S14A1431. GRISSOM v. THE STATE.
S14A1431
Supreme Court of Georgia
DECIDED JANUARY 20, 2015.
768 SE2d 494
BENHAM, Justice.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Marc A. Mallon, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.
BENHAM, Justice.
Michael Grissom appeals his convictions for felony murder and other offenses relating to the death of Ron Strozier. The relevant events arose out of a feud between Grissom‘s friend and co-defendant Markell Dorsey, and Dorsey‘s associates, on the one side, and an individual known only as “D-Bone,” and D-Bone‘s associates, on the other.1 For the reasons set forth herein, we affirm the convictions but
Viewed in the light most favorable to the verdict, the evidence shows the feud commenced with a physical altercation on July 31, 2005, between Dorsey and D-Bone over comments D-Bone made about a man referred to as “Tay-Tay.” Evidence was presented that Tay-Tay‘s real name was Dontavious Pettway. In the initial altercation, Dorsey was roundly beaten and, in order to exact revenge, Dorsey and co-defendant Rico Sims traveled from the Chastain West apartment complex where they were staying to an apartment complex located next door, known as Buckingham Court, where D-Bone lived. Dorsey challenged D-Bone and his associates to another fight. Sims was wearing a bullet-proof vest and wielding an assault rifle. During this exchange, D-Bone and others, including Ron Strozier, disarmed Sims and took his weapon and vest. Later that day, D-Bone was overheard talking on the phone to someone who told D-Bone “y‘all better tool up.”
The following day, August 1, Grissom, Dorsey, and Sims were at the Chastain West home of a friend where Grissom told William Edwards he planned on shooting up D-Bone‘s car. A wooded vacant parcel of land separated the Chastain West complex from the Buckingham Court complex, and testimony established that trails ran through the woods and that the woods were known to be a place where drugs were sold and used. Later that evening, Grissom was seen leaving the woods moments after a loud shot rang out that sounded like a shotgun blast. In statements to police, Grissom and several of his co-defendants admitted they were in the woods around the time of the shotgun blast, but denied they were involved. Strozier‘s body was located in the woods the morning of August 2. An autopsy determined he had died from wounds to his neck and torso caused by buckshot from a shotgun blast, and the testimony established that the window of time for Strozier‘s death encompassed the time at which the shot was heard. A shotgun was recovered during the investigation of these events, and Grissom admitted to police that he had been in possession of the shotgun and stated he obtained it from his cousin Dontavious Pettway, but Grissom denied he had used it.1
About an hour after the shotgun blast was heard, Grissom, armed with a .357 magnum handgun, traveled to Buckingham Court with Dorsey, Sims, and others in two separate cars, both of which had been stolen. A shootout between the two rival groups ensued, and Grissom admitted in his statement to police that he fired at least two shots from his handgun during this exchange. Grissom also admitted that after the car in which he was riding crashed into a fire hydrant, he dropped his handgun and fled the scene. Law enforcement later recovered the gun inside the crashed car. Christina Green, an eyewitness to the shootout, heard multiple gunshots and saw three or four individuals fleeing through the woods. Green ran across the street to avoid the gunfire.
1. Pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence presented at trial, as summarized above, was sufficient to support the verdict. Grissom‘s trial theory was that Strozier, who was known to be a drug dealer, could have been killed by a customer or someone in the woods who wanted to rob him. Grissom also pursued a theory that Strozier was killed by another individual who was seen near the woods during the time frame in which Strozier was killed and who, according to testimony, was behaving in an uncharacteristic manner. Sufficient evidence was presented, however, from which the jury could find that Grissom directly committed the shooting that caused Strozier‘s death or was a party to that crime. When reviewing the sufficiency of the evidence this Court does not reweigh the evidence or resolve conflicts in testimony. Caldwell v. State, 263 Ga. 560, 562 (1) (436 SE2d 488) (1993). “Resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court. Miller v. State, 295 Ga. 769, 771 (1) (764 SE2d 135) (2014).” Browner v. State, 296 Ga. 138, 141 (1) (765 SE2d 348) (2014). Further, in cases involving circumstantial evidence, questions of the reasonableness of hypotheses are generally to be decided by the jury that heard the evidence. Smith v. State, 290 Ga. 428 (1) (721 SE2d 892) (2012). From the evidence, the jury was not required to accept Grissom‘s theory that someone else committed the crime. See Dupree v. State, 295 Ga. 655, 656 (763 SE2d 459) (2014) (although the defendant argued self-defense, the jury was not required to draw this conclusion from the evidence); Buckner v. State, 321 Ga. App. 715 (4) (742 SE2d 528) (2013) (from the evidence, the jury could have
Likewise, with respect to the conspiracy counts for which Grissom was convicted, we also find the evidence was sufficient to support the verdict. “Conduct which discloses a common design, even without proof of an express agreement between the parties, may establish a conspiracy.” (Citations and punctuation omitted.) Mathis v. State, 293 Ga. 837, 841 (4) (750 SE2d 308) (2013). Here, the evidence shows the shootout was planned and coordinated for the common purpose of extracting revenge upon D-Bone and his associates. The manner in which appellant and his co-defendants traveled to the scene of the shootout, along with the other evidence presented, is sufficient to demonstrate the existence of a conspiracy to commit aggravated assault upon D-Bone and criminal damage to property in the first degree.
In its verdict, the jury found Grissom guilty of felony murder pursuant to Count 4 of the indictment (alleging conspiracy to commit the crime of aggravated assault with a deadly weapon against D-Bone, thereby causing the death of Strozier) and Count 5 (alleging conspiracy to commit the crime of criminal damage to property in the first degree, thereby causing the death of Strozier). Without citation to authority, Grissom argues no legal connection exists between Strozier‘s death and the alleged conspiracies to sustain these verdicts on the felony murder charges. But Grissom ignores the fact that he was also found guilty of felony murder pursuant to Count 2, in which the underlying felony is aggravated assault with a deadly weapon upon Strozier, and it was this felony murder count on which his conviction and life sentence was based. Because Grissom was convicted and sentenced on the Count 2 felony murder charge, the verdicts for felony murder pursuant to Counts 4 and 5 were surplusage and vacated. See Tesfaye v. State, 275 Ga. 439, 442 (4) (569 SE2d 849) (2002). Thus, the nexus between Strozier‘s death and the predicate acts alleged in these other two felony murder counts is irrelevant to Grissom‘s conviction and sentencing in this case.
Nevertheless, as set forth in Hulett v. State, 296 Ga. 49 (766 SE2d 1) (2014), if this Court notices a merger error in an appeal we may correct the error even if it was not raised on appeal. Id. at 54. In this case, because the felony murder verdicts for Counts 4 and 5 were properly treated as surplusage, “the predicate felony of the felony murder charge does not merge as a matter of law and is vacated only if it merges as a matter of fact into the felony murder conviction.” Tesfaye, 275 Ga. at 442. Here, we find the trial court improperly merged with the felony murder conviction on Count 2 the convictions
The test for determining whether one crime is included in another, and therefore merges as a matter of fact, is the “required evidence” test — whether conviction for one of the offenses is established by proof of the same or less than all the facts required to establish the other crime pursuant to
2. At trial, William Edwards testified that he told police Dorsey informed him of a shootout with D-Bone and that Dorsey said he had seen Grissom walking out of the woods just after hearing a gunshot from the woods. Grissom‘s counsel objected on the ground of hearsay, and the objection was overruled. On appeal, Grissom argues that because no conspiracy was shown, no exception to the hearsay rule is established in the case, and thus the admission of testimony about what Dorsey told the witness was reversible error. We disagree. A co-conspirator‘s “statements are admissible [under former
Grissom also argues the testimony‘s admission violated his right to confront his accusers. Grissom did not object to the testimony on the ground that it violated the Confrontation Clause of the Sixth Amendment, however, and thus he waived his right to raise this alleged error on appeal. See Walton v. State, 278 Ga. 432, 434 (1) (603 SE2d 263) (2004). Moreover, as Dorsey‘s statements were made to a friend and not to a law enforcement officer, they were not testimonial in nature, and their admission did not violate the Confrontation Clause. See Miller v. State, 289 Ga. 854 (3) (717 SE2d 179) (2011); see also Young v. State, 291 Ga. 627 (3) (732 SE2d 269) (2012) (the testimony of one to whom a co-defendant spoke the day after the crimes were committed regarding what the co-defendant told the witness about appellant‘s participation in the crimes did not violate the appellant‘s right to confront the witnesses against him). Thus, this argument lacks merit.
3. Edwards testified about a conversation co-defendant Sims had in his presence on a cell phone that was loud enough for the voice on the other end of the line to be heard by him. Edwards testified he heard a voice that sounded like Grissom‘s identify himself as “Mike,” and tell Sims he had shot someone in the head. On appeal, Grissom asserts no foundation was laid for this testimony. Grissom, however, did not object to this line of questioning on the ground of lack of foundation, and thus this issue was not preserved for appellate review. See Hall v. State, 292 Ga. 701 (2) (743 SE2d 6) (2013) (failure to raise a specific ground of objection to evidence is waived for appellate review unless raised at the time the evidence is offered).
Additionally, the prosecutor attempted to impeach Edwards‘s testimony by asking him about prior inconsistent statements Edwards made to the prosecutor during a pre-trial interview. Appellant argues that, during this line of questioning, the prosecutor improperly
4. Grissom asserts he received ineffective assistance of counsel as a result of his trial counsel‘s failure to make proper objections to, or to move to strike, Edwards‘s testimony about what he overheard on Sims‘s telephone conversation. The record shows a proper foundation was laid for Edwards‘s testimony that he heard Grissom‘s voice on the telephone conversation with Sims. Edwards‘s credibility and the weight of the evidence regarding whether it was Grissom who made the statement overheard by Edwards were for the jury to determine. See Moore v. State, 293 Ga. 676 (6) (748 SE2d 419) (2013). The out-of-court statements made by a defendant are admissible and do not amount to hearsay. See Dukes v. State, 290 Ga. 486, 488 (4) (722 SE2d 701) (2012). Trial counsel was not ineffective, therefore, for failing to object to the testimony on the ground of lack of foundation or hearsay because such objections would have been meritless. Consequently, counsel‘s failure to make these objections does not establish deficient performance, and Grissom has failed to meet the required first prong of the test outlined in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), for establishing ineffective assistance of counsel. See Jordan v. State, 293 Ga. 619 (3) (748 SE2d 876) (2013) (trial counsel‘s failure to make a meritless objection does not constitute evidence of ineffective assistance).
Likewise, we find Grissom failed to show his trial counsel provided ineffective assistance for failing to object to the prosecutor‘s questioning of Edwards about his prior inconsistent statements to the prosecutor on the ground that the prosecutor, during this line of questioning, was improperly testifying. The prosecutor was entitled to impeach the witness with prior inconsistent statements. At the motion for new trial hearing, trial counsel testified he chose to lodge “asked and answered” objections to this line of questioning in an effort to halt further testimony. He further testified he did not consider objecting on the ground that the prosecutor was converting himself into a witness as he was most concerned with stopping the prosecutor‘s “browbeating” of the witness. In fact, the second time counsel raised an objection on this ground, it was sustained and the prosecutor was forced to move on. “Decisions relating to strategy and tactics ‘must not be judged by hindsight or the ultimate result of the trial.’ [Cit.]” Browder v. State, 294 Ga. 188, 194 (751 SE2d 354) (2013). Again, Grissom has failed to establish deficient performance of trial counsel in order to meet the first prong of the Strickland test. If either prong of the Strickland test is not met, then this Court need look no
5. At the conclusion of the State‘s case, the trial court engaged in a colloquy with trial counsel, though in the presence of the jury, regarding documentary evidence that had been tendered by the State but not yet admitted into evidence. In an apparent attempt to speed the admission of this evidence, the trial judge instructed counsel that she would consider all pre-trial objections to the evidence to be “preserved for interest of appeal and not waived by your failure to stand and object to that long list of exhibit numbers.” According to Grissom, the trial court‘s statement improperly referenced the availability of appellate review, thus intimating that appellant would be found guilty and would need to appeal his forthcoming conviction, in violation of
Grissom argues that this Court‘s holding in Gibson v. State, 288 Ga. 617 (2) (706 SE2d 412) (2011) requires reversal. But the facts of this case are materially distinguishable from those in Gibson, in which the trial court‘s reference to the defendant‘s right to appeal was made to the jury in response to a question sent to the court during jury deliberations. Here, the comment about preservation of pre-trial objections to evidentiary exhibits for appeal was made by the judge to counsel, and “[t]he rule which prohibits an expression or intimation of opinion by the trial court as to what has or has not been proved,
6. One of the trial witnesses testified that she spoke with co-defendant Dorsey after Strozier‘s death, that Dorsey told her he had nothing to do with the death, but that he heard “Mike did it.” During a discussion outside the presence of the jury, the trial court denied Grissom‘s motion for mistrial, but sustained his objection to admission of the testimony and granted the request for curative instructions. The court informed counsel that the renewal of the motion for mistrial would be preserved for the record so that it need not be renewed after the curative instructions were given. When the jury returned, the court gave curative instructions that the testimony was inappropriate, was being struck from the record, and should not be considered. The court also reminded the jury that while the evidence should be considered as a whole, the jury was to consider whether the State had carried its burden as to each defendant separately.
“Whether to grant a motion for mistrial is within the trial court‘s sound discretion, and the trial court‘s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant‘s right to a fair trial.” Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d 525) (1999). This witness‘s objectionable statement was not solicited by the prosecutor, and, considering the curative instructions given, the decision to deny the motion for mistrial was not an abuse of discretion and did not violate Grissom‘s right to a fair trial. “Qualified jurors under oath are presumed to follow the instructions of the trial court.” (Citations and punctuation omitted.) Lewis v. State, 287 Ga. 210, 213 (695 SE2d 224) (2010).
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.
NAHMIAS, Justice, concurring.
I join the majority opinion in full, but with respect to Division 5, I note my continued belief that Gibson v. State, 288 Ga. 617 (706 SE2d 412) (2011), was wrongly decided. See id. at 620 (Nahmias, J., dissenting). The Court today continues its steady effort to obliterate Gibson by distinction. See Mitchell v. State, 293 Ga. 1, 3-4 (742 SE2d 454) (2013); State v. Clements, 289 Ga. 640, 648-649 (715 SE2d 59) (2011).
I am authorized to state that Justice Blackwell joins in this concurrence.