Voluntary manslaughter, etc. Fulton Superior Court. Before Judge Baxter.
S. Cindy Wang, for appellant.
Paul L. Howard, Jr., District Attorney, Lori L. Canfield, Joshua D. Morrison, Assistant District Attorneys, for appellee.
Markell Dorsey and four co-defendants were tried jointly before a jury for murder and other offenses related to the shooting death of Ron Strozier. After the trial, Dorsey was convicted of voluntary manslaughter, conspiracy to commit aggravated assault, conspiracy to commit criminal damage to property, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony and theft by receiving stolen property. Dorsey appeals, challenging the sufficiency of the evidence, the sentencing on both conspiracy counts, the denial of a motion to sever, the denial of a [331 Ga.App. 487] mistrial after impermissible character testimony, and the effectiveness of his trial counsel. However, there was sufficient evidence to support the verdict; any error in sentencing on the conspiracy counts was harmless; there was no abuse of discretion in the denial of a severance; the trial court properly struck the improper character testimony and gave a curative jury instruction, rather than granting a mistrial; and there has been no showing that trial counsel's performance was both deficient and prejudicial. Accordingly, we affirm.
1. Sufficiency of the evidence.
Dorsey argues that there was insufficient evidence to support his voluntary manslaughter conviction because the state did not prove that any of the co-defendants shot Strozier. However, in a separate appeal, the Supreme Court of Georgia found sufficient evidence to affirm the convictions of co-defendant Michael Grissom, noting that " [t]he 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." Grissom v. State, 296 Ga. 406 (768 S.E.2d 494) (2015). Pursuant to Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the Court determined that the evidence, viewed in the light most favorable to the verdicts, showed the following facts.
[T]he feud commenced with a physical altercation on July 31, 2005, between Dorsey and D-Bone[, identified at trial by the name Darian Jackson,] 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 [331 Ga.App. 488] 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[, including Dorsey,] 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 ...