STALLINGS v. the STATE.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 12, 2017

In the Court of Appeals of Georgia
A17A1116. STALLINGS v. THE STATE.

MERCIER, Judge.

Sierra Stallings was indicted in the Superior Court of Bibb County along with

Jarvis Williams and Diondra Walker for offenses related to a series of armed robberies

in Macon in 2012. Following a bench trial in which her co-defendant Williams testified

as a witness for the State, Stallings was found guilty of one count of armed robbery

and one count of aggravated assault, and not guilty on three other counts. Stallings

appeals the convictions and trial court’s denial of her motion for new trial, contending

that the evidence was insufficient to support her convictions and that the trial court

erred in denying her motion to suppress oral and written statements she gave to law

enforcement officers. For the reasons that follow, we affirm in part, vacate in part, and

remand the case with direction.
 1. Stallings was charged jointly with Williams and Walker with attempted armed

robbery and two counts of aggravated assault relating to an attempted armed robbery

at a Sunrise store in Macon on April 18, 2012 (Counts 1, 2, and 3 of the indictment,

respectively), and with armed robbery and aggravated assault relating to a robbery at

a Kwik Trip store in Macon on April 30, 2012 (Counts 6 and 7, respectively).1

Stallings was found not guilty on Counts 1, 2, and 3, and found guilty on Counts 6 and

7. She contends that the evidence was insufficient to support her convictions because

the testimony of Williams, her co-defendant, was not sufficiently corroborated.

“On appeal the evidence must be viewed in the light most favorable to support

the verdict, and [Stallings] no longer enjoys a presumption of innocence; moreover,

an appellate court determines evidence sufficiency and does not weigh the evidence

or determine witness credibility.” Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d

514) (1998). “As long as there is some competent evidence, even though contradicted,

to support each fact necessary to make out the State’s case, we must uphold the . .

1
Williams and Walker were also charged with additional offenses, including
offenses relating to an armed robbery at H&R Food Mart in Macon on April 18, 2012.
Those charges are not at issue in Stallings’s appeal.

2
. verdict.” Williamson v. State, 285 Ga. App. 779, 780 (1) (648 SE2d 118) (2007)

(citation omitted).

Every person concerned in the commission of a crime is a party thereto
and may be charged with and convicted of commission of the crime. . .
.A person is concerned in the commission of a crime only if he . . .
[i]ntentionally aids or abets in the commission of the crime; or . . .
[i]ntentionally advises, encourages, hires, counsels, or procures another
to commit the crime.

OCGA § 16-2-20 (a), (b) (3) and (4). 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.” OCGA § 24-14-8.

Williams’s testimony at trial demonstrated the following. On April 18, 2012,

while Williams was with Stallings, he called Walker (also known as “Little Donkey”)

and discussed robbing a store. Williams told Stallings that he was going to rob a store,

and Stallings loaned her car (a white Chevrolet Caprice) to him. At the Sunrise Store,

Walker shot a clerk, and Williams and Walker tried unsuccessfully to take money. The

two fled the scene in Stallings’s car and returned her car to her. Later that day,

3
Williams and Walker committed a robbery at H&R Food Mart and took approximately

five hundred dollars. Williams gave some of the stolen money to Stallings.

Later that same day, Williams was driving Stallings’s car again, and approached

a Georgia State Patrol roadblock. There were three firearms in the car, including the

one used by Walker in the attempted armed robbery at the Sunrise Store, and Williams

was afraid of being caught with firearms because he was a convicted felon. He

abandoned the car and fled. Williams tried to telephone Stallings, and eventually

another (unidentified) person reached her and instructed her to report that her car had

been stolen.

On April 30, 2012, Williams, Walker and Stallings carried out a robbery at a

Kwik Trip store. Williams and Stallings encountered Walker at a store, and while the

three were talking, Stallings said, “we need to do something. We need to get some

money.” Williams understood her comment to refer to carrying out a robbery, because

Stallings was aware that robbery was “what [Williams and Walker] did.” Walker joined

Williams and Stallings in Stallings’s car and retrieved a pistol that was in the console.

The three went to Williams’s home, changed clothes, got some masks, and discussed

which store to rob.

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 They went to a location near the Kwik Trip store, and Stallings decided to go

“check out the scene at the store.” She came back, said “it was clear,” and stayed in

the car, planning to be the getaway driver. Williams testified that he was “the watch out

man,” and that Walker carried out the robbery in the store using the pistol he had

retrieved from Stallings’s car. He described how he went into the store first, bought

some items, and lingered inside, and then Walker came in with the gun that he took

from Stallings’s car and said “give it up.” Williams and a woman in the store “got

down on the floor.” Walker left the store while they were still on the floor. After the

robbery, Williams called Stallings to tell her where to pick him up, and when she

arrived, Walker was already in the car. Williams, Walker and Stallings split the money

from the robbery three ways. Williams testified that neither he nor Walker ever

threatened Stallings. He also testified that neither he nor Walker intended to carry out

a robbery that day until Stallings decided that she wanted to do it, and then the three

of them planned it together.

A state trooper testified that he was conducting a road check on April 28, 2012

and he noticed a white Chevrolet Caprice approach the check point, then turn abruptly

into a private drive. He saw someone run away from the car. An inventory search of

the car revealed a nine-millimeter handgun and a ski mask. The car was registered to

5
Stallings, and while officers were conducting their inventory search, the car was

reported stolen. The trooper testified that he spoke with Stallings that evening, and she

said that her car had been stolen while she was unloading laundry and taking it to her

apartment.

A patrol officer with the former Macon Police Department testified that

Stallings’s car was abandoned at the road check on April 28, 2012 at approximately

10:00 p.m. The patrol officer was dispatched at approximately 11:00 p.m. to take the

theft report from Stallings, and she told him that the theft occurred at approximately

10:00 p.m. The patrol officer asked Stallings why she waited an hour to report the car

stolen, and “[s]he didn’t have an answer for that.”

Security video footage from the Sunrise Store demonstrated various details of

the attempted robbery which were consistent with Williams’s testimony. A crime scene

technician testified that a bullet and a spent cartridge case from a 9-millimeter gun were

found at the Sunrise Store, and that the gun recovered from Stallings’s car was a 9-

millimeter caliber handgun. A forensic firearms scientist testified that, based on his

tests, the bullet and cartridge case recovered from the Sunrise Store crime scene were

fired from the gun that was recovered from Stallings’s car.

6
 Detective David Patterson was employed by the Macon Police Department in

the Criminal Investigations Division in April 2012, and reviewed the case files of the

armed robberies at the Sunrise Store, H&R Food Mart, and Kwik Trip. Because of

the items found in Stallings’s car and the circumstances of her theft report, Patterson

thought that there might be some connection between her car and the robberies. He,

Sergeant Kenneth Chapman and Investigator Carlos Stokes went to Stallings’s home.

Patterson asked Stallings to come to the detective bureau, and she agreed; she rode

there with Chapman and Stokes, and Patterson “followed right behind them.” At the

detective bureau, Stallings told Patterson that she was scared when she reported the

car stolen, and had lied to the patrol officer about the theft. She said that she had

loaned her car to Williams and to someone known as “Little Donkey,” but she did not

know “Little Donkey’s” real name. She said that Williams called her later on that night

and told her to report her car stolen because he had abandoned it. A typed transcript

of her oral statement to police (referred to herein as the “pre-Miranda statement”) was

prepared, which she signed and initialed.

While Patterson made copies of the signed transcript, Stallings waited in

Chapman’s office, because the detectives were going to arrange a ride home for her.

While she was waiting, Chapman asked her if she knew anything else about the armed

7
robberies, and Stallings made a comment implicating herself in an armed robbery.

Patterson then read a Miranda form to Stallings, and questioned her again. In her

second statement (referred to herein as her “post-Miranda statement”), Stallings

admitted her role in the April 30, 2012 armed robbery. Her post-Miranda statement

was also transcribed. Stallings signed and initialed the typed transcripts of her

statements, which were introduced at trial.

In her post-Miranda statement, Stallings told officers that she loaned her car

to Williams and his friend “Little Donkey” on April 28 and she saw that they had a ski

mask and a gun when she gave the car to them. In her pre-Miranda statement,

Stallings had told investigators that on April 30 she dropped Williams and Walker off

near the Kwik Trip store, and she saw them with a gun and ski mask that day. She said

that the next time she heard from Williams or Walker was when she spoke with

Williams on May 2, and he told her that he and Walker had committed a robbery at a

“Citgo that day.”

In her post-Miranda statement, however, Stallings said that on April 30 she

dropped Williams and Walker off near the Kwik Trip store, and that she waited for

them while they committed the robbery. She said that Walker had cash in his hands

when he and Williams returned to her car, and that Williams and Walker still had a gun

8
and ski masks. Stallings said that she knew that they were going to commit the armed

robbery, and she was afraid that Walker was going to shoot her.

A recording was tendered into evidence at trial, without objection, which the

prosecutor described to the court as a “jail call” between Stallings and a party named

Kitchens, as well as a person identified by Kitchens as “Little Donkey.” In the

recorded call, a man can be heard speaking to a woman (presumably Stallings) about

a criminal case, and about what will happen if she and “Little Donkey” testify; he tells

her that if she testifies she will “incriminate [herself].” He tells her that if she does not

testify, “Little Donkey” will not testify.

Later in the call, the first man leaves the telephone conversation and a man

identified as “Little Donkey” takes his place. The woman tells him that she has heard

that “Walker” is going to “plead.” “Little Donkey” makes a comment about getting

“on the same page,” says that if she testifies “they” can use her statements, tells the

woman to “stick to the script,” tells her that she was scared, refers to her having

“made a mistake,” and says that “now [she knows] what to do.” “Little Donkey” tells

the woman that he is “not a snitch,” to which the woman replies, “I’m not.”

Stallings testified at trial. She admitted that on April 18, 2012, she loaned her car

to Williams, and later in the day she “[found] out” that Williams had committed a

9
robbery at the Sunrise Store earlier in the day. She admitted that on April 30, 2012, she

drove Williams and Walker to an area approximately two blocks from the Kwik Trip

store, and stated that she waited in her car while they went into some apartments, then

drove them away when they returned approximately 30 minutes later. She testified that

she overheard Williams and Walker discussing the robbery when they got back into

the car, and that she was scared.

Stallings testified that several of the statements attributed to her in the transcript

of her interview with law enforcement officers were false, and stated that she was

confused when she spoke to them and that they were asking her too many questions.

With regard to the Kwik Trip robbery on April 30, she admitted on cross-examination

that she told police, among other things, that she saw that Williams and Walker had a

gun and a ski mask; she knew that Williams and Walker were going to commit a

robbery; and she waited for Williams and Walker to commit the robbery. She admitted

that she had lied to the police about her car having been stolen. The prosecutor asked

Stallings: “[T]wo days after lying to the police you drove Walker and Williams to the

[K]wik Trip . . . so they could rob that store, you knew they had guns, you knew they

had masks, you knew that they returned to your car after robbing the store with cash

money in hand, you didn’t call the police to report it, you didn’t flee, you didn’t drive

10
off, you sat there and waited as the getaway driver, isn’t that correct?” She responded,

“Yes sir.”

We disagree with Stallings’s argument that “[t]here is no direct evidence of her

participation and no circumstantial evidence aside from her presence a few blocks

away from the store.” Williams’s testimony at trial constitutes direct evidence that

Stallings intentionally aided and abetted Williams and Walker in committing the crimes

of armed robbery and aggravated assault,2 and intentionally advised, encouraged, and

counseled them to commit the crimes. See OCGA § 16-2-20; OCGA § 16-8-41;

OCGA § 16-5-21. Stallings’s argument that Williams’s testimony was impeached at

trial is irrelevant, because this Court does not weigh the evidence or determine the

credibility of witnesses. Rather, that task is left to the fact-finder. See Short, supra;

Williamson, supra.

Further, there was sufficient corroboration of Williams’s testimony in the

evidence admitted at trial, including the recorded telephone call of Stallings and

Walker, Stallings’s own testimony at trial, and Stallings’s statements to law

enforcement officers.

2
Stallings does not dispute that Williams’s and Walker’s actions at the Kwik
Trip store constitute armed robbery and aggravated assault.

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 The corroboration must be independent of the accomplice’s testimony
and it must connect the defendant to the crime or lead to the inference
that [s]he is guilty. However, the corroborating evidence need not of itself
be sufficient to warrant a conviction of the crime charged. Slight evidence
from an extraneous source identifying the accused as a participant in the
criminal act is sufficient corroboration of the accomplice to support a
verdict. The corroborating evidence may be circumstantial.

Short, supra at 635 (1) (b) (citation and punctuation omitted). The evidence as

summarized above included both direct and circumstantial evidence that corroborated

Williams’s testimony. Stallings’s contention that there was “no circumstantial evidence

aside from her presence a few blocks away from the store” is incorrect. Moreover,

evidence demonstrating a defendant’s presence near the scene of a crime can provide

the slight corroboration of accomplice testimony required to support a conviction.

See, e.g., Dingler v. State, 293 Ga. App. 27, 29 (1) (666 SE2d 441) (2008)

(defendant’s presence outside a barn where methamphetamine was located was

sufficient to corroborate co-defendant’s testimony that part of the methamphetamine

belonged to defendant and defendant was there to pick it up). Here, a rational trier of

fact could conclude that Williams’s testimony was corroborated. See id.; Short, supra;

OCGA § 24-14-8. Stallings argues that the circumstantial evidence in this case fails to

12
exclude every reasonable hypothesis except her guilt, pursuant to OCGA § 24-14-6.

This argument is inapplicable here, where there was also direct evidence as discussed

above. See Allaben v. State, 299 Ga. 253, 254-255 (1) (787 SE2d 711) (2016).

Stallings also argues that the trial court should have granted her motion for new

trial pursuant to OCGA § 5-5-20 and 5-5-21. The evidence viewed in the light most

favorable to the prosecution supports the verdicts here, and Stallings points to no

indication in the record that the trial court incorrectly exercised its discretion. See

McMurtry v. State, 338 Ga. App. 622, 624 (1) (791 SE2d 196) (2016). The trial court

did not err in denying Stallings’s motion for new trial on these grounds.

2. Stallings contends that the trial court erred in admitting the oral and written

statements she gave to law enforcement officers because the statements were not

voluntary and Miranda warnings were not properly given. She argues that her decision

to accompany Patterson, Chapman and Stokes to the detective bureau was not

voluntary but rather was a “submission to a claim of lawful authority”; that Miranda

warnings should have been administered before she was questioned; that her first, pre-

Miranda statement was not voluntary; that her waiver of her Miranda rights was not

made voluntarily, knowingly, or intelligently; and that her second, post-Miranda

statement should be suppressed because it was the “fruit of the first tainted statement.”

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Stallings argues that the officers’ conduct amounted to “an improper ‘Miranda in the

middle’ investigative procedure.”

To be admissible at trial, Stallings’s confession must “have been made

voluntarily, without being induced by another by the slightest hope of benefit or

remotest fear of injury.” OCGA § 24-8-824.

[I]n ruling on the admissibility of an in-custody statement, a trial court
must determine whether, based upon the totality of the circumstances, a
preponderance of the evidence demonstrates that the statement was made
freely and voluntarily. Unless clearly erroneous, a trial court’s findings as
to factual determinations and credibility relating to the admissibility of the
defendant’s statement at a Jackson v. Denno hearing will be upheld on
appeal.

Butler v. State, 292 Ga. 400, 403 (2) (738 SE2d 74) (2013) (citation omitted); Daniel

v. State, 268 Ga. 9, 10 (2) (485 SE2d 734) (1997). “[T]he trial court’s application of

the law to undisputed facts is subject to de novo review.” State v. Nash, 279 Ga. 646,

648 (2) (619 SE2d 684) (2005).

To establish that the trial court erred in failing to suppress the statements
she made before being advised of her Miranda rights, appellant must
show she was both in custody and interrogated when she made the
statements. . . .A person must be apprised of [her] Miranda rights prior
to being questioned by law enforcement officers after being taken into

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 custody or otherwise deprived of [her] freedom of action in any
significant way. A court should evaluate the second prong of the test
objectively: an individual is in custody if a reasonable person in the place
of the defendant would feel so restrained as to equate to a formal arrest.

Quedens v. State, 280 Ga. 355, 358 (2) (629 SE2d 197) (2006) (citations and

punctuation omitted).

The United States Supreme Court in Missouri v. Seibert, 542 U. S. 600 (124

SCt 2601, 159 LE2d 643) (2004), disapproved the application of a “two-step”

interrogation technique. As summarized by the Supreme Court of Georgia:

In Seibert, the officers arrested the accused, subjected her to custodial
questioning, obtained a confession, and only then complied with the
mandate of Miranda. Thereafter, a signed waiver was obtained from the
arrestee and she gave a second confession. Under these circumstances,
the Supreme Court of the United States held that both statements were
inadmissible, concluding that it would ordinarily be unrealistic to treat two
spates of integrated and proximately conducted questioning as
independent interrogations subject to independent evaluation simply
because Miranda warnings formally punctuate them in the middle.

Wiggins v. State, 280 Ga. 627, 629 (2) (632 SE2d 80) (2006) (citing Seibert, supra at

614 (IV)). The Court identified in Seibert

15
 [a] series of relevant facts that bear on whether Miranda warnings
delivered midstream could be effective enough to accomplish their
object: the completeness and detail of the questions and answers in the
first round of interrogation, the overlapping content of the two
statements, the timing and setting of the first and the second, the
continuity of police personnel, and the degree to which the interrogator’s
questions treated the second round as continuous with the first.

Seibert, supra at 615 (V).

However, “[w]here an accused is neither in custody nor so restrained as to

equate to a formal arrest, any statements made to an investigating officer are made

under noncustodial circumstances and Miranda warnings are not required.” Wiggins,

supra (citation and punctuation omitted). Where there is no Miranda violation, a

defendant’s post-Miranda statements are not inadmissible under Seibert. See Drake

v. State, 296 Ga. 286, 290 (2), n. 3 (766 SE2d 447) (2014); Walker v. State, 296 Ga.

161, 170-171 (3) (a) (766 SE2d 28) (2014).

At the hearing on Stallings’s motion to suppress the statements she made to law

enforcement officers, the State called Detective Patterson, Sergeant Chapman, and

Investigator Stokes to testify about the circumstances surrounding Stallings’s ride to

the detective bureau, the circumstances of their conversations with her, and the

16
statements she made at the bureau. Their undisputed testimony indicated that, among

other things, Stallings went to the detective bureau with the officers voluntarily; no one

acted in a threatening or intimidating manner to her; no threats, offers or promises were

made to her; she was free to leave during the time before Miranda warnings were read

to her, including when she made her first, pre-Miranda statement to the officers as

described in Division 1 above; she appeared to understand the rights that were read

to her; and she never asked for an attorney or indicated that she did not wish to speak

to the officers. Patterson and Chapman testified that when Stallings made a comment

about having been involved in a robbery, Miranda warnings were read to her.

Following the hearing on Stallings’s motion to suppress, the trial court denied

her motion, finding that she “was not in custody when the first statement was taken,”

and that “[t]he second statement was taken after [Stallings] was properly advised of

her rights under Miranda.” The court also found that “[a]t no time did [Stallings]

invoke her right to an attorney and both statements were freely and voluntarily given.”

Following the hearing on Stallings’s motion for new trial, the trial court found,

among other things, that “neither custody nor interrogation were present prior to the

administration of the Miranda warnings”; that there is “no evidence in the transcript

or [motion for new trial] to show that Stallings’s Miranda waiver was involuntary”;

17
and that because the first, pre-Miranda statement was voluntary, any argument that the

second, post-Miranda statement was inadmissible as “fruit of the poisonous tree” was

without merit.

We note that the trial court stated in its order denying her motion for new trial

that “[Stallings] offers no evidence that she was in custody, or the functional

equivalent, when she drove herself to the police station.” However, no evidence

presented at the motion to suppress hearing or at trial indicated that Stallings drove

herself. Rather, the testimony indicated that Stallings was taken to the detective bureau

by law enforcement officers. Thus, it appears that the trial court’s determinations that

Stallings was not in custody when she made her pre-Miranda statement, and that said

statement was voluntary, were based at least partly on a material factual finding that

was clearly erroneous. See Butler, supra. The trial court’s determination that

Stallings’s post-Miranda statement was admissible is dependent on its findings with

regard to the pre-Miranda statement.

We therefore vacate the trial court’s order denying Stallings’s motion for new

trial, and remand this case for the court to make new findings of fact, and conclusions

of law based thereon, as to the voluntariness of Stallings’s statements. In so doing, we

remind the court of the preference that a trial court’s findings with regard to the

18
administration and waiver of Miranda rights take the form prescribed in Berry v.

State, 254 Ga. 101, 104 (1), n. 6 (326 SE2d 748) (1985).

Judgment affirmed in part, vacated in part, and case remanded with

direction. Barnes, P. J., and McMillian, J., concur.

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