Hamm v. State

• Decision Date: 17 March 2014
• Docket Number: No. S13A–1696.,S13A–1696.
• Citation: 756 S.E.2d 507,294 Ga. 791
• Court: Georgia Supreme Court
• Parties: HAMM v. The STATE.

294 Ga. 791

756 S.E.2d 507

HAMM

v.The STATE.

No. S13A–1696.

Supreme Court of Georgia.

March 17, 2014.

Leslie Roche' Lowry, Atlanta, for appellant.

Patricia B. Attaway Burton, Dep. Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Thrower Parvis, Asst. Atty. Gen., Atlanta, Frances C. Kuo, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., Michael Davis Thurston, Asst. Dist. Atty., Jonesboro, for appellee.

HUNSTEIN, Justice.

Appellant Antonio Hamm was convicted of murder and related offenses in connection with the December 14, 2008 shooting death of J. Remedios Ruiz–Mendieta. Hamm appeals the denial of his motion for new trial, contending that the trial court erred by failing to give certain jury instructions requested by defense counsel. Finding no reversible error, we affirm.¹

Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. On the morning of December 14, 2008, Hamm was at his grandmother's home in the Regal Park apartments in Forest Park with Brittany O'Kelly. O'Kelly, who testified for the State, testified that Hamm had taken an Ecstasy pill and began behaving erratically, threatening her with a large black gun and demanding that she prostitute herself to earn money with which he could purchase more drugs. O'Kelly walked to a nearby gas station, where she came upon Ruiz–Mendieta, who engaged her services. The two drove back in the victim's vehicle to the Regal Park complex and exited the car, heading for a vacant apartment. O'Kelly testified that Hamm then appeared, pointing a gun at the victim, who tried to grab the gun. O'Kelly ran away and, after hearing gunshots, reversed course to try to assist the victim. Hamm intercepted her and forced her back into his grandmother's apartment, where he required her to change clothes. The victim died at the scene from his gunshot wounds.

Hamm's brother-in-law, Damian Mitchell, testified that Hamm called him on the evening of December 14, 2008, imploring Mitchell to come pick him up at the Regal Park apartments “as soon as possible.” Mitchell picked up Hamm and O'Kelly and ultimately drove them back to his home for the night. The following morning Hamm's brother, Raymond, drove Hamm and O'Kelly to a recording studio with which both Hamm brothers had business connections. According to O'Kelly, on the way to the recording studio, Hamm told his brother that he had killed a man. Hamm and O'Kelly stayed at the recording studio for several days thereafter, where, O'Kelly testified, Hamm kept her under close watch, prevented her from leaving, and threatened to kill her if she told anyone about the shooting.

Once news of the murder became public, Raymond drove Hamm and O'Kelly to West Point, Georgia to relocate. During the drive to West Point, O'Kelly testified, Raymond and Hamm threatened to harm her and her grandfather, who lived in West Point, if she told anyone about the murder.² While in West Point, O'Kelly testified, Hamm forced her to prostitute herself to earn money to pay for lodging. They eventually took up residence in a vacant home, where they were discovered by the property owner, Aberdella Scott, who allowed them to stay and brought them food from time to time. Scott testified that she witnessed Hamm bullying O'Kelly and that she saw two guns, one silver and one black, in Hamm's possession.

On the morning of February 8, 2009, Hamm shot O'Kelly in the head and arm with a silver handgun after she threatened to leave. Once at the hospital out of Hamm's presence, O'Kelly told police about the shooting of Ruiz–Mendieta. During Hamm's interview with West Point police in the aftermath of O'Kelly's shooting, police discovered there was an arrest warrant outstanding for Hamm in connection with the Ruiz–Mendieta shooting, and Hamm was arrested.

At trial, in addition to the above, the State adduced the testimony of Ronald Daniel, a friend of Hamm, who testified that he was at Regal Park with Hamm and O'Kelly watching football on the day of the Ruiz–Mendieta shooting. Daniel testified that at one point Hamm emerged from a bedroom and told Daniel that “his girl [O'Kelly] had a lick set up.” Daniel testified that a “lick” meant a robbery, and that Hamm asked whether Daniel wanted to accompany him. Daniel testified that he declined, at which point Hamm left the apartment. According to Daniel, approximately 20 to 30 minutes later Hamm returned with O'Kelly, and Hamm was carrying an AK–47, which Daniel had seen in Hamm's possession on prior occasions. Daniel testified that Hamm said he had “tried to rob ... the amigo” but that he had to shoot when the victim grabbed for the gun. Daniel further testified that Hamm asked him to hold the AK–47 at Daniel's apartment upstairs, that Daniel initially agreed to do so and took the gun upstairs, and that he then changed his mind and took the gun back to Hamm.

A resident of the Regal Park apartments testified that, on the day of the shooting, she observed a black woman and an Hispanic man in the parking lot exiting a truck and walking toward the apartment building. A short time later, this witness testified, she heard a gunshot. The State also adduced that a spent 7.62 caliber shell casing was recovered from the scene of the Ruiz–Mendieta shooting and that an AK–47 is capable of firing that model of bullet.

1. Though Hamm has not enumerated the general grounds, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Hamm was guilty of all the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Hamm contends that the trial court erred in declining to instruct the jury, at his request, regarding the need for corroboration of an accomplice's testimony. As we have explained, under former OCGA § 24–4–8, ³

[i]n felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient and must be supported by the testimony of at least one other witness or by “corroborating circumstances.” The additional evidence may be circumstantial and it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged. It must, however, be independent of the accomplice testimony and must directly connect the defendant with the crime, or lead to the inference that he is guilty.

(Citations and punctuation omitted.) Johnson v. State, 288 Ga. 803, 805(2), 708 S.E.2d 331 (2011); see also Kesler v. State, 249 Ga. 462, 465(2), 291 S.E.2d 497 (1982) (to corroborate accomplice's testimony, State must adduce independent evidence as to “the identity and participation of the defendant”). Hamm claims that the bulk of the testimony implicating him as Ruiz–Mendieta's assailant came from O'Kelly; that Daniel's testimony supports a finding that O'Kelly was actually an accomplice in the shooting; and that therefore the trial court should have given his requested instruction on corroboration of an accomplice's testimony.

“To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge.” Hicks v. State, 287 Ga. 260, 262(2), 695 S.E.2d 195 (2010); accord Scott v. State, 291 Ga. 156(2), 728 S.E.2d 238 (2012); Webb v. State, 284 Ga. 122(4), 663 S.E.2d 690 (2008). It is a question of law whether the evidence presented is sufficient to authorize the giving of a particular charge. Hicks, 287 Ga. at 262, 695 S.E.2d 195. Thus, where a particular charge is requested, it is the duty of the trial court to determine whether there is slight evidence to support the charge. In this case, implicit in the trial court's refusal to give the charge Hamm requested was the conclusion that there was not even slight evidence to support it. In fact, earlier in the trial when ruling on Hamm's motion for directed verdict, the trial court had expressly stated that it “did not find that [O'Kelly] was an accomplice in this case. And so ... there is no requirement of corroboration for her testimony.”

Contrary to this conclusion, however, there was evidence to support a finding that O'Kelly was an accomplice: Daniel testified that Hamm told him O'Kelly had “set up a lick,” ⁴ and O'Kelly admitted to having brought the victim to the scene of the shooting by offering to engage in sexual acts, to fleeing the scene immediately after the shooting, to leaving town in its aftermath, and to failing to report the crime until both she and Hamm had been found by investigators. Such evidence is clearly the type of evidence our courts view as supporting the finding that one is an accomplice. See, e.g., Jones v. State, 268 Ga. 12(1), 483 S.E.2d 871 (1997) (witness' presence at crime and subsequent flight can support finding that witness was an accomplice); Jones v. State, 242 Ga. 893(1), 252 S.E.2d 394 (1979) (witness' presence, companionship, and conduct after the crime are circumstances from which her intent to participate in a criminal act can be inferred).

Given this evidence, it was error for the trial court to refuse to give the requested instruction. Whether O'Kelly was an accomplice, and the weight to be afforded her testimony if she was, should have been submitted for the jury's determination. See Johnson, 288 Ga. at 806–807, 708 S.E.2d 331 (trial court properly submitted to the jury the question of whether witness who pled guilty was an accomplice, rejecting contention that trial court should have made determination as a matter of law); Jones, 268 Ga. at 14, 483 S.E.2d 871 (“it is for jury to determine whether the witness is an accomplice”) (Citation and punctuation omitted). Cf. Yeomans v. State, 229 Ga. 488(5), 192 S.E.2d 362 (1972) (no error in failing to give charge on accomplice corroboration where there was no evidence that the witness in question was an accomplice in the crime charged).

We acknowledge that this holding...