313 Ga. 640 FINAL COPY
S22A0229. CALDWELL v. THE STATE.
MCMILLIAN, Justice.
Willie Caldwell appeals his conviction for felony murder
arising out of the shooting death of Ricardo McPherson.1 On appeal,
Caldwell asserts that the evidence presented at his trial was
insufficient to sustain his conviction because a key witness was an
accomplice and her testimony was not corroborated and that the
trial court erred by failing to give a curative instruction after the
1 McPherson was killed on September 15, 2008, and in July 2011, a Dougherty County grand jury indicted Caldwell, Theojuana McCullar, and Jatarious Bronner for one count of felony murder (Count 1) and one count of aggravated assault (Count 2). Caldwell was also indicted for another count of aggravated assault (Count 3). McCullar and Bronner are not parties to this appeal. At a joint trial of all three co-indictees conducted from July 9 to July 18, 2018, a jury found Caldwell guilty of all counts. McCullar and Bronner were found not guilty of felony murder, but were found guilty of aggravated assault. On July 19, 2018, the trial court sentenced Caldwell to life imprisonment for felony murder. The remaining counts were merged for sentencing purposes. Caldwell filed a motion for new trial on August 6, 2018, which was amended through new counsel on July 12, 2019. After a hearing, the trial court denied the motion as amended on August 6, 2021. Caldwell filed a notice of appeal on August 20, 2021; the case was docketed to the term of this Court beginning in December 2021 and submitted for a decision on the briefs. District Attorney’s prejudicial closing argument. Although we
conclude that the evidence was sufficient under the accomplice
corroboration statute to convict, we determine that the trial court
should have provided a curative instruction for the District
Attorney’s erroneous argument and that the error was harmful, so
we reverse.
The evidence presented at trial showed that on September 15,
2008, McPherson was in his apartment in Dougherty County,
talking on the phone with a work colleague, Shabreka Perry. Perry
testified that she and McPherson were having a casual conversation,
when, through the phone, Perry heard a knock on McPherson’s door;
McPherson asked who it was, and a female voice answered,
“Brittany.” McPherson said, “Brittany? I don’t know a Brittany.”
Next, Perry heard McPherson say, “You can have whatever you
want. Just don’t shoot.” Perry testified that she then heard a
“thump” and McPherson say, “Oh, man. That’s f***ed up.” After
Perry called 911 from another cell phone, she remained on the line
with McPherson, but he was not responding to her. Perry testified
2 that she heard “scruffling and furniture moving” but nothing else.
Sergeant Jennifer Hausman from the Albany Police
Department responded to the scene and found McPherson dead.
Sergeant Hausman testified that based on evidence collected at the
scene, at least two shots were fired — one shot struck the bottom of
the couch, and one shot went through the ceiling. The pillows from
the couch were thrown around the living room, and the drawers
were pulled out from a dresser located in the bedroom.2 Sergeant
Hausman testified that she had no knowledge of any DNA,
fingerprint, or other physical evidence that would link any suspect
to the crime scene. Another officer also responded to the crime scene
that day, and his initial investigation showed that McPherson was
a drug dealer.
The medical examiner who performed McPherson’s autopsy
testified that McPherson died as a result of a gunshot wound and
that stippling on the body showed that the barrel of the gun was
2 Sergeant Hausman also testified that whoever ransacked the apartment did not take the computer, laptops, phone, or any other electronics including the television; the person also left the car keys and the car outside. 3 within four feet of the victim when the fatal shot was fired.
Over a year later, in October 2009, a man came to the Albany
Police Department to talk about the McPherson case. From this new
information, Officer Charlie Roberts developed a lead, Shyquandria
Williams; he contacted Williams and she agreed to come to Albany
to provide information about the McPherson case. Based on
Williams’s statement, which was recorded, Caldwell, Theojuana
McCullar, and Jatarious Bronner were determined to be suspects in
McPherson’s murder.
At trial, the State’s case rested almost entirely on Williams’s
testimony. Williams testified that she and McCullar went to high
school together, were good friends, and in 2008 lived together off and
on. Williams was in a sexual relationship with Caldwell in 2008; she
also knew Bronner but was not in a relationship with him. On
September 15, 2008, Williams was with Caldwell, McCullar, and
Bronner. The group was looking for marijuana and decided to drive
to Albany to find it. McCullar drove, Williams rode in the front
passenger seat, and Caldwell and Bronner sat in the back seat.
4 Williams testified that she “[thought Caldwell] made a phone call
once” and that the group ended up at McPherson’s apartment to
purchase marijuana. Caldwell told Williams to knock on the
apartment door because McPherson would answer the door for a
woman. Williams went to the door and knocked, with Caldwell
standing next to her. McPherson asked who it was, and she said, “I
came to purchase some weed.”3 As McPherson was opening the door,
Caldwell shoved Williams out of the way and entered the apartment.
Williams turned from the apartment doorway and walked down the
stairs back toward the car; as she was leaving, she heard a gunshot.
She started running toward the car, where McCullar was waiting in
the driver’s seat. Williams got in, and McCullar pulled the car down
the road and then made a U-turn to go back and pick up Caldwell
and Bronner.
Williams testified that McCullar never left the car; Williams
did not see Bronner enter the apartment, but saw him exiting the
3 Perry, the 911 caller, testified on cross-examination that she never heard the voice at McPherson’s door mention anything about coming “to purchase some weed.” 5 apartment. Williams testified that when she and Caldwell
approached McPherson’s door, they had a couple of dollars for a
“sack of weed.” But, she explained, after they left McPherson’s
apartment, the group drove back to McCullar’s house where they
drank alcohol and smoked more weed than they would have been
able to purchase with the little money they had at the beginning of
the night. The next morning, Williams heard about McPherson’s
death and saw on the news “them bringing his body out of the
apartment.” She testified that this was the same apartment she had
been to the day before where she heard the gunshot.
After police officers interviewed Williams in 2009, she was
charged with the murder of McPherson. Her murder warrant was
issued on November 1, 2009, but she was never indicted, and the
warrant was eventually dismissed on May 27, 2016. On the morning
of Williams’s testimony at trial in July 2018, she entered into an
immunity agreement with the District Attorney whereby she was
granted immunity from prosecution in exchange for her agreement
6 to testify.4 Williams testified that in 2009, her attorney began
negotiations with the District Attorney to secure immunity for her
and as a result she was not indicted in 2011 along with Caldwell,
McCullar, and Bronner. Williams’s recorded interview with police
officers in October 2009 was played for the jury. In that interview,
Williams told the police, “I swear to God I have never seen
[McPherson] before”; she admitted at trial that this statement was
a lie. Williams also told police officers in the interview that Caldwell
went to buy weed from McPherson, and the deal went bad, but that
she was not there when it happened. Williams testified at trial that
this statement was also a lie. Also during the interview, Williams
stated that Caldwell was in the alley behind McPherson’s apartment
when he called McCullar to come pick him up and that Williams
herself never got out of the car and did not hear a gunshot. Williams
admitted that this story, too, was a lie. When Caldwell’s defense
attorney asked Williams if she had “lost track of how many fibs [she
4 Williams’s murder warrant, warrant dismissal, and immunity agreement were all admitted into evidence at trial. 7 had] already told,” Williams answered, “Yes, ma’am.” Neither
Caldwell nor his co-defendants testified at trial, and there was no
evidence admitted of any statements that they may have previously
given.
1. In his first enumeration of error, Caldwell asserts that the
evidence was insufficient to sustain his convictions under OCGA §
24-14-8 because: (1) Williams was the sole witness implicating
Caldwell in the crimes, (2) she was an accomplice, and (3) her
testimony was not corroborated.5 On appeal, the State does not
contest Caldwell’s first and third assertions but argues that the
evidence was sufficient because the jury could have determined that
Williams was not an accomplice, such that her testimony did not
5 Caldwell does not assert that the evidence was insufficient as a matter
of constitutional due process, nor could he on the basis of lack of accomplice corroboration. That is because “although Georgia law requires independent corroboration of an accomplice’s testimony to secure a conviction, federal law does not require such corroboration and, thus, a failure to corroborate accomplice testimony [does] not offend constitutional due process.” State v. Grier, 309 Ga. 452, 456 (2) (847 SE2d 313) (2020) (citing Llewellyn v. Stynchcombe, 609 F2d 194, 196 (5th Cir. 1980)). See also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); Grier, 309 Ga. at 455-56 (2) (“As a matter of federal constitutional due process the evidence . . . was sufficient to sustain the convictions, regardless of whether it showed [the witness] to be an accomplice.” (citation omitted)). 8 need to be corroborated.
OCGA § 24-14-8 provides that “[t]he testimony of a single
witness is generally sufficient to establish a fact,” but in “felony
cases where the only witness is an accomplice, the testimony of a
single witness shall not be sufficient” to support a defendant’s
convictions but instead requires corroboration. “[W]here the
evidence presented at trial could support a finding that a witness
acted as an accomplice, it is for the jury to determine whether the
witness acted in such a capacity.” Doyle v. State, 307 Ga. 609, 612
(2) (a) (837 SE2d 833) (2020).
Here, evidence was presented that Williams was an
accomplice, so that issue was properly submitted to the jury.6 The
jury was given instructions on Georgia’s accomplice-corroboration
requirement, as well as the test for determining whether a witness
6 It appears that the State’s original theory, as explained in the District
Attorney’s opening statement, was that Williams was an accomplice to the robbery and shooting by participating in the planning of the robbery and luring McPherson into opening the apartment door. However, on the morning that Williams was expected to testify, the State announced that it had awarded Williams immunity from prosecution, and Williams then testified, identifying Caldwell and the other co-defendants as participating in the robbery and shooting. 9 is an accomplice. Although the trial court originally stated an
intention to give the jury a special interrogatory form to determine
whether Williams was an accomplice, the court declined to submit a
special verdict form to the jury on this issue. On appeal, Caldwell
makes no argument that these instructions or the verdict form were
erroneous in any way. Instead, Caldwell asserts that because there
was no special verdict on the issue, the jury could have (and should
have) determined that Williams was an accomplice, such that her
uncorroborated testimony was insufficient to convict. We disagree.
Long-standing authority in Georgia provides that when the
issue of whether a witness was an accomplice was submitted to the
jury and there was evidence allowing the jury to find that the
witness was not an accomplice, corroborating evidence is not
required to sustain a guilty verdict on appeal. See, e.g., Hargrove v.
State, 125 Ga. 270, 274 (54 SE 164) (1906) (even joint indictment
and guilty plea of witness do not eliminate the jury question as to
whether the witness was an accomplice); Roberts v. State, 55 Ga.
220, 222 (3) (1875) (if the jury could have found, based on the
10 evidence, “either that [the sole testifying witness] was not an
accomplice, or that he was supported, if an accomplice, the verdict is
sustained” (emphasis added)). See also Sosebee v. State, 156 Ga.
App. 325, 326 (274 SE2d 717) (1980) (because the jury could
conclude that the witness was not an accomplice, “[t]he fact that no
corroborating evidence may have been presented does not . . .
present grounds for reversal”); Handsford v. State, 147 Ga. App. 665,
665 (1) (249 SE2d 768) (1978) (“Under the evidence presented, the
witness may have been an accomplice, or he may not have been.
Leaving the issue to the jury was undoubtedly correct. . . . The jury
was authorized to find either that the witness was not an
accomplice, or that he was and his testimony was corroborated.”).
More recently, we have continued to hold that if the evidence
authorizes a jury to find that the witness was not an accomplice, the
evidence may be sufficient to convict without corroboration. See, e.g.,
Montanez v. State, 311 Ga. 843, 848-49 (1) (b) (860 SE2d 551) (2021)
(“However, the evidence may also authorize a properly instructed
jury to find that a witness was not an accomplice, and in that case,
11 the testimony of that witness is sufficient to convict the defendant.”);
State v. Grier, 309 Ga. 452, 456 (2) (847 SE2d 313) (2020) (holding
that the evidence was legally sufficient because the jury could have
found that the witness was not an accomplice, eliminating the
necessity of corroborating testimony).7
Here, the jury was instructed on the pertinent legal principles,
the general verdict did not specify whether the jury found that
Williams was an accomplice, and the jury could have inferred from
Williams’s testimony that she had no prior knowledge of Caldwell’s
intent to shoot McPherson or do anything other than buy marijuana
and that she did not participate in the shooting. Thus, viewing the
7 Although not cited by the parties, we have identified one case in which
this Court has held that a new trial was required when the sole witness could have been an accomplice, but there was no corroborating evidence. See Milton v. State, 248 Ga. 192, 198 (2) (282 SE2d 90) (1981) (“[T]he trial court did err in not granting the defendant a new trial because under the charge of the court the jury could have found that [the witness] was an accomplice and that her testimony . . . was corroborated, when her testimony was not corroborated as required by law.”). Because Milton has been implicitly overruled by subsequent cases such as Montanez and Grier, this Court is not bound by that outlier holding. See White v. State, 305 Ga. 111, 122 (3) n.10 (823 SE2d 794) (2019) (“When [the Supreme Court of Georgia] finds discordant opinions among its own horizontal precedents, . . . the court generally follows its decision in the most recent case, which must have tacitly overruled any truly inconsistent holding.” (citation and punctuation omitted; emphasis in original)). 12 evidence in the light most favorable to the verdict, the jury could
have reasonably concluded that Williams was not an accomplice in
the charged crimes, meaning her testimony did not require
corroborating evidence, and as a result, the evidence was sufficient
to support Caldwell’s conviction as a matter of Georgia statutory
law. See Montanez, 311 Ga. at 848 (1) (b); Grier, 309 Ga. at 456 (2).
2. Caldwell also contends that the trial court erred by failing to
give a curative instruction to the jury in response to comments made
by the District Attorney during closing arguments that were
prejudicial and referred to matters not in evidence.8
The trial court held multiple conferences during trial about the
8 The State asserts that only plain error review is available because,
despite defense objections to the District Attorney’s statements and requests for a curative instruction, no party actually provided the court with proposed language to use in a curative instruction. Pretermitting whether plain error review is available for this type of error, the objection and request for a curative instruction were sufficient to preserve the issue for ordinary appellate review. See O’Neal v. State, 288 Ga. 219, 221 (1) (702 SE2d 288) (2010) (“Nowhere in [OCGA § 17-8-75] is there a requirement for defense counsel to specifically request additional remedies after interposing an objection to the improper statements made by a prosecutor. . . . [T]his Court’s most recent authorities interpreting the statute have allowed appellate review of a trial court’s failure to . . . give a curative instruction where defense counsel did nothing more than interpose an objection to the prosecutor’s improper statements.”). 13 proper accomplice-corroboration instructions and whether to
provide a special interrogatory for the jury to explicitly determine
whether Williams was an accomplice, initially deciding to provide
the special interrogatory. However, after counsel for the co-
defendants gave their closing arguments, the trial court changed its
mind about the special interrogatory and read into the record the
instruction that it intended to give about how the jury was to
determine whether Williams was an accomplice.9
9 The trial court informed counsel that this was the instruction that it
intended to give: The test for determining whether a witness is an accomplice is this: Could the witness herself have been indicted for the offenses as a [principal] or party to the crime? If she could have been so indicted as a [principal] or party to the crime, she is considered an accomplice under Georgia law. If she could not have been indicted as a [principal] or party to the crime, then she is not considered an accomplice under Georgia law. As far as the issue of possible indictment, when a grand jury hears a case to determine if a case is indicted, typically it is brought forward by the state and the potential defendant and defense counsel are not present. The grand jury sits not to determine innocence or guilt. But to assess whether there is an adequate basis for bringing a formal, criminal charge in making a decision on whether to indict a person with a criminal charge, the grand jury must determine whether there is probable cause to believe that a crime has been committed and where there is probable cause to formally charge a defendant by indictment. You, the jury, must decide whether Shyquandria Williams
14 The District Attorney then gave his closing argument. As to
whether Williams was an accomplice, the District Attorney first
informed the jury:
My commitment is to not let those who have violated the law go uncharged. It is my commitment that I do not charge and convict anyone if there is no evidence to support them being convicted or charged. That’s my role in this process.
He further argued:
In fact, all people that are charged, the decision to make charges is the District Attorney’s decision. When you look at the indictment, you’ll see Gregory W. Edwards, District Attorney brought this indictment against these individuals. . . . [N]ot even the Judge has that role, to decide who goes forward in terms of charges. That’s a decision that the District Attorney makes.
Moreover, the District Attorney told the jury:
[S]he was not indicted. She was not charged, because she was not a knowing and willing accomplice to robbery and murder. . . . That’s why I gave her a written agreement that that was my findings, that she should be immune from this case, because she didn’t do anything that indicated that she was active in this situation. That’s a decision I made. That’s on me. . . . Now, again, I’ll explain to you that she was not indicted as a party to the crime, because she was not an accomplice.
was an accomplice to defendant as to the charges you are considering in this bill of indictment. 15 Following closing arguments, and outside the presence of the
jury, Caldwell’s and Bronner’s attorneys made a request for curative
instructions to inform the jury that “the District Attorney is not the
person that determines” whether Williams was an accomplice. The
trial court denied the request, but noted the defense exception for
the record. After the jury was charged with the instruction that the
trial court had presented to the attorneys before the District
Attorney’s closing argument, Caldwell’s attorney renewed her
objection about the need for a curative instruction.10
10 However, no one objected to the instructions about how the jury was
to determine whether Williams was an accomplice, nor has Caldwell raised this as error on appeal. Therefore, we do not address the propriety of that charge. But we note that these instructions are not consistent with cases in which we have held that even if a witness is indicted for the crimes charged, the jury is authorized to find that the witness is not an accomplice. See Johnson v. State, 288 Ga. 803, 806 (3) (708 SE2d 331) (2011) (“We have long held that it is not error to submit to the jury the question of whether a witness for the state was or was not an accomplice even where the witness has confessed to being an accomplice and has been jointly indicted with the defendant on trial.” (cleaned up)); Almand v. State, 149 Ga. 182, 183 (1) (b) (99 SE 795) (1919) (court did not err in instructing the jury to determine whether or not State’s witness was an accomplice, even where “[the witness] was a confessed accomplice and was jointly indicted” in the crime (punctuation omitted)). See also Christian v. State, 277 Ga. 775, 776 (1) (596 SE2d 6) (2004) (“[T]he fact that [the witness] was initially indicted for the victim’s murder does not, without more, render her an accomplice.”). 16 On appeal, Caldwell contends that the District Attorney’s
closing argument, as quoted above, was highly prejudicial and
referred to matters not in evidence and that the trial court’s final
instructions to the jury were not sufficient to cure this prejudice. We
agree.
OCGA § 17-8-75 provides:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
The District Attorney referred to a number of matters not in
evidence concerning his role and authority in choosing whom to
indict, his sworn duty not to indict those who have not committed a
crime, and his sole authority to determine whom to indict. See
Conner v. State, 251 Ga. 113, 123 (6) (303 SE2d 266) (1983)
(concluding that it was error for the prosecutor to argue in closing
about his prior prosecution experience and the frequency with which
17 he had sought the death penalty); High v. State, 247 Ga. 289, 292 (7)
(276 SE2d 5) (1981) (improper for district attorney to introduce
himself in opening statement by saying “I’ve been your district
attorney for the last nineteen years” (punctuation omitted)),
overruled in part on other grounds by Wilson v. Zant, 249 Ga. 373
(290 SE2d 442) (1982). Thus, the trial court erred in refusing to give
a curative instruction as requested. See OCGA § 17-8-75.
However, “[a] trial court’s error in not fulfilling its duty under
OCGA § 17-8-75 is subject to harmless error analysis.” Stephens v.
State, 307 Ga. 731, 734 (1) (a) n.4 (838 SE2d 275) (2020) (citing
Arrington v. State, 286 Ga. 335, 345-46 (16) (a) (687 SE2d 438)
(2009)). “For nonconstitutional harmless error, the State has the
burden to show that it was highly probable that the error did not
contribute to the verdict.” Bozzie v. State, 302 Ga. 704, 708 (2) (a)
(808 SE2d 671) (2017). In conducting this analysis, “we review the
record de novo and weigh the evidence as we would expect
reasonable jurors to have done.” Saxton v. State, 313 Ga. 48, 51 (2)
(b) (867 SE2d 130) (2021) (citation and punctuation omitted).
18 Here, the evidence that Williams was an accomplice was
strong. She admitted that she participated in the plan to go to
McPherson’s apartment to obtain marijuana and that she knocked
on his door because the group had decided that McPherson would
more likely open the door for a woman. Although Williams did not
go into the apartment, she heard a gunshot as she was turning away.
She then left with the group and smoked the marijuana obtained
from McPherson’s apartment, which she noted was more in quantity
than the money that the group had for the purchase. See Harper v.
State, 298 Ga. 158, 160 (780 SE2d 308) (2015) (“Whether a person is
a party to a crime may be inferred from that person’s presence,
companionship, and conduct before, during, and after the crime.”
(citation and punctuation omitted)). Later, Williams was questioned
by the police about the incident, and at trial, she admitted that she
lied repeatedly in that interview. Moreover, a warrant was obtained
for her arrest for the murder, but on the day of her testimony at trial,
Williams entered into an immunity agreement in exchange for her
testimony.
19 During the arguments regarding Caldwell’s motion for a
directed verdict, the District Attorney conceded to the trial court
that the State had offered no evidence, other than Williams’s
testimony, that would place Caldwell or his co-defendants at the
crime scene. Knowing that no evidence would corroborate Williams’s
testimony if she were found to be an accomplice, and that the trial
court had in fact concluded that there was no corroborating evidence
before denying Caldwell’s motion for a directed verdict, the District
Attorney argued in closing that regardless of the evidence in the
record, the District Attorney was the sole arbiter of whether
Williams could be indicted and that she was not indicted because he
made that determination, implying based on the jury instruction
that she could not be an accomplice. The prejudicial nature of these
statements was compounded by the District Attorney’s assertion of
authority over that of the trial court. Even though the trial court
subsequently instructed the jury that it was to determine whether
Williams was an accomplice, the trial court also told the jury that
whether a witness is an accomplice is based on whether she could be
20 indicted for the same crimes. The District Attorney’s arguments
suggested to the jury that because of the District Attorney’s
authority, the decision about whether to indict (and consequently
whether Williams was an accomplice) had already been made, so the
jury did not have to make that determination, and the trial court’s
subsequent charge to the jury can be reasonably construed as
reinforcing that argument.
For these reasons, we conclude that the State has not carried
its burden of showing that it is highly probable that the District
Attorney’s uncorrected argument did not contribute to the verdict.
The only way for the jury to properly find Caldwell guilty, given the
lack of corroborating evidence, was to find that Williams was not an
accomplice, and we cannot say that it is highly probable that the
District Attorney’s argument did not contribute to that finding.
Thus, we conclude that the failure to provide a curative instruction
was harmful error, and we must reverse Caldwell’s convictions. See
Jones v. State, 292 Ga. 656, 661-62 (2) (740 SE2d 590) (2013) (where
evidence against defendant was not overwhelming, the prejudice
21 from prosecutor’s statements in closing argument regarding the
defendant’s involvement in a prior gang related shooting was not
cured by trial court’s general instruction that “opening statements
and closing arguments are not evidence” because the “general
instruction given by the trial court was an inadequate curative
measure and did not serve ‘to remove the improper impression from
(the jurors’) minds,’ as required by OCGA § 17-8-75” (punctuation
omitted)).
In so doing, we acknowledge that this Court has often
concluded that an improper argument or comment by a prosecutor
was not harmful error, particularly where the evidence of guilt was
strong. See, e.g., Conner, 251 Ga. at 123 (6) (prosecutor’s erroneous
argument in closing was ultimately harmless error); High, 247 Ga.
at 292 (7) (district attorney’s improper statement was harmless
error). But we cannot reach the same conclusion in this case. The
evidence that Williams was an accomplice was strong, and her
credibility was significantly impeached by her prior inconsistent
statements and immunity deal; there was no corroborating evidence
22 of Caldwell’s guilt at all; the District Attorney’s arguments were
clearly improper; and the trial court overruled requests to cure the
inappropriate arguments. Under these circumstances, we must
conclude that the error in this case was harmful.
Judgment reversed. All the Justices concur.
MCMILLIAN, Justice, concurring.
Although I believe that Division 1 of the Court’s opinion
faithfully applies our precedent and correctly concludes that Milton
v. State, 248 Ga. 192, 198 (2) (282 SE2d 90) (1981), is out of line with
the great weight of authority, I write separately to express my
concern that this Court has over time essentially gutted the
accomplice corroboration requirement currently found in OCGA §
24-14-8.11 The rule is apparently this — so long as the jury is
11 A version of this statute has been in Georgia’s code since its very conception. Georgia enacted its first comprehensive code in 1860, and “[t]hat code went into effect January 1, 1863.” Jefferson James Davis, The Georgia Code of 1863: America’s First Comprehensive Code, 4 J. S. Legal Hist. 1 (1995- 1996). Referred to as the Code of 1863, it included the rules of evidence, and the first version of Georgia’s accomplice corroboration statute. See Paul S.
23 properly charged on the definition of an accomplice and the
corroboration requirement, no corroboration is required even if the
witness admits to being an accomplice and the State treats her as
one. And when there is no special interrogatory to require the jury
to determine explicitly whether the witness is an accomplice, a
verdict of guilty is upheld based solely on the witness’s testimony
without a scintilla of corroborating evidence.
This rule is problematic in cases like this one where there was
no evidence, as a matter of law, from which the jury could have
determined that Williams’s testimony was corroborated, yet the trial
Milich, Georgia’s New Evidence Code — An Overview, 28 Ga. St. U. L. Rev. 379, 380 (2012). That initial version of the statute provided: The testimony of a single witness is generally sufficient to establish a fact. Exceptions to this rule are made in specified cases: such as to convict of treason or perjury; in any case of felony, where the only witness is an accomplice; and to rebut a responsive statement in an answer in equity — in these cases (except in treason) corroborating circumstances may dispense with another witness. Ga. Code of 1863, Title 10, Chapter 1, § 3678: Number of Witnesses Necessary. The language in the statute regarding accomplice corroboration in felony cases has remained materially the same as it has been carried forward into new codes. See Code 1868, § 3702; Code 1873, § 3755; Code 1882, § 3755; Civil Code 1895, § 5156; Penal Code 1895, § 991; Civil Code 1910, § 5742; Penal Code 1910, § 1017; Code 1933, § 38-121; former OCGA § 24-4-8; and OCGA § 24-14- 8. 24 court is permitted to charge that if the jury determines that the
witness is an accomplice, there must be corroborating evidence to
convict, which suggests that there is some evidence from which a
jury could reasonably find corroboration. And all we have at the end
of the day is a general verdict of guilty, which could have rested on
an erroneous determination that Williams’s testimony was
corroborated. We recognized the same problem in Milton. See Castell
v. State, 250 Ga. 776, 792 (301 SE2d 234) (1983) (“The [Milton] court,
however, erroneously gave a charge to the jury which would have
allowed the jury to find that the testimony of the alleged accomplice
had been corroborated, when there was no evidence in the case from
which the jury could have found such corroboration.”).
But our cases have generally “deem[ed] harmless a jury
instruction that indicates that a defendant could be found guilty
under a theory for which there was no evidence or even argument.”
Wilkins v. State, 308 Ga. 131, 139 (839 SE2d 525) (2020). See Wetzel
v. State, 298 Ga. 20, 36 n.17 (779 SE2d 263) (2015) (“Generally it is
not [harmful] error to charge the jury on a portion of the Code section
25 that may be inapplicable under the facts in evidence.”) (citation and
punctuation omitted). Thus, even if a defendant like Caldwell
asserts unsuccessfully at trial that the trial court should have
instructed the jury that if it found the witness to be an accomplice,
it has to acquit for lack of corroborating evidence and is found guilty,
it likely would not make a difference in the result of the appeal.
Moreover, I find this Court’s application of the accomplice
corroboration requirement in felony cases to be particularly
troubling because we have repeatedly held that where a general
verdict in a civil case prohibits the Court from determining if the
jury’s verdict was returned on a proper basis, a new trial is required.
See, e.g., Southeastern Pain Specialists, P.C. v. Brown, 303 Ga. 265,
273 (2) (b) (811 SE2d 360) (2018) (reversing because “when a case is
submitted to a jury on both erroneous and proper bases and the jury
returns a general verdict such that we cannot determine on which
basis the verdict was entered, the verdict cannot stand”);12 Ga.
12 Brown also held that in civil cases, “[a]n error in the charge that injects
issues not raised by the pleadings and evidence is presumed to be harmful.”
26 Power Co. v. Busbin, 242 Ga. 612, 616-17 (8) (250 SE2d 442) (1978)
(finding that because plaintiff’s case against his former employer
and former supervisor was erroneously submitted to jury on
multiple theories, although correctly submitted on at least one
theory, “the verdict cannot stand for the reason that this court
cannot determine whether the verdict was entered upon a proper
basis”); Southern R. Co. v. Hardin, 107 Ga. 379, 383 (33 SE 436)
(1899) (“As it is uncertain which cause of action the jury considered
in awarding the damages, they being at liberty under the charge of
the court to consider both, [and where there was no evidence to
support one of the causes of action,] the verdict must be set aside
and a new trial awarded.”). See also Godwin v. Godwin, 265 Ga. 891,
892 (463 SE2d 685) (1995) (same; citing Busbin, 242 Ga. at 617). It
is incomprehensible and unfair that criminal defendants do not get
the same benefit of the doubt and a new trial under similar
circumstances. Cf. Williams v. Harvey, 311 Ga. 439, 451 (1) (b) (858
303 Ga. at 272 (2) (b) (citing Seibers v. Morris, 226 Ga. 813, 816 (3) (177 SE2d 705) (1970)). However, as explained above, in criminal cases, such errors are usually deemed harmless. See Wilkins, 308 Ga. at 139. 27 SE2d 479) (2021) (discussing need to “course-correct an important
aspect of appellate procedure by not affording, without a statutory
or constitutional basis, civil litigants greater rights to appellate
review than criminal defendants in non-death penalty cases”).
However, even though I have doubts about how this Court has
applied the accomplice corroboration requirement in circumstances
such as this one, it is not clear to me that overturning more than a
century worth of case law is the right solution at this juncture given
the relatively few reported cases in which there is no corroboration
at all. Instead, if defendants request, and trial courts permit, the use
of a special interrogatory on the issue of whether the witness is an
accomplice would allow appellate courts to be able to review whether
OCGA § 24-14-18 was properly applied. Of course, this assumes that
the trial court, in its discretion, will permit the use of special
interrogatories.13 See Rogers v. State, 282 Ga. 659, 661 (2) (b) (653
SE2d 31) (2007), overruled on other grounds by State v. Lane, 308
13 I recognize that the trial court and the State may have the incentive
to use a general verdict because any error will be less apparent and therefore the chance of affirmance will be greater. 28 Ga. 10, 23 (838 SE2d 808) (2020) (rejecting contention that trial
court abused its discretion by not submitting to the jury special
interrogatories on mental capacity).
For these reasons, I write separately to express my concerns
about Division 1 and posit a potential resolution. However, if the
Court begins to see the State taking advantage of the accomplice
corroboration rules to present felony cases without corroboration,
insulated from appeal through general verdicts, I would encourage
the Court to revisit the issue.
I am authorized to state that Justice Colvin joins this
concurrence.
29 Decided May 3, 2022.
Murder. Dougherty Superior Court. Before Judge Darrisaw.
Troy E. Golden, for appellant.
Gregory W. Edwards, District Attorney, M. April Wynne,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Michael A. Oldham,
Kathleen L. McCanless, Assistant Attorneys General, for appellee.