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State v. Beard

Supreme Court of Georgia

October 31, 2019


Page 274

          Kevin Christopher Armstrong, Paul L. Howard, Lyndsey Hurst Rudder, Fulton County District Attorney’s Office, Christopher M. Carr, Paula Khristian Smith, Patricia B. Attaway Burton, Department of Law, for Appellant.

          Jessica A. Seares, Atlanta Circuit Public Defender’s Office, for Appellee.


         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 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

Page 275

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 "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 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 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.

Page 276

          The stories from various witnesses, including Beard, differed as to what occurred in the moments leading up to and during the 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 ...

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