296 Ga. 406
FINAL COPY
                        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
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
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.

                                                 2
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

                                        3
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, 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

                                        4
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) (___ SE2d ___) (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)

                                         5
(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-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

                                       6
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

                                        7
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). 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

                                        8
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

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,

                                       9
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, 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 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



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

                                            10
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

                                        11
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’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.

                                         12
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

                                        13
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, 296 Ga. 1, 3 (2) (a) (764 SE2d 816) (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.

      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

                                         14
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 (765 SE2d 879) (2014). An alleged violation of OCGA § 17-8-57

is 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

                                        15
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, Ross v. State, 268 Ga. 122, 125 (6) (485 SE2d 789) (1997). In

Mitchell v. State, 293 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

                                        16
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

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

                                        17
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.




                   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

                                         18
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.




                          Decided January 20, 2015.

                                       19
      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.




                                       20
