State v. Beard

307 Ga. 160

835 S.E.2d 273

The STATE

v.BEARD.

S19A0535

Supreme Court of Georgia.

Decided: October 31, 2019

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.

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

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.

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 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" 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 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 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 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.

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