Pindling v. State

P
In the Supreme Court of Georgia



                                    Decided: April 5, 2021


                S21A0084. PINDLING v. THE STATE.


      PETERSON, Justice.

      Michael Pindling was convicted of malice murder and other

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



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

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

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

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

reverse.2

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

Wallace and Pindling in the ammunition section of an Academy

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

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

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

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

identified as Kathryn Cortez) saying that the meeting would be

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




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

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

him alive again.

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

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

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

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

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

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

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

showed a series of calls and text messages exchanged between

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

phone number made several calls to different rental car agencies on

July 12.

     Further investigation revealed that Pindling and Wallace

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

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

officers obtained and executed a search warrant for the address

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

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

connected      to   Pindling’s    bedroom;     police   officers   found       a

disassembled, silver-colored handgun hidden in a chimney in

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

was later reassembled for ballistics testing and discovered to be the

same gun used to shoot and kill Pett.

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

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

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

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

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

Pindling and Wallace were arrested. Wallace waived his Miranda4

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

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

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

     Cortez was also arrested following the traffic stop but was soon

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


     4   Miranda v. Arizona, 

384 U.S. 436

(86 SCt 1602, 16 LE2d 694) (1966).
                                       4
denied participating in the armed robbery of Pett, but later admitted

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

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

Wallace.

     Cortez provided more details about the crimes at the joint trial

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

and Wallace began working at the same restaurant where Cortez

worked, she began a relationship with Wallace. Pindling and

Wallace said they were both from New York and described

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

Cortez said that Wallace lived in quarters separate from the main

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

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

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

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

who previously had sold marijuana to Pindling and Wallace. Wallace

called Pett under the guise of purchasing marijuana and directed

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

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

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

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

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

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

went to the abandoned house on Walnut Street.

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

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

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

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

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

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

but assumed that Pindling was the shooter because Wallace did not

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

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

out because he was making noises.”

     After leaving the scene, the trio returned to Pindling and

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

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

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

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

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

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

what happened, but later testified that only Wallace had threatened

to kill her.

     Pindling testified in his own defense. He said that Wallace

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

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

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

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

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

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

awakened when Cortez and Wallace returned. Wallace and Cortez

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

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

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

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

claimed not to have seen Pett’s gun.

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

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

corroborated. Pindling asserts that the error affected the outcome of

his trial because Cortez was the sole testifying witness with personal

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

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

trial court’s error requires reversal.

     As Pindling concedes, because he did not request this

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

reviewed only for plain error. See Wilson v. State, 

301 Ga. 689

, 693

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

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

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

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

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

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

                                   8
State, 

303 Ga. 420

, 425-426 (2) (a) (811 SE2d 392) (2018). “Satisfying

all four prongs of this standard is difficult, as it should be.”

Id. at

426 (2)

(a) (citation omitted).

     The State rightfully concedes that Pindling has satisfied the

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

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

corroboration    instruction      while   giving   the   single-witness

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

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

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

“corroborating circumstances may dispense with the necessity for

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

evidence that could support a finding that a witness was an

accomplice to the crime, and that witness provides testimony that

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

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

single witness is sufficient to establish a fact without also

instructing the jury that an accomplice’s testimony must be

                                    9
corroborated. See, e.g., Doyle v. State, 

307 Ga. 609

, 613 (2) (b) (837

SE2d 833) (2020); State v. Johnson, 

305 Ga. 237

, 240 (824 SE2d 317)

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

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

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

Pindling to the crimes.

     The parties dispute whether this error likely affected the

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

eyewitness who affirmatively linked him to the crimes and identified

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

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

records, surveillance videos, eyewitness testimony, and forensic

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

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

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

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

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

before his death. Eyewitness testimony and other evidence do show

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

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

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

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

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

“slight” requirement for corroboration to support a finding that

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

State, 

304 Ga. 582

, 587-588 (2) (a) (820 SE2d 679) (2018) (explaining

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

accomplice testimony, the independent corroborating evidence only

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

evidence was far from overwhelming.

     Because almost all of the evidence incriminating Pindling came

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

have required corroboration or instructed how to evaluate properly

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

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

the accomplice-corroboration requirement. See 

Doyle, 307 Ga. at

11

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

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

have been an accomplice was the only eyewitness to identify the

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

the defendant in the vicinity of the crimes, and independent

evidence was not strong enough to connect the defendant to the

crimes); 

Johnson, 305 Ga. at 241

(“[B]ecause virtually all of the

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

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

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

(punctuation omitted)); Stanbury v. State, 

299 Ga. 125

, 131 (2) (786

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

corroboration charge likely affected the outcome of the trial when

the accomplice “was the only witness who affirmatively identified

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

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

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

(reversing based on cumulative effect of evidentiary errors and

                                 12
failure to give accomplice-corroboration charge while giving the

single witness charge because the strongest evidence of guilt came

from accomplice’s hearsay statements that were improperly

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

guilty based on the accomplice’s statements alone).

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

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

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

Hood, 303 Ga. at 425-426

(2) (a). We have concluded in similar

circumstances that the failure to give the accomplice-corroboration

charge undermines the fairness of the proceedings. See 

Doyle, 307

Ga. at 615

(2) (b) (“Affirming [the defendant’s] conviction on this

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

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

corroboration requirement meaningless.”). We reach the same

conclusion here. Because Pindling has established plain error, we

reverse.

       Judgment reversed. All the Justices concur.

                                    13

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