Grissom v. State

• Decision Date: 20 January 2015
• Docket Number: No. S14A1431.,S14A1431.
• Parties: GRISSOM v. The STATE.
• Court: Georgia Supreme Court

296 Ga. 406

768 S.E.2d 494

GRISSOM

v.The STATE.

No. S14A1431.

Supreme Court of Georgia.

Jan. 20, 2015.

Thomas Sterling Robinson III, Robinson & Associates, Snellville, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Clint Christopher Malcolm, Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Paul L. Howard Jr., Dist. Atty., Paige Reese Whitaker, Atlanta, Arthur C. Walton, Asst. Dist. Attys., for appellee.

Opinion

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 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 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.

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 S.Ct. 2781, 61 L.Ed.2d 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 S.E.2d 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 S.E.2d 135 (2014).” Browner v. State, 296 Ga. 138(1), 765 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 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, 51, 766 S.E.2d 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, 766 S.E.2d 1. 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, 569 S.E.2d 849. 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 § 16–16(1). See Drinkard v. Walker, 281 Ga. 211, 215, 636 S.E.2d 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 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...