MARTIN v. THE STATE (Two Cases)

FINAL COPY

                 S20A1134. MARTIN v. THE STATE.
                  S20A1135. BYRD v. THE STATE.


      MELTON, Chief Justice.

      In these related appeals, Dreshaun Martin and Tori Byrd

appeal their convictions for the malice murder of Valentine Dwight

Gant, Jr., and the aggravated assault of Gant’s three-year-old son.1

For the reasons set forth below, we affirm in both cases.

      1. In the light most favorable to the verdicts, the evidence


      1 Martin and Byrd were indicted in Chatham County on September 21,

2016. Both men were charged with one count of malice murder, one count of
felony murder, and two counts of aggravated assault (one for each victim). At
a jury trial from May 21 to May 24, 2018, Martin and Byrd were found guilty
of all counts. The trial court sentenced each defendant to life in prison for the
malice murder of Gant with 20 consecutive years for the aggravated assault of
Gant’s son. The felony murder count against each defendant was vacated by
operation of law, see Malcolm v. State, 

 (4) (

)
(1993), and the count of aggravated assault involving Gant was merged into
the malice murder count for purposes of sentencing.
       On June 4, 2018, Martin filed a motion for new trial, and he amended it
on December 19, 2019. Byrd filed a motion for new trial on June 5, 2018, and
he amended his motion on May 17, 2019 and June 27, 2019. Following a
hearing held on October 7, 2019, the trial court denied Martin’s motion on
February 26, 2020 and denied February 27, 2020. Thereafter, both Martin and
Byrd filed timely notices of appeal, and their cases, submitted for decision on
the briefs, were docketed to the August 2020 term of this Court and
consolidated for review.
produced at trial shows that on June 6, 2015, Byrd, Martin, and

Justin Cassell were socializing with several others in the back yard

of Jasmine Brown, the mother of Byrd’s child. The three men wanted

some marijuana, but they had no money. At that point, they

discussed the possibility of “finessing” people for marijuana, i.e.,

tricking or robbing them. Ebony Young, Cassell’s friend, overheard

some of this planning, though she left the back yard while the

planning was ongoing. She testified that she did not want to stay

there because she believed that the men were going to behave badly.

     Martin, Byrd, and Cassell eventually decided that Byrd would

call Gant, a marijuana dealer whom Byrd knew and thought would

come to them, as Gant was in the Edgewater Apartment complex

which was adjacent to Brown’s back yard and accessible through a

hole in her back fence. At Byrd’s request, Gant agreed to come

through the Edgewater Apartment complex and meet the men.

When Gant answered Byrd’s phone call, Gant’s girlfriend, who was

with him at the time, saw the name “Tori” come up on Gant’s phone.

Before Gant left, his son asked to go with him, which Gant allowed.

                                 2
     While Martin, Byrd, and Cassell waited, they planned to steal

both Gant’s marijuana as well as any money Gant might be carrying.

They discussed fighting Gant for the drugs and money, but decided

to approach him with a gun that Byrd had brought and subsequently

handed to Martin. It was agreed that Byrd would take all of Gant’s

marijuana, and Martin and Cassell would split any money they

stole.

     Justin Gibson, who was outside the apartments on the other

side of the fence, could hear much of this conversation about robbing

Gant. Martin, Byrd, and Cassell knew Gibson was there, but they

were not particularly concerned about his presence and did not

attempt to hide their conversation or actions from him, as they knew

that Gibson suffered from intellectual disabilities.

     A short time later, Gant arrived in his car and pulled into a

parking lot where the three men could see him from Brown’s house.

Gibson testified that he saw Martin and Cassell approach Gant from

the rear of the car. Byrd had gone into Brown’s house. On the way

to Gant’s car, Martin handed the gun to Cassell, who approached

                                  3
the driver’s door and pointed the gun at Gant’s head. Gant tried to

fight Cassell for the weapon. In the tussle, Cassell shot Gant in the

chest. The bullet traveled down Gant’s body and out his back, going

into and then out of the leg of Gant’s son, who was sitting next to

Gant in the vehicle. Cassell and Martin then ran away.2

     Fatally wounded, Gant briefly drove out of the Edgewood

Apartment complex and into the parking lot of another complex

across the street, where his sister lived. Gant subsequently died

from the gunshot wound, but his son survived. Gibson followed

Gant’s vehicle on foot and made contact with police, telling them

what he had seen that afternoon. A bullet was later recovered from

Gant’s vehicle and determined to be consistent with having been

fired by a Smith and Wesson .9mm handgun.

     Initially, only Cassell was identified and charged with Gant’s

murder. Cassell proceeded to a jury trial, but, mid-trial on August

9, 2016, Cassell agreed to plead guilty to voluntary manslaughter.



     2 The men were apparently unsuccessful in robbing Gant, as a bag of

marijuana was later found in Gant’s car.
                                     4
In return, Cassell provided the State with a full version of the events

leading up to the shooting in a recorded interview (which was later

introduced at the trial of Martin and Byrd). Martin and Byrd were

arrested the next day, and later indicted and tried on the evidence

set forth above.

     Despite contentions otherwise, this evidence was sufficient as

a matter of constitutional due process to enable the jury to find both

Martin and Byrd guilty beyond a reasonable doubt of the crimes of

which they were convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). See also OCGA § 16-2-20

(defining parties to a crime); Butts v. State, 

 (2) (

) (2015) (jury may infer common criminal intent from

defendant’s presence, companionship, and conduct with another

perpetrator before, during, and after the crimes); Cargill v. State,

 (1) (

) (1986) (as to the guilt of a party

to a crime for co-perpetrator’s acts, “[t]he act of one [perpetrator] was

the act of the other in the commission of [the crimes]” (Citation and

punctuation omitted.)).

                                   5
      Neither Martin’s contention that Cassell’s testimony was not

sufficiently corroborated nor Byrd’s contention that the child’s

shooting was unforeseeable has merit. With regard to Martin’s

corroboration claim, it is true that Cassell’s testimony must be

corroborated because he was an accomplice of Martin and Byrd. See

OCGA § 24-14-8.3 There was, however, ample corroboration from

multiple witnesses, including the testimony of Gibson and Young

that recounted the planning and execution of the crimes. See Dozier

v. State, 

 (

) (2019) (noting that

“[s]ufficient corroborating evidence may be circumstantial, it may be



      3 OCGA § 24-14-8 provides:

       The testimony of a single witness is generally sufficient to
       establish a fact. However, in certain cases, including prosecutions
       for treason, prosecutions for perjury, and felony cases where the
       only witness is an accomplice, the testimony of a single witness
       shall not be sufficient. Nevertheless, corroborating circumstances
       may dispense with the necessity for the testimony of a second
       witness, except in prosecutions for treason.
Although Georgia mandates this corroboration by statute, we note that
federal constitutional due process does not have such a requirement. See,
e.g., State v. Grier, 

 (2) (

) (2020)
(concluding that evidence was sufficient to sustain convictions as a
matter of federal constitutional due process under Jackson v. 

 “regardless” of whether evidence showed that State’s witness was
an accomplice, before considering whether evidence was sufficient under
state law, specifically OCGA § 24-14-8).
                                       6
slight, and it need not of itself be sufficient to warrant a conviction

of the crime charged,” but it “must be independent of the accomplice

testimony and must directly connect the defendant with the crime

or lead to the inference that he is guilty”) (citation and punctuation

omitted). See also Crawford v. State, 

 (1) (

) (2014) (“Once the State adduces [corroborating] evidence, it is

peculiarly a matter for the jury to determine whether the evidence

sufficiently corroborates the accomplice’s testimony and warrants a

conviction.” (Citation and punctuation omitted.)).

     Byrd’s argument that the presence and shooting of Gant’s son

was an unforeseeable collateral consequence is equally meritless.

     It has long been the law of Georgia that “[a]ll of the
     participants in a conspiracy are criminally responsible for
     the acts of each, committed in the execution of the
     conspiracy, and which may be said to be a probable
     consequence of the conspiracy, even though the particular
     act may not actually have been part of the plan.” Huffman
     v. State, 

 (2) (

) (1987). This
     criminal responsibility also applies to collateral acts of a
     co-conspirator, so long as such collateral acts are
     reasonably foreseeable as a necessary or natural
     consequence of the conspiracy. See Everritt v. State, 

 (

) (2003) (quoting Pinkerton v.
     United States, 

 (

, 90 LE

                                  7
     1489) (1946)). . . . “Even if [Byrd] did not have the specific
     intent that [Gant’s son] be [shot], the crimes which [he]
     did intend were dangerous ones; by their attendant
     circumstances, they created a foreseeable risk of death.”
     Parks v. State, 

 (

) (2000).

McLeod v. State, 

 (1) (

) (2015). The

defendants planned an armed robbery as part of an illegal drug

transaction. It was not an unforeseeable collateral consequence that

someone might get shot during the commission of such an obviously

dangerous and illegal enterprise. See 

 See also Robinson v. State,

 (1) (

) (2016) (holding that the

fatal shooting of the defendant’s accomplice by the victim during an

attempted armed robbery was foreseeable); State v. Jackson, 

 (3) (

) (2010) (“Proximate causation imposes

liability for the reasonably foreseeable results of criminal . . . conduct

if there is no sufficient, independent, and unforeseen intervening

cause.”).

     2. Both Martin and Byrd contend that the trial court erred by

denying a motion for mistrial after the State failed to properly redact

a small portion of Cassell’s recorded statement. We disagree.

                                    8
     In one part of his recorded interview, Cassell told the

questioning investigator that Gibson had not visited Brown’s back

yard while Cassell was present. The investigator then inquired how

Gibson could have known about the robbery if he had not been in or

near Brown’s back yard. In response, Cassell stated an assumption

that, if Gibson had been present, Gibson must have visited the back

yard prior to Cassell’s arrival. At a pretrial hearing, the trial court

ruled that this portion of Cassell’s interview should be redacted

because it was based on speculation. At trial, however, it was

accidentally played for the jury.

     After the unexpected portion of Cassell’s statement was played,

Byrd moved for a mistrial, which Martin joined. In response, the

State recognized its mistake and requested that the trial court issue

a curative instruction. The trial court denied the motions for

mistrial, but granted the State’s request and instructed the jury: “I

want you to disregard the last statement by the witness in the audio

tape, which is speculative in nature. You are not to consider that at

all. Is that clear?” The jurors responded affirmatively that they

                                    9
understood, and the State published the remainder of the interview.

     Under these circumstances, the trial court did not abuse its

discretion. “[A] new trial will not be granted unless it is clear that

the trial court’s curative instruction failed to eliminate the effect of

the prejudicial comment [in contention].” Turner v. State, 

 (5) (

) (2016). Here, the jurors indicated an

understanding that they were not to consider the speculative

statement in question, and there is no indication that it affected

their consideration of the evidence before them. There was no abuse

of the trial court’s discretion, as neither Martin nor Byrd has shown

that the grant of a mistrial was necessary to preserve the right to a

fair trial. See Jordan v. State, 

 (2) (

)

(2019) (whether to grant a mistrial is committed to the discretion of

the trial court, and the denial of a motion for mistrial will not be

disturbed on appeal unless there is a showing that a mistrial was

essential to preserve the defendant’s right to a fair trial).

     3. Martin contends that the trial court committed plain error

by inadvertently charging the jury on the need for corroboration of

                                   10
accomplice testimony prior to charging the single witness rule.

Martin speculates that the order of the instructions confused the

jury. This claim lacks merit.4

      During its final charge, the trial court instructed the jury as

follows:

      I further charge you . . . in assessing the credibility of
      witnesses you may consider any possible motive in
      testifying if shown. In that regard, you are authorized to
      consider any possible pending prosecutions, negotiated
      pleas, grants of immunity or leniency, or similar matters.
      You alone shall decide the believability of the witnesses.
      [A]n exception to this rule is made in the case of murder
      and aggravated assault when the witness is an
      accomplice. The testimony of an accomplice alone is not
      sufficient to warrant a conviction. Accomplice’s testimony
      must be supported by other evidence of some type, and
      that evidence must be such as would lead to the inference
      of the guilt of the Accused independent of the testimony
      of the accomplice. It’s not required though that supporting
      evidence be sufficient to warrant a conviction or that the
      testimony of an accomplice be supported in every material
      particular. Supporting evidence must be more than that
      a crime was actually committed by someone. It must be
      sufficient to connect the Accused with the criminal act. It

      4  Byrd raises a largely identical claim in the context of ineffective
assistance of counsel, but that claim fails because, as we hold in this division,
the trial court did not commit reversible error in the manner in which it gave
instructions to the jury. See Newman v. State, 

 (2) (c) (

) (2020) (failure to make a meritless objection does not provide a basis
upon which to find ineffective assistance of counsel).
                                       11
     must be more than sufficient to merely cast upon the
     Accused a grave suspicion of guilt. Slight evidence, ladies
     and gentlemen, from any source that connects the
     Accused with the commission of the alleged crime and
     tends to show participation in it may be sufficient
     supporting evidence of the testimony of an accomplice. In
     order to convict, the evidence . . . when considered with
     all of the other evidence in the case must be sufficient to
     satisfy you beyond a reasonable doubt that the Accused is
     guilty.
           I further charge you . . . the testimony of a single
     witness, if believed, is sufficient to establish a fact.
     Generally there is no legal requirement for corroboration
     of a witness provided you find the evidence to be
     sufficient.

     With regard to these jury charges, Martin made no objections.

Therefore, his claim is subject to plain error review on appeal. See

Guajardo v. State, 

 (4) (

) (2011). The test

for plain error is comprised of four prongs:

     First, there must be an error or defect — some sort of
     deviation from a legal rule — that has not been
     intentionally    relinquished     or     abandoned,      i.e.,
     affirmatively waived, by the appellant. Second, the legal
     error must be clear or obvious, rather than subject to
     reasonable dispute. Third, the error must have affected
     the appellant’s substantial rights, which in the ordinary
     case means he must demonstrate that it affected the
     outcome of the trial court proceedings. Fourth and finally,
     if the above three prongs are satisfied, the appellate court
     has the discretion to remedy the error — discretion which

                                  12
     ought to be exercised only if the error seriously affects the
     fairness, integrity, or public reputation of judicial
     proceedings.

(Citation, punctuation and emphasis omitted.) State v. Kelly, 

 (1) (

) (2011).

     Even if we assume without deciding that Martin could show

that the first two prongs of the plain error test were satisfied, he

would fail on the third prong, as the instructions given in this case

did not affect his substantial rights. “In reviewing a challenge to the

trial court’s jury instructions, we view the charge as a whole to

determine whether the jury was fully and fairly instructed on the

law of the case.” (Citations and punctuation omitted.) Walker v.

State, 

 (2) (

) (2020). Viewing the jury

instructions given in this case in that manner, the trial court

properly charged the jury that, in most circumstances, the testimony

of a single witness is sufficient to establish a fact, but that

accomplice testimony must be corroborated. These are proper

concepts of law, irrespective of the order in which they were given.

And, though it might have been preferable for the trial court to have

                                  13
given the charges in a different order, the charge, as a whole, was

complete, and the defendants have provided no evidence that the

jury was either misled or confused. As such, there was no plain error.

     4. Byrd contends that the trial court erred by ruling that a

conversation Young and Cassell had with Gant days before the

shooting was inadmissible hearsay. Specifically, Byrd contends that,

a couple of days before Gant’s shooting, Young and Cassell discussed

a drug transaction with Gant. Byrd maintains that this conversation

could have caused the jury to infer that Cassell, not Byrd, was the

mastermind behind the ultimate plan to rob Gant. However, Byrd

made no proffer of what Young’s testimony would have been, and,

as such, he has not provided the necessary component for us to

consider his claim. See, e.g., Morris v. State, 

 (II)

(

) (2018) (defendant could not obtain a new trial based

on his speculation about what a witness would have testified to).

Moreover, even if Young’s testimony could have been admissible for

the reason he contends, Byrd has shown no harm, as ample other

uncontested evidence showed that Byrd was an active participant in

                                 14
the planning and robbery of Gant. See Division 1, supra.

     5. Both Martin and Byrd raise claims that their respective trial

counsel provided constitutionally ineffective assistance.

     To prevail on a claim of ineffective assistance of counsel,
     [a defendant] must prove both deficient performance and
     resulting prejudice. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). To
     establish deficient performance, [a defendant] must show
     that his trial counsel performed in an objectively
     unreasonable way, considering all the circumstances and
     in the light of prevailing professional norms. See 

. To establish prejudice, [a defendant] must show
     that there is “a reasonable probability that, but for
     counsel’s unprofessional errors, the result of the
     proceeding would have been different.” 

. We
     need not address both components of this test if [a
     defendant] has not proved one of them. See Walker v.
     State, 

 (

) (2017).

Watson v. State, 

 (2) (d) (

) (2018).

     (a) Both Martin and Byrd contend their trial counsel were

ineffective for failing to impeach Gibson’s credibility with prior

convictions. At the time of the shooting, Gibson had several pending

misdemeanor charges, including marijuana possession, tampering

with evidence, and shoplifting. These charges were resolved prior to

trial — Gibson pled guilty to marijuana possession, the tampering

                                 15
charge was merged, and an order of nolle prosequi was entered on

the shoplifting charge. Neither Martin nor Byrd has presented any

evidence that Gibson’s plea deal was conditioned on providing

testimony in their cases. Martin’s trial counsel testified that he did

not question Gibson about the misdemeanor convictions “because

there was nothing about the plea that made [him] think that

[Gibson] was trading up for his testimony.” Furthermore, Gibson’s

trial counsel did not think such questioning was necessary because

Gibson’s testimony was a “gold mine”— in particular, that his

testimony was “inconsistent and he was everywhere,” and Gibson

even “g[ot] up to flee from the witness stand in the middle of cross.”

Under these circumstances, neither Martin nor Byrd has shown his

respective counsel performed deficiently. The decision not to

confront Gibson with these prior convictions was strategic and

reasonable. See Redding v. State, 

 (1) (a) (

)

(2020) (no deficient performance where no evidence witness had a

plea deal with the State and where trial counsel made tactical

decision to attack credibility of witness on cross-examination in

                                 16
other ways). Moreover, no showing of prejudice has been made, as

Gibson’s testimony was corroborated by testimony from other

witnesses including Young and Cassell. See Clark v. State, 

 (2) (a) (

) (2019).

      (b) Separately, Byrd contends that his trial counsel provided

constitutionally ineffective assistance by (i) failing to object after the

trial court instructed the jury on the definition of aggravated assault

four times; (ii) failing to object to an in-life photograph of Gant

holding his son; and (iii) failing to impeach Gibson with inconsistent

statements he had made.5

      (i) With regard to trial counsel’s decision not to object to the

four separate instructions on aggravated assault, as Byrd

recognizes, this Court recently ruled on a similar claim, holding:

“Generally, mere repetition of a correct and applicable principle of

law is not such error as requires reversal unless it takes color of an

argumentative or opinionative utterance so as to tend to prejudice


      5  Byrd also contends that trial counsel provided constitutionally
ineffective assistance by failing to object to the sequencing of the trial court’s
instructions. That contention is considered in footnote 4 of Division 3, supra.
                                       17
the minds of the jury.” (Citation and punctuation omitted.) Wilkins

v. State, 

 (5) (

) (2020). In this case,

Byrd has not shown how the repetition of the correct definition of

aggravated assault was “argumentative or opinionative” or how it

could have prejudiced him in any way. Accordingly, Byrd has not

shown ineffective assistance. See 

     (ii) Trial counsel did not perform deficiently by failing to object

to an in-life photograph of Gant holding his son. Byrd argues that

this photo was intended to invoke the jury’s sympathy and inflame

passions, and, as a result, trial counsel should have objected on the

basis that the photograph was more prejudicial than probative.

Here, however, Gant’s son was also a victim in this case, and the

jury was, therefore, well aware of Gant’s son and aspects of their

relationship. As such, Byrd has not shown that the mere inclusion

of Gant’s son in the photograph caused its prejudicial impact to

substantially outweigh its probative value, as the photograph

accurately represented the two victims of the shooting. See OCGA

§§ 24-4-401 to 24-4-403. See also Lofton v. State, 

, 355

                                  18
(2) (b) (

) (2020).

      (iii) Finally, trial counsel did not perform deficiently by making

the strategic decision not to cross-examine Gibson on potential

inconsistent statements he had made.6 At the hearing on Byrd’s

motion for new trial, trial counsel recalled that Gibson was

intellectually disabled and that the jury “loved” and “felt sorry for

him.” Trial counsel chose not to cross-examine Gibson as to any

inconsistent statements because he did not think there was

“anything to be gained . . . by beating up on a sad witness.” This was

not unreasonable trial strategy, given Gibson’s disability, his erratic

behavior on the witness stand, and the inconsistencies in the

testimony he did give at trial even without additional cross-

examination. See Butler v. State, 

 (10) (b) (

) (2001) (“[A] matter such as the cross-examination of a witness

is most often grounded in matters of trial tactics and strategy and,


      6 For example, Gibson gave conflicting statements as to whether Martin

or Byrd gave Cassell the gun. Evidence also indicated that, on the day of the
shooting, Gibson stated that he had been drinking, but, at trial, he maintained
that he had not.

                                      19
in those instances, provides no basis for finding counsel’s

performance deficient.”).7

     Judgments affirmed. Nahmias, P. J., and Boggs, Peterson,
Bethel, Ellington, and McMillian, JJ., concur. Warren, J., not
participating.



     DECIDED DECEMBER 21, 2020 — RECONSIDERATION DENIED
                         JANUARY 11, 2021.
     Murder. Chatham Superior Court. Before Judge Bass.
     David T. Lock, for appellant (case no. S20A1134).
     Steven L. Sparger; Williams & Pine, Jonah L. Pine, for
appellant (case no. S20A1135).
     Meg E. Heap, District Attorney, Emily C. Puhala, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Matthew D. O’Brien, Assistant
Attorney General, for appellee.




     7   As we hold that Byrd has not shown that his counsel performed
deficiently, we need not consider his claim of cumulative error pursuant to
State v. Lane, 

 (1) (

) (2020).
                                    20