                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 27, 2017




In the Court of Appeals of Georgia
 A17A0333. BURNS v. THE STATE.

      BRANCH, Judge.

      Following a jury trial, Willie Lewis Burns was convicted in DeKalb County

Superior Court of aggravated assault and theft by receiving stolen property. Burns

now appeals from the denial of his motion for a new trial, asserting that his lawyer’s

failure to request an instruction regarding the requirement that accomplice testimony

be corroborated constituted ineffective assistance of counsel. Burns further contends

that the trial court committed plain error when, after instructing the jury that the

testimony of a single witness was sufficient to support a conviction, it failed to further

instruct jurors that the testimony of an accomplice must be corroborated. We agree

with Burns that he received ineffective assistance of counsel, and we therefore

reverse the order denying Burns’s motion for new trial.
      Viewed in the light most favorable to the jury’s verdict, Martinez v. State, 306

Ga. App. 512, 514 (702 SE2d 747) (2010), the record shows that this case arises out

of the efforts of Burns and his co-defendant, Jarvorris Palmer, to sell a car. Burns and

Palmer were tried together and at trial both stipulated that the car, a white Dodge

Charger, was a stolen vehicle to which they did not hold title. On the morning of

August 16, 2011, Burns and Palmer drove the car to meet with the victim, who had

expressed an interest in buying it. After some negotiations, Burns and Palmer drove

the victim in the Dodge Charger to the victim’s bank so that he could withdraw cash

for the purchase of the vehicle. The victim went into the bank first, and Burns and

Palmer followed a short time later. All three men were observed in the bank by a loan

officer and the bank manager, and images of all three men were captured by the

bank’s video recording system and were introduced into evidence at trial. After the

victim completed his cash withdrawal, the men left the bank and returned to the car,

which was parked in front of the manager’s office window. Both the bank manager

and the loan officer then witnessed the men engaging in what appeared to be a heated

argument regarding paperwork that either Burns or Palmer was holding.1 All three

      1
        During his testimony at trial, Palmer acknowledged that the papers were fake
documents (including a fake car title) he “had . . . drawn up” to help facilitate the sale
of the stolen vehicle.

                                            2
men then got into the car, with the victim getting into the backseat, and drove to a

parking lot a short distance away. Approximately five minutes later, the bank

manager left the bank and was walking towards her car when she heard what she

believed was a gunshot. When the manager looked towards the sound of the shot, she

saw the victim running and being pursued by the man who had been seated on the

front passenger side of the car. The manager heard an additional three or four

gunshots, and it appeared to her that the man pursuing the victim was shooting at him.

As the manager watched, she saw the victim jump into oncoming traffic, saw the man

pursuing him leave the scene and jump the fence surrounding a nearby apartment

complex, and observed that the Dodge Charger had been driven away from the area.

      The only other witness to the shooting was a repairman who had been working

on an air-conditioning unit located on the roof of a nearby restaurant. After hearing

a gunshot, the repairman looked towards the sound and saw a man exiting a white

Dodge Charger holding a pistol and shooting at a second man. The repairman

describe the shooter as dark-skinned with dreadlocks, and wearing a white shirt and




                                          3
baggy jeans.2 According to the repairman, the car and driver fled the scene as the

shooter ran away on foot.

      Emergency personnel responded to the scene and discovered the victim

suffering from a gunshot wound to the abdomen. Less than an hour after the incident,

police located Burns and Palmer at an apartment complex within walking distance of

the area where the shooting occurred. The Dodge Charger was found parked in the

lot at the same apartment complex. Police then conducted a show-up with both the

bank manager and the loan officer, each of whom positively identified Burns and

Palmer as the men they had seen in the bank with the victim. The victim subsequently

identified Burns and Palmer from two photographic lineups as the men who had

assaulted and attempted to rob him.

      After Burns and Palmer were taken into police custody, Palmer gave officers

a statement in which he identified Burns as the shooter. The police obtained arrest

warrants for both men based on Palmer’s statement, and Burns and Palmer were

thereafter indicted jointly on charges of kidnapping with bodily injury, armed

robbery, aggravated assault, aggravated battery, and theft by receiving stolen

      2
        The record shows that neither Burns nor Palmer had dreadlocks at the time
of the crime, and at trial, the repairman could not identify either Burns or Palmer as
the shooter.

                                          4
property. With respect to the charge of aggravated assault, the indictment alleged that

Burns and Palmer “individually and as parties [to] the commission of a crime . . . did

make an assault upon [the victim] with a handgun, a deadly weapon.”

      At trial, there was conflicting evidence as to the identity of the shooter.

According to the victim, both Burns and Palmer shot at him at some point. Although

the victim’s testimony on this issue was confusing and at times self-contradictory,

parts of that testimony indicated that Palmer was the man shooting at the victim as he

attempted to flee from the car. Additionally, the bank manager positively identified

Palmer as the shooter. The bank manager also noted that the shooter had been on the

passenger side of the car, and in his testimony the victim stated that Burns was the

driver. Furthermore, both the bank manager and the repairman described the shooter

as wearing a white T-shirt and baggy blue pants or jeans, and the still photo taken

from the video of the men inside the bank shows Burns wearing clothes matching that

description.

      Palmer testified in his own defense and stated that he had agreed to help Burns

sell a car both men knew was stolen, identified Burns as the shooter, and denied

participating in the aggravated assault. Palmer acknowledged that when the incident

began, Burns was driving the car and he was the person seated in the front passenger

                                          5
seat. But Palmer insisted that despite the bank manager’s unequivocal identification

of the front seat passenger as the shooter (and despite her identification of Palmer as

both the front seat passenger and the shooter), it was Burns who had committed the

assault against the victim. Specifically, Palmer stated that when the victim decided

not to purchase the car, Burns pulled a gun from underneath the driver’s seat and fired

a shot towards the victim. Palmer further explained that when the victim escaped from

the car, Burns ran from the scene on foot, and Palmer then moved to the driver’s seat

and drove the car to the nearby apartment complex.

      In charging the jury, the trial court instructed the jurors that, “[t]he testimony

of a single witness, if believed, is sufficient to establish a fact. Generally there is no

legal requirement of corroboration of a witness provided that you find . . . the

evidence to be sufficient.” Burns’s trial counsel did not object to this charge, and he

did not request a corresponding charge that the uncorroborated testimony of an

accomplice is insufficient to support a conviction. The jury found both Burns and

Palmer not guilty of kidnapping with bodily injury, armed robbery, and aggravated

battery,3 and found both guilty of theft by receiving stolen property. With respect to

      3
        The only evidence of kidnapping with bodily injury, armed robbery, and
aggravated battery was the testimony of the victim. That testimony, however, was
confusing and at times self-contradictory. Additionally, elements of that testimony
were in direct conflict with both the physical evidence and the testimony of other
witnesses. And viewing the jury’s verdict in light of the evidence, it appears jurors
rejected the victim’s testimony almost entirely.

                                            6
the charge of aggravated assault, the jury found Burns guilty, but found Palmer not

guilty.

      Following his conviction, Burns filed a motion for a new trial, alleging that his

trial counsel’s failure to request a jury charge on the requirement that accomplice

testimony be corroborated constituted ineffective assistance of counsel. The trial

court held a hearing on that motion, at which trial counsel testified that the theory of

defense was that Palmer did the shooting and that Burns “just happened to be there.”

Defense counsel further testified that he was aware of the requirement that an

accomplice’s testimony must be corroborated, but he could not recall a reason for his

failure to request a jury charge on that requirement. The trial court subsequently

denied the new trial motion, and Burns now appeals from that order.

      1. OCGA § 24-14-8 provides, in relevant part,

      [t]he testimony of a single witness is generally sufficient to establish a
      fact. However, in . . . felony cases where the only witness is an
      accomplice, the testimony of a single witness shall not be sufficient.
      Nevertheless, corroborating circumstances may dispense with the
      necessity for the testimony of a second witness [in felony cases].


Under this rule, where an accomplice testifies at trial, a jury may not rely solely on

that testimony to find any “fact necessary to [sustain the defendant’s felony]

                                           7
conviction.” Johnson v. State, 288 Ga. 803, 805 (2) (708 SE2d 331) (2011) (applying

former OCGA § 24-4-8, now codified as OCGA § 24-14-8). See also Ramirez v.

State, 294 Ga. 440, 442 (754 SE2d 325) (2014) (same). Instead, the existence of any

such fact must also be supported either by the testimony of an additional witness or

by other, independent evidence that corroborates the accomplice’s testimony. And in

a relatively recent case, our Supreme Court held that it is error for a trial court to

refuse a request to charge on the requirement that accomplice testimony be

corroborated even “where the accomplice’s testimony is in fact corroborated by

independent evidence.” Hamm v. State, 294 Ga. 791, 795 (2) (756 SE2d 507) (2014)

(expressly overruling a line of cases to the contrary) (citations omitted).

      Burns contends that in light of the foregoing law, and given the trial court’s

instruction that the testimony of a single witness is sufficient to sustain a conviction,

trial counsel’s failure even to request a jury instruction that the testimony of an

accomplice must be corroborated constituted ineffective assistance of counsel. To

prevail on this claim, Burns bears the burden of proving both that the performance of

his lawyer was deficient and that he suffered prejudice as a result of this deficient

performance. Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d

674) (1984). To demonstrate deficient performance, Burns must prove that his

                                           8
lawyer’s failure to request such a jury instruction was objectively unreasonable,

considering all of the circumstances and in light of prevailing professional norms. Id.

at 687-690. And to show that prejudice resulted from this deficient performance,

Burns must prove that there is “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694 (III) (B).

      Here, the trial court found that counsel’s failure to request an instruction

regarding the corroboration of Palmer’s testimony as to Burns’s identity as the

shooter constituted deficient performance. In its brief, the State concedes that trial

counsel’s performance was deficient in this regard, and we agree with this conclusion.

See Fisher v. State, 299 Ga. 478, 485 (2) (a) (788 SE2d 757) (2016) (finding deficient

performance where “it would have been entirely unreasonable for [defense counsel]

to make a ‘strategic decision’ to approve the trial court’s instruction to the jury that

‘generally, the testimony of a single witness . . . is sufficient to establish a fact,’

without insisting that the court also instruct the jury that this general rule did not

apply to [an accomplice’s] testimony”) (citation omitted). See also Hamm, 294 Ga.

at 796-797 (2). The question before us, therefore, is whether, based on the record in

                                           9
this case, Burns has shown he was prejudiced by this deficient performance – i.e.,

whether counsel’s failure to request a jury instruction on the corroboration of

accomplice testimony undermines confidence in the outcome of the trial. Fisher, 299

Ga. at 486 (2) (b).

      When determining prejudice in the context of an ineffective assistance claim,

      “we review the record de novo [and] we weigh the evidence as we
      would expect reasonable jurors to have done so, as opposed to assuming
      that they took the most pro-guilt view possible of every bit of evidence
      in the case.” Boothe v. State, 293 Ga. 285, 289-290 & n. 8 (745 SE2d
      594) (2013) (citation and punctuation omitted) (explaining the
      difference between the way courts review the harm caused by errors and
      the way courts conduct due process review of the sufficiency of the
      evidence). See also Strickland, 466 U. S. at 695, 104 SCt. 2052 (“In
      making the prejudice determination, a court hearing an [ineffective
      assistance] claim must consider the totality of the evidence before the
      judge or jury.”); Humphrey v. Morrow, 289 Ga. 864, 870 (717 SE2d
      168) (2011) (explaining that when the court assesses the effect of
      evidence that was not presented to the jury at trial due to defense
      counsel’s deficient performance . . . “our assessment of how a jury might
      have reacted to the additional evidence is an assessment of the legal
      question of prejudice, which we perform de novo”).


Woodard v. State, 296 Ga. 803, 810, 3 (b), n. 5 (771 SE2d 362) (2015).



                                         10
      In denying Burns’s motion for a new trial, the trial court found that Burns

could not demonstrate prejudice because he had been charged as a party to the crime

“which mean[t] that the jury could convict if they found that [Burns] was either a

party to the crime [of aggravated assault] or the actual perpetrator of the crime.” The

trial court then found that the evidence at trial established “beyond a reasonable

doubt” that Burns was a party to the crime, as it showed that Burns “was at the scene

of the crime and participated in it.” Thus, the court reasoned that because evidence

independent of Palmer’s testimony supported Burns’s conviction as a party to the

crime of aggravated assault, Burns was not prejudiced by his lawyer’s failure to

request the jury charge at issue. The flaw in this reasoning is that it fails to

acknowledge that the same jury that convicted Burns of aggravated assault acquitted

Palmer of that crime. Thus, the jury found that Burns alone perpetrated the crime of

aggravated assault against the victim, and that Palmer was not even a participant in

that crime. Accordingly, the jury’s verdict forecloses the possibility that it convicted




                                          11
Burns as a party to the crime of aggravated assault committed by Palmer.4 See OCGA

§ 16-2-21 (a party to the crime is one “who did not directly commit the crime”).

      Furthermore, the mere fact that there was some evidence corroborating

Palmer’s testimony does not prevent Burns from proving he suffered prejudice as a

result of counsel’s failure to request the jury instruction at issue. With respect to

prejudice resulting from the absence of this jury instruction, the question is not

whether there was sufficient corroboration of the accomplice testimony to allow the

jury to rely on that testimony when determining the defendant’s guilt. Rather, as

noted above, the question is whether, under the circumstances of this case, the

      4
        We recognize that the acquittal of one claimed to have directly committed the
crime “does not bar the prosecution and conviction of another party to the crime in
a separate and distinct trial of the issues.” Eades v. State, 232 Ga. 735, 737 (4) (208
SE2d 791) (1974) (emphasis supplied). See also OCGA § 16-2-21 (a person may be
convicted as a party to a crime “although the person claimed to have directly
committed the crime has not been prosecuted or convicted, has been convicted of a
different crime or degree of crime, or . . . has been acquitted”); White v. State, 257 Ga.
236 (356 SE2d 875) (1987); Rhines v. State, 288 Ga. App. 128, 130 (1) (653 SE2d
500) (2007). Thus, had Palmer been acquitted of aggravated assault in a separate trial,
by a jury other than the one that convicted Burns, Palmer’s acquittal would not
prevent Burns from being convicted as a party to aggravated assault. See White, 257
Ga. at 236 (acquittal of principal is relevant evidence in subsequent trial of an
accomplice charged as a party to the crime, but it does not bar the accomplice’s
conviction as a party); Rhines, 288 Ga. App. at 130 (1) (same). But given that Burns
and Palmer were tried jointly before the same jury, the only way to interpret the
verdict on the charge of aggravated assault is that Burns was convicted as the
principal, not as a party to the crime.

                                           12
absence of an instruction on the necessity for corroboration of accomplice testimony

undermines confidence in the outcome of trial. See Fisher, 299 Ga. at 487-489 (2) (b)

(finding that trial counsel’s failure to request an instruction on the requirement that

accomplice testimony must be corroborated resulted in prejudice to the defendant,

despite the fact that corroborating evidence was introduced at trial). See also Stanbury

v. State, 299 Ga. 125, 131 (2) (786 SE2d 672) (2016) (although other evidence

corroborated accomplice’s testimony, the “trial court’s failure to give an accomplice

corroboration instruction . . . when coupled with the express authorization by the

court for the jury to establish critical facts based solely on this testimony” constituted

plain error, as it raised the possibility that the defendant’s conviction was secured

through impermissible means). Here, viewing the record — including the charge to

the jury — as a whole, and weighing the evidence “as we would expect reasonable

jurors to do,” we find that Burns has demonstrated prejudice resulting from trial

counsel’s deficient performance.

      Palmer’s identification of Burns as the sole shooter was directly contradicted

by the testimony of the bank manager, who affirmatively identified Palmer as the

shooter. Additionally, other circumstantial evidence pointed to Palmer as the

assailant, including the eyewitness description of the clothing worn by the shooter,

                                           13
which matched the clothing Palmer was wearing at the time of the crime. And the

bank manager’s testimony that the shooter had been seated in the front passenger seat

of the car, in conjunction with Palmer’s admission that he had been the front seat

passenger, also served to undermine Palmer’s claim that Burns alone committed the

aggravated assault. Moreover, although the victim stated that both defendants shot

him, that testimony also indicated that Burns never left the car and implied that

Palmer was the man who pursued the victim and delivered the shot that injured him.

Given this evidence, the absence of an instruction on the requirement that Palmer’s

testimony be corroborated, when coupled with the trial court’s instruction that the

testimony of a single witness is sufficient to establish a fact,”impermissibly

empowered the jury” to disregard any conflicting testimony and “to find [Burns]

guilty [of aggravated assault] based solely on [Palmer’s] accomplice testimony.”

Stanbury, 299 Ga. at 130 (2). And “[b]ecause jury instructions are the lamp to guide

the jury’s feet and journeying through the testimony in search of a legal verdict, we

must presume the jury accepted the authorization to establish a fact based solely on

[Palmer’s] accomplice testimony.” Id. at 130-131 (2) (citation and punctuation

omitted). Accordingly, we must conclude that the outcome of trial “was ‘likely

affected’ by the trial court’s failure to provide an accomplice corroboration charge to

                                          14
the jury.” Id. (citation omitted). See also Martin v. State, 298 Ga. 259, 277-278 (6)

(c) (779 SE2d 342) (2015), cert. denied, ___ U. S. ___ (137 SCt 62, 196 LEd2d 60)

(2016) (noting that the “test for harm under plain error review is equivalent to the test

in ineffective assistance of counsel cases for whether an attorney’s deficient

performance has resulted in prejudice of constitutional proportions”) (citation

omitted).

      Thus, we find that under the circumstances of this case, trial counsel’s failure

to request a jury instruction regarding the requirement that accomplice testimony be

corroborated constituted ineffective assistance of counsel. Fisher, 299 Ga. at 486-487

(2) (b); Stanbury, 299 Ga. at 131 (2).

      2. In light of our holding in Division 1, we need not address Burns’s remaining

enumeration of error.

      For the reasons set forth above, we reverse the trial court’s denial of Burns’s

motion for a new trial.

      Judgment reversed. McFadden, P. J., and Bethel, J., concur.




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