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FINAL COPY
S14A1431. GRISSOM v. THE STATE.
B ENHAM , 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, *2 we affirm the convictions but vacate the sentences imposed with respect to the convictions on two of the counts and remand for resentencing on those convictions.
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 sentencing, the trial court merged the convictions on the remaining counts into the life sentence for felony murder. Appellant, through new counsel, filed a motion entitled “Amended Motion for New Trial” on February 2, 2010, which was later amended, and the motion was heard on January 25, 2012. By order dated February 3, 2012, the trial court denied the motion. Appellant filed a notice of appeal on February 6, 2012, and this Court dismissed appellant’s appeal by order entered October 29, 2012. Appellant, through new counsel, filed a “Motion for Out-of-Time Motion for New Trial” on November 1, 2012, which the trial court granted. Appellant filed a motion for new trial on December 12, 2012. The trial court denied the motion for new trial by order filed November 14, 2013. Appellant filed a timely notice of appeal on November 25, 2013. The case was docketed in this Court to the September 2014 term for a decision to be made on the briefs.
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 *4 of the shotgun and stated he obtained it from his cousin Dontavious Pettway, but Grissom denied he had used it. Edwards, who had known Grissom for several years at the time of the shooting and was familiar with his voice, overheard Grissom on the phone with Sims the day after Strozier was shot to death, telling Sims he had “shot someone in the head.”
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
,
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
,
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
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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
,
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
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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
,
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 OCGA § 16-1-6 (1).
See
Drinkard v. Walker
,
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,
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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 OCGA
§ 24-3-5] when the State establishes a prima facie case of conspiracy independent
of the co-conspirator’s statement at any time before the close of evidence.”
[2]
Williams v. State
,
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
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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) (
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
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Hall v. State
,
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 testified. Again, however, Grissom did not object to the prosecutor’s manner of questioning the witness and thus this objection likewise was not preserved for appellate review.
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.
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See
Dukes v. State
,
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
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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
,
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 *15 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 OCGA § 17-8-57. Further, he claims the reference to an appeal could have led the jury to feel its responsibility was lessened because of the possibility that a conviction could be appealed.
OCGA § 17-8-57 provides: “It is error for any judge in any criminal case
. . . to express or intimate his opinion as to what has or has not been proved or as
to the guilt of the accused. . . .” Because the language of this statute is
mandatory, any violation of the statute requires a new trial.
Rouse v. State
, 296
Ga. 213, 214 (
Grissom argues that this Court’s holding in
Gibson v. State
,
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
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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 (
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.
S14A1431. GRISSOM v. THE STATE.
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,
I am authorized to state that Justice Blackwell joins in this concurrence.
Decided January 20, 2015.
Murder. Fulton Superior Court. Before Judge Baxter.
Thonas S. Robinson III, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Arthur C. Walton, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smirh, Senior Assistant Attorney General, Clint C. Malcolm, Assistant Attorney General, for appellee.
Notes
[1] The crimes occurred on August 1, 2005. A Fulton County grand jury returned an indictment against appellant and four co-defendants on March 24, 2006, charging appellant with murder (Count 1); four counts of felony murder (Counts 2 (aggravated assault with a deadly weapon), 3 (conspiracy to commit the crime of aggravated assault with a deadly weapon against Strozier), 4 (conspiracy to commit the crime of aggravated assault with a deadly weapon against D- Bone, thereby causing the death of Strozier), and 5 (conspiracy to commit the crime of criminal damage to property in the first degree, thereby causing the death of Strozier)); two counts of aggravated assault (Counts 7 (upon the person of Strozier) and 14 (upon the person of Christina Green)); conspiracy to commit aggravated assault (Counts 8 (against Strozier) and 9 (against D- Bone)); conspiracy to commit criminal damage to property in the first degree (Count 10); and three counts of possession of a firearm during the commission of a felony (Counts 15 (murder and/or aggravated assault against Strozier), 16 (aggravated assault of Green), and 17 (conspiracy to commit one or more of the felonies set forth in the other counts)). Appellant and his co-defendants were jointly tried by a jury April 3-28, 2006, and appellant was found guilty of voluntary manslaughter as a lesser included offense of murder (Count 1); three counts of felony murder (Counts 2, 4, and 5); one count of aggravated assault (Count 7); one count of conspiracy to commit aggravated assault (Count 9); conspiracy to commit criminal damage to property in the first degree (Count 10); and two counts of possession of a firearm during the commission of a felony (Counts 15 and 17). Appellant was found not guilty of felony murder (Count 3) and conspiracy to commit aggravated assault (Count 8). The trial court entered a directed verdict on aggravated assault (Count 14) and possession of a firearm during the commission of a felony (Count 16). The trial judge sentenced appellant to life imprisonment for felony murder (Count 2) and imprisonment for five years for each of the two convictions for possession of a firearm in the commission of a felony (Counts 15 and 17), to run concurrently with each other and consecutive to the sentence on Count 2. For purposes of
[2] Statements by a co-conspirator are now governed by the new Evidence Code at OCGA § 24-8-801 (d) (2) (E).