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.
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 Ecstacy 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
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.
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,
(Punctuation, citations, and internal brackets 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,"
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"). 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 stands at odds with precedent from this Court establishing that there is no error in declining to give an instruction on accomplice corroboration, even if such a charge is requested, where the accomplice's testimony is in fact corroborated by independent evidence. See Fleming v. State, 269 Ga. 245(2), 497 S.E.2d 211 (1998) (no reversible error in trial court's failure to give requested instruction on accomplice corroboration where State relied in part on defendant's statements to police);
However, what the Hall Court failed to recognize is that the sufficiency of the evidence corroborating an accomplice's testimony, including whether the State has presented other witnesses to the same material facts as the accomplice, is an inquiry entirely distinct from whether a jury charge on the principle of accomplice corroboration is warranted. As noted above, it is well-established that requested jury instructions must be given whenever there is "slight evidence" to support them. See Hicks, 287 Ga. at 262, 695 S.E.2d 195. Where, as here, there is slight evidence supporting a finding that a witness was an accomplice, the jury should be given proper guidance not only on how to decide whether the witness was in fact an accomplice but also on the extent to which it can rely on that witness' testimony by itself to support a conviction. As then-Chief Justice Benham noted in dissent in Fleming v. State, supra,
269 Ga. at 250, 497 S.E.2d 211 (Benham, C.J., dissenting). A trial court's failure to give the instruction where the State relies in part on the testimony of a possible accomplice thus leaves open the possibility of a conviction in violation of OCGA § 24-4-8.
Accordingly, we now overrule Hall v. State, supra, and its progeny,
The fact that the failure to give the instruction where warranted is error does not, of course, necessarily demand reversal. "A conviction in a criminal case will not be reversed when it is highly probable that an erroneous jury instruction did not contribute to the verdict." Francis v. State, 266 Ga. 69, 72(3), 463 S.E.2d 859 (1995).
Moreover, though O'Kelly was clearly the State's star witness, for the jury to believe she was an accomplice it would necessarily have had to credit Daniel's testimony, as he was the only witness to testify to her complicity in an attempted armed robbery. Daniel was also the only witness to affirmatively corroborate Hamm's participation in the Ruiz-Mendieta shooting, by recounting Hamm's incriminating statement that he had "shot ... the amigo." Thus, the same witness whose testimony would have provided the basis for a finding that O'Kelly was an accomplice also provided the corroboration necessary to support her testimony as an accomplice. We therefore find it highly probable that the jury either (1) believed all of Daniel's testimony, in which case, had it been instructed on the need for accomplice corroboration, it would have found Hamm's incriminating statement to be sufficient corroboration; or (2) rejected all of Daniel's testimony, in which case O'Kelly would not have been adjudged an accomplice and thus no corroboration of her testimony was necessary. A verdict of guilt would result under either scenario. Accordingly, we find it highly likely that the trial court's failure to give the requested instruction did not contribute to the verdict, and reversal is not required.
3. Hamm separately enumerates as error the trial court's refusal to give his requested instruction regarding parties to a crime. Insofar as Hamm contends that this instruction was necessary because the pattern jury charge on corroboration of accomplice testimony does not include a definition of "accomplice," this enumeration fails in light of our conclusion in Division 2 that the failure to instruct on accomplice corroboration was not reversible error.
Judgment affirmed.
All the Justices concur.