Cortez and Pindling. Cortez did not see who shot Pett,

¶86but assumed that Pindling was the shooter because Wallace did not

¶87have a gun and Pindling was the only other person with them. When

¶88Pindling returned to the car, he said that he “kicked [Pett’s] lights

¶89out because he was making noises.”

¶90 After leaving the scene, the trio returned to Pindling and

¶91Wallace’s residence. Cortez and Wallace sat in the living room

¶92 6 connected to Pindling’s bedroom, while Pindling hid the guns in his

¶93bedroom and changed, placing his clothes and Pett’s wallet in a

¶94trash bag. The trio left for New York; while there, Wallace would not

¶95let Cortez talk to her mother privately. Cortez said initially that

¶96both Pindling and Wallace threatened to kill her if she told anyone

¶97what happened, but later testified that only Wallace had threatened

¶98to kill her.

¶99 Pindling testified in his own defense. He said that Wallace

¶100stayed in Pindling’s father’s house and was allowed to use Pindling’s

¶101gun whenever he wanted. On July 13, Pindling had been drinking

¶102liquor to celebrate his birthday and did not know that Wallace and

¶103Cortez had been texting Pett. In the evening, Wallace asked for keys

¶104to the rental car so he and Cortez could meet someone who owed

¶105Cortez money. Pindling continued to drink, fell asleep, and was

¶106awakened when Cortez and Wallace returned. Wallace and Cortez

¶107said they got the money and were ready to leave for New York, and

¶108Wallace gave Pindling’s gun back to Pindling. Before leaving for

¶109New York, Pindling hid the gun, explaining that he did not want to

¶110 7 take it to New York and did not want his father to find it. Pindling

¶111claimed not to have seen Pett’s gun.

¶112 2. Pindling argues that the trial court plainly erred in failing

¶113to instruct the jury on the need for an accomplice’s testimony to be

¶114corroborated. Pindling asserts that the error affected the outcome of

¶115his trial because Cortez was the sole testifying witness with personal

¶116knowledge of the events that led to Pett’s death and was the only

¶117witness who implicated Pindling as the shooter. We agree that the

¶118trial court’s error requires reversal.

¶119 As Pindling concedes, because he did not request this

¶120instruction and failed to object to its omission, his claim of error is

¶121reviewed only for plain error. See Wilson v. State, 301 Ga. 689, 693

¶122(3) (804 SE2d 54) (2017). To establish plain error, Pindling must

¶123demonstrate that (1) the failure to give the instruction was not

¶124affirmatively waived, (2) the failure was an obvious error beyond

¶125reasonable dispute, (3) the error likely affected the outcome of the

¶126proceedings, and (4) the error seriously affected the fairness,

¶127integrity, or public reputation of judicial proceedings. See Hood v.

¶128 8 State, 303 Ga. 420, 425-426 (2) (a) (811 SE2d 392) (2018). “Satisfying

¶129all four prongs of this standard is difficult, as it should be.” Id. at

¶130426 (2) (a) (citation omitted).

¶131 The State rightfully concedes that Pindling has satisfied the

¶132first two prongs of the plain error test, in that it was a clear and

¶133obvious error for the trial court to fail to give the accomplice-

¶134corroboration instruction while giving the single-witness

¶135instruction. The plain language of OCGA § 24-14-8 provides that in

¶136“felony cases where the only witness is an accomplice, the testimony

¶137of a single witness shall not be sufficient” to establish a fact, but

¶138“corroborating circumstances may dispense with the necessity for

¶139the testimony of a second witness[.]” Under this statute, if there is

¶140evidence that could support a finding that a witness was an

¶141accomplice to the crime, and that witness provides testimony that

¶142directly links the defendant to the crime, it is a clear and obvious

¶143error for the trial court to instruct the jury that the testimony of a

¶144single witness is sufficient to establish a fact without also

¶145instructing the jury that an accomplice’s testimony must be

¶146 9 corroborated. See, e.g., Doyle v. State, 307 Ga. 609, 613 (2) (b) (837

¶147SE2d 833) (2020); State v. Johnson, 305 Ga. 237, 240 (824 SE2d 317)

¶148(2019). Here, the prosecutor relied heavily on the testimony of

¶149Cortez, there was ample evidence from which the jury could have

¶150found her to be an accomplice, and her testimony directly linked

¶151Pindling to the crimes.

¶152 The parties dispute whether this error likely affected the

¶153outcome of the trial. As Pindling points out, Cortez was the only

¶154eyewitness who affirmatively linked him to the crimes and identified

¶155him as the shooter. The State argues that Cortez’s testimony was

¶156corroborated by Wallace’s statement, cell phone records, GPS

¶157records, surveillance videos, eyewitness testimony, and forensic

¶158evidence. But most of the evidence cited by the State corroborates

¶159Cortez’s statements only as to her and Wallace’s involvement in the

¶160crimes. And although it is not disputed that Pindling once met Pett

¶161at an Academy Sports, Pett’s sister did not identify Pindling as one

¶162of the men that Pett had planned to meet (but did not) several hours

¶163before his death. Eyewitness testimony and other evidence do show

¶164 10 that Pindling was with Wallace and Cortez for periods before and

¶165after the crimes, but other than Cortez’s testimony, there was no

¶166direct evidence ⸺ no cell phone records, forensic evidence, or

¶167eyewitness testimony ⸺ placing Pindling at the scene of the murder.

¶168The evidence cited by the State was legally sufficient to meet the

¶169“slight” requirement for corroboration to support a finding that

¶170Pindling was involved in the crimes against Pett. See Raines v.

¶171State, 304 Ga. 582, 587-588 (2) (a) (820 SE2d 679) (2018) (explaining

¶172that under Georgia statutory law, to sustain a conviction based on

¶173accomplice testimony, the independent corroborating evidence only

¶174has to be “slight” and can be entirely circumstantial). But that

¶175evidence was far from overwhelming.

¶176 Because almost all of the evidence incriminating Pindling came

¶177from Cortez, and the jury was never told that her testimony may

¶178have required corroboration or instructed how to evaluate properly

¶179the other evidence in this context, the outcome of the proceedings

¶180was likely affected by the trial court’s failure to instruct the jury on

¶181the accomplice-corroboration requirement. See Doyle, 307 Ga. at

¶182 11 613-614 (2) (a)-(b) (failure to give charge likely affected outcome of

¶183the trial where the testimony of a witness who could be found to

¶184have been an accomplice was the only eyewitness to identify the

¶185defendant as a participant in the shooting, no other evidence placed

¶186the defendant in the vicinity of the crimes, and independent

¶187evidence was not strong enough to connect the defendant to the

¶188crimes); Johnson, 305 Ga. at 241 (“[B]ecause virtually all of the

¶189incriminating evidence flowed from [the accomplice], the outcome of

¶190the trial court proceedings was likely affected by the trial court’s

¶191failure to provide an accomplice corroboration charge to the jury[.]”

¶192(punctuation omitted)); Stanbury v. State, 299 Ga. 125, 131 (2) (786

¶193SE2d 672) (2016) (the trial court’s failure to give an accomplice-

¶194corroboration charge likely affected the outcome of the trial when

¶195the accomplice “was the only witness who affirmatively identified

¶196[the defendant] as the second man” inside the house where the

¶197victim was robbed and shot); see also Finney v. State, ___ Ga. ___,

¶198___ (3) (b) (__ SE2d ___) (Case No. S20A1469, decided March 1, 2021)

¶199(reversing based on cumulative effect of evidentiary errors and

¶200 12 failure to give accomplice-corroboration charge while giving the

¶201single witness charge because the strongest evidence of guilt came

¶202from accomplice’s hearsay statements that were improperly

¶203admitted and the jury was effectively told it could find the defendant

¶204guilty based on the accomplice’s statements alone).

¶205 Having found that the first three prongs of the plain error test

¶206have been met, we must next decide whether the error affected the

¶207fairness, integrity, or public reputation of judicial proceedings. See

¶208Hood, 303 Ga. at 425-426 (2) (a). We have concluded in similar

¶209circumstances that the failure to give the accomplice-corroboration

¶210charge undermines the fairness of the proceedings. See Doyle, 307

¶211 Ga. at 615 (2) (b) (“Affirming [the defendant’s] conviction on this

¶212record with a jury that was authorized to find him guilty solely on

¶213[the accomplice’s] testimony would render the accomplice-

¶214corroboration requirement meaningless.”). We reach the same

¶215conclusion here. Because Pindling has established plain error, we

¶216reverse.

¶217 Judgment reversed. All the Justices concur.

¶218 13