CourtListener 10680180

Full text

315 Ga. 467
FINAL COPY

S22A1302. MONTGOMERY v. THE STATE.

BOGGS, Chief Justice.

Appellant Gregory Montgomery challenges his 2019

convictions for malice murder and other crimes in connection with

the shooting death of Justuss Rogers. Appellant contends that the

trial court erred in its recharge to the jury after the jury sent the

court a note during deliberations and that the court should have

granted him a new trial under the “thirteenth juror” standard. As

explained below, the court did not err in its recharge to the jury, and

Appellant’s “thirteenth juror” claim is wholly without merit.

Accordingly, we affirm.1

1 The crimes occurred on October 23, 2017. On March 13, 2018, a DeKalb

County grand jury indicted Appellant for malice murder, two counts of felony
murder, conspiracy to commit armed robbery, aggravated assault with a
deadly weapon, and possession of a firearm during the commission of a felony.
In the same indictment, the grand jury charged Lakoaia Johnson with two
counts of felony murder, conspiracy to commit armed robbery, and aggravated
assault with a deadly weapon. Johnson later entered a negotiated guilty plea
to aggravated assault and was sentenced to a term of 20 years in prison with
1. Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. On Monday evening, October

23, 2017, Rogers drove his friend Derrick Wheeler and a woman

named Lakoaia Johnson in his Camaro to a cell phone store in

Morrow, Georgia. Outside the store, Johnson used her cell phone to

record a video of herself with Rogers as he was counting out a large

amount of cash, and she posted the video on Instagram. At the same

time, she sent a message to a group chat that included Appellant

and S. D., a juvenile. Members of the group told Johnson to bring

Rogers to a certain cul-de-sac so that they could rob him and asked

if Rogers was armed; Johnson replied that she did not know.

the first 15 years to be served in confinement. At a trial from February 19 to
March 1, 2019, the jury found Appellant guilty of all charges. The trial court
sentenced Appellant to serve life in prison without the possibility of parole for
malice murder, a concurrent term of 30 years for conspiracy to commit armed
robbery, and a consecutive term of five years suspended for the firearm-
possession conviction; the felony murder verdicts were vacated by operation of
law, and the aggravated assault count merged. On March 26, 2019, Appellant,
assisted by new counsel, filed a motion for new trial, which he amended on
June 1, 2020. The trial court held a hearing on the motion on May 19, 2022,
corrected a scrivener’s error on the Final Disposition form that constituted
Appellant’s judgment of conviction and sentence, and entered an order on May
31 otherwise denying the new trial motion. On June 23, Appellant filed a notice
of appeal, and the case was docketed in this Court to the August 2022 term
and submitted for a decision on the briefs.
2
Johnson asked Rogers to drop her off at the cul-de-sac, but he

initially refused. Johnson then told Rogers that she needed to pick

up her baby there, so Rogers drove her to the cul-de-sac with

Wheeler in the back seat. As soon as Rogers stopped his Camaro,

Johnson opened the passenger-side door. As she got out, Appellant

came from behind the car, grabbed the top of the passenger-side

door, pointed a black pistol into the Camaro, and opened fire, hitting

Rogers four times on the right side of his body as Wheeler slid down

in the back seat as far as he could to avoid getting shot. Rogers had

already shifted the car into reverse, and when he pressed the gas

pedal, he backed into a car that was parked behind him. Rogers

managed to shift the car into drive and pull forward, but he hit

another parked car, and his Camaro came to a halt.

Appellant and Johnson ran through some woods, down a hill,

and through an adjacent apartment complex, where a security guard

at the complex saw them. Meanwhile, back on the cul-de-sac,

Wheeler climbed over the front seat of the Camaro, opened the

driver-side door, crawled over Rogers, and got out. Rogers told

3
Wheeler that Rogers had been shot and asked Wheeler to help him.

Wheeler tried to keep Rogers conscious, and as neighbors began to

come out of their homes to see what had happened, Wheeler shouted

to them to call 911. The police and emergency medical responders

arrived within minutes of the shooting, and Rogers was taken to a

nearby hospital, where he soon died from his injuries.

The police recovered four .40-caliber shell casings and a black

bookbag from the street near the Camaro, as well as a .40-caliber

bullet on the driver’s seat where Rogers had been sitting. The

bookbag contained, among other things, Appellant’s cell phone and

a gun magazine with nine .40-caliber rounds. On Appellant’s cell

phone, the police found pictures and a video made just hours before

the shooting. One picture and the video showed Appellant pointing

a pistol at the camera; another picture showed the black bookbag

with a pistol inside; and the caption on the video started with the

words “Big Boy 40 on me.”

A little more than a week after the shooting, the police brought

Johnson in for questioning, and she said that S. D. sent her the

4
address on the cul-de-sac where she was supposed to bring Rogers.

A week or so later, the police arrested S. D., who gave a statement

implicating Appellant as the shooter and Johnson as the person who

set up the planned robbery. Within days, the police arrested

Johnson. The following month, the United States Marshals Service

apprehended Appellant at his sister’s house, where they found him

hiding under a pile of clothes in a bedroom.

At trial, Johnson testified that Appellant shot Rogers, and S.

D., who was not present at the shooting, testified that Appellant told

S. D. that Appellant shot Rogers. The security guard from the

adjacent apartment complex identified Appellant as the man he saw

running with Johnson from the direction of the gunfire with a gun

in his hand seconds after the shooting. The defense theory was that

the State failed to prove beyond a reasonable doubt that Appellant

was even present at the scene of the shooting, much less that he was

the person who shot Rogers. Appellant elected not to testify but

called one defense witness, Charquita Cooper. Cooper testified that

Johnson had confided in her that the father of Johnson’s child shot

5
Rogers; that Appellant was not at the cul-de-sac at the time of the

shooting; and that Johnson was going to testify falsely at Appellant’s

trial that she saw Appellant shoot Rogers. On cross-examination,

Cooper acknowledged that she and Johnson had physically fought

in prison.

2. Appellant contends that the trial court erred in its

recharge to the jury, because the court refused to include in the

recharge language defining reasonable doubt. We see no error.

(a) Almost two hours into deliberations, the jury sent the

trial court a note that said: “Does the defendant need to have pulled

the trigger in order to be guilty of felony murder? Or, does the

defendant just need to be party to the felony?” The court asked the

parties for proposed responses. The State requested that the court

recharge the jury on parties to a crime and conspiracy. Appellant

agreed that the jury should be recharged on parties to a crime but

disagreed that the jury should be recharged on conspiracy. However,

the court ruled for the State, explaining that the jury’s note

mentioned “felony murder” and that conspiracy to commit armed

6
robbery was the underlying felony for one of the two felony murder

charges against Appellant. Appellant responded that if the court

was going to recharge on conspiracy for that reason, then the court

also ought to recharge the jury on aggravated assault. The court

agreed to do that as well, explaining that it planned to recharge the

jury on parties to a crime, conspiracy, armed robbery, and

aggravated assault.

Appellant said that if the court was going to recharge the jury

on all those issues, the court also should repeat the jury instruction

on reasonable doubt. The State objected, pointing out that the jury

did not indicate in its note that it had any questions about

reasonable doubt. The court again agreed with the State,

commenting that the recharge needed to be responsive to the

questions that the jury asked. The court observed that at that point,

there appeared to be no disagreement between the parties on

whether the court should recharge the jury on parties to a crime,

conspiracy, and the definitions of the two underlying felonies and

said that was what the court was going to do. Appellant responded,

7
“We would note our objection for the record, your Honor.”

The court then added that it would include in the recharge the

instruction on the definition of felony murder, the second and third

paragraphs of which explained to the jury how its verdict should

read if the jury were to find Appellant guilty beyond a reasonable

doubt of malice murder or felony murder. Appellant responded that

he did not have a problem with the court “doing all that” as long as

the court “also give[s] a reasonable doubt” instruction. Appellant

argued that “recharging them on all the things that he can be found

guilty of and not recharging them on the fact that they can find him

not guilty [based on reasonable doubt] is inappropriate.” The court

acknowledged that the second and third paragraphs of the felony

murder instruction used the term “reasonable doubt” and wondered

aloud whether it might be better for the court simply to reread the

first paragraph of that instruction, tell the jury that conspiracy to

commit armed robbery and aggravated assault are felonies, and not

recharge the jury on the definitions of conspiracy and aggravated

assault. The State said that it had no objection to that course of

8
action, but Appellant said, “I have a problem with not reading the

whole thing,” referring to the whole three-paragraph felony murder

instruction. He further contended that “if you read the whole thing,

you must give reasonable doubt.”

The court responded:

Well, that’s why I don’t want to read the whole thing
because to your point, the second and third paragraphs
under the felony murder charge, which they have already
been charged on[,] to your point, give them the option to
find your client, if they think the evidence supports it,
guilty of malice murder or guilty of felony murder. And so
to take care of your concern, I was not going to give that
part of the charge.

Appellant then said, “But my concern is if you don’t give reasonable

doubt . . . .” The court agreed with Appellant that if it reread to the

jury the second and third paragraphs of the felony murder

instruction,

then, yes, I would then need to give a reasonable doubt
charge, I think. But the whole point was so as not to
highlight which was your concern the fact that the jury
could find him guilty of malice murder and felony murder
all over again.

Appellant replied, “My concern is that it is highlighted in any event

9
and it’s not balanced with a reasonable doubt instruction.”

The court then said, “All right. Any objection to — I will read

the whole thing then,” referring to all three paragraphs of the

instruction defining felony murder. The State objected, arguing that

the jury had asked questions specifically about the circumstances

under which a person may be found guilty of felony murder and did

not indicate that it had any questions about anything else, adding,

“if we are going to read reasonable doubt, I would ask that we read

the whole charge again.” The court rejected that suggestion. The

court then offered to Appellant:

[I]f you want me to read the entirety of felony murder
defined, which includes a paragraph giving the jury the
option to find your client guilty of malice murder and
guilty of felony murder, I will do that. I will similarly read
the burden of proof reasonable doubt charge because I
don’t think it’s harmful. Is that what you want me to do?

Appellant replied, “Yes, your Honor.” The court said, “All right.

That’s what I’m going to do.”

Once the jury was back in the courtroom, the court read aloud

the jury’s questions and said, “Here is the response.” The court then

10
reread to the jury the instructions on parties to a crime and

conspiracy, as well as all three paragraphs of the felony murder

instruction. The court closed out its recharge with the following

language:

The defendant is presumed to be innocent until
proven guilty. The defendant enters upon the trial of the
case with a presumption of innocence in his favor. This
presumption remains with the defendant until it is
overcome by the State with evidence that is sufficient to
convince you beyond a reasonable doubt that the
defendant is guilty of the offense charged. No person shall
be convicted of any crime unless and until and unless [sic]
each element of the crime is proven beyond a reasonable
doubt.
The burden of proof rests upon the State to prove
every material allegation of the indictment and every
essential element of the crime charged beyond a
reasonable doubt.

The court then sent out the jury to continue deliberating.

The court asked the parties if there was anything else that the

court needed to address. The State said that it had no objection to

the recharge, but Appellant objected to it, stating, “I thought the

reasonable doubt instruction was what is reasonable doubt.

Reasonable doubt is not an absolute doubt. I thought that part was

11
going to be read.” Appellant asked the court to bring the jury back

out and read to the jury the rest of the instruction entitled

“Presumption of Innocence; Burden of Proof; Reasonable Doubt.”2

The State opposed any further recharge. The court said, “[W]e didn’t

talk about the exact language of exactly what you wanted to have

read,” added that it believed that it had addressed Appellant’s

2 The part of the instruction that the court did not repeat to the jury in

the recharge said:
There is no burden of proof upon the defendant whatsoever,
and the burden never shifts to the defendant to introduce evidence
or to prove innocence. (When a defense (except insanity) is raised
by the evidence, the burden is on the State to negate or disprove it
beyond a reasonable doubt.)
However, the State is not required to prove the guilt of the
accused beyond all doubt or to a mathematical certainty. A
reasonable doubt means just what it says. A reasonable doubt is a
doubt of a fair-minded, impartial juror honestly seeking the truth.
A reasonable doubt is a doubt based upon common sense and
reason. It does not mean a vague or arbitrary doubt but is a doubt
for which a reason can be given, arising from a consideration of the
evidence, a lack of evidence, or a conflict in the evidence.
After giving consideration to all of the facts and
circumstances of this case, if your minds are wavering, unsettled,
or unsatisfied, then that is a doubt of the law, and you must acquit
the defendant. But, if that doubt does not exist in your minds as to
the guilt of the accused, then you would be authorized to convict
the defendant.
If the State fails to prove the defendant’s guilt beyond a
reasonable doubt, it would be your duty to acquit the defendant.
Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.20.10 (2007,
updated 2015).
12
concerns, and noted that each juror had a written copy of the full

initial charge, including the language that Appellant wanted

repeated to them. Appellant noted his objection for the record.

(b) If the jury has specifically requested to be recharged on a

particular issue, a trial court must recharge the jury on that issue.

See Flood v. State, 311 Ga. 800, 806 (860 SE2d 731) (2021). Absent

such a request, the need for additional jury instructions, their

breadth, and their precise formulation “are left to the sound

discretion of the trial court.” Barnes v. State, 305 Ga. 18, 23 (823

SE2d 302) (2019) (citation and punctuation omitted). Here, the jury

asked the court whether, in order to find Appellant guilty of felony

murder, it had to find that he pulled the trigger or instead only

needed to find that he was a party to the underlying felony. Nothing

in the jury’s questions suggested that it was confused or uncertain

about the legal definition of reasonable doubt, so the trial court was

not required to recharge the jury on that issue. Moreover, the trial

court acted within its discretion in including in its recharge

language regarding the presumption of innocence, the State’s

13
burden of proof, and the requirement that the State prove every

essential element of the crimes charged beyond a reasonable doubt.

The court did not abuse its discretion by declining to go further by

recharging the jury on the definition of reasonable doubt. See Dozier

v. State, 306 Ga. 29, 32-33 (829 SE2d 131) (2019) (“[O]ur case law

contains no general mandate requiring trial courts, when

responding to a jury’s request for a recharge on a particular issue,

to also recharge on all principles asserted in connection with that

issue.”).

3. Appellant also contends that the trial court should have

granted him a new trial under the “thirteenth juror” standard.

[E]ven 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 [he or she] cannot when
assessing the legal sufficiency of the evidence, including

14
any conflicts in the evidence, the credibility of witnesses,
and the weight of the evidence.

Hinton v. State, 312 Ga. 258, 262 (862 SE2d 320) (2021) (citation and

punctuation omitted). However, “[t]he decision to grant or refuse to

grant a new trial on the general grounds is vested solely in the trial

court.” Id. (citation and punctuation omitted; emphasis supplied).

Thus, “(w)hen a defendant appeals the trial court’s denial
of a motion for new trial, an appellate court does not
review the merits of the general grounds.” Instead, this
Court’s review of the trial court’s ruling on the general
grounds is limited to sufficiency of the evidence under
Jackson v. Virginia[, 443 U. S. 307 (99 SCt 2781, 61 LE2d
560) (1979)].

Id. (citation and punctuation omitted; emphasis in original).

As Appellant acknowledges, the trial court applied the

“thirteenth juror” standard in denying his motion for new trial. Cf.

White v. State, 293 Ga. 523, 525-526 (753 SE2d 115) (2013) (vacating

and remanding where trial court failed to apply the “thirteenth

juror” standard in denying the defendant’s timely motion for new

trial that properly raised the general grounds). And when properly

viewed in the light most favorable to the verdicts, the evidence

15
presented at trial and summarized above in Division 1 was sufficient

to authorize a rational jury to find beyond a reasonable doubt that

Appellant was guilty of the crimes for which he was convicted. See

Jackson, 443 U. S. at 319. See also OCGA § 16-2-20 (defining parties

to a crime); Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It

was for the jury to determine the credibility of the witnesses and to

resolve any conflicts or inconsistencies in the evidence.’” (citation

omitted)). Accordingly, this claim fails.

Judgment affirmed. All the Justices concur.

Decided January 18, 2023.

Murder. DeKalb Superior Court. Before Judge Jackson.

Davis Hewitt Law Firm, William D. Hewitt, for appellant.

Sherry Boston, District Attorney, Jason M. Rea, Deborah D.

Wellborn, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General,

Elizabeth H. Brock, Assistant Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: January 18, 2023

S22A1302. MONTGOMERY v. THE STATE.

BOGGS, Chief Justice.

Appellant Gregory Montgomery challenges his 2019

convictions for malice murder and other crimes in connection with

the shooting death of Justuss Rogers. Appellant contends that the

trial court erred in its recharge to the jury after the jury sent the

court a note during deliberations and that the court should have

granted him a new trial under the “thirteenth juror” standard. As

explained below, the court did not err in its recharge to the jury, and

Appellant’s “thirteenth juror” claim is wholly without merit.

Accordingly, we affirm. 1

The crimes occurred on October 23, 2017. On March 13, 2018, a DeKalb
1

evidence at trial showed the following. On Monday evening, October

23, 2017, Rogers drove his friend Derrick Wheeler and a woman

named Lakoaia Johnson in his Camaro to a cell phone store in

Morrow, Georgia. Outside the store, Johnson used her cell phone to

record a video of herself with Rogers as he was counting out a large

amount of cash, and she posted the video on Instagram. At the same

time, she sent a message to a group chat that included Appellant

and S.D., a juvenile. Members of the group told Johnson to bring

In the same indictment, the grand jury charged Lakoaia Johnson with two
counts of felony murder, conspiracy to commit armed robbery, and aggravated
assault with a deadly weapon. Johnson later entered a negotiated guilty plea
to aggravated assault and was sentenced to a term of 20 years in prison with
the first 15 years to be served in confinement. At a trial from February 19 to
March 1, 2019, the jury found Appellant guilty of all charges. The trial court
sentenced Appellant to serve life in prison without the possibility of parole for
malice murder, a concurrent term of 30 years for conspiracy to commit armed
robbery, and a consecutive term of five years suspended for the firearm-
possession conviction; the felony murder verdicts were vacated by operation of
law, and the aggravated assault count merged. On March 26, 2019, Appellant,
assisted by new counsel, filed a motion for new trial, which he amended on
June 1, 2020. The trial court held a hearing on the motion on May 19, 2022,
corrected a scrivener’s error on the Final Disposition form that constituted
Appellant’s judgment of conviction and sentence, and entered an order on May
31 otherwise denying the new trial motion. On June 23, Appellant filed a notice
of appeal, and the case was docketed in this Court to the August 2022 term
and submitted for decision on the briefs.
2
Rogers to a certain cul-de-sac so that they could rob him and asked

if Rogers was armed; Johnson replied that she did not know.

Johnson asked Rogers to drop her off at the cul-de-sac, but he