Pender v. State

856 S.E.2d 302, 311 Ga. 98

• Court: Supreme Court of Georgia
• Decided: March 15, 2021
• Docket: S20A1505, S20A1506
• Status: Published

Opinion

311 Ga. 98 FINAL COPY

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 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 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

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

report that the truck had been stolen.

The police later interviewed Deandre Williams in connection

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 five years each on Counts 6 and 7 to be served consecutively to Count 2, and terms of twelve months on Count 13 and five 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 five 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 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 Jayn 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 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

2 Dixon testified at trial that Whitaker did not join this group because

Mayfield would have recognized him. 4 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 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

5 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

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

3 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 6 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

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

4 Fair turned himself in to the police and was later interrogated. He

denied any involvement in the crimes. 7 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

disagree.

OCGA § 16-8-7 (a) provides:

A person commits the offense of theft by receiving

8 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

occurred. Pender was later in possession of the keys to the truck on

the day of the shootings.

9 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, 310 Ga. 254, 256 (1) (850 SE2d 54) (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

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

10 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

property, he cannot be convicted of theft by receiving that property.

Those opinions appear to trace back to this Court’s 1992 decision in

11 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

convicted of both offenses arising from the same stolen property. See

also Middleton,309 Ga. at 342-348 (3).

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, 197 (270 SE2d 367) (1980). 12 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

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

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 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, 310 Ga. at

256 (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).

This Court appears to have applied the correct analysis in

Lewis v. State, 287 Ga. 210, 211 (1) (695 SE2d 224) (2010), although

14 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

reviewing the sufficiency of the evidence presented at trial under

Jackson v. Virginia, a court need not determine whether the

15 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.

Based on the foregoing, the evidence presented at trial

supported each element of the offense of theft by receiving, as set

16 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

reviewed the record and determined that the evidence, as

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 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. 17 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

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

18 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.

“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

8 Pender does not argue here that the co-defendants’ statements were

inadmissible hearsay, so we do not address that question. 19 does not testify at trial is used to implicate [another] co-defendant

in the crime.” (Citation and punctuation 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.” (Citation and punctuation

omitted.) 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 and punctuation 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

defendant is the core of the charged offense and facially and directly

implicates the defendant in the crime. Thus, the admission of Wells’s

20 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

initially claiming that he did not know Wells, Pender later admitted

knowing Wells. In addition, Dixon, who was thoroughly cross-

21 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

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

22 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

the Scott shooting took place, a redacted version of which was shown

to the jury. The detective testified that, as Whitaker was drawing

23 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

up in the intersection where the Scott shooting occurred. Whitaker

told the detective that the issues involved a series of previous

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 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

would be unusual for a single passenger in a truck to be seated

directly behind the driver and that the limited information given to

25 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

business with people from a different neighborhood and that “they”

returned to the neighborhood after the shooting do not necessarily

26 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

State, most prominently Dixon’s testimony.10 Viewed in that context,

10Bruton violations can be avoided through careful redaction of documents, photographs, and prior statements, but those redactions must not

27 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

referred only to himself). Those statements only became

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) (quoting 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 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).

In sum, the efforts to redact the diagram drawn by Whitaker

29 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

still violated. However, as we have determined that the admission

30 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 case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally,

31 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

been found in the truck. According to the detective, Pender then

32 “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

with Dixon’s and that, in his investigation, he had compared

33 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, 383 (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

the detective regarding statements made by Pender, Whitaker,

34 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

the crimes. See Davis v. State, 306 Ga. 140, 147 (3) (f) (829 SE2d

35 321) (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.

(Citation and punctuation omitted.) 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 evidence that was

36 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

11We 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 testifying 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

13 Only 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-Denno14 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

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 the

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 392) (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).

52 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

55 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 it 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.

Decided March 15, 2021. Murder. Muscogee Superior Court. Before Judge Rumer. Cara Clark, for appellant (case no. S20A1505). Ivars Lacis, for appellant (case no. S20A1506). Julia F. Slater, District Attorney, Benjamin E. Gephardt, 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, Assistant Attorney General, for appellee.