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: September 19, 2023
S23A0433. SALVESEN v. THE STATE.
BETHEL, Justice.
Walter G. Salvesen, III, was convicted of malice murder and
other crimes in connection with the shooting death of Johnathan
Martin.1 On appeal, Salvesen contends that: (1) the trial court
admitted unduly prejudicial photographs from Martin’s autopsy and
1 The crimes occurred sometime between mid-June and mid-August,
2015. On December 1, 2015, a Richmond County grand jury indicted Salvesen
for malice murder (Count 1), felony murder predicated on the aggravated
assault of Martin (Count 2), and possession of a firearm during the commission
of a crime (Count 3). At a trial held from August 14 to August 16, 2017, a jury
found Salvesen guilty on all counts. The trial court sentenced Salvesen to serve
life in prison without parole on Count 1 and five consecutive years in prison on
Count 3. The trial court purported to merge the felony murder count (Count 2)
into the malice murder count (Count 1), but the sentence with regard to Count
2 was actually vacated by operation of law. See Heade v. State, 312 Ga. 19, 29-30 (6) (860 SE2d 509) (2021).
Salvesen filed a timely motion for new trial, which he amended twice
through new counsel. Following a hearing on June 28, 2022, the trial court
denied Salvesen’s amended motion on November 22, 2022. Salvesen then filed
a timely notice of appeal, and his case was docketed to the April 2023 term of
this Court and submitted for a decision on the briefs.
the scene where Martin’s body was found; (2) the trial court erred by
failing to recharge the jury on the lesser offenses of voluntary and
involuntary manslaughter when it recharged on malice murder and
felony murder; and (3) trial counsel rendered ineffective assistance
to the extent the foregoing alleged errors were not preserved for
appellate review.
For reasons more fully explained below, these claims fail
because: (1) the trial court did not abuse its discretion in admitting
the photographs; (2) the trial court acted within its discretion in
solely recharging the jury on the definitions it requested and not the
lesser offenses; and (3) Salvesen has not demonstrated that his trial
counsel was deficient. We therefore affirm Salvesen’s convictions.
1. The evidence presented at trial showed as follows. Salvesen
and Martin were friends who occasionally experienced “falling outs.”
For example, in 2014, Martin brandished a firearm at Salvesen and
threatened him and his family because Martin was under the
impression that Salvesen “had s[n]itched on him for something[.]”
Despite this turmoil, the two maintained their friendship.
2
Sometime in 2015, Martin was kicked out of his parents’ house,
and Salvesen offered to let Martin live with him in his mobile home.
At some point in June 2015, Salvesen began moving out of the home.
Salvesen’s mother testified that she went to the home to assist
Salvesen and discovered Martin hiding behind a shower curtain in
the bathroom. Salvesen’s mother told Martin that he was not
supposed to be at the residence. Martin was asked to leave.
Salvesen testified that, a day later, Martin returned to the
home, and the two men got into a “long argument” that “lasted over
an hour[.]” Salvesen claimed that he attempted to “deescalate” the
situation, but Martin continued arguing and eventually began
making threats against Salvesen and his family. Salvesen testified
that Martin became agitated, threatened to “bust [him] with the
forty,” and looked toward a firearm that was laying on a nearby
table. According to Salvesen, he “didn’t know whether [the gun] was
loaded or not” but was afraid that Martin would get the gun first. As
Martin “went to go reach” for the gun, Salvesen grabbed the gun and
started firing. Salvesen believed the first shot struck Martin in the
3
chest, but he kept firing because Martin was still moving towards
him. Salvesen fired a total of five rounds. Three bullets hit a wall.
The other two struck Martin, one in the head and the other in the
chest, one or both of which resulted in his death.2 Salvesen testified
that, after the shooting, he was “freaking out” and “didn’t know what
to do,” so he called his sister, who offered to help the following day.
According to Salvesen, when his sister arrived with her
boyfriend’s truck, Salvesen wrapped Martin’s body in a tarp, and he
and his sister loaded Martin’s body into the truck. They then drove
to Burke County and dumped Martin’s body in the woods. Salvesen
testified that, at some point, he plugged the bullet holes in the wall, 3
cleaned up the blood, and disposed of the gun. Salvesen’s sister’s
boyfriend testified that, in June 2015, he visited Salvesen’s house,
noticed a “real bad smell,” and saw Salvesen shampooing the
2 Due to the decomposed nature of the body when it was recovered,
including deterioration of the internal organs, the medical examiner was
unable to determine which injury was the cause of Martin’s death.
3 Salvesen’s testimony indicated that his sister helped plug the bullet
holes. Salvesen’s sister disputed that allegation. She was not charged for her
actions and was a witness for the State at trial.
4
carpets.
In August 2015, a Burke County landowner discovered what
was later identified as Martin’s body wrapped in tarp and resting on
a moving dolly. 4 Sometime later, Salvesen’s sister told their mother
about what Salvesen had done, and Salvesen’s mother contacted law
enforcement. At trial, Salvesen asserted that he acted in selfdefense, but the jury found him guilty of all counts.
2. Salvesen contends that the trial court abused its discretion
by admitting into evidence, over his objection, photographs taken by
a crime scene investigator at the location where Martin’s body was
discovered and photographs taken during Martin’s autopsy.5 The
record reflects that the photographs at issue were admitted in
connection with the testimony of the medical examiner and a crime
scene investigator. These photographs generally depict Martin’s
4 Salvesen’s father testified that the moving dolly was his and that, when
he asked Salvesen about the dolly, Salvesen claimed that it was at his sister’s
house.
5 Salvesen specifically takes issue with State’s Exhibits 14, 15, and 17-47. Because State’s Exhibit 34 was neither tendered nor admitted, however,
our analysis of this issue does not address Exhibit 34.
5
wounds, as shown at the crime scene where Martin’s body was
recovered and during the autopsy; Martin’s body as it was received
by the medical examiner; and Martin’s body as shown at the crime
scene where it was recovered.6 While Salvesen concedes that this
photographic evidence was “technically relevant” to show that
Martin died, he argues that the photographs should have been
excluded under OCGA § 24-4-403 because, he says, they were
cumulative of other evidence given that he did not dispute the cause
or fact of Martin’s death and because they were gruesome. These
arguments are unavailing.
The admissibility of crime scene and victim injury and
autopsy photographs is generally governed by OCGA §
24-4-401, which defines “relevant evidence” as “evidence
having any tendency to make the existence of any fact
that is of consequence to the determination of the action
more probable or less probable than it would be without
the evidence”; by OCGA § 24-4-402, which provides that
“all relevant evidence shall be admissible, except as
6 Based on some ambiguous concessions at trial, there is some question
as to whether Salvesen preserved his objections to the admission of the
photographs showing Martin’s wounds, Martin’s wrapped body at the scene
and as it was received by the medical examiner, and the materials wrapped
around Martin’s body were preserved. But we need not resolve this question
because, as discussed below, the trial court acted well within its discretion in
admitting these particular photographs.
6
limited by constitutional requirements or as otherwise
provided by law or by other rules”; and by OCGA § 24-4-403 (“Rule 403”), which provides that “relevant evidence
may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury or by considerations
of undue delay, waste of time, or needless presentation of
cumulative evidence.”
(Punctuation omitted.) Perez v. State, 309 Ga. 687, 694-695 (3) (848
SE2d 395) (2020). In reviewing the admission of evidence “under
Rule 403, we look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its
undue prejudicial impact.” (Citation and punctuation omitted.)
Favors v. State, 305 Ga. 366, 368-369 (2) (b) (825 SE2d 164) (2019).
And it is well settled that “[t]he application of Rule 403 is a matter
committed principally to the discretion of the trial courts, and the
exclusion of evidence under Rule 403 is an extraordinary remedy
which should be used only sparingly.” (Citation and punctuation
omitted.) Id. at 369 (2) (b).
Because Salvesen concedes that the photographs were
relevant, the only question before us is whether their probative
7
value was substantially outweighed by their prejudicial effect.
Salvesen argues, as he did below, that the photographs were
gruesome and needlessly cumulative because he admitted shooting
Martin such that cause of death was not at issue. But because “the
State was not required to stipulate to the cause of death and the
circumstances surrounding the murder [ ],” this argument misses
the mark. Morgan v. State, 307 Ga. 889, 896 (3) (b) (838 SE2d 878)
(2020). Indeed, “a criminal defendant may not stipulate or admit his
way out of the full evidentiary force of the case as the State chooses
to present it.” (Citation and punctuation omitted.) Id. And the mere
fact that the photographs were gruesome does not, as a general
matter, render them inadmissible under Rule 403. See Plez v. State,
300 Ga. 505, 508 (3) (796 SE2d 704) (2017) (“[P]hotographic evidence
that fairly and accurately depicts a body or crime scene and is
offered for a relevant purpose is not generally inadmissible under
Rule 403 merely because it is gruesome.”).
First, the photographs showing Martin’s wounds were not
unduly prejudicial. These photographs depict the nature and
8
location of Martin’s injuries and corroborated the State’s evidence
regarding the circumstances of the killing. Moreover, the wound
pictures were useful for the jury to understand why the medical
examiner was unable to determine which gunshot wound caused
Martin’s death. See Allen v. State, 307 Ga. 707, 710 (3) (838 SE2d
301) (2020) (“Autopsy photographs may be relevant and probative to
show the nature and location of a victim’s injuries, even if the cause
of death is not disputed.”); Albury v. State, 314 Ga. 459, 462 (3) (877
SE2d 548) (2022) (no abuse of discretion in admitting post-incision
autopsy photograph showing an injury to the victim’s head after the
skin of his scalp and face had been peeled back to show the nature
of the victim’s injuries in support of the State’s theory that the
appellant participated in the crimes); Flowers v. State, 307 Ga. 618,
624 (3) (837 SE2d 824) (2020) (admission of photograph of victim’s
brain not an abuse of discretion where it was relevant to show an
injury’s severity). Accordingly, Salvesen has failed to show that
these photographs should have been excluded under Rule 403 and
that the trial court abused its broad discretion in admitting them.
9
See Favors, 305 Ga. at 369 (2) (b); Evans v. State, 306 Ga. 403, 412
(2) (c) (831 SE2d 818) (2019) (“a trial court has broad discretion in
balancing the probative and prejudicial nature of crime scene
photos”).
We turn next to consider several photographs from the medical
examiner’s office and the crime scene. These photographs show the
material wrapped around Martin’s body, the wrapped body itself,
the area where Martin’s body was discovered, and evidence at the
scene. As these photographs were “neither especially gory nor
gruesome,” Lanier v. State, 310 Ga. 520, 527 (4) (852 SE2d 509)
(2020), we see no substantial risk of unfair prejudice flowing from
any of these pictures. Salvesen thus has failed to show that these
photographs should have been excluded under Rule 403 or that the
trial court abused its broad discretion in admitting them.
The remaining photographs, which show the unwrapping of
Martin’s body at the scene in greater detail and the condition of
Martin’s body as it was received by the medical examiner, include
images of insect activity and depict the biological processes
10
associated with decomposition. Many of these pictures can be fairly
described as gruesome or gory. And the emotional response some
jurors may have experienced when confronted by such images
carries some risk of unfair prejudice. But, as mentioned above, Rule
403 requires the trial court to determine whether the risk of unfair
prejudice “substantially” outweighs the probative value of the
evidence. See Anglin v. State, 302 Ga. 333, 337 (806 SE2d 573)
(2017) (“[I]n a criminal trial, inculpatory evidence is inherently
prejudicial; it is only when unfair prejudice substantially outweighs
probative value that the rule permits exclusion.” (citation and
punctuation omitted; emphasis supplied)). And though some of us
could have reached a different conclusion about the admissibility of
these photographs had the inquiry been put to us in the first
instance, we cannot say that the trial court abused its broad
discretion by finding that the pictures’ probative value was not
substantially outweighed by any unfair prejudice.
Here, the State was required to disprove Salvesen’s claim of
self-defense, and its need for evidence probative on that question
11
was heightened in light of Salvesen’s testimony that Martin was the
aggressor. These photographs, which provided a concrete depiction
of Salvesen’s considerable efforts to conceal his act of shooting and
killing Martin, rebutted Salvesen’s claim of self-defense by allowing
the jury to infer that Salvesen “believed he had done something
wrong.” Bannister v. State, 306 Ga. 289, 300 (5) (a) (830 SE2d 79)
(2019). See also Early v. State, 313 Ga. 667, 671 (2) (b) (872 SE2d
705) (2022). Indeed, these photographs were probative of Salvesen’s
guilt. See Richardson v. State, 308 Ga. 70, 72 (3) (838 SE2d 759)
(2020) (evidence of appellant’s “attempt to conceal his involvement
in the crimes was evidence of his guilt”); State v. Orr, 305 Ga. 729,
741 (4) (a) (827 SE2d 892) (2019) (“[I]t is today universally conceded
that the fact of an accused’s . . . concealment . . . and related conduct
is admissible as evidence of consciousness of guilt, and thus of guilt
itself.” (citation and punctuation omitted)). Thus, while these
photographs carried some risk of unfair prejudice, we cannot say,
under the circumstances present here, that the trial court abused its
broad discretion in finding that the probative value of the challenged
12
photographs was not substantially outweighed by the risk of unfair
prejudice. See Favors, 305 Ga. 369 (2) (b); Evans, 306 Ga. at 412 (2)
(c). Accordingly, this enumeration of error fails.
3. Salvesen argues next that the trial court plainly erred when
it failed to recharge the jury on the lesser offenses of voluntary
manslaughter and involuntary manslaughter when recharging on
malice murder and felony murder. We disagree.
The record shows that the trial court charged the jury on
malice murder and felony murder, as well as the lesser offenses of
voluntary and involuntary manslaughter.7 During deliberations, the
jury submitted a note asking the trial court to “define (1) malice
murder [and] (2) felony murder[.]” The trial court reviewed the note
with the State and Salvesen. Neither the State nor Salvesen opposed
a recharge on malice murder and felony murder, and Salvesen did
not ask the trial court to recharge the jury on voluntary
manslaughter or involuntary manslaughter, either before or after
7 We express no opinion as to whether the evidence in this case supported
jury charges for voluntary or involuntary manslaughter. Cf. Martin v. State,
306 Ga. 538, 545-546 (5) (832 SE2d 402) (2019).
13
the trial court recharged the jury. 8 The court subsequently
reinstructed the jury on both malice murder and felony murder.
As the State correctly points out,
[a] trial court has a duty to recharge the jury on issues for
which the jury requests a recharge. As a general matter,
however, where no such request has been made, the need,
breadth, and formation of additional jury instructions are
left to the sound discretion of the trial court.
Barnes v. State, 305 Ga. 18, 23 (3) (823 SE2d 302) (2019). Here,
beyond the recharge on malice murder and felony murder, which the
jury requested by virtue of its note to the court asking for the
definitions of those crimes, the extent of any further recharge was
within the court’s discretion. See id. Indeed, the jury’s note did not
mention, much less request the definitions for, voluntary
manslaughter or involuntary manslaughter. It thus was “within the
court’s discretion whether to recharge the jury in full or only upon
the point or points requested by the jury,” and we cannot say that
8 Salvesen acknowledges that he made no objection to the recharge and
argues for plain error review. But we need not decide whether plain error
review applies in such circumstances because we conclude that there was no
error, plain or otherwise.
14
the trial court abused its discretion “in limiting the recharge to the
point[s] requested by the jury.” (Punctuation omitted.) Id. at 23 (3).
See also Dozier v. State, 306 Ga. 29, 32-33 (3) (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.”); Sampson v. State, 279 Ga. 8, 10 (5) (608 SE2d 621)
(2005) (where the jury requested the legal definitions of murder,
felony murder, aggravated assault, and conspiracy, “it was within
the trial court’s discretion to limit the scope of the recharge to issues
pertinent to the jury’s request”); Salahuddin v. State, 277 Ga. 561,
564-565 (4) (592 SE2d 410) (2004) (“[W]here the jury requests
further instructions upon a particular phase of the case, the court in
its discretion may recharge them in full, or only upon the point or
points requested.” (punctuation and emphasis omitted)).
Accordingly, the trial court acted within its discretion, and Salvesen
cannot show any error – let alone plain error. This enumeration
therefore fails. See Jackson v. State, 306 Ga. 475, 479 (3) (831 SE2d
15
755) (2019) (no plain error where the trial court acted within its
discretion in recharging the jury).
4. Finally, Salvesen argues that trial counsel was ineffective to
the extent that he failed to preserve for ordinary appellate review
objections to the admission of the photographs or to the trial court’s
failure to recharge the jury on the lesser offenses. We disagree.
To succeed on a claim of ineffective assistance, a defendant
must establish both that his counsel’s performance was deficient
and that he was prejudiced as a result of that deficient performance.
See Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022)
(citing Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052,
80 LE2d 674) (1984)). “If [a defendant] fails to make a sufficient
showing on one part of the Strickland test, we need not address the
other part.” Id.
Here, trial counsel did object to the admission of the
photographs at issue and obtained a ruling with respect to all of
them. Thus, Salvesen fails to show any deficiency in this respect.
See Hyden v. State, 308 Ga. 218, 227 (4) (839 SE2d 506) (2020)
16
(rejecting ineffective assistance claim based on purported failure to
preserve errors where trial counsel properly preserved his argument
by making a timely objection below). Moreover, to the extent
Salvesen claims deficiency with respect to the alleged concession
related to some unspecified portion of the State’s exhibits, this claim
fails because we have concluded that the admission of these exhibits
was not error, and Salvesen cannot base his ineffectiveness claim on
a failure to preserve a meritless argument. See Walker v. State, 306
Ga. 637, 645 (2) (b) (832 SE2d 783) (2019) (“[T]he failure to make a
meritless objection is not deficient performance.”).
Finally, as discussed in Division 3, the trial court did not err
by recharging the jury only on the points requested. Again, any
objection on these grounds would have been meritless, and
“[d]eficient performance is not shown by counsel’s failure to raise a
meritless objection.” Smith v. State, 300 Ga. 532, 536-537 (3) (b) (796
SE2d 671) (2017). Accordingly, his claim of ineffective assistance on
this ground fails, as well.
Judgment affirmed. All the Justices concur.
17