Pender v. State ( 2021 )

In the Supreme Court of Georgia
Decided: March 15, 2021
S20A1505. PENDER v. THE STATE.
S20A1506. WHITAKER v. THE STATE.
BETHEL, Justice.
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
argues in his appeal that, in ruling on his motion for new trial on
the “general grounds” set forth in OCGA §§ 5-5-20 and 5-5-21, the
trial court deprived him of his right against self-incrimination by
holding against him that he did not testify and by citing
inadmissible character evidence. We affirm in both cases.1
1 The crimes occurred on September 19, 2013. On February 10, 2015, a
Muscogee County grand jury returned an 18-count indictment against Pender,
Whitaker, and three other co-indictees (Jayln Dixon, Donald Fair, and
Tyrecquiss Wells), charging each of them with malice murder of Scott (Count
1), felony murder of Scott predicated on aggravated assault (Count 2),
aggravated assault of Scott (Count 3), criminal attempt to commit armed
robbery (Count 4), aggravated assault of Morris (Count 5), possession of a
firearm during the commission of a felony (Count 6), and theft by receiving
stolen property (Count 7). Pender, Whitaker, Dixon, and Wells were also
indicted for armed robbery (Count 8) and the aggravated assault of Sergio
Mayfield (Count 9). Pender, Dixon, and Wells were indicted for possession of a
firearm during the commission of a felony (Count 10). Pender was also charged
individually with one count of making a false report of a crime (Count 13) and
one count of making a false statement (Count 14). Counts 11, 12, and 15 to 18
pertained only to Dixon, Fair, and Wells.
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
2
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. Klaus Winklmaier
owned a Ford F-150 truck, which he drove to work. On September
16, 2013, at about 3:00 a.m., he took a break from his work on a night
shift and noticed that his truck was gone. He found a pile of broken
glass near where he had parked the truck and called the police to
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.
3
report that the truck had been stolen.
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
Dixon testified at trial that Whitaker did not join this group because
2
Mayfield would have recognized him.
4
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
5
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 Miranda 3 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
3 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
6
later that evening, and he claimed that he had been shot at a gas
station but could not identify the shooter. The officers who
interviewed Pender at the hospital testified that there was no other
evidence that a shooting had occurred at the gas station Pender
described.
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
4 Fair turned himself in to the police and was later interrogated. He
denied any involvement in the crimes.
7
knowing him. Pender told the police that he initially lied about who
shot him to protect his friends.
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
8
disagree.
OCGA § 16-8-7 (a) provides:
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
9
occurred. Pender was later in possession of the keys to the truck on
the day of the shootings.
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
10
he was one of the original thieves of the truck. But as the Court of
Appeals has held, “[i]t is not a requirement of the present [theft by
receiving] law that the State prove [Pender] did not steal the
[truck].” Weidendorf v. State, 215 Ga. App. 129, 130 (1) (449 SE2d
675) (1994). Although the evidence presented at trial would have
authorized the jury to determine that Williams and Pender acted
together to steal the truck, Pender was not charged in this case with
theft by taking or any other offense targeted at the original or
principal thief of stolen property. Even if he had been so charged,
Pender could not have been convicted of both theft by taking and
theft by receiving the same stolen property under the facts of this
case. See id. at 130 (1); see also Middleton, 309 Ga. at 342-348 (3);
Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992).
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
11
property, he cannot be convicted of theft by receiving that property.
Those opinions appear to trace back to this Court’s 1992 decision in
Thomas, in which we held that the same person could not be
convicted of both robbery of a vehicle and theft by receiving that
vehicle because such offenses are mutually exclusive when based on
the same stolen property. See Thomas, 261 Ga. at 855 (1). We noted
in Thomas that where a defendant is charged with both robbery and
theft by receiving, the jury “must be instructed that it can convict of
either (where the evidence so authorizes . . .), but not both.” Id. at
855 (2).5 The decisions of the Court of Appeals are correct to the
extent they follow Thomas and hold that a defendant cannot be
5 The Court of Appeals appears to have extrapolated from Thomas and
its own decision in Duke v. State, 153 Ga. App. 204, 204-205 (264 SE2d 721)
(1980), that appellate courts should overturn a jury’s guilty verdict on a theft-
by-receiving charge where there is “direct and uncontested” evidence that the
defendant was the original thief of the stolen property. See, e.g., Marriott, 320
Ga. App. at 61 (1). Moreover, although Duke suggested that theft by taking
could be considered an included offense of theft by receiving in some cases, see
153 Ga. App. at 205, later in the same year Duke was decided, the Court of
Appeals held that
[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.
Sosbee v. State, 155 Ga. App. 196, 196 (270 SE2d 367) (1980).
12
convicted of both offenses arising from the same stolen property. See
also Middleton,309 Ga. at 342-348 (3).
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
6 In the context of a mutually exclusive verdicts analysis, we stated in
Middleton that a conviction for theft by receiving “necessarily entails a finding
that the defendant was not the principal thief[.]” 309 Ga. at 346 (3). But that
analysis was dependent on the jury having found the defendant guilty of both
theft by receiving and a mutually exclusive offense — in that case, hijacking a
motor vehicle. See id. When the problem of mutual exclusivity is absent, courts
need determine only whether the State offered evidence that supports the
jury’s verdict. A jury need not make any affirmative finding about the identity
of the principal thief when the only relevant charge is theft by receiving.
13
the jury’s verdict, viewing all of the evidence presented in the light
most favorable to that verdict. See id. at 319 (III) (B). And where, as
here, the defendant is found guilty of only one of two mutually
exclusive offenses, it does not matter that the evidence would have
also authorized the jury to return a guilty verdict on the other
offense. See Thomas, 261 Ga. at 855 (2).
A conviction for the offense of theft by receiving, as set forth in
OCGA § 16-8-7 (a), requires competent evidence that the defendant
received, disposed of, or retained stolen property and knew or should
have known that the property was stolen. A lack of intent to restore
the property to its rightful owner can be demonstrated by direct
evidence or inferred from the circumstances. See Sharpe, 850 SE2d
at 57 (1). The State is not required to also prove that the defendant
was not the person who stole the property. See Weidendorf, 215 Ga.
App. at 130 (1). Nor is the presence of evidence, whether direct or
circumstantial, sufficient to support a conviction for theft by taking
fatal to a conviction for theft by receiving. See Thomas, 261 Ga. at
855 (2).
14
This Court appears to have applied the correct analysis in
Lewis v. State, 287 Ga. 210, 211 (1) (695 SE2d 224) (2010), although
not expressly. There, in determining that the evidence presented on
a theft-by-receiving charge was sufficient under Jackson, we recited
direct evidence indicating that certain property, a gun, was stolen
from a person who lived in the same apartment complex as the
defendant and that the defendant was later found to be in possession
of that gun. See id. Other testimony indicated that the defendant
had “gotten” the gun from someone in his apartment complex. Id.Our analysis of the sufficiency of the evidence presented as to the
theft-by-receiving charge in that case did not appear to impose any
requirement on the State to show that someone other than the
defendant stole the gun, because our summary of the evidence
presented in Lewis actually suggests that the defendant may have
been the person who stole the gun from its owner. See id. That
evidence would, of course, allow the jury to infer that the defendant
knew that the gun in his possession was stolen.
Applying these principles, we clarify that, for purposes of
15
reviewing the sufficiency of the evidence presented at trial under
Jackson v. Virginia, a court need not determine whether the
evidence presented supports a finding that the defendant was not
the principal thief of the stolen property to uphold a jury’s guilty
verdict as to a theft-by-receiving charge. See Lewis, 287 Ga. at 211
(1); Weidendorf, 215 Ga. App. at 130 (1). In cases where a defendant
is charged with both theft by taking and theft by receiving, the trial
court should clearly instruct the jury that it cannot find the
defendant guilty of both offenses based on the same conduct.
However, where, as here, the defendant is only charged with theft
by receiving, a court reviewing the sufficiency of the evidence
presented as to that charge need only determine whether the
evidence presented at trial, viewed in the light most favorable to the
verdict, supports the jury’s guilty verdict as to that charge — not
whether the evidence excludes the possibility that the defendant
was the principal thief of the stolen property. To the extent decisions
of this Court or the Court of Appeals can be read to hold otherwise,
they are hereby disapproved.
16
Based on the foregoing, the evidence presented at trial
supported each element of the offense of theft by receiving, as set
forth in OCGA § 16-8-7 (a). The evidence was therefore sufficient to
authorize a rational jury to find Pender guilty of that offense. See
Jackson, 443 U. S. at 319 (III) (B); see also Brown v. State, 302 Ga.
454, 456 (1) (b) (807 SE2d 369) (2017) (“It was for the jury to
determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.” (citation and
punctuation omitted)).
(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
7 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the
17
reviewed the record and determined that the evidence, as
summarized above, was sufficient to enable a rational trier of fact to
find Pender guilty beyond a reasonable doubt of the other crimes of
which he was convicted. See Jackson, 443 U. S. at 319 (III) (B).
(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
term of court that began in December 2020. See Davenport v. State, 309 Ga.
385, 399 (4) (846 SE2d 83) (2020). The Court began assigning cases to the
December Term on August 3, 2020.
18
the trial court should have excluded a statement made by Wells that
he knew Pender from the neighborhood and statements by Whitaker
about who was in the truck during the shootings. Pender also argues
that his trial counsel provided ineffective assistance because counsel
did not object to the redacted versions of Whitaker’s statements
introduced at trial.
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.
8Pender does not argue here that the co-defendants’ statements were
inadmissible hearsay, so we do not address that question.
19
“A defendant’s Sixth Amendment right to be confronted by the
witnesses against him is violated under Bruton when co-defendants
are tried jointly and the testimonial statement of a co-defendant who
does not testify at trial is used to implicate [another] co-defendant
in the crime.” (Citation omitted.) Floyd v. State, 307 Ga. 789, 797 (2)
(837 SE2d 790) (2020). However, “Bruton excludes only the
statement of a non-testifying co-defendant that standing alone
directly inculpates the defendant.” McLean v. State, 291 Ga. 873,
875 (3) (738 SE2d 267) (2012). “Bruton is not violated if a co-
defendant’s statement does not incriminate the defendant on its face
and only becomes incriminating when linked with other evidence
introduced at trial.” (Citation omitted.) Taylor v. State, 304 Ga. 41,
45 (2) (816 SE2d 17) (2018).
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
20
defendant is the core of the charged offense and facially and directly
implicates the defendant in the crime. Thus, the admission of Wells’s
statement that he knew Pender violated Bruton because there was
no need to connect this statement with other evidence in order to
make it incriminating.
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
21
initially claiming that he did not know Wells, Pender later admitted
knowing Wells. In addition, Dixon, who was thoroughly cross-
examined by each co-defendant, testified about Pender’s and Wells’s
roles in the shootings, including instances in which the two were
together. Thus, the evidence that Pender’s statement about not
knowing Wells was false was overwhelming, and the prejudicial
effect of Wells’s statement to the police was minimal by comparison.
Accordingly, we conclude that it is clear beyond a reasonable doubt
that this Bruton violation was harmless. See Mason v. State, 279 Ga.
636, 638 (2) (b) (619 SE2d 621) (2005) (Bruton error was harmless
where “essentially identical” statement as that made by non-
testifying co-defendant was in evidence without objection by the
defense).
(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
22
him in the Ford F-150 truck at the time of the Scott shooting. We
disagree that the admission of Whitaker’s statements and the
redacted diagram violated Bruton.
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
23
the Scott shooting took place, a redacted version of which was shown
to the jury. The detective testified that, as Whitaker was drawing
the diagram, he told the detective that Dixon was driving the truck
and that he was seated behind Dixon. 9 Whitaker then described the
shooting, but denied firing a gun that Dixon had given him.
Whitaker told the detective that he had no idea “they” were going to
shoot or rob anyone and then told the detective that there were six
people in the truck, including himself and Dixon. Whitaker then
identified some of the guns that he had seen in the truck in
photographs found in Dixon’s cell phone.
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
9 The diagram included the layout of the truck and showed Dixon as the
driver and Whitaker sitting behind Dixon when the truck blocked Scott’s path
just before the shooting occurred. The original version of the diagram also
showed where Wells and Pender were located in the truck. Pursuant to the co-
defendants’ joint Bruton motion, references on the diagram to Wells and
Pender were redacted, and the testimony of the detective who interviewed
Whitaker was limited to the involvement and location of Whitaker and Dixon.
24
up in the intersection where the Scott shooting occurred. Whitaker
told the detective that the issues involved a series of previous
incidents in which Fair had been involved in a fight, Dixon had been
shot, and a window in Whitaker’s vehicle had been smashed.
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
25
would be unusual for a single passenger in a truck to be seated
directly behind the driver and that the limited information given to
the jury about this seating arrangement implied that others were
also in the truck — namely, the other co-defendants, including
Pender.
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
26
business with people from a different neighborhood and that “they”
returned to the neighborhood after the shooting do not necessarily
implicate Pender. The first statement seems to refer back to an
earlier statement about Whitaker, Dixon, and Fair having previous
troubles with men from another neighborhood. The detective’s
testimony about Whitaker’s statements never mentioned Pender in
the context of those difficulties or in relation to the confrontation
that Whitaker, Dixon, and Fair had planned.
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
27
State, most prominently Dixon’s testimony. 10 Viewed in that context,
Whitaker’s statement, as related by the detective, strongly implied
that “they” included Whitaker and Dixon, the only two people in the
truck who were identified in Whitaker’s statements and the
redacted diagram of the truck at the time of the Scott shooting.
Whitaker’s use of “they” did not identify anyone else who may have
been in the truck at the time. See McLean, 291 Ga. at 875-876 (3)
(co-defendant’s statement that “they” threw a firearm out of a
vehicle did not necessarily refer to defendant because “they” were
never identified and the remainder of the co-defendant’s statement
10 Bruton violations can be avoided through careful redaction of
documents, photographs, and prior statements, but those redactions must not
signal to the jury that the redaction replaces an obvious reference to a co-
defendant. See Floyd, 307 Ga. at 797 (2) (noting that a Bruton violation was
avoided where witness was instructed to omit references to appellant’s
involvement in the crimes when testifying about statements made by co-
defendant); Taylor, 304 Ga. at 45 (2) (noting redaction of references to
appellant in evidence presented to jury to avoid a Bruton violation). Cf.
Simpkins v. State, 303 Ga. 752, 755 (II) (814 SE2d 289) (2018) (noting that
Bruton applies when the co-defendant’s statement is redacted by replacing a
defendant’s name with “an obvious blank, the word ‘delete,’ [or] a symbol,” so
as to “notify the jury that a name has been deleted,” because statements
redacted in that way still facially incriminate a defendant to whom they
obviously refer) (citing Gray v. Maryland, 523 U. S. 185, 195-196 (III) (118 SCt
1151, 140 LE2d 294) (1998)); Ardis v. State, 290 Ga. 58, 60-62 (2) (a) (718 SE2d
526) (2011) (Bruton violation occurs when, despite redactions, it is “obvious”
from context of co-defendant’s statement that testimony references defendant).
28
referred only to himself). Those statements only became
incriminating with respect to Pender when linked with other
evidence about Pender’s involvement in the crimes. See id.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).
29
In sum, the efforts to redact the diagram drawn by Whitaker
and to limit the detective’s testimony about Whitaker’s statements
avoided a Bruton violation because neither the diagram nor
Whitaker’s statements, considered in total, directly implicated
Pender in any crime or placed him in the truck during the Scott
shooting. Thus, we see no error in regard to the trial court’s
admission of the redacted diagram or the detective’s testimony
about Whitaker’s statements.
(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
30
still violated. However, as we have determined that the admission
of the redacted diagram and Whitaker’s statements through the
detective’s testimony did not violate Bruton, this claim is meritless.
See Thomas v. State, 300 Ga. 433, 440 (2) (a) (3) (796 SE2d 242)
(2017) (failure to make a meritless objection does not constitute
ineffective assistance of counsel).
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 OCGA § 24-6-
620, which provides in part that “[t]he credibility of a witness shall
be a matter to be determined by the trier of fact.” We disagree that
the trial court plainly erred.
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
31
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 OCGA § 24-1-103 (d)
(“Nothing in this Code section shall preclude a court from taking
notice of plain errors affecting substantial rights although such
errors were not brought to the attention of the court.”).
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
32
been found in the truck. According to the detective, Pender then
“began to tailor his story to fit why his blood would be in the [cab of
the truck].” The detective then detailed Pender’s story about the
blood. The detective testified that he “bluffed” Pender again by
telling him that he had video recordings from the area of the
Mayfield shooting showing Pender and that Pender’s blood had been
found near the intersection where Scott was shot. In response to
these bluffs, Pender told the detective that “if he were going to rob
someone, he’d be smart enough to wear a mask” and that he had
been near the intersection where Scott was shot earlier in the day
and had fallen in the intersection after cutting his hand on a fence.
The detective testified that Pender had no new injuries on his hands
or arms.
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
33
with Dixon’s and that, in his investigation, he had compared
statements made by the co-defendants in their interviews with the
physical evidence collected from the crime scenes and elsewhere.
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 OCGA § 24-6-620 applies where a defendant does
not testify at trial and is therefore not a witness.” In Sawyer, in the
context of a claim of ineffective assistance of counsel, we placed no
burden on counsel to anticipate and raise a novel legal argument
concerning the application of OCGA § 24-6-620 to co-defendants who
do not testify at trial. Likewise, because we did not resolve the issue
in Sawyer or any previous decision interpreting OCGA § 24-6-620,
we cannot say that the trial court made a clear and obvious legal
error by allowing the detective to testify about statements made by
individuals who did not testify at trial. Thus, as to any testimony of
34
the detective regarding statements made by Pender, Whitaker,
Wells, and Fair, the trial court committed no plain error.
Dixon, on the other hand, testified at trial and was clearly a
“witness” within the meaning of OCGA § 24-6-620. Thus, the
detective was not permitted under OCGA § 24-6-620 to bolster
Dixon’s testimony. However, “[w]hen a witness’s statement does not
directly address the credibility of another witness, . . . there is no
improper bolstering.” Brown v. State, 302 Ga. 454, 460-461 (2) (b)
(807 SE2d 369) (2017).
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
35
the crimes. See Davis v. State, 306 Ga. 140, 147 (3) (f) (829 SE2d
321) (2019).
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
36
evidence that was consistent with information provided by [Dixon].”
Abney v. State, 306 Ga. 448, 455 (3) (b) (831 SE2d 778) (2019). Such
testimony “does not constitute improper bolstering.” Id. Thus, the
trial court did not plainly err by permitting the detective to compare
the statements given by Dixon with those of Pender and the other
co-defendants. This enumeration of error fails.
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
11 We note that Article I, Section I, Paragraph XIV of the Georgia
Constitution of 1983 also provides, in relevant part, that “[e]very person
charged with an offense against the laws of this state . . . shall be confronted
with the witnesses against such person.” However, because Pender has only
raised a claim under the Confrontation Clause of the Sixth Amendment with
respect to the expert’s testimony, we limit our review to that claim.
37
statements violate the hearsay rule and the Confrontation Clause.
Because Pender did not object to the admission of the statements on
these grounds at trial, we review these claims only for plain error.
See OCGA § 24-1-103 (d); see also Kemp v. State, 303 Ga. 385, 397-
398 (3) (810 SE2d 515) (2018) (applying plain error standard of
review to the appellant’s unpreserved Confrontation Clause claim);
Lupoe v. State, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016) (applying
plain error review to the appellant’s unpreserved hearsay claim).
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
12 The firearms expert was unavailable to testify during the week of the
trial due to overseas travel, and the State and each of the co-defendants agreed
before trial to make a video recording of her deposition that could then be
played to the jury in lieu of live testimony.
38
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
39
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
40
admission of the statement was not plain error because it had no
effect on the outcome of the trial. See Kemp, 303 Ga. at 397-398 (3);
Lupoe, 300 Ga. at 243-244 (4).
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
13Only counsel for Wells and Whitaker even cross-examined the expert,
and their questions largely gave the witness an opportunity to clarify and
41
We therefore conclude that even if the expert’s testimony that her
work in this case had been “successfully” peer reviewed constituted
inadmissible hearsay and violated the Confrontation Clause, any
such error was harmless and therefore did not constitute plain error.
(b) Pender also argues that the witness’s statements about the
peer review process constituted improper bolstering under OCGA §
24-6-620. However, the witness’s testimony contained no statement
about her truthfulness. The portions of her testimony that are at
issue merely described the peer-review process utilized in firearms
examinations and indicated that the process had been completed
successfully in this case and each of the other cases in which the
witness had conducted firearms examinations. This enumeration of
error fails.
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
expand upon points she made during the State’s direct examination, including
about the process she herself utilized to identify the bullets.
42
Miranda warnings to him before that interview. The trial court
denied the motion, determining that Pender was properly informed
of his Miranda rights before an earlier interview eight days before
and that he gave the October 4 statement to law enforcement freely
and voluntarily. Pender now argues, as he did below, that the trial
court erred by admitting the statement because Pender was not
specifically re-read his Miranda rights. We disagree.
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-Denno 14 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,
14 See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
43
2013, and Detective Williams met with Pender on September 23,
2013. In both meetings, Pender was still hospitalized with gunshot
wounds and was, at the time, considered a victim of the crimes and
not a suspect. Neither officer administered Miranda warnings to
Pender when they spoke with him, and both officers testified that
they did not threaten him or make any promises to him in exchange
for speaking with them.
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
44
Pender before questioning him, and Pender read and signed a form
outlining those rights and indicating that he agreed to speak with
the officers. Sergeant Gunderson testified that Pender appeared to
understand his rights and that he was lucid and coherent while
being interviewed. He did not request an attorney. Detective
Williams and Sergeant Gunderson interviewed Pender for
approximately 45 minutes. Sergeant Gunderson testified that he did
not offer Pender anything in exchange for his statement and did not
threaten him.
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.
45
Sergeant Gunderson testified that he did not promise anything
to Pender in exchange for his statement and did not threaten or
coerce him. Sergeant Gunderson further testified about the
interview that followed:
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,
46
and that he appeared to be lucid when they were discussing the
rights outlined in the Miranda warnings. The record also
established that before commencing the interrogation on October 4,
Gunderson twice referred to the prior giving of the Miranda
warnings and the form that Pender had signed. Gunderson also
asked Pender if he wanted to have his attorney present before
continuing.
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
47
4. See id; see also United States v. Barner, 572 F3d 1239, 1244-1245
(A) (11th Cir. 2009) (no need to reiterate Miranda rights where
accused initiated interview with law enforcement and had been
informed of his rights 12 days earlier). To the contrary, the record
shows that, before questioning commenced on October 4, he was
twice reminded of the Miranda warnings and the form he had
signed, and he was asked specifically whether he wanted to have an
attorney present. Based on the totality of the circumstances, the
trial court did not err in its determination that Pender’s October 4
statement was freely, knowingly, and voluntarily given or in its
admission of the October 4 statement at trial.
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
48
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.” (Citation and punctuation omitted.) Id.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
49
Lane, 308 Ga. at 21 (4), and again we need not do so here, because
Pender’s claims of cumulative prejudice fail under even the higher
standard implicated by these errors, which requires the State to
prove that violations of Pender’s right to confront witnesses were
harmless beyond a reasonable doubt. See Ardis v. State, 290 Ga. 58,
62 (2) (a) (718 SE2d 526) (2011).
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
50
Confrontation Clause errors had no effect on the jury’s verdicts in
this case. See Ardis, 290 Ga. at 62 (2) (a).
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
51
courts are also obligated to instruct the jurors that they may draw
no adverse inference from the defendant’s election not to testify. See
Carter v. Kentucky, 450 U. S. 288, 300 (II) (B) (101 SCt 1112, 67
LE2d 241) (1981).
Whitaker challenged the jury’s verdicts under OCGA §§ 5-5-20
and 5-5-21, which respectively allow the court to grant a new trial
“[i]n any case when the verdict of the jury is found contrary to
evidence and the principles of justice and equity,” or when “the
verdict may be decidedly and strongly against the weight of the
evidence even though there may appear to be some slight evidence
in favor of the finding.” OCGA §§ 5-5-20 and 5-5-21 “afford the trial
court broad discretion to sit as a thirteenth juror and weigh evidence
on a motion for new trial alleging these general grounds.” (Citation
and punctuation omitted.) Holmes v. State, 306 Ga. 524, 527 (2) (832
SE2d 292) (2019). “In exercising that discretion, the trial judge must
consider . . . any conflicts in the evidence, the credibility of witnesses,
and the weight of the evidence.” White v. State, 293 Ga. 523, 524 (2)
(753 SE2d 115) (2013).
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In considering the general grounds in its order denying
Whitaker’s motion for new trial, the trial court outlined the evidence
presented at trial, discussed the weight it gave to certain portions of
the evidence, and addressed Whitaker’s argument that Dixon’s
testimony should be discounted because it was not credible. The
order also considered Whitaker’s statement to law enforcement that
he had not been aware of the plan to commit the robberies. In so
doing, the trial court listed evidence from the record that
contradicted Whitaker’s statement, which was presented to the jury
through the testimony of the police officer who interrogated
Whitaker.
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
53
statement to the police than to Whitaker’s out-of-court statement to
law enforcement about his ignorance of the plan to commit the
robberies because Dixon’s statement “was strongly corroborated by
other evidence and subject to cross-examination, while Whitaker’s
statement . . . is uncorroborated[,] contradicted by other evidence,
and not subject to cross-examination.”
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
54
of the trial court’s explanation of why it gave more weight to Dixon’s
testimony, which had been subjected to cross-examination by
defense counsel and which was corroborated by other evidence
presented at trial, than it gave to Whitaker’s self-serving, out-of-
court statement to the police. See State v. Beard, 307 Ga. 160, 165
(2) (a) (835 SE2d 273) (2019) (noting trial court’s detailed evaluation
of witnesses’ credibility as part of general-grounds analysis,
including its assessment of efforts by some witnesses to minimize
their role in the crimes); State v. Denson, 306 Ga. 795, 800 (2) (b)
(833 SE2d 510) (2019) (noting that trial court was authorized to
credit one witness’s version of events while discounting versions
supported by other evidence). This enumeration of error fails.
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
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its general-grounds analysis. We disagree that the trial court abused
its discretion.
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
15 Whitaker contends that this evidence should not have been considered
by the trial court in its general grounds analysis because its constituted
character evidence that is inadmissible under OCGA § 24-4-404 (b). But
evidence properly admitted as proof of a charged crime as to which the jury
acquits a defendant is not somehow retroactively converted into evidence
subject to OCGA § 24-4-404 (b). Moreover, evidence of conduct for which the
defendant was previously acquitted of a crime may be admissible pursuant to
OCGA § 24-4-404 (b). See State v. Atkins, 304 Ga. 413 (819 SE2d 28) (2018).
56
lies at the core of the trial court’s role in ruling on the general
grounds. See Beard, 307 Ga. at 166 (2) (b) (noting that trial court
was, contrary to jury’s verdict, authorized to discount some
testimony and favor other evidence); Burney v. State, 299 Ga. 813,
815 (1) (c) (792 SE2d 354) (2016) (noting trial court’s ruling on
motion for new trial based on its “independent” review of trial
record). We thus see no abuse of the trial court’s discretion in this
case.
Judgments affirmed. All the Justices concur.
57