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
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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.
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
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 firearmpossession 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.
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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
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,
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Wheeler climbed over the front seat of the Camaro, opened the
driver-side door, crawled over Rogers, and got out. Rogers told
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.”
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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
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 U.S. 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
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called one defense witness, Charquita Cooper. Cooper testified that
Johnson had confided in her that the father of Johnson’s child shot
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,
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the court ruled for the State, explaining that the jury’s note
mentioned “felony murder” and that conspiracy to commit armed
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,
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conspiracy, and the definitions of the two underlying felonies and
said that was what the court was going to do. Appellant responded,
“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
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recharge the jury on the definitions of conspiracy and aggravated
assault. The State said that it had no objection to that course of
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
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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
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.”
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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
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
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reasonable doubt instruction was what is reasonable doubt.
Reasonable doubt is not an absolute doubt. I thought that part was
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, “We didn’t
talk about the exact language of exactly what you wanted to have
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 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.
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read,” added that it believed that it had addressed Appellant’s
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). 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
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innocence, the State’s 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
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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 added).
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. (first two alterations and emphasis in original; citation omitted).
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
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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.
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