State v. Beard

FINAL COPY

                S19A0535. THE STATE v. BEARD.


     WARREN, Justice.


     On November 21, 2014, appellee Dexter Beard was indicted for

the malice murder of Selemon Belai; felony murder predicated on

the aggravated assault of Belai; four counts of aggravated assault

with a deadly weapon of Belai, Cedric Jeffries, Lee Bailey, and

Benny Martin; aggravated battery of Jeffries; and the possession of

a firearm during the commission of a felony. On December 7, 2015,

a jury found Beard guilty of all crimes except the aggravated assault

and aggravated battery of Jeffries. Following the verdict, the trial

court sentenced Beard to, among other things, life imprisonment for

malice murder. On October 31, 2018, the trial court granted Beard’s

motion for new trial in an 18-page order, exercising its discretion as

the “thirteenth juror.”1 The State now appeals the trial court’s grant


     1 We have explained before that

     the grounds set forth in OCGA §§ 5-5-20 and 5-5-21, which “are
of Beard’s motion for new trial. See OCGA §§ 5-7-1 (a) (8) and 5-7-2

(c). For the reasons that follow, we affirm.

      1. The evidence presented at trial showed the following.2 In

the early morning hours of June 3, 2014, a group of people were

gathered at the intersection of Auburn Avenue and Bell Street in

Fulton County.         Testimony differed on how big of a crowd

congregated at the intersection, but estimates ranged from 12 to 25

people. Some were gambling on a dice game while others watched.

The onlookers and gambling participants generally knew each other,

and many had grown up together in the same neighborhood. Many

people were drinking, and one gambling participant stated that

“everybody was just having a good time.”               The gamblers were



      commonly known as the ‘general grounds’ for new trial,” authorize
      “the trial judge to sit as a ‘thirteenth juror’ and to exercise his or
      her discretion to weigh the evidence on a motion for new trial
      alleging these general grounds.”
State v. Holmes, 

, 649 n.1 (

) (2019) (citation omitted).

      2 Because we are not reviewing a defendant’s conviction on direct appeal,

we do not review the evidence in the light most favorable to the jury’s verdicts
under the familiar standard set forth in Jackson v. Virginia, 

(

, 61 LE2d 560) (1979). See State v. Denson, 

 (

) (2019).

                                       2
“shoot[ing the dice] up against [a] wall” and “hunched over” in a

horseshoe formation around the game, and the pot had grown to

several thousand dollars in cash, which was lying on the ground.

      Beard and Belai were both gambling, and — as an emergency

medical physician and a forensic toxicologist would later testify —

both men’s blood-alcohol levels were at least twice the legal limit for

driving.3 Beard was winning the dice game when Belai accused him

of cheating, prompting an argument between the two. The situation

escalated quickly. A gunfight broke out, and both men fired multiple

shots. Beard ran away toward his car and the crowd scattered.

When the shooting stopped, the money was no longer on the ground.

Beard and Belai, however, were both lying on the ground and

severely injured. Bailey, Martin, and Jeffries, who had all been in

the vicinity of the dice game, also suffered wounds from the gunfire.

Belai died in the hospital soon afterward from gunshot wounds to

his torso and extremities. Beard survived but was hospitalized for



      3 At trial, a toxicologist also testified that Belai had consumed some form

of cocaine within 12 hours of his death.
                                       3
four months, underwent more than ten surgeries, and had part of

his foot amputated.

      The evidence at trial showed that Beard was armed with a

silver and brown .357 magnum revolver and that Belai was armed

with a small, black .40-caliber Glock on the night of the dice game.

A firearms examiner testified that all of the ballistic evidence

collected from the scene was connected to either Beard’s or Belai’s

guns. That evidence included: five .38-caliber lead bullets, six .38-

caliber cartridge cases, twelve .40-caliber cartridge cases, and three

.40-caliber metal jackets for bullets.4

      The medical examiner testified that Belai, who suffered five

gunshot wounds, had been shot in the left arm, the left side of the

torso, the left thigh, the right thigh, and the back. She further

testified that three of the gunshots went from left to right, back to


      4 The firearms examiner testified that four of the five .38-caliber lead

bullets matched Beard’s gun (the .357 magnum revolver) and also testified that
all twelve of the .40-caliber cartridge cases and all three of the .40-caliber bullet
jackets matched Belai’s gun (the .40-caliber black Glock). Although testing of
the fifth .38-caliber lead bullet was inconclusive because the bullet was so
damaged, testing revealed that the bullet was consistent with being fired from
a .357 magnum revolver. The firearms examiner did not specifically testify
about the six .38-caliber cartridge cases.
                                         4
front, and downward; the gunshot to the left thigh went from front

to back; and the “directionality” of the gunshot to the right thigh “in

terms of front and back” was uncertain. Four of the five bullets

exited Belai’s body.       Although the medical examiner could not

determine which gunshot occurred first or how Beard and Belai were

positioned in relation to one another at the time of the shooting, she

agreed that Belai’s gunshot injuries were inconsistent with Belai

facing the gun’s muzzle, except for the shot to his left thigh. And

she explained that “even the gunshot wound . . . causing the most

severe   blood      loss   [would   not]   make   [Belai]   immediately

incapacitated,” meaning it would not be “inconsistent” for Belai to

travel “some distance down the street” and “actually fire a handgun”

after being shot.

     An emergency medical physician testified that Beard was shot

twice in the left buttocks and twice in the left thigh. The physician

testified that none of the gunshots struck Beard from the front.

     The stories from various witnesses, including Beard, differed

as to what occurred in the moments leading up to and during the

                                     5
gunfight. Bizuayehu Kassa, Belai’s girlfriend, had been sitting in a

parked car approximately 28 feet in front of the dice game; she had

a “side view of everything” because of the way Beard and Belai were

both facing a wall. Kassa’s car windows were closed; she could hear

loud “noises” and see “hands waving” but could not “hear exactly

what [Beard and Belai] were talking about.” At trial, Kassa testified

that she physically turned and looked when she heard a

“confrontational type of noise.”       Then, using her car’s side-view

mirror to look directly behind her, Kassa saw Beard with a gun

“behind [Belai] as [Belai] was trying to pick up his money” when the

gun “went off.” Belai was “on his knees, bent over” when Beard shot

him. Once Kassa “actually saw [Beard] shoot Belai,” she “ducked

down” and did not see exactly what happened after that.

     Cedric Jeffries testified that on the night of the shooting, he

was drinking and “getting high” when he heard a “lot of commotion”

and “people yelling.” He testified that he walked around the corner

onto Auburn Avenue and saw “a bunch of guys” “in a huddle

gambling.” After hearing arguing and Belai yelling, “gunfire rang”

                                   6
and he ran once he realized he was shot in the hand. At trial,

Jeffries maintained that Belai — not Beard — shot first. However,

Detective Scott DeMeester testified that when he interviewed

Jeffries before trial while Jeffries was in the hospital, Jeffries told

DeMeester that Jeffries did not “know who shot him, where the

shots were coming from, [and] didn’t see anyone with a gun.” After

being confronted on the stand with a transcript of his recorded

interview with DeMeester, Jeffries testified that his interview — in

which he stated that he did not see anyone with a gun on the night

of the incident — “was incorrect,” and that he made that statement

“because [he] didn’t never want to be a part of this.”

     Lee Bailey testified that he had gone to the store to get diapers

for his daughter when he saw a crowd at the intersection of Auburn

Avenue and Bell Street. While he was on his way back home, he

heard gunshots and ran back toward the store. At some point, he

was shot in the arm. When questioned at trial, Bailey expressly and

repeatedly denied being part of the crowd around the dice game.

However, Detective DeMeester testified that, when he interviewed

                                  7
Bailey before trial, Bailey told DeMeester that he was “hanging out

in [the] area gambling” on the night of the shooting and witnessed

Belai and Beard arguing. Further, Benny Martin testified that

before shots were fired, he and Bailey had been talking near the dice

game and that Bailey had sent Martin to the store to buy a Red Bull

for Bailey.5

     In addition, Martin testified that he walked to the intersection

where the gambling game was occurring after getting off work

around 3:00 a.m.       Martin heard Belai say that somebody was

cheating and then heard gunfire as he was walking away. At some

point while trying to run away, Martin was shot in the shoulder.

Although Martin testified that he had “too much” to drink that

night, he denied ever becoming “incapacitated” from consuming too

much alcohol. At trial, Martin testified that Belai “pretty much” did

the shooting, but “in all actuality” Martin did not “really know who

shot first.” Detective DeMeester testified that when he drove Martin


     5  Bailey testified that he had purchased a Red Bull for himself (not
diapers for his daughter) while at the store, and a Red Bull was recovered at
the scene of the shooting.
                                     8
to the homicide office for an interview before trial, Martin told him

that “[Beard] shot [Belai] multiple times in the back” “while [Belai’s]

back was turned to [Beard].” At trial, Martin denied ever making

this statement, indicating that he told DeMeester “pretty much the

same thing [he] told the jurors.” When confronted with DeMeester’s

report — which recounted the purported car conversation between

Martin and DeMeester — Martin repeatedly stated, “I ain’t never

seen that” and insisted he did not know who shot first.6

     Finally, Beard testified in his own defense. According to Beard,

he was winning the dice game when Belai accused him of cheating.

Beard turned his back to count his winnings and then heard shots

and “fe[lt] that [he was] getting shot at.” Beard then turned toward

Belai—which is “where the shots were coming from”—and returned

fire before running away. However, Detective DeMeester testified

that, during a recorded interview with Beard in the hospital, Beard




     6 Martin also testified that he told DeMeester that he believed Beard

shot him because, based on the “angle [of] where [they] were standing,” “the
bullet probably went through [Belai] and went through [Martin] at the same
time.”
                                     9
told DeMeester that Beard had been walking to his car from a

nearby business when an unknown person started shooting at him

and Beard shot back. DeMeester also testified that, during the

interview, Beard denied seeing who shot him or seeing anyone “out

there that potentially saw who shot him.”

      After deliberating, the jury found Beard guilty of the murder

of Belai; felony murder predicated on the aggravated assault of

Belai; three counts of aggravated assault with a deadly weapon of

Belai, Bailey, and Martin; and possession of a firearm during the

commission of a felony. The trial court sentenced Beard to life

imprisonment with a consecutive suspended sentence of five years.

      Beard moved for a new trial, and after a hearing, the trial

court later granted Beard’s motion in a written order, exercising its

discretion as “the thirteenth juror” under OCGA §§ 5-5-20 and 5-5-

21.

      2. The State contends that the trial court erred in granting

Beard a new trial on the general grounds. We disagree.

      It is well established:

                                 10
     Even when the evidence is legally sufficient to sustain a
     conviction, a trial judge may grant a new trial if the
     verdict of the jury is “contrary to . . . the principles of
     justice and equity,” OCGA § 5-5-20, or if the verdict is
     “decidedly and strongly against the weight of the
     evidence.” OCGA § 5-5-21. When properly raised in a
     timely motion, these grounds for a new trial — commonly
     known as the “general grounds” — require the trial judge
     to exercise a “broad discretion to sit as a ‘thirteenth
     juror.’” In exercising that discretion, the trial judge must
     consider some of the things that she cannot when
     assessing the legal sufficiency of the evidence, including
     any conflicts in the evidence, the credibility of witnesses,
     and the weight of the evidence. Although the discretion
     of a trial judge to award a new trial on the general
     grounds is not boundless — it is, after all, a discretion
     that “should be exercised with caution [and] invoked only
     in exceptional cases in which the evidence preponderates
     heavily against the verdict” — it nevertheless is,
     generally speaking, a substantial discretion.

White v. State, 

 (

) (2013) (citations

omitted). We have reiterated that the trial court has “substantial”

discretion when granting a motion for new trial on the general

grounds. See, e.g., State v. Denson, 

 (

)

(2019); State v. Holmes, 

 (

) (2019);

State v. Hamilton, 

 (

) (2019); State v.

Hamilton, 

 (

) (2016).


                                 11
     (a) After presiding over Beard’s trial and a hearing on Beard’s

motion for new trial, the trial court issued an 18-page order, which

recounted testimony from individual witnesses, pointed out

inconsistencies in the evidence and credibility issues with the

witnesses, and concluded that “the eyewitness evidence presented

by the State, including the three victims hurt by the crossfire, was

weak.” Among other things, it specifically found that the “record is

filled with conflicting evidence and credibility concerns as to almost

every eye witness and the chief investigating officer.” The trial court

also found that witnesses Martin, Jeffries, and Bailey “h[e]ld almost

no credibility as it appeared all were trying to minimize their

participation in the events leading up to the shooting”; that

“[c]ertain omissions in the evidence left many unanswered questions

about what transpired and further suggested that those testifying

may not have been entirely forthright”; and that “[t]he strongest

evidence against Beard came from two witnesses, the decedent’s

girlfriend and an investigating officer, but this testimony also

presented credibility issues.”

                                  12
      (b) Contrary to the State’s bizarre argument, the jury’s verdict

was not demanded by the “great physical laws of the universe.”7 See

Hamilton, 

 (“An appellate court will not disturb

the first grant of a new trial based on the general grounds unless the

trial court abused its discretion in granting it and the law and the

facts demand the verdict rendered.”). Having reviewed the entire

record, and considering that the trial court was authorized, as the

thirteenth juror, to discount the State’s witnesses and to credit

Beard’s version of events, and bearing in mind the standard of

review set forth in OCGA § 5-5-50, we cannot say that the trial court

abused its substantial discretion in granting Beard a new trial on




      7 To support that proposition, the State cites Patton v. State, 

 (

) (1903) (“The great physical laws of the universe are witnesses
in every case, and can not be impeached by the feeble voice of man, even though
he be speaking under the sanction of an oath.”), and Donald v. State, 

 (

) (2010) (“[N]either a jury nor a court is required to
believe evidence or testimony which defies the laws of nature.”). But as we
explained in Donald, that maxim “applies in only extraordinary cases, and only
for statements which run contrary to natural law and the universal experience
of mankind.” Donald, 

 (quoting Stephens v. State, 

 (

) (2000)). Here, as in Donald, contradictory witness
testimony “regarding the manner in which [a] shooting took place,” does not
“contradict the great physical laws of the universe.” See 

 (punctuation
omitted).
                                       13
the general grounds. See, e.g., Denson, 

; Holmes, 306

Ga. at 653; Hamilton, 

.

     Judgment affirmed. All the Justices concur.




     NAHMIAS, Presiding Justice, concurring.

     Since 2011, the State has had the right to immediately appeal

a trial court order granting a new trial to a criminal defendant. See

OCGA §§ 5-7-1 (a) (8), 5-7-2 (b), (c); State v. Caffee, 

(

) (2012) (explaining that OCGA § 5-7-2 was amended

                                 14
in 2011 to eliminate the requirement that the State follow

interlocutory appeal procedures in order to appeal from an order

granting a new trial). When a trial court bases its grant of a new

trial on a legal ground that is arguably erroneous, the State has a

legitimate point to appeal and may indeed prevail on appeal. See,

e.g., State v. Harris, 

 (

) (2017); State

v. Abernathy, 

 (

) (2011).

     When a trial court grants a new trial on the “general grounds”

in OCGA §§ 5-5-20 and 5-5-21, however, the State’s shot at a

successful appeal is much more constrained, given the broad

discretion afforded to trial courts under those statutes and the

deferential standard of appellate review reiterated in the Court’s

opinion (which I join in full). The State may be able to prevail if it

can demonstrate that the trial court failed to exercise its discretion

or the court’s exercise of discretion was tainted by a legal error, or

in other unusual circumstances. See, e.g., State v. Holmes, 

 (

) (2018) (“A trial court . . . does not

properly exercise its discretion when it applies an improper legal

                                 15
standard of review, as opposed to its own discretion as the thirteenth

juror, to the general grounds for new trial.”); State v. Jackson, 

 (

) (2014) (reversing the purported

grant of a new trial on the general grounds by a trial judge who no

longer had jurisdiction over the case). See also State v. Johnson, 

, 239 n.5 (

) (2019) (explaining that even though

the trial court “purported to grant the motion on ‘discretionary

grounds,’ the motion was actually granted on legal grounds,”

changing the type of appellate review).

      However, if the verdict at trial depended at all on credibility

determinations or the resolution of conflicting evidence, and the

State just disagrees — however vehemently — with the trial court’s

weighing of that evidence as the “thirteenth juror,” the State has no

realistic chance to prevail on appeal. This is true even if the

appellate court might have viewed the evidence in the way the State

sees it, and even though the twelve trial jurors viewed the evidence

that way in returning a guilty verdict. If this point was not made

clear enough by many older decisions of this Court, today’s opinion

                                 16
— along with the three similar decisions this Court has issued in the

past two months in Denson, Holmes, and Hamilton — should make

the point ineluctable. And the State becomes no more likely to

prevail if it makes the sort of argument it has made here, which the

Court accurately labels “bizarre.” So before the State exercises its

right to appeal an order granting a new trial on the general grounds,

the State’s lawyers should think hard about whether the appeal will

amount to anything other than an unnecessary delay in the new

trial and a waste of the limited resources of the State, the publicly

funded lawyers who represent most of the defendants in these cases,

and this Court.

     I am authorized to state that Justices Blackwell, Boggs,

Peterson, Warren, Bethel, and Ellington join in this concurrence.

                      DECIDED OCTOBER 31, 2019.
     Murder. Fulton Superior Court. Before Judge Downs.
     Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Kevin C. Armstrong, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellant.
     Jessica A. Seares, for appellee.


                                 17