In the Supreme Court of Georgia



                                                              Decided: January 20, 2015


                        S14A1431. GRISSOM v. THE STATE.


       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,


       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
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



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
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 of court for a decision to be made on the briefs.

                                                 2
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

                                        3
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. 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.

                                        4
      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 (1) (764 SE2d 135)

(2014).” Browner v. State, ___ Ga. ____ (1) (___ SE2d ___), 2014 WL

5506666 (1) (Nov. 3, 2014).       Further, in cases involving circumstantial

evidence, questions of the reasonableness of hypotheses are generally to be

                                       5
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 concluded there was no reasonable hypothesis that

the crime could have been committed by someone else).

      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-

                                        6
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.

                                       7
      Nevertheless, as set forth in Hulett v. State, __Ga. ___ (___ SE2d ___)

2014 WL 5313977 *2 (Oct. 20, 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 *4.

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 on Count 9 (alleging conspiracy to commit aggravated assault

upon D-Bone) which served as the predicate felony for the Count 4 felony

murder charge, and Count 10 (alleging conspiracy to commit criminal damage

to property) which served as the predicate felony for the Count 5 felony murder

charge.

      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, 281 Ga. 211, 215 (636 SE2d 530) (2006).

                                        8
Conspiracy to commit the crime of aggravated assault with a deadly weapon

against D-Bone and conspiracy to commit the crime of criminal damage to

property in the first degree are not established by the same or less than all the

facts required to establish that Grissom caused Strozier’s death by committing

the felony of assault with a deadly weapon upon Strozier, for which Grissom

was convicted pursuant to Count 2. Pursuant to Counts 9 and 10, Grissom was

convicted of felonious acts against D-Bone and his property, whereas pursuant

to Count 2, Grissom was convicted of the death of Strozier while engaged in the

act of aggravated assault with a deadly weapon upon Strozier. Conspiracy to

commit the two alleged injuries to D-Bone and his property did not require

proof of causing Strozier’s death, and proof of causing Strozier’s death as a

result of aggravated assault upon him did not require proof of acts for which

Grissom was found guilty in Counts 9 and 10. See Thomas v. State, 292 Ga.

429, 433 (4) (738 SE2d 571) (2013). Consequently, we vacate that portion of

the sentencing order whereby the trial court merged the convictions on Counts

9 and 10 with the felony murder conviction for purposes of sentencing, and we

remand for further sentencing for those convictions.

      2. At trial, William Edwards testified that he told police Dorsey informed

                                        9
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 the 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 the

evidence.”2 Williams v. State, 293 Ga. 750, 753 (2) (749 SE2d 693) (2013). As

set forth in Division 1, sufficient evidence was presented at trial to support the

existence of a conspiracy. Although no conspiracy was alleged with respect to

Strozier’s shooting, the conspiracy set forth in the indictment involved traveling

between the two apartment complexes for criminal purposes, and thus testimony

regarding this out-of-court statement of one of the co-conspirators to the witness

was properly admissible. Further, Grissom admitted to police that he had been



      2
        Statements by a co-conspirator are now governed by the new Evidence Code at OCGA §
24-8-801 (d) (2) (E).

                                           10
in the woods at the time he, too, heard the gunshot coming from within the

woods. No error is shown.

      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 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

                                       11
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 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’

testimony that he heard Grissom’s voice on the telephone conversation with

                                       12
Sims. Edwards’s credibility, and the weight of the evidence regarding whether

it was Grissom who made the statement overheard by Edwards was 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.

                                        13
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 further and ineffective

assistance of counsel is not shown. See Lawson v. State, 2014 WL 5313932

(Oct. 20, 2014) ___ Ga. ___ (2) (a) (___ SE2d ___) (2014). Since Grissom has

failed to meet one of the required prongs with respect to each assertion of trial

counsel’s failure to object to Edwards’s testimony, he has failed to establish

ineffective assistance of counsel.

                                        14
      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 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, 2014

WL 6090562 (2) (Nov. 17, 2014). An alleged violation of OCGA § 17-8-57 is

                                        15
analyzed under the “plain error” standard of review; therefore, Grissom’s failure

to object to this comment at trial does not preclude appellate review of this

issue. Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008). In light

of the mandatory nature of the statute, all that is required in order to demonstrate

the necessity for the grant of a new trial is proof that the statute was violated.

Id.

      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,

OCGA § 17-8-57, does not generally extend to colloquies between the judge and

counsel regarding the admissibility of evidence.” (Citations and punctuation

omitted.) Adams v. State, 264 Ga. 71, 76 (7) (440 SE2d 639) (1994), rev’d on

other grounds 268 Ga. 122 (6) (485 SE2d 789) (1997). In Mitchell v. State, 293

                                        16
Ga. 1, 3 (3) (742 SE2d 454) (2012), this Court noted that not all comments made

by a trial court regarding appeals require reversal of a conviction, and that

“‘[m]ere abstract references to appellate courts, which do not convey the trial

court’s opinion, are not necessarily reversible error.’” (Citation omitted.) Id. We

find no reversible error resulted from the trial court’s reference to the

preservation of objections for appeal with respect to admitted documentary

evidence.

      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

                                        17
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, given

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.




                                         18
                      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, 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). As long as Gibson survives, however, it will

continue to be a basis for enumerating error. It would be better to complete the

obliteration process by simply overruling Gibson. See Mitchell, 293 Ga. at 5-6

(Nahmias, J., concurring); Clements, 289 Ga. at 650 (Nahmias, J., concurring

specially in part).

      I am authorized to state that Justice Blackwell joins in this concurrence.




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