1 A Clay ton County

grand jur y indic ted Ham

m in Jun e 2010 on one c ount of malice murder, three coun ts of felon y murder, two counts of aggrav ated assa ult, one count of aggrav ated battery, one count of firear m posse ssion during t

he com missio n of a felony , one count

of traff icking of pe rsons for s exual ser vi tude, one co unt of kidnapping, and one coun t of attem pted m urder of a witness in

an offic ial proce eding. At the conclu sion of a j ury tr ial held O ctober 3- 11, 2011, H amm was con victed o f malice murder, two o f the fel ony m urder cou

nts, one a ggravated

assault co unt, aggravatedbat tery, and

firear m posse ssion. Th e jury

acquitted Ham m of t he second aggravatedassaul t count , and the t rial cour t directe d a verdic t of not guilt y on the felony murder count

predic ated thereon. The jury also acqui tted Ham

m of t he charges of kidnappin g and trafficking of persons for sexual servitude. The trial court directed a verdict of not guilty on the attempted m urder of a wit nes s ch arg e. H amm w as sentenced to life imprisonment for m alice murder plus a consecutive five-y ea r term for firearm

possession, with the r

emaining convictions either merged or vacated by operation of law. Ham

m fil ed a m otion

for new trial on October 31, 2011, which w as ame nded by new

appellate counsel on F ebruary

28, 2013. The trial court hel d a hearing on the motion on April 30, 2013 and denied the m otion tha t sa me day. Hamm filed a not

ice of app eal on May

24, 2013. The case wa s docke ted to the September

2013 term of this Court and was thereaf ter subm itted for decision on t

he 294 Ga. 791 FINAL C OPY S13A169 6. HAMM v. THE STATE.

H UNS TEIN , Justice. Appella ntAntonio Hamm was convi cted of murder and r elatedoffenses in connection with

the December 14, 2008 sh ooting d eath of J. Remedios RuizMendieta. Hamm appeals the denial of his motion for n ew trial, contendin g that the trial c ourt erre d by fai ling to give certa in jury i ns t ructions request ed by defens e couns el. Fin ding no rev ersib le erro r, we aff irm. 1briefs. 2

Viewed in the light most favorable to the jury’s verdict, the evi de nce adduced at trial establ ished a s follows. On the morning of De cem ber 14, 2008, Hammwa s at his grandm other’s ho me in the Re gal Par k apart ments in Forest Park with Brit tany O’Kelly. O’Kelly, who testifi ed for the State, tes tified that Hammhad tak en an E cstasy pill and began behaving errat ically, threatening h er with a large

black g un and demanding that sh e prostitut e herself to earn money with which he

could purchase m ore drugs. O’Kel ly wal ked to a nearby gas station, whereshe ca

me upon Ruiz-M endiet a, who e

ngaged her servic es. The two drove back in the victim’s vehicle to the Regal Par k complex and exi ted the car, heading

for a vacant apartm ent. O’Kel ly tes tified t hat Ha mm t hen appe ared, pointinga

gun at the vi ctim, who trie d to grab t he gun. O ’Kelly

ran aw ay an d, afterhearin g gunshots, revers ed cour se to try to assis t the v ictim. Hamm intercepted her and forced h er backinto his grandmother’s apartm ent, wherehe required her to change clothes. T he victim died a

t the scene from

his gunshot wounds. Hamm ’s brother-i n-law, Damian Mitchell, testi fied that Hamm called him2 Raym ond Ham m wa s also indic ted on one c ount of threaten ing a witness in an officia l proceed

ing and wa s tried j ointly with his brother, but the trialc ourt directed a verdict in his favor at the close of the State’s case. 3 on the evening of

December

14, 2008, imploring Mitchell to come pick him up at the Regal Park apartments “as soon as p ossible.” Mitche ll picke d up Hamm and O’Kel ly and ultima

tely dr ove them back to his home

for the ni ght. The following morning Hamm ’s brother , Ray mond, dr ove Ham m and O’Kelly to a recording studio wit h which both Hamm brother s h ad busine ss conne ctions. Accord ing to O’Kel ly, on t

he way to the re cording studio, Hamm told his brothe r th at he had killed a man. Ham

m and O ’Kelly

staye d at the

recording studio fo r several days thereafter , where, O’Kelly testified, Hamm kept her under close watch, prevented her from leaving, an d threatened to kill her if she told any one about

the shooting. Once news of t

he murder bec amepublic, Raymond drove Ham m and O’Ke llyto West Point, Georgia to reloc ate. During the drive to We st Point , O’Kelly testifi ed, Ra

ymond and Ham m threatened to harm her and her grandfa ther, who lived in West Point, if she to ld anyone about the

murde r. 2 While in West Poin t, O’Kelly testified, Ham m fo rced her to prostitute herself to earn money to pay for lo dging. They event ually took up residence in a vac ant4

home, wherethey w ere dis covere d by the property owner, Aberde lla Sco tt, who allowed them to stay

and brought

them food from

time to time. Scott testified that she witnessed Ham

m bullying O’Kelly

and that she saw t

wo guns, one silver a nd one bla ck, in H amm ’s possess ion. On the morning of February 8, 2009, Ha mm shot O’Kell

y inthe head a

nd

arm with a silver han dgun after s he threatened to leav e. Once at the hospit al out of Hamm ’s presence, O’Kelly told police about the sho oting of Ruiz-Mendieta. During Hamm ’s inter

view wi th West P oint

police in the aftermath of O’Ke lly’s shooting, policediscove red the re was an arre st warra nt outsta nding for Hamm in connection with the Ruiz-Me ndieta shooti ng , and Hamm was arrested. At trial, in additi on to the a bove, the State adduce d the tes timony of Ronald Daniel, a friend of Hamm, w ho testified that he was a

t Regal Park with Hammand O’Kelly wa

tching football on the day of the Ruiz -Mendie ta shooting. Daniel testifi ed that

at on e point

Hamm emerged from a bedroom and told Danie l that “hi s girl [O’Kelly] had a lick set up .” Daniel testified th at a “lic k”

mea nta robbery, and that Ha mm asked w

hether Da niel wante d to acc ompany him. Daniel testifi ed that he declined, at whic h point Hamm le ft the apartment. Accord ing to Daniel, approximately 20 to 30 minutes later Ham m returned with5

O’Kelly, and Hamm was carrying an AK-47, wh ich Daniel had seen in Hamm ’s possessio n on prior occasions. Daniel test ified that Hamm said he had “tried to rob . . . the am

igo” but that he had to shoot when the victim grabbed for the gu

n. Daniel further t estifie d that Ha mm a sked him

to hold the

AK-47 a t Danie l’s apartment upstairs, that Daniel initially agreed to do so and took the gun upst airs, an d that he then change d his mind an d too k the g un back to Hamm. A reside nt of t

he R egal Pa

rk apart ments testifi ed that , on the d ay of th e shooting, she observed a black woma n and an Hispanic man i n the pa rking lot exiting a truck and walking toward t he apa rtme ntbuilding. A short time la ter, this witnes s testif

ied, she heard a gunshot. T

he Stat e also a

dduced t hat a sp ent 7.62 calibe

r shell c asing wa s recove red from the sce ne of the Rui z-Mendieta shooting and that an AK-47 is capable of firing that model of bullet. 1. Though H amm

has not e numera

ted thegeneral grounds, we find that the evidence as summarized above was s ufficient to enable a rational tri er of fact to conclude beyond a reasonable dou bt that Hamm was guilty of all the crimes of which he was convi cted. Jackson v. Virginia , 443 U. S. 307 (99 SC t 2781, 61 LE2d 560 ) (1979)

. 2. Ham m cont ends tha

t the tri al cour

t er red in de clining t o instruc t the3 Under the new Georgia Evidence Code, eff ective for trials conduct ed on or after Ja nuary 1, 2013, t

his concept

is now codi fied at O CGA § 24- 14-8. 6 jury, at his request , rega

rding the need for

corrobora

tion of an

acco mplic e’s testimony. As we hav e expla ined, und er form er OCG

A § 24-4-8, 3 [i]n felony

case s where

the only witnes s is a

n acco mplic e, the testimony of a singl e witne ss is not suffi cient a nd must be suppor ted bythe testimony

of at le ast oneother wi tness or b y “corro borating circumstances.” The additional evidenc e ma y be circum stantia

l and it may be slight, and it need not of itself be sufficient to warrant a convict ion of the crim e cha

rged. It must, howeve r, be in depende nt of the ac co mplic e testimony and mus t direc tly con nect th e defendant with the crim e, or lead to the inference that he is g uilty. (Citat ions and punct

uation. ) Johnson

v. State , 288 Ga . 803, 805 (2) (708 SE 2d 331) (2011); se e also Kesler v. State , 249 G a. 462, 465 (2) (291 SE 2d 497) (1982) (to corrob orate accomplice’s testimony, State must a dduce in depende nt evidence as to “the i dentity and part icipat ionof th e defend ant”). H amm claims that the bulk of the testimony im plicating him as Ruiz -Men dieta’ s assai lant

came from

O’Kelly; that Daniel’s testimony supp orts a findi ng that O’Kelly was actually an ac compl ice in the shooting; and that therefore the tria

l court should have given his requested instr uction on corrobor ation of a n acc omplic e’s testimony. “To autho rize a request ed jury instruct ion, the re nee d only beslight4 Though the S tate characterizes Daniel’s testimony in this respect as “selfservinghearsay

” lacking in probative value, Hamm ’s statement wa s admissible as an admis sionagainst int erest and there fore can

not be disrega

rded as the

State co ntends. See Teal v. State , 282 Ga. 319 (3) (647 SE2d 15) (2007). 7 evidence supporting

the theory of th e charge.” Hicks v. State , 287 Ga. 260 , 262 (2) (695 SE2d 195) (2010); ac cord Sc ot t v. State , 291 Ga . 156 (2) (72 8 SE2d 238) (2012); Webb v. State , 28 4 Ga. 12 2 (4) (663 SE2d 690) (2008). It is a question of law whether the ev idence presen ted i s suffici ent to a uthorize the giving o f a particular charge. Hicks , 287 Ga. at 262. Thu s, where a particular charge is requested, it is the duty of the trial court to determ ine whether there is slight evid ence to suppo rt the charge. In this case, im plicit in the tr ial cou rt’s refusal to give t

he cha rge Ha mm r equeste d was the

conclusion that there w as not

even slight e vidence

to support i t. In fa ct, e arlie r in the t rial wh en ruling on Hamm’s motion for dir ected verdict, the trial court had expressly stated that it “did not find that [O’Kelly] w as an accom plice in this case. And so . . . there is no requirement o f corrobo ration for her testimony.” Contrar y to thi s concl us ion, however, there wa s evidence to support a finding that O’Kelly was an accomplic e: Daniel testi fied that Hamm told him O’Kelly had “set up a lick ,” 4 and O’Kelly admit ted to ha ving brought t

he victim8

to the sce ne of the shooting by

offering to engag e in sex ual ac ts, to flee ing the

scene immedia tely after the

shooting, to leaving to wn in its a ftermath, a nd to failing to report

the crime until both she and Ham m had be en found by investig ators. Such evidence is clearly the type o f evidence our courts view as supporting

the finding that one is an accomplice. See, e.g., Jones v. State , 268 Ga. 12 ( 1) (483 SE2d 8 71) (1997) (witnes s’ presence a t crim e and sub sequent flight can supp ort finding that wi tness wa s an ac compl ice); Jones v. State , 242 Ga. 893 (1) (252 SE 2d 394) (1979) (witness ’ prese nce, c ompani on sh ip, and

con duct a fter the crime

are circum stances from whic h her intent to participate in a criminal act can be inferred ). Given this evi dence , it wa s error fo r the tri al cour t to refuse t o give the requested instruct

ion. Whe ther O’K

elly w as an a ccom

plice, and the we ight

to be afforded her testimony if she was, should

have been submitt ed for the jury’s determ ination. See Johnson , 288 Ga. at 806- 807 (trial co urt prop erly submitted to the jury the questi on of wheth er witness who p led guilty was an accomplice, rejec ting content

ion that t rial c ourt should ha

ve ma de determination as a matter of law); Jones , 268 Ga. at

14 (“it is for jury to determine w hether the witness is

an accomplice”) (Citat

ion and punct

uation om

itted). Cf. Yeomans v. State , 2295 The sam e principl e has been

reitera ted in other

cases w here it is unclear f

rom the Court’s opinion whether or not the instruction was requested. See Jones v. S tate , 270 Ga. 25 (4) (505 S E2d 749) ( 1998); Jenkins v. S tate , 268 Ga. 468 (9) (49 1 SE2d 9 Ga. 488 (5) (192 SE 2d362) ( 1972) (no er ror in fai ling to give

charge on accomplice corroboration wh ere t here w as no evidence that the witness in question was an accomplice in the crime charged). We acknow ledge t

hat this holding sta

nds at odds w ith prec edent f rom this Court establi shing that there is no error in de clining t o give a n instruc tion on accomplice corrobo rati on, eve n if such a charge is reque sted, w

here th e

accom plice’ s testimony is in f

act c orrobo rated by independen t evidence. See Fleming v. State , 269 Ga . 245 ( 2) (497 SE2d 211) (1998) (no re versible error in trial court’s failure to give requested instructio n on accomplice corrobora tion whereState relied in part on defendant’s statem ents to police); Hall v. State , 241 G a. 252 (7) (244 SE2d 833) (1978) (no e rror in de clining d efenda nt’s reque st to charge on acco mplic e corrob oration w here St ate re lied on

testimony of oth er witnesses as wel l); see

also Jackson v. State , 294 Ga . 34, 36 (2) (751 SE 2d 63) (2013) (statin g in dicta

that a n acc omplic e cor

robora tion instr

uction is not require d, even w

hen it is request ed, where the a ccom plice’ s testimony

is in fact independently

corrobora

ted). 5 This lin e of pre ceden tappea rs to have origi nated54) (1997). Num erous cas es from our Court of Appeals have also followed this rule. See, e.g., Kegler v . State , 317 Ga. A pp. 427 (4) (731 SE2d 111) (2012) ( no error i n failing to give cha

rge where State relied on other evid ence i n add itio n to ac compli ce’s testim ony); Laing v. State , 304 Ga. App. 15 ( 2) (695 SE 2d 363) (2010) (no error in de clin ing defendant ’s requ est to char ge on accom

plice cor roboration

where S tate relied on defenda

nt’s sta teme nt and

other evid ence); Cochran v. State , 300 Ga. App. 92 (3) (684 SE2d

136) (2009) (no error

in declinin g defendan

t’s req uest to charge on accomplice corroboration whe re State relied on o ther evidence) ; Meredith v. State , 148 Ga. App. 853 (6) (253 SE2d 220) (1979) (same)

.

6 We note that the Ha ll Court cite d no authorit y dire ctly s upporting thi s holding, instead offering

only a “cf

.” cita tion to thre e cases ( only one from this Court) in which th is instruct

ion was apparently

not reques ted. 10 with Hall v. State , supra, in which t his Court h el d that the

trial c ourt had not erred in refusing to give t he reque sted inst

ruction , on th e ground tha t “there

were othe r witne sses to t he crime so tha

t the Sta te did not rely s olely o n [the alleged a ccom

pl ice’s] testimony” and thu s OCGA § 24-4- 8 was inapplicab le. Id. at 257. 6 In other wor ds, Hall ’s holding i mplie d that, be cause there was evidence at trial sufficien t to corrob orate the alleged accomplice’s testimony an d thus satisfy OC GA § 24 -4-8, the re was no need t o instruc t the jur y on the accomplice corrobor ation requir ement. Howeve r, what the Hall Court failed to recognize is that the sufficie n cy of the evi dencecorrobora

ting an ac compl ice’s testimony, inc luding whe ther the State has presented other witnesses to the same m aterial fac ts as the accomplice,11

is an inquir

y entirely dis tinct from whe ther a j ury cha rge on the

pri nciple o f

accom plice c orroboration is warranted. As note d above, it is well-establish ed that request ed jury

instruct ions must be given whe never t here is “slight evidence” to suppo rt them. See Hicks , 287 Ga. at 262. Where, as here, there is slight evidence suppo rting a find ing that a witnes s was an acco mplic e, the jury should be give n proper gui dancenot only on how

to deci de whet

her the witnes s

w as in fac t an accomplice but also o n the extent to wh ich it can rely on th at witness ’ testimony by itse lf to support a conviction . As then-Chief Ju stice Benham noted in di ssent in Fleming v. State , supra, th e mere fact t hat the re is othe

r evide nce whi ch could

se rve a s corro boration

does not di spense with th e need for the requ ested charge because the jury, as the exclu sive judges of credibilit y, could have rejec ted theother e vidence and convi cted so lely on the accomplice’s testimony. 269 Ga. a t 250 (Be nham, C. J., dissenting). A tr ial cou rt’s fai lure to gi ve the instruct ion where the State r el ies in part on the testim ony of a possible accomplice thus lea

ves open the possi

bility o f a convi ction in v iolatio n of OCGA § 24-4-8

.7 See Fleming v. Sta te , supra, and cases cited in f ootnote 5. 12 Accordingly, we now overrul e Hall v. State , supra, and its progeny, 7 to the extent these cases hold that it is not error for a tr ial c ourt to refu se to give a requested instruct

ion on acco mplic e corrob oration s o long as the State rel ies in part on other evidence connec ting the defendant to the crim e. In so doing, we reaffirm the pre- Hall Court of A

ppeals line of

cases holding that the failure to give such an instr uction, when it is requested, is error. See Herrinv. State , 138 Ga. Ap p. 7 29, 735 (1 1) (227 S E2d 498) ( 1976) (o pining th at “[t]he mere fact that th e accomplice’s testimony was corro borated by the tes timony of [oth er witness es] is no rea son for refusin g to give su ch written request”); Maddox v. State , 136 Ga. App. 37 0 (4) (22 1 SE2d 23 1) (1975 ) (thoug h the circumstantial corrobora tive evidenc e was s ufficient to susta in the c onviction , the tria

l court’s failure to instruc t the jur

y on accom

plice c orroboration was e rror). Se e also Johnson , 288 Ga. at 806 (not ing that a ccom

plice c orroboration instructio n was appropriately

given even where evidence was sufficient to c orroborate

accom plice’ s testim

ony). The fact t hat thefailure

to give the instr

uction w here w arrant ed is er

ror8 We note that in ca ses where no reque st for this charge is made at trial or the defendant otherwis e fails to properly preserve this ground for appeal, reversal would be warra nted only if the m ore string ent “

plain error”standard i s satisfie d. See, e.g., Jackson v. State , 294 Ga. 34 (2) (751 SE2d 6 3) (2013)

.

9 Wh ile Hamm

maintains that Daniel also could be found to have been an accomplice, we note that even assuming arguendo this contention has mer it, it is well established that the te stimon y of one acc omplic e ma

y be used to cor

roboratethat of another. See Ramirez v. S tate , 294 Ga. 440, 442 (___ SE2d ___) (2014). 13 d oes not, of c ourse, n eces sarily dema nd rever sal. “A

convict ion in a crim ina l

casewill not be reversed when it is h ighly prob able th at an erroneous j ury instruct ion did not con

tribute to the ve rd ict.” Francis v. State , 266 Ga . 69, 72 (3) (463 SE2 d 859) (1995). 8 Under the circumstances present ed here , we find that the error was in

fact harmle ss. In addition to O’Kelly’s te stimony, the State adduce d, through Daniel, 9 Hamm’s ow n admission that he had “ killed a n amig o” and Hamm ’s statement t

hat “his g irl had set up a lick.” The State also presented indepen dent

evidenc e that on the nigh t of t he shooti ng Hamm fle d his apartment, having i mplore d his broth er-in-law to ret rieve him “as soon as possibl e,” and ultimately reloca ted w ith O’Ke lly to We st Point. Further, the S t ate adduce d eviden ce tha t, on the day a nd in the vi cinity

of the shoo ting, Hammwas in posses sion of an A K-47, a model which is capa

ble of ejec ting the particular type of

shell c asing re covere d fro m t he scene, and that Hamm had14

asked Daniel to tak e his AK-47 after telling Daniel th at he had shot s omeone. Moreove r, though O’Kelly was cle arly the State’ s star w itness, for the j ury to believe she was an accomplice it would necessarily ha ve had to credit Danie l’s testimony, as he was the only witn ess to testify to her complicity in an attempted arme d ro bbery . Daniel was a lso the only witness to affirm atively corroborate Hamm’s partic ipa tion in the Ruiz-M endiet a shooting , by re counting H amm ’s incri minat

ing statement t

hat he h ad “shot . . . the

amigo .” Thu s, the

same witnes s whose testimony would have pr ovided the b asis for a find ing that O’K elly was an accomp lice a lso provide d the co rroborati on nece ssary t o support hertestimony as a

n acc omplic e. Wetheref ore find i t highly p r obable that the jury either (1) beli eved a ll of Da

niel’s t est imony, i n which case, had it b een instructed on the need for acc omplic e corrob oration, it would ha ve found Hamm ’s incrim

inating statement to be sufficient co rroborati on; or (2 ) rejected all of Daniel’s test imony, in which case O’Kelly wo uld not h ave been adjudged

an accomplice and thus no corrobor ation of her t estimony 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 request ed instru ction did

not contribut e to the

verdic t, and r eversal is not re quired.15

3. Ham m sepa

rately enum erate s as err

or the tr ial cou rt’s ref usal to gi ve his request ed instru ction r egardin g part ies to a crime. In sofar as Hamm contend s that this instruct ion was n eces sary be cause the pat tern jury charge on corrobora tion of accomplice t est imony does not i nclude a

definition of “accomplice,” this enumeration fails in ligh t of our con clusion in Division 2 that the failure to in struct on accompli ce corroboratio n was not revers ible error. Judgme nt affir

med. All the

Justice s concur .

Decid ed Marc h 17, 2014. Murder. Clay

ton Superi or Court. Before Judge Col lier. Leslie R. Low ry , for appellant. Tr acy Graham-Lawson, Distri ct Attorney, Frances C. Ku o, Michael D

. Thurston, Assista

nt Distri ct Atto rn e ys, Samuel S. Olens, Attorney General, Patricia B. Att away

Burton, Deputy

Attorne y General, Pa

ula K. Smith, Senior Assista nt Attorney General, Katherin e T. Parvis, Assist ant Attorney Gener al , fo r appellee.