Finney v. State ( 2021 )

In the Supreme Court of Georgia
Decided: March 1, 2021
S20A1469. FINNEY v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Benjamin Finney, who was a drug dealer in Macon,
was convicted of felony murder and two firearm crimes based on the
fatal shooting in 2008 of Gwendolyn Cole, the mother of one of
Appellant’s rivals. In his appeal to this Court, Appellant argues,
among other things, that the trial court erred by admitting hearsay
from an accomplice, plainly erred by failing to give a jury instruction
on the accomplice-corroboration requirement, and erred by
admitting evidence of Appellant’s involvement in two prior
shootings. We agree that the trial court erred in these ways, and
because the cumulative effect of the errors likely affected the
outcome of Appellant’s trial, we reverse his convictions. 1
1 The crimes occurred on February 4, 2008. In January 2013, a Bibb
1. (a) The evidence presented at Appellant’s trial showed the
following. 2
The Break-In at Appellant’s House
In the fall of 2007, Appellant lived with his girlfriend Kokethia
Sledge and her two young children in Macon. One night in
September, their home was broken into by two or three people. The
assailants held Appellant and Sledge at gunpoint, tied them up, and
County grand jury indicted Appellant and Marlon Jackson for malice murder,
felony murder based on aggravated assault, aggravated assault, and
possession of a firearm during the commission of a felony; Appellant was also
charged with possession of a firearm by a convicted felon. Appellant’s and
Marlon’s trials were severed. Appellant filed a pretrial motion to suppress
wiretap evidence, which the trial court denied. On interlocutory appeal, this
Court reversed the trial court’s order. See Finney v. State, 298 Ga. 620 (783
SE2d 598) (2016). Appellant was then tried from October 31 to November 9,
2016; the jury found him not guilty of malice murder but guilty of the other
charges. The trial court sentenced Appellant to serve life in prison for felony
murder and five consecutive years for each firearm count; the aggravated
assault count merged.
Appellant filed a timely motion for new trial, which he amended twice
with new counsel in January 2020. In March 2020, after an evidentiary
hearing, the trial court denied Appellant’s motion but vacated his two firearm
convictions on the ground that they were indicted outside the four-year statute
of limitation for those crimes. Appellant then filed a timely notice of appeal,
and the case was docketed to the August 2020 term of this Court and submitted
for decision on the briefs.
2 Because this case requires an assessment of the harmful effect of trial
court errors, we lay out the evidence in detail and not only in the light most
favorable to the verdicts.
2
put a mattress on top of them. The children, who were in their
rooms, slept through the incident. About $30,000 in cash, 300
pounds of marijuana, and two kilograms of cocaine were taken; the
stolen drugs were worth more than $300,000. Appellant did not
know who the perpetrators were.
Sledge testified that because she was terrified by the home
invasion, she went to a pawn shop and purchased two Glock pistols
and ammunition. A month later, she and Appellant went to a
different pawn shop, where she bought a Bushmaster AR-15 rifle
and .223-caliber ammunition for the rifle. Appellant was a convicted
felon, so he could not lawfully buy firearms himself, but he helped
Sledge pick out the rifle and gave her money to buy it. Sledge kept
the Glock pistols in her nightstand, and she kept the rifle near her
bed when she was alone. She last saw the rifle when Appellant had
it in December 2007.
The Shooting at Recardo Jackson’s House on Sylvester Circle
According to Appellant’s friend Bobby Mack, on November 9,
2007, Appellant asked Mack to buy some guns. Appellant drove
3
Mack to a pawn shop, where Appellant suggested what guns to buy
and loaned Mack $53. Mack purchased two Bushmaster AR-15 rifles
and .223-caliber ammunition. That evening, Mack gave the rifles to
Appellant to keep at Appellant’s house because Mack lived in
government housing and was not allowed to keep guns in his home.
Mack never shot either of the rifles and did not see them again
before Cole’s murder. 3
On November 11, two nights after Mack said that he gave
Appellant the rifles, one of the rifles was used to shoot at Recardo
Jackson’s house on Sylvester Circle. Recardo, Recardo’s wife, their
son, her brother, and her grandmother were home at the time of the
shooting. Recardo’s wife was shot in the thigh, and gunshots caused
Recardo’s car to catch on fire. Recardo and his wife did not know who
shot at their house. A total of 26 .223-caliber cartridge cases were
found at the scene; nine were from one of the rifles Mack had bought,
3 Mack later pled guilty in federal court to aiding a convicted felon in
obtaining a firearm and was sentenced to three years on probation and a
$1,000 fine. As part of his plea agreement, he was required to provide all
information that he knew about Appellant.
4
and 17 were from another rifle that was never recovered.4 Mack
testified that he was not involved in the shooting, and he did not
indicate that he knew who did it.
After the shooting, Recardo talked to Appellant; he and
Appellant were so close that Recardo called Appellant his “brother.”
Like Appellant, Recardo sold drugs, and Appellant sympathized
with Recardo’s experience, suggesting that the same people had
attacked both of them. Later, Recardo learned that there was a
rumor “in the streets” that he knew who robbed Appellant. Recardo
told Appellant that the rumor was not true, and Appellant
responded, “you my brother, all this s**t ain’t nothing but a bunch
of jealousy.” Recardo explained that he and Appellant did not spend
much time together after that because Recardo got a new job, but
they still “love[d] each other.” Around the end of 2007, Appellant
began spending time with Marlon Jackson, another drug dealer.
When Marlon described the Sylvester Circle shooting to his brother
4 As explained below, this rifle was also used in the shooting that killed
Cole.
5
Marquis Sanford, Marlon said that Recardo “had them f**ked up”
and “business had to be handled.”5
The Incident with Frankie Barnes on Lawton Avenue
On January 20, 2008, Frankie Barnes came into a house on
Lawton Avenue where Appellant was visiting with Mack and some
other friends. Barnes was carrying a rifle and said that he was
looking for Appellant because he had heard that Appellant was
looking for him. According to Mack, Barnes said that he was “finna
make everybody clear out” and asked who Appellant was; then “the
shooting started.” Mack did not see who was shooting, but he saw
that Appellant had a nine-millimeter gun with him that day.
Another witness, however, testified that Appellant did not have a
gun and that the man with the rifle came in and “just started
shooting.” Barnes testified that he did not shoot. No one was injured
during the altercation, and Appellant left with Mack.
The Super Bowl Party Fight between Appellant and Rose
5 At the time of Appellant’s trial, Sanford was serving a 15-year prison
sentence for armed robbery and other crimes. The State had agreed that if he
gave truthful testimony, he could petition for a sentence reduction.
6
Some time during the first few days of February 2008, a man
who was at Marlon’s drug house to buy drugs overheard Appellant
saying to Marlon that they needed to “get” Alphonso Rose, Jr.
Marlon replied, “we’ve got to do what we got to do.” 6 Rose testified
that he had worked with Appellant in the drug business, but he cut
ties with Appellant in October 2007 because he got his own drug
house and did not need Appellant anymore.
According to Rose, on February 3, 2008, he was at a Super Bowl
party when Appellant walked in and hit him on the head with a
pistol. The two men then fought. Appellant, who was so angry that
he was “foaming at the mouth,” “put [the gun] in [Rose’s] face” and
asked if Rose had robbed him. Another party attendee tried to break
up the fight, and Rose tried to tell Appellant that a woman Appellant
was seeing was actually the person who “set [him] up” to be robbed.
Appellant grabbed Rose’s necklace, which was worth $10,000, off his
neck and walked away. That night, Appellant called Rose and told
6 This witness was in jail on a pending burglary charge, and the State
had agreed to recommend a sentence of probation if he testified truthfully.
7
him, “I know how to hurt you,” “If I was trying to hurt you, . . . I’ll
go to your momma house,” and “I know where your mom stay.” Rose
said that Appellant probably thought that Rose lived with his
mother, but he did not.
The Shooting at the Spradley House
The next morning, February 4, Marlon learned that drug
houses belonging to him and two of his brothers had been shot at.
Appellant visited those drug houses at some point that day, and
Marlon’s brother Sanford heard Appellant say, “a house for a house”
and “a family for a family.” Rose testified that Marlon called him
and accused him of being the shooter. Rose said, “Y’all want to settle
this now or what.”
That afternoon, Rose drove with two of his friends, who were
members of the Mafia Gang, to the house of Tim Spradley’s family
on Hawkinsville Avenue, bringing multiple guns with them. 7
Appellant was with Marlon and several other people near the
7 Spradley testified that at the time, his grandfather, aunt, and uncle
lived at the Hawkinsville Avenue house, but he did not live there.
8
Spradley house. Rose testified that as he drove up, Appellant “r[an]
out [of] the yard with his gun in his hand . . . like he was going to
cut the truck off”; Rose drove past Appellant, made a u-turn, and
drove back toward Appellant; Rose then “opened and returned fire”
at Appellant with a stolen nine-millimeter gun. Then Rose drove
away, eventually leading the police on a car chase from which he
escaped.8 Johnny Anderson, who had a close relationship with
Spradley, was in the yard at the time of the shooting and was shot
in the shoulder. Rose was later charged with an unspecified crime
for injuring Anderson, but that charge was dead-docketed.9
Rose’s mother, Gwendolyn Cole, heard about the shooting and
her son’s flight from the police. She and her sister Sonja Russell
went to the Spradley house; the police were there when they arrived.
8 Another witness at the Spradley house testified that when Appellant
saw Rose drive through, Appellant ran to a car, grabbed a pistol, and started
walking toward the road. Then “Appellant made a shot. And they start
shooting back.” One of Marlon’s brothers testified that someone in Rose’s
vehicle started shooting first, and Appellant shot back. Spradley testified that
he saw only Rose shoot, but he heard other people shooting.
9 Rose testified that although he met with the prosecutor regarding his
testimony against Appellant around the time that the charge was dead-
docketed, no deal “was arranged.”
9
Russell talked to Spradley, who was “visibly upset.” She asked why
he and Rose were fighting, saying they were supposed to be friends.
Spradley responded: “They done came up here and shot up this yard,
he done shot my uncle. What if somebody go down there and shoot
up his momma house? What if somebody shoot up his momma
house?” 10 Russell told Spradley, “They said that you pistol whipped
him,” and Spradley responded, “No, I didn’t. But when I see him, I
am.”11 Russell and Cole then left Hawkinsville Avenue, and Russell
dropped Cole off at Cole’s home around 9:00 p.m.
The Murder of Gwendolyn Cole
Around 10:00 p.m. that night, Cole was at her house talking on
the phone to her ex-husband, who lived nearby, when someone
knocked on her door. She told her ex-husband to hold on, and he
then heard the following. Cole walked to the door and asked who
was there. The person responded, “Wayne,” and asked if Rose was
10 Spradley was apparently referring to Anderson as his uncle. He
testified, however, that he and Anderson were not related, although he and
Hodges, who was Anderson’s nephew, were cousins.
11 This account of the conversation came from Russell. When Spradley
testified, he admitted talking to Russell but denied making these statements.
10
home. Cole said no, and then gunfire started. Cole began screaming,
and the ex-husband called the police and started running toward
Cole’s house. Two of her neighbors heard numerous gunshots.
Another neighbor looked outside after hearing gunshots and saw
three men running through a field away from Cole’s house. 12
Another neighbor, who was 11 or 12 years old at the time, heard
gunshots and looked out his window. He saw two men shooting; the
shorter man was wearing a white shirt and jeans, and the taller man
was wearing a black shirt and jeans. 13
Cole suffered multiple gunshot wounds. She was taken to the
hospital, where she died from her injuries early the next morning. A
total of 72 .223-caliber cartridge cases were collected from the scene;
51 were fired from the Bushmaster rifle that Appellant’s girlfriend
12 The neighbor gave this account to Detective David Patterson, the lead
detective in this case, but at trial she denied both seeing anyone and telling
the detective that she saw anyone. Detective Patterson also testified that the
neighbor said that Appellant unexpectedly came to her house the next day to
check on her. She denied that this happened or that she told the detective this.
13 This account is again what the witness told Detective Patterson. The
witness testified at trial that he did not remember anything that he saw. There
was testimony that Appellant was shorter than Marlon, and a witness who saw
Appellant earlier in the day of the shooting testified that Appellant was
wearing a white t-shirt and jeans.
11
Sledge bought with him about three months earlier, and the other
21 were fired from one of the rifles used in the Sylvester Circle
shooting (the rifle that was never recovered).
Rose was called about the shooting at his mother’s house soon
after it happened. He initially thought that Spradley and Dexter
DeWayne Hodges, who went by “Wayne” and was Anderson’s
nephew, were responsible. Rose told a police officer that Spradley
had been calling his phone throughout the day enticing him to
fight. 14 Soon after the shooting, Rose called Spradley, and Spradley
said that he was at an Applebee’s restaurant; Rose could hear
someone else ordering food in the background. Rose believed that
Spradley did not have enough time to get from his mother’s house to
Applebee’s and be ordering food, so Rose decided that Appellant
committed the shooting. Spradley testified that he went to
Applebee’s that night with three of his cousins – Eric Williams,
14 Spradley testified that he did not call Rose after the shooting at his
family’s house.
12
Ronald Green, and Hodges.15 Hodges testified that he was not angry
at Rose for shooting Anderson, because Rose and Anderson were
close so everyone understood that Rose shooting him was just a
mistake.
On the night of the murder, Appellant’s girlfriend Sledge and
her children stayed at a hotel with his close friend, whom Appellant
had asked to watch over them. Appellant, Sledge, and the children
then spent the next several nights in different hotels and then at a
campground. Sanford, Marlon’s brother, testified that one of their
other brothers told him on the night of the murder to go to a hotel
15 Williams and Hodges also testified that Hodges was in the group at
Applebee’s that night. Green did not testify, but Detective Patterson testified
that Green told him Hodges was with them. When Spradley initially spoke to
Detective Patterson, however, he named only Williams and Green as being at
Applebee’s. Hodges testified that he went to Hawkinsville Avenue after
someone called and told him that his uncle (Anderson) had been shot. Spradley,
however, testified that Hodges never came to Hawkinsville Avenue, but
instead Spradley picked up Hodges and told Hodges about the shooting on the
way to Applebee’s. Spradley did not specify what time they were at Applebee’s
in his testimony, other than to say they were there for “last call,” but he told
Detective Patterson that they got to the restaurant around 10:00 p.m.
Detective Patterson testified that the Applebee’s closed at 10:00 p.m. for to-go
pick-up and 11:00 p.m. for dine-in service. Hodges testified that they picked up
food from Applebee’s, whereas Spradley and Williams testified that they ate at
the restaurant.
13
because “something had happened that he didn’t think was right”
and said, “I told Ben and them not to do that.”
The Murder Investigation
A week after the murder, on February 11, 2008, the lead
investigator on the murder case, Detective David Patterson, spoke
with Mack and asked where the two Bushmaster rifles he had
bought were. Mack then called Appellant and asked for the guns.
Appellant brought one rifle back to Mack, but told Mack that the
other rifle was “in the streets” because someone had stolen it. 16 Mack
gave the returned rifle to the police; it was the rifle matched to the
Sylvester Circle shooting. The following month, March 2008, a police
officer whom Rose knew recorded a call between Rose and Mack
about the Bushmaster rifles. Mack denied that he bought the rifles
for Appellant, but he also said, “Ben made his bed; he can lie in it
now.” Also in March 2008, Leon Paul, Jr., talked to Appellant at a
16 Recardo testified that “you can get a gun in the streets quicker than
you can get 100 dollars in the street,” and that guns trade hands quickly and
frequently.
14
car wash located near Cole’s house. Appellant was carrying an
“assault rifle,” and he pointed his finger at Cole’s house and said
that he and Marlon were the ones who “shot that lady’s house up.” 17
During a traffic stop of Appellant’s car on March 9, 2008, the
police found cocaine and a Glock pistol. Five days later, the police
searched Appellant and Sledge’s house and found, among other
things, two owner’s manuals for a Bushmaster AR-15 rifle and two
Glock pistols. Based on his possession of the cocaine and the three
guns, Appellant pled guilty to drug and firearm crimes in federal
court in January 2009 and was sentenced to serve 70 months in
federal prison, which he served in Forrest City, Arkansas.
In September 2010, 21 months after Appellant was sentenced
for his federal crimes, the Bushmaster rifle that Sledge had
17 Although Paul was first interviewed by the police in March 2008,
shortly after this conversation with Appellant allegedly happened, he did not
mention the conversation. In May 2008, Paul was shot by Appellant’s nephew
and had to spend over a week in the hospital; Paul believed that Appellant told
his nephew to do it. Paul was interviewed again in October 2008, and he gave
the above account. At trial, Paul changed his story somewhat, testifying that
Appellant pointed in the direction of Cole’s house and said, “We took care of
that. We handled that.” On cross-examination, Paul testified that Appellant
“wasn’t out there waving around [a rifle] confessing nothing,” although he also
answered “mm-hmm” when asked if Appellant “confessed.”
15
purchased was found in a bag in some woods in Macon. The bag had
Jeffery Harris’s fingerprint on it. In addition to firing 51 of the .223-
caliber cartridge cases found at Cole’s house in February 2008, the
rifle had been used in a shooting at a home in Macon in August 2010.
In that incident, much like in the shooting at Cole’s house, someone
knocked on the door of a home and then shot into the home when a
person inside answered. One man was killed and another was
injured. 18
Martavious Mercery, who had been in jail with Appellant,
testified that Appellant said that he “had got into it” with Rose
because he used to give drug-dealing work to Rose, but Rose ended
up robbing him. Appellant said that they “started shooting; and
[doing] all type of stuff at each other, shooting each others’ spots up
and stuff like that.” Appellant then said that “they say [Appellant]
went – and went by the guy mom’s house, or whatever, and shot the
18 Aja Stanley was later charged with this murder. Stanley had a
connection to Harris, but there was no evidence presented that either Stanley
or Harris had a connection to Appellant or to Cole’s shooting.
16
house up.”19
As the final witnesses in the State’s case other than Detective
Patterson, Hugh Wright, Jr., and Trion Williams testified that they
contacted law enforcement after Marlon shared information about
the shooting with them, and they were first interviewed in June
2011. The two witnesses testified that they had been in federal
prison in West Virginia with Marlon. 20 Marlon, who had recently
had a phone call with his grandmother, told the men that he was
supposed to be going home soon, but his grandmother said that
“people” were talking about a murder in the neighborhood and
Marlon was worried that his “brother” was going to “tell on him.”
19 Mercery was serving a 10-year sentence in state prison and facing a
consecutive 92-month federal sentence for drug and firearm crimes. Mercery
testified that in exchange for his truthful testimony, he would be allowed to
seek a sentence reduction.
20 The record indicates that in October 2008, Marlon pled guilty in
federal court to possession of a firearm by a convicted felon (but this
information was not presented to the jury). Wright and Williams testified that
they had been convicted of drug crimes. At the time of trial, Wright had just
finished his federal sentence and was beginning a state sentence in Virginia,
and Williams had 14 years of his federal sentence left to serve. Both men
testified that if they gave truthful testimony, they could seek to have their
sentences reduced. On cross-examination, Williams further asserted that,
unlike in the state system, the federal rules guaranteed that his sentence
would be reduced for his cooperation.
17
Marlon said that he and “his co-defendant” had gone to Rose’s house.
His co-defendant went to the door and talked to Rose’s mother
through the door. Rose’s mother said that Rose was not home, and
the co-defendant opened fire on the house. Marlon then began to
shoot as well. Marlon explained that “a girl” had bought three rifles
for them, and they used at least one of them in the shooting. Wright
also testified that Marlon said when they finished, the scene looked
like “something out of Baghdad,” and they had “swis[s]-cheesed the
whole house up.” Marlon did not tell either inmate the name of his
co-defendant, but he said that his co-defendant was in federal prison
in Forrest City, Arkansas (where Appellant was serving his federal
sentence after his federal conviction in January 2009).
Neither Marlon nor Appellant testified at Appellant’s trial.
Appellant’s defense theory was that someone else committed Cole’s
murder, pointing mainly at Spradley and Hodges, who also had a
motive to attack Rose or his family.
(b) Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
18
with this Court’s soon-to-end practice in murder cases, we have
reviewed the record and conclude that, when viewed in the light
most favorable to the verdicts, the evidence admitted at trial was
sufficient to authorize a rational jury to find Appellant guilty beyond
a reasonable doubt of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979); Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009)
(explaining that in evaluating the legal sufficiency of the evidence,
“‘[i]t was for the jury to determine the credibility of the witnesses
and to resolve any conflicts or inconsistencies in the evidence’”
(citation omitted)). See also Kennebrew v. State, 299 Ga. 864, 867-
868 (792 SE2d 695) (2016) (“[I]n determining the legal sufficiency of
the evidence, we consider all of the evidence that was admitted at
Appellant’s trial, even though some of the evidence should have been
excluded.”).21
21 We remind litigants that the Court will end our practice of considering
the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 309 Ga. 385, 399 (846 SE2d 83) (2020). The Court began assigning cases
to the December term on August 3, 2020.
19
2. We begin by considering three enumerations of trial court
error raised by Appellant. We agree with him that the trial court
erred in all three respects.
(a) Appellant first contends that the testimony of Marlon’s
former prison-mates, Wright and Williams, recounting what Marlon
told them about Cole’s murder was inadmissible hearsay. The trial
court admitted this testimony over Appellant’s hearsay objection,
ruling that Marlon’s statements were admissible under the hearsay
exception for statements made by a co-conspirator to further the
conspiracy during its concealment phase. See OCGA § 24-8-801 (d)
(2) (E) (excluding from the hearsay inadmissibility rule “[a]
statement by a co[-]conspirator of a party during the course and in
furtherance of the conspiracy, including a statement made during
the concealment phase of a conspiracy”). We review this evidentiary
ruling by the trial court for an abuse of discretion. See State v. Lane,
308 Ga. 10, 20 (838 SE2d 808) (2020).
At the time of Marlon’s statements, he and Appellant had not
yet been charged with crimes related to Cole’s murder, and it may
20
be that their alleged conspiracy to commit those crimes was still in
its concealment phase. In any event, however, there is no indication
that Marlon was sharing details of those completed crimes to
advance the interests of that conspiracy when he spoke to two
federal prison inmates in West Virginia who had no other apparent
connection to Marlon, Appellant, their criminal scheme, or even the
state of Georgia. Instead, Marlon’s statements worked against the
concealment of the conspiracy: they “merely ‘spill[ed] the beans,’
disclose[d] the scheme, [and] inform[ed] the listener[s] of the
declarant’s activities.” Lane, 308 Ga. at 20. See also State v. Wilkins,
302 Ga. 156, 159-160 (805 SE2d 868) (2017) (“[A] retrospective
statement regarding matters that have already occurred, not
intended to foster involvement in the conspiracy, is not a statement
in furtherance of the conspiracy” (citation and punctuation
omitted)). Compare Kemp v. State, 303 Ga. 385, 395 (810 SE2d 515)
(2018) (holding that the trial court was authorized to conclude that
statements the appellant made to a fellow gang member in the local
jail were made in furtherance of a conspiracy to engage in ongoing
21
criminal gang activity, because they “could be interpreted as
fostering cohesiveness with another gang member or as providing
information to a fellow co-conspirator (of the criminal street gang)”).
The trial court’s finding that Marlon’s statements furthered the
conspiracy was unsupported by the record, and the court therefore
abused its discretion by admitting Wright’s and Williams’s
testimony under OCGA § 24-8-801 (d) (2) (E). See Lane, 308 Ga. at
20.
(b) Under OCGA § 24-14-8, “[t]he testimony of a single
witness is generally sufficient to establish a fact,” but in felony cases
the testimony of an accomplice must be corroborated by other
evidence. This corroboration requirement applies even when the
accomplice does not testify in court, if his statements are admitted
through another witness. See State v. Johnson, 305 Ga. 237, 238
(824 SE2d 317) (2019) (rejecting the State’s argument that “an
[accomplice-corroboration] instruction is not clearly required where
a witness other than the accomplice introduces an accomplice’s
statement implicating defendant’s guilt”).
22
Appellant contends that because Marlon’s statements were
(improperly) admitted at trial and the evidence clearly supported a
finding that Marlon was an accomplice in the charged crimes, the
trial court should have given the jury an instruction about the
requirement of accomplice corroboration. Because Appellant did not
object to the jury instructions at trial, our review of this claim is
limited to plain error. See Doyle v. State, 307 Ga. 609, 611 (837 SE2d
833) (2020). To demonstrate plain error, an appellant must show, in
part, that he did not affirmatively waive the error and that the error
was “clear or obvious, rather than subject to reasonable dispute.” Id.
at 611-612 (citation and punctuation omitted).22
There is no indication that Appellant affirmatively waived an
accomplice-corroboration charge. And the trial court not only failed
to inform the jury of the accomplice-corroboration requirement, but
also instructed the jury that “[t]he testify [sic] of a single witness if
believed is sufficient,” and “[g]enerally there is no legal requirement
22 We discuss the other two parts of the plain error test, which deal with
the effect of the error, in Division 3 (a) below.
23
of corroboration of a witness.” The trial court therefore clearly and
obviously erred in instructing the jury as to how it could consider
Marlon’s statements admitted through Wright’s and Williams’s
testimony. See, e.g., Doyle, 307 Ga. at 613 (“On multiple previous
occasions, we have held that giving the single-witness instruction,
while failing to give the accomplice-corroboration instruction, in a
case where the defendant was directly linked to the crime through
the testimony of an accomplice, deviates from the plain language of
OCGA § 24-14-8 and constitutes a clear and obvious error.”).23
(c) Finally, Appellant contends that the trial court erred by
admitting, over his objection, evidence of the Sylvester Circle
shooting and the Lawton Avenue incident pursuant to OCGA § 24-
4-404 (b) (“Rule 404 (b)”). The court ruled before trial, based on the
State’s notice of its intention to introduce evidence of those incidents
and Appellant’s response, that the evidence was admissible to show
23 We note that “‘when conducting review of asserted plain error . . . ,
whether an error is “clear or obvious” is judged at the time of the appellate
court’s review,’” not at the time of the trial. Doyle, 307 Ga. at 613 n.4 (citation
omitted).
24
motive – although when the evidence was admitted during the trial,
the court did not instruct the jury that the evidence could be
considered only for that one, limited purpose. 24 As described in more
detail in Division 1 (a) above, in the Sylvester Circle shooting about
three months before Cole’s murder, two rifles (one of which belonged
to Mack, who said that he left it in Appellant’s possession two days
earlier) were used to shoot at Recardo Jackson’s house, injuring
Recardo’s wife and catching Recardo’s car on fire. In the Lawton
Avenue incident about two weeks before the murder, Frankie
Barnes came to a house that Appellant was visiting looking for
Appellant, and then Barnes, Appellant, or both men fired guns.
Under Rule 404 (b), “[e]vidence of other crimes, wrongs, or acts
shall not be admissible to prove the character of a person in order to
show action in conformity therewith,” but such other-act evidence is
admissible for other purposes, including to prove motive. The party
offering the evidence must show:
24The trial court did not rule that any of the evidence regarding these
incidents was admissible as “intrinsic” evidence not subject to Rule 404 (b), so
we also do not address that issue.
25
(1) that the evidence is relevant to an issue in the case
other than the defendant’s character; (2) that the
probative value of the evidence is not substantially
outweighed by its undue prejudice; and (3) that there is
sufficient proof for a jury to find by a preponderance of the
evidence that the defendant committed the other act.
Strong v. State, 309 Ga. 295, 300 (845 SE2d 653) (2020). To be
relevant to show motive, “‘the extrinsic evidence must be logically
relevant and necessary to prove something other than the accused’s
propensity to commit the crime charged.’” Id. at 312 (quoting Kirby
v. State, 304 Ga. 472, 486-487 (819 SE2d 468) (2018)).
At trial, the State tried to link the two prior incidents to the
charged crimes by arguing that Appellant acted in the prior
incidents and in the charged shooting with the same motive –
revenge for the break-in and robbery at his house. The evidence,
however, failed to connect either prior incident to the break-in. As
to the shooting at Recardo’s house on Sylvester Circle, Recardo
testified that at some point after that incident, he heard a rumor
that he knew who had robbed Appellant, but Appellant indicated
that he did not believe the rumor. Recardo testified that he and
26
Appellant described themselves as “brother[s]” and “love[d] each
other,” and Appellant suggested that the same people had attacked
both of them. Marlon’s brother Sanford testified that Marlon
described the Sylvester Circle shooting as handling “business”
because Recardo “had them f**ked up,” but there was no indication
that the business involved the break-in at Appellant’s house or that
the “them” included Appellant.
The evidence of the Lawton Avenue incident was even less
helpful to the State’s motive argument, because it showed that
Barnes was looking for Appellant and instigated the violence. Even
if Appellant then used violence in response to Barnes, his motive
was to defend himself; there was zero evidence that Appellant acted
against Barnes to get revenge for his house break-in. 25
Thus, the State failed to prove that Appellant’s actions in the
prior incidents were motivated by a desire to get revenge for the
25 On appeal, the State also argues that the Lawton Avenue incident
showed that Appellant had the motive to shoot people “who were looking for
him.” But there was no evidence that Recardo or (more importantly) Cole was
looking for Appellant when he allegedly went to their houses and shot at them.
27
break-in at his house. The motive that the State really ascribed to
Appellant based on these incidents was the generic motive that he
regularly engages in violent acts against others, and that is not a
proper purpose under Rule 404 (b). See Strong, 309 Ga. at 312
(holding that the State’s argument that the other acts showed the
defendant’s motive “‘to control other people’ with violence . . . ‘is a
classic improper propensity argument, focusing on [his] violent . . .
character’” (citation omitted)); Kirby, 304 Ga. at 487 (holding that
the State’s argument that the other acts showed the defendant’s
“‘inclination’ to use violence to obtain money and sex . . . is a classic
improper propensity argument, . . . identifying [the defendant’s]
motive to act in far too generic a fashion”). The evidence of the two
prior incidents was not relevant to prove Appellant’s motive in
committing the charged crimes, and the trial court abused its
discretion by admitting that evidence for that purpose. 26
26 Because the State failed to show that the evidence of the prior
incidents was relevant to show Appellant’s motive in the crimes charged, which
was the only purpose for which the trial court admitted the evidence, we need
not address the other two parts of the admissibility test under Rule 404 (b).
28
3. (a) The trial court’s errors require reversal of Appellant’s
convictions unless the errors can be deemed harmless. See Strong,
309 Ga. at 316. “In determining whether trial court error was
harmless, we review the record de novo, and we weigh the evidence
as we would expect reasonable jurors to have done so as opposed to
viewing it all in the light most favorable to the jury’s verdict.” Id.
(citation and punctuation omitted). 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.” Lane, 308 Ga. at 14.27 Although we often
27 Although the failure to give an accomplice-corroboration instruction is
a jury charge, rather than an evidentiary, error, it is intertwined in this case
with the evidentiary error of the trial court’s admission of accomplice hearsay.
Lane required the cumulative consideration of errors only as to evidentiary
errors, leaving for another day the question of whether other types of errors
should be considered, see 308 Ga. at 17-18, but Lane also recognized that it is
“particularly difficult, if not impossible,” to determine “whether a criminal
defendant’s rights are affected in a material way by a trial court[’s evidentiary]
error” without considering, among other things, “any related jury instructions
and arguments by counsel,” id. at 15. Indeed, this Court has often considered
related jury instructions when evaluating the harmfulness of an evidentiary
error, because how a jury was instructed to use evidence may increase or
reduce the effect of improperly admitted evidence. See, e.g., Howell v. State,
29
initially address the harm of individual errors, if, as in this case, the
cumulative effect of the errors requires reversal, we need not also
decide whether any one error, standing alone, would mandate a new
trial.
As noted in Lane, when considering the cumulative effect of
errors, we must “bear in mind the relevant standards [of appellate
review] for the errors at issue.” Id. at 21. The trial court’s erroneous
admission of Marlon’s hearsay and the evidence of the prior
incidents were non-constitutional evidentiary errors that were
properly raised at trial, so they are “harmless if the State shows that
it is ‘highly probable that the error did not contribute to the
verdict[s],’ an inquiry that involves consideration of the other
evidence heard by the jury.” Id. (citation omitted). As explained
307 Ga. 865, 875-876 (838 SE2d 839) (2020) (explaining that any harm caused
by the challenged evidence was mitigated by the court’s limiting instruction);
Heard v. State, 309 Ga. 76, 94 (844 SE2d 791) (2020) (explaining that the trial
court’s instruction that the jury could consider the inadmissible evidence for a
number of improper purposes increased the harm of the evidence). Thus, even
if Appellant had not raised as plain error on appeal the trial court’s failure to
give an accomplice-corroboration instruction, this Court could still consider the
effect of the lack of that instruction when evaluating the harm caused by the
erroneously admitted accomplice hearsay.
30
above, the trial court’s failure to give an accomplice-corroboration
jury instruction is subject to plain error review, under which
convictions will be reversed only if the (unwaived and clear) error
“‘affected the appellant’s substantial rights,’” meaning that it likely
affected the outcome of the trial, and the error “‘seriously affects the
fairness, integrity or public reputation of judicial proceedings.’”
Doyle, 307 Ga. at 612 (citation omitted). We need not address how to
reconcile the differing standards that apply to the errors here,
because even applying the more stringent plain error standard, we
conclude that the cumulative effect of the errors requires the
reversal of Appellant’s convictions. See Lane, 308 Ga. at 21-22 (“[I]n
most cases a difference in the standards will not make a difference
in the result; the collective effect of the various errors will be
sufficiently harmful to warrant a new trial, or not.”).
(b) There is no question that the evidence of Appellant’s guilt
was legally sufficient when all of the evidence is viewed in the light
most favorable to the prosecution, see Division 1 (b) above, and the
evidence was not weak even when weighed as we would expect
31
reasonable jurors to have considered it. But the properly admitted
evidence was far from overwhelming. There was substantial
evidence of Appellant’s antipathy toward Rose: a drug buyer
overheard Appellant telling Marlon that they needed to “get” Rose;
the day before the murder, Appellant attacked Rose, accused Rose
of robbing him, stole Rose’s necklace, and threatened Rose’s mother;
on the day of the murder, Marlon’s brother Sanford heard Appellant
say, “a house for a house” and “a family for a family,” and Rose and
Appellant then shot at each other in front of the Spradley house; and
Appellant later discussed his feud with Rose when he was in jail
with Martavarious Mercery.
There was also evidence that Appellant may have had the
means to kill Cole, because the rifle purchased by his girlfriend
Sledge was one of the rifles used in the murder. Appellant’s clothes
on the day of the murder (a white shirt and jeans) matched the
description of one of the shooters at Cole’s house given by a witness
in a statement to the lead detective. Sledge and her children, and
later Appellant too, stayed away from their house for several nights
32
after the murder. And there was evidence of what the State focuses
on as two “admissions” of the fatal shooting by Appellant: Leon Paul,
Jr.’s statement to a detective that a month after the murder,
Appellant, who was carrying an “assault rifle,” pointed to Cole’s
house and said that he and Marlon were the ones who “shot that
lady’s house up”; and Mercery’s testimony that Appellant told him,
“they say [Appellant] went – and went by the guy mom’s house, or
whatever, and shot the house up.”
But most of this evidence was circumstantial, and other people
had the motive and potential means to shoot at Rose’s mother as
well. As to motive, after Rose’s drive-by shooting at the Spradley
house injured Tim Spradley’s friend Anderson, Spradley threatened
Rose, discussed someone shooting up Rose’s mother’s house, and
called Rose throughout the day enticing him to fight; after Cole’s
house was shot up just a few hours later, Spradley denied making
those threats. Also, one of Cole’s shooters identified himself as
“Wayne,” the nickname of Spradley’s friend and Anderson’s nephew
33
Hodges.28 As for means, Recardo Jackson testified that guns
changed hands quickly and frequently on the street, and although
the rifle Sledge purchased was used in Cole’s shooting, Sledge did
not see the rifle after December 2007 (more than a month before
Cole’s murder), and that rifle clearly changed hands at least once
after that time, because when Appellant was in federal prison in
Arkansas, the rifle was used to commit a similar fatal shooting into
a house in Macon, and there was no evidence linking Appellant to
the persons connected with that shooting.
Moreover, as noted throughout Division 1 (a), most of the
significant testimony in this case came from felons who had or were
seeking a deal with the State and witnesses who altered or
disavowed their prior statements when they testified at trial, and
there were competing inferences from other evidence. For example,
28 The State presented evidence of an alibi for Spradley and Hodges, but
that alibi was supported only by somewhat inconsistent testimony, see footnote
14 above, and by Rose’s testimony that he heard people ordering food in the
background of his phone call to Spradley after the murder. Moreover, although
Rose testified that he did not believe that Spradley could have made it from
Cole’s house to the Applebee’s restaurant by the time of their phone call, there
was no evidence presented about the distance between the house and the
restaurant.
34
the witness who had described one of the shooter’s rather
undistinctive clothes was a pre-teen at the time of the crimes and
testified at trial that he did not recall seeing anything. And
Appellant and his family may have stayed away from their house
because they were concerned about retaliation for Cole’s murder –
or simply concerned about another violent attack by Rose against
Appellant and his associates like the one that occurred earlier that
day at the Spradley house. Appellant’s “admission” to Mercery (who
was one of the felon witnesses seeking a sentence reduction) could
also be described as simply a statement about what was alleged
against Appellant (“they say [Appellant] went . . .”). Appellant’s
statement to Paul would be more damning – except that Paul did
not mention that conversation when he was first interviewed by the
police shortly after it supposedly happened; he recounted the
conversation for the first time in an interview several months later,
after he had been shot and badly injured by Appellant’s nephew
supposedly at Appellant’s direction. Even then, he backtracked at
trial, testifying that Appellant had actually said more ambiguously,
35
“We took care of that. We handled it.”
By contrast, the testimony from Wright and Williams
recounting Marlon’s statements was the strongest direct evidence
that Appellant shot Cole, because that was the only eyewitness
evidence about the murder. Wright and Williams each testified that
Marlon told them that he and Appellant went to Rose’s house, where
Appellant knocked on the door and then opened fire after Rose’s
mother came to the door using at least one rifle that “a girl” had
bought for them.29 Had Marlon testified, he properly would have
been able to present his account once, and then he would have faced
cross-examination. Instead, through the testimony of Wright and
Williams, the State was allowed to improperly present Marlon’s
account not once but twice, and without cross-examination.
In closing, the prosecutor argued that Wright’s and Williams’s
testimony was credible because they had no other way to know the
29 Although Wright and Williams did not identify Appellant by name,
they testified that Marlon referred to “his co-defendant” who was in federal
prison in Forrest City, Arkansas. No one at trial disputed that Marlon was
referring to Appellant.
36
details of the shooting, as they had no relationship with anyone
involved in the case. The prosecutor also highlighted the
particularly damaging description of the shooting from Wright’s
testimony, saying that Appellant was “guilty of the war zone” at
Cole’s house. Thus, it is likely that the jury gave significant weight
to Marlon’s statements improperly admitted through Wright’s and
Williams’s testimony. And not only did the trial court improperly
admit this hearsay evidence twice, but the court then committed the
clear error of failing to give an accomplice-corroboration charge
while giving a single-witness charge, effectively instructing the jury
that it could convict Appellant based on Marlon’s statements alone.
See Doyle, 307 Ga. at 614 (“[I]t is likely that the jury convicted Doyle
on [the accomplice’s] testimony alone, which the jury was
affirmatively told that it could do.”); Stanbury v. State, 299 Ga. 125,
131 (786 SE2d 672) (2016) (holding that the trial court’s failure to
give an accomplice-corroboration charge likely affected the outcome
of the trial when the accomplice “was the only witness who
affirmatively identified [the defendant] as the second man” inside
37
the house where the victim was robbed and shot).
The trial court’s improper admission of the evidence of the two
prior incidents compounded the harm from the accomplice hearsay
errors by allowing the State to depict Appellant as a heartless and
dangerous man repeatedly involved in gun violence. During closing
argument, the prosecutor highlighted the Sylvester Circle evidence
by saying that Appellant “once again” fired into a home and hit “an
innocent lady,” adding that “the person pulling that trigger just did
not care; cold blooded heart, only out to prove a point.” The
prosecutor further argued that the Lawton Avenue incident showed
that Appellant was “the one that has the motive that keeps shooting
in your city going from November 11, 2007 until January 20, 2008.”
The prosecutor told the jury that these two incidents reflected “the
combination of a cold blooded killer” that led to Cole’s murder. To
make matters worse, the trial court did not give a limiting
instruction, either when the other-act evidence was admitted or in
the final jury charge, thereby leaving the jurors free to consider this
inadmissible evidence for any purpose, including following the
38
prosecutor’s clear suggestion in closing argument that they consider
it impermissibly as evidence of Appellant’s violent character. See
Heard v. State, 309 Ga. 76, 94 (844 SE2d 791) (2020) (explaining the
increased harm from the trial court’s instruction that the jury could
consider the inadmissible evidence “for a variety of purposes,” none
of which was proper).
When we weigh the substantial prejudicial impact of the
erroneously admitted evidence along with the clearly erroneous jury
instructions against the less-than-overwhelming properly admitted
evidence of Appellant’s guilt, we conclude that the trial court’s errors
likely affected the outcome of Appellant’s trial and seriously affected
the fairness, integrity, or public reputation of the judicial
proceedings. See Doyle, 307 Ga. at 612. Under all of the
circumstances of this case, we do not have confidence that without
the trial court errors, the outcome of Appellant’s trial would have
been the same. Accordingly, we reverse his convictions. 30
30 Because the evidence was legally sufficient to support Appellant’s
convictions, he may be retried if the State so chooses. See Kennebrew, 299 Ga.
39Judgment reversed. All the Justices concur.
at 874. In addition to the three trial court errors addressed in this opinion,
Appellant also enumerates another claim of trial court error and three claims
of ineffective assistance by his trial counsel. Because those issues are unlikely
to recur on retrial, we need not decide them. With respect to one of those issues,
however – the prosecutor’s closing argument that to meet the reasonable doubt
standard, the State does not have to prove the defendant guilty “51 versus 49”
– we emphasize that such a characterization of the reasonable doubt standard
is “‘obviously wrong.’” Debelbot v. State, 308 Ga. 165, 167 (839 SE2d 513) (2020)
(citation omitted).
40