WARD v. THE STATE (Two Cases) ( 2023 )

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: May 16, 2023
S23A0139. WARD v. THE STATE.
S23A0140. DEWBERRY v. THE STATE.
PINSON, Justice.
Appellants Michael Ward and Frederick Dewberry were
convicted of malice murder and felony murder in connection with
the stabbing death of Antonio Wiley and aggravated assault in
connection with the stabbing of Wydreicus Denison. 1 On appeal,
The crimes occurred on August 28, 2011. On March 27, 2013, a
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Columbia County grand jury indicted Ward, Dewberry, and four co-defendants,
Frankie Jay Henry III, Jean Baptiste Fortie, Norman Patrick Simpson, and
Richard James, for malice murder (Count 1) and felony murder predicated on
aggravated assault (Count 2) in connection with Wiley’s death. The grand jury
also indicted Ward, Dewberry, and James, as well as Dedrick Octavious Crews,
Miracle Nwakanama, and Chas Clifford Cannon, for aggravated assault
(Count 3) in connection with Denison’s stabbing. Ward, Dewberry, and Henry
were jointly tried by a jury from September 14 to 17, 2015. The jury found
Ward and Dewberry guilty of all counts. The jury found Henry guilty of Counts
1 and 2, and his convictions were affirmed by this Court in Henry v. State, 307
Ga. 281 (835 SE2d 602) (2019). Ward and Dewberry were each sentenced to
serve life in prison without the possibility of parole on Count 1 and 20 years to
be served consecutively on Count 3. The trial court improperly merged the
Ward contends that (1) the evidence was not sufficient to support
his convictions, and (2) the trial court erred in denying his motion
for a new trial based on OCGA §§ 5-5-20 and 5-5-21—that is, the
general grounds. But the evidence of Ward’s guilt here, including
eyewitness testimony, was sufficient, and Ward has not shown that
the trial court abused its discretion in declining to grant a new trial
on the general grounds. So we affirm Ward’s convictions.
In his appeal, Dewberry contends that the trial court erred by
(1) denying his motion for directed verdict of acquittal on the murder
and aggravated assault charges; (2) allowing a “heavy police
presence” in the courtroom in violation of his right to a fair trial; (3)
felony murder count into the malice murder count. The trial court corrected
Ward’s sentence to reflect that the felony murder count was vacated by
operation of law. While the trial court did not correct his sentence, Dewberry’s
felony murder count was also vacated by operation of law. See Malcolm v.
State, 263 Ga. 369, 371-372 (434 SE2d 479) (1993).
Ward filed a motion for new trial, which he amended through new
counsel on February 28, 2022. Following a hearing, the court denied the motion
for new trial on July 22, 2022. Ward filed a timely notice of appeal.
Dewberry filed a motion for new trial, which he amended through new
counsel on March 10, 2022. Following a hearing, the court denied the motion
for new trial on July 20, 2022. Dewberry filed a timely notice of appeal.
These cases were docketed to the term of this Court beginning in
December 2022 and submitted for decisions on the briefs.
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leaving a defense witness in visible restraints; and (4) not declaring
a mistrial after the prosecutor conferred with a witness, in violation
of the rule of sequestration. Each claim fails. As with Ward, the
evidence was sufficient to support Dewberry’s convictions, so the
trial court did not err in denying his motion for directed verdict. The
trial court did not abuse its discretion in allowing the police presence
in the courtroom under the circumstances here—a trial for murder
and aggravated assault occurring inside a prison and involving rival
gangs, where all three defendants were maximum security inmates,
and two had substantial prison disciplinary records. Finally, the
rule of sequestration did not forbid the prosecutor from speaking
privately with a witness under the circumstances here. So we also
affirm Dewberry’s convictions.
1. On August 28, 2011, two inmates were stabbed at Augusta
State Medical Prison. Wydreicus Denison was stabbed multiple
times around 7:15 a.m.; he survived his injuries. Later that
afternoon, Antonio Wiley was stabbed at least 65 times, and he died
as a result of blood loss. The evidence at trial, viewed in the light
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most favorable to the verdicts, showed the following.
With respect to the stabbing of Denison, Denison himself
ultimately testified that Ward and Dewberry were among his
attackers. On direct examination, Denison, who had been diagnosed
with paranoid schizophrenia, testified that he thought he
remembered who stabbed him, but that he did not see any of those
people in the courtroom. The prosecutor then impeached him with
several prior statements, which showed Denison initially denying
knowing who stabbed him, but then identifying Ward and Dewberry
as two of his attackers. On cross examination, Denison said he wrote
a letter around three months after the incident to “[e]verybody who
had any control over the institution” “[b]ecause I lied. I lied on those
guys right there.” He claimed that he was “coerced” by the GBI to
make his earlier statements and said “I don’t know who stabbed me,
really, to be honest.” After further questioning, however, Denison
said,
Y’all clients, they know what’s going on, man, you know.
I’m really tired of dealing with this, you know, they know
what they did, you know. . . . And the statement I just
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made about they didn’t do nothing, I was scared, I’m still
scared, you know. . . . I go back to prison, then what? Then
what? But they did stab me, yeah, them two right there,
they stabbed me.
As for the stabbing of Wiley, Department of Corrections
Sergeant Latonia King, who was on duty on the day of the stabbings,
said it happened between 1:00 and 2:30 p.m. in the yard outside one
of the prison dorms, when between 75 and 100 inmates were outside.
Officers tried to get the inmates to return to the dorm after the
stabbing, and King assisted, but the inmates “were really rowdy,
upset, yelling.” King noticed Wiley lying across the doorway leading
into the dorm, barely breathing. Inmates surrounding Wiley told
King “we’re gonna kill y’all officers if y’all don’t help our homeboy.
We’re gonna F one of y’all up today.” As she tried to move Wiley to a
gurney, the inmates, including Dewberry, started groping her.
Dante Morris, another inmate at the time, explained that he
was associated with the Muslim Brotherhood in the prison, but three
gangs were also represented there: the Atlanta Mob and Gangster
Disciples, who were affiliated in the prison, and the Bloods, who
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were not affiliated with any other gang there. Wiley, who had
recently transferred from Hays State Prison, was a Blood; Henry
was a Mob member; and Ward and Dewberry were Gangster
Disciples.
Morris testified that someone “put out a hit on [Wiley]” from
Hays State Prison over a $50 cell-phone-battery debt. When out in
the yard on the day of the stabbing, Morris saw a lot of Gangster
Disciple and Mob members around Wiley, leading him out the door.
They led him around a corner to an area that was not easily visible,
and “once they start talking, Rump[ 2] pulled out a knife and he start
to stick him.” “After Rump, you had Big Maine[ 3]—you had Young
Money,[4] Rump, Big Maine, Little Nate, Bankhead.[ 5] There was
more of them but—and Fortie.” He estimated that eight to eleven
people were stabbing Wiley, but he “could just see the ones running
up and sticking him, then the main four that stayed that’s obviously
2 The record does not identify who Rump is.
3 Ward’s nickname was Big Maine.
4 Henry’s nickname was Young Money.
5 Dewberry’s nickname was Bankhead.
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constantly sticking him.”
Once all the inmates were moved back into the dorm, Morris
noticed some inmates “tried to set [clothes] on fire,” explaining that
it was standard practice to change clothes after an incident of
violence if the clothes were bloody.6 He also explained that different
people had different roles in a stabbing like this one: “If they’re a
leader or they just a flunky, somebody that they just tell what to do
or whatever. Some of them watch for the officers. Some keep other
inmates away from whatever is fixing to go on,” and some “will give
[those involved] something clean to put on.” Months after the
stabbing, Morris identified Henry, Dewberry, and Ward for GBI
officials investigating the stabbing.
Case No. S23A0139
2. Ward contends that the evidence was not sufficient as a
matter of constitutional due process to support any of his three
6 After the stabbing, the officers “shook down” the dorm to look for
contraband. In addition to finding shanks, they found clothing that had been
thrown into mop buckets with bleach, and another pile of clothing that inmates
had tried to light on fire.
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convictions. He says the State failed to establish that he possessed
a sharp weapon, that he caused any stab wounds, that he caused
any of Wiley’s fatal stab wounds, or that he was part of a plan or
conspiracy to stab Wiley. Ward also argues that, as to the murder
counts, three defense witnesses “exonerat[ed]” him when each
testified that he was not involved,7 while only one witness (Morris)
claims to have seen Ward involved as “part of” Wiley’s stabbing. As
for Denison, he says, only Denison claims that Ward attacked him,
and Denison’s story changed constantly.
When reviewing the sufficiency of the evidence, we view the
evidence presented in the light most favorable to the verdicts to
determine whether a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979). In this review, we do not “weigh the evidence on appeal or
resolve conflicts in trial testimony.” Byers v. State, 311 Ga. 259, 266
7 Two inmate witnesses testified that Ward was inside the dorm during
Wiley’s stabbing, and another inmate witness simply testified that Ward was
not involved with either stabbing.
8
(2) (857 SE2d 447) (2021) (citation and punctuation omitted). And
“[t]he testimony of a single witness is generally sufficient to
establish a fact.” Carter v. State, 314 Ga. 317, 320 (2) (b) (877 SE2d
170) (2022) (citation and punctuation omitted).
Viewed in the light most favorable to the verdicts, the evidence
here was sufficient to support Ward’s convictions. For the murder
charge, the State did not need to show that Ward caused a fatal stab
wound: it was enough to prove that he was a party to the crime. See
OCGA § 16-2-20 (a) (“Every person concerned in the commission of
a crime is a party thereto and may be charged with and convicted of
commission of the crime.”). To be convicted as a party to a crime, the
defendant must have “shared a common criminal intent with the
direct perpetrators of the crime,” Coates v. State, 310 Ga. 94, 98 (849
SE2d 435) (2020), which “may be inferred from presence,
companionship, and conduct before, during and after the offense,”
Powell v. State, 307 Ga. 96, 99 (1) (834 SE2d 822) (2019) (citation
and punctuation omitted). Here, Morris clearly identified Ward as
one of the parties involved in Wiley’s stabbing, and Morris “could
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just see the ones running up and sticking [Wiley], then the main four
that stayed that’s obviously constantly sticking him.” Morris also
supplied a motive, explaining that Ward’s gang was executing the
“hit” put out on Wiley for his battery debt from Hays State Prison.
The jury could infer from Ward’s presence as one of the stabbers that
he shared a common criminal intent with the other attackers to
murder Wiley.
As for Ward’s argument that three of his witnesses
“exonerated” him, the jury was authorized to not believe the defense
witnesses’ testimony that Ward was not involved in Wiley’s
stabbing. See, e.g., Moore v. State, 314 Ga. 351, 354-355 (877 SE2d
174) (2022) (jury was entitled to discredit the defendant’s
testimony).
Similarly, although Denison’s willingness to name his
attackers waxed and waned, the jury was authorized to credit his
prior statements and cross-examination testimony naming Ward—
particularly in light of his stated fear of retaliation in prison. See
Watkins v. State, 313 Ga. 573, 576-577 (2) (872 SE2d 293) (2022)
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(explaining that the jury can consider prior inconsistent statements
as substantive evidence and reject portions of those witnesses’ trial
testimony).
Because the evidence was sufficient to support each of Ward’s
convictions, his sufficiency claim fails.
3. Ward also contends that the verdicts in this case were
“contrary to . . . the principles of justice and equity,” OCGA § 5-5-20,
and “decidedly and strongly against the weight of the evidence,”
OCGA § 5-5-21. These statutes, known as the general grounds,
require the trial court to exercise a “broad discretion to sit as a
‘thirteenth juror.’” Hinton v. State, 312 Ga. 258, 262 (1) (c) (862 SE2d
320) (2021) (citation and punctuation omitted). Ward says the
State’s evidence was weak in this case, relying heavily on the
testimony of Morris—a former inmate and member of a rival prison
faction—and Denison—a current inmate and paranoid
schizophrenic whose story changed drastically.
But as an appellate court, we do not independently review the
record as a thirteenth juror. “The decision to grant or refuse to grant
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a new trial on the general grounds is vested solely in the trial court.”
Hinton, 312 Ga. at 262 (1) (c) (citation and punctuation omitted). We
“presume, in the absence of affirmative evidence to the contrary,
that the trial court did properly exercise such discretion.” Wilson v.
State, 302 Ga. 106, 108 (II) (a) (805 SE2d 98) (2017). And here, the
trial court stated that it independently reviewed the evidence and
judged the credibility of the witnesses in favor of the State in light
of its obligations under OCGA §§ 5-5-20 and 5-5-21, and Ward offers
no basis for concluding otherwise. This claim therefore fails. See
Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671) (2017) (holding
that the trial court did not abuse its discretion when it “recited it
had weighed the evidence, including the credibility of witnesses”).
Case No. S23A0140
4. Dewberry contends that the trial court erred by denying his
motion for directed verdict because the evidence was not sufficient
to support his convictions. When reviewing the denial of a motion
for directed verdict, “we view all of the evidence presented at trial in
the light most favorable to the verdicts and ask whether any rational
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trier of fact could have found the defendant guilty beyond a
reasonable doubt of the crimes of which he was convicted.” Holmes
v. State, 307 Ga. 441, 443 (1) (b) (836 SE2d 97) (2019) (citing
Jackson, 443 U.S. at 319 (III) (B)).
The evidence was sufficient to support Dewberry’s convictions.
The State did not need to show that Dewberry caused Wiley’s fatal
stab wound, only that he was a party to the crime. See OCGA § 16-
2-20 (a); Coates, 310 Ga. at 98; Powell, 307 Ga. at 99 (1). As with
Ward, the evidence was sufficient here to show that Dewberry was
a party to the crime. He argues that being part of the same gang as
Wiley’s attackers was not enough to convict him, but evidence
beyond his gang affiliation supported the convictions, including the
testimony of two witnesses, Morris and Denison, who said he was
involved in the stabbings. And like Ward, Dewberry contends that
some inmate witnesses “exonerated” him, 8 but as we explained in
Division 2, the jury was authorized to not believe those witnesses.
8 One inmate witness testified that Dewberry was inside during Wiley’s
stabbing, and another inmate witness testified that he was not involved with
the stabbings.
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See Moore, 314 Ga. at 354-355 (explaining that the jury was
authorized to not believe the defense witnesses’ testimony). Because
the evidence was sufficient to support Dewberry’s convictions, this
claim fails.
5. Dewberry next contends that his right to a fair trial was
violated because the trial court allowed a “heavy police presence” in
the courtroom for his trial. We review for an abuse of discretion a
trial court’s decisions about the extent to which law enforcement in
the courtroom is necessary to conduct a safe and secure trial. See
Lemley v. State, 245 Ga. 350, 353 (3) (264 SE2d 881) (1980).
(a) Before the jury was brought in for voir dire, Ward’s counsel
objected to the police presence in the courtroom, noting, “[I]t looks
to be, if I counted right, 10 police officers in uniform in addition to I
believe three CERT officers in what looks like almost SWAT or riot
gear.”9 Dewberry’s counsel joined in the objection. The prosecutor
explained that the officers were “not particularly gathered over by
the Defendants. They’re throughout the courtroom.” The court
9 CERT stands for Correctional Emergency Response Team.
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overruled the objection.
The next day, Ward’s counsel again objected to the police
presence, noting that 12 officers were in the courtroom, in addition
to the CERT team. Dewberry’s counsel joined in the objection, and
added, “I don’t think it’s necessary. . . . Particularly since he’s
wearing a device that will incapacitate him should there be a
difficulty.” 10 The court “defer[red] to law enforcement only that they
provide such security as they deem appropriate under the
circumstances.” The court noted that “it’s the first time we tried
three Defendants, and two Defendants that have very substantial
[prison] disciplinary histories.” The court again overruled the
objection.
(b) Dewberry contends that the “heavy police presence” was
unwarranted, particularly when some of the officers wore “military-
like tactical gear,” because he was already wearing an electronic
shock device. Citing Holbrook v. Flynn, 475 U.S. 560 (106 SCt 1340,
10After two pretrial hearings, the trial court had authorized requiring
Dewberry and Ward to wear electronic shock devices for security reasons.
Dewberry does not challenge that requirement.
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89 LE2d 525) (1986), he says the police presence “create[d] the
impression in the minds of the jury that [Dewberry] is dangerous or
untrustworthy.” Id. at 569 (II) (B) (citation and punctuation
omitted).
Creating such an impression is a “possible” consequence of
having a security force in the courtroom “under certain conditions,”
but having identifiable security present in the courtroom is not
“inherently prejudicial.” Id. Indeed, “[a]lthough a defendant is
entitled to trial free of the partiality which the presence of an
excessive number of guards may create, special circumstances may
make the presence of a number of guards necessary.” Zant v. Gaddis,
247 Ga. 717, 718 (2) (279 SE2d 219) (1981) (considering “the nature
of the crimes” and “the surrounding circumstances” in determining
that the security measures were reasonable). See also Chancey v.
State, 256 Ga. 415, 434-435 (9) (349 SE2d 717) (1986) (holding that
the appellants complaining of a “fortress-like atmosphere” due to
law enforcement presence in the courtroom failed to show that the
security measures adopted were unreasonable).
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The trial court did not abuse its discretion in making just such
a judgment here. This trial was for murder and aggravated assault
occurring inside a prison and involving rival gangs. All three
defendants were designated maximum-security inmates, and two of
the defendants had substantial disciplinary records from prison.
And although at least two of the defendants wore electronic restraint
devices, some of the witnesses were also current inmates and rival
gang members. Under these circumstances, Dewberry has not
shown that allowing a substantial police presence throughout the
courtroom was an abuse of the trial court’s discretion. See Mohamed
v. State, 307 Ga. 89, 94 (3) (a) (834 SE2d 762) (2019) (trial counsel
did not perform deficiently for failing to object to the presence of five
to ten uniformed officers spread throughout the courtroom,
particularly when the crimes occurred in prison); Spivey v. State,
253 Ga. 187, 203-204 (12) (319 SE2d 420) (1984) (upholding trial
court’s order allowing officers in the courtroom for a murder trial
when the officers were not “forming any semicircle around [the
defendant]”); Green v. State, 246 Ga. 598, 600 (6) (272 SE2d 475)
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(1980) (upholding trial court’s decision to allow five armed deputies
in the courtroom when defendant “was a convicted murderer with a
record of escape”).
6. Dewberry contends that the trial court erred by denying his
request to remove handcuffs from James Mills, an inmate defense
witness, for his testimony while Denison—one of the State’s main
witnesses—was allowed to testify without handcuffs. He contends
that he suffered prejudice because one of his most important
witnesses had to be handcuffed and shackled during his testimony,
while one of the State’s most important witnesses was not.
Dewberry cites no authority in support of this argument nor
identifies a constitutional or statutory provision that was allegedly
violated. But even assuming this claim is not therefore abandoned
under Supreme Court Rule 22, it fails. It is “well established” that
the trial court has broad discretion to take measures necessary to
ensure a “fair and safe trial.” Weldon v. State, 297 Ga. 537, 540-541
(775 SE2d 522) (2015) (“[I]t is also as well established that the use
of extraordinary security measures to prevent dangerous or
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disruptive behavior which threatens the conduct of a fair and safe
trial is within the discretion of the trial court.” (citation and
punctuation omitted)). That discretion was permissibly exercised
here. In denying Dewberry’s request to remove Mills’s handcuffs, the
trial court explained that law enforcement advised that the inmate
witnesses “remained cuffed and shackled at all times.” The
prosecutor also noted that Mills had escaped before, and the court
added that, considering that three maximum security defendants
were in the courtroom, “I think they present a significant enough
risk that I think we’re gonna leave them shackled.” As for
Dewberry’s point that Denison testified without shackles, the
prosecutor explained that Denison had to have his handcuffs
removed because he was using the laser pointer, but his ankles
remained shackled. And the bailiff explained that their “[c]ommon
practice” was to fully restrain inmate witnesses, and that they
removed Denison’s handcuffs based on the understanding “that he
was going to be standing up [for the jury to] observ[e] his stab
wounds.” Under these circumstances, the trial court’s decision to
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leave Mills in handcuffs was within its discretion. See Kitchen v.
State, 263 Ga. 629, 629-630 (1) (436 SE2d 645) (1993) (holding that
the trial court did not abuse its discretion by trying the defendant in
restraints when he told the chief deputy that “he was going to cause
trouble”). Cf. Hill v. State, 308 Ga. 638, 646 (2) (a) (842 SE2d 853)
(2020) (holding that the trial court abused its discretion by requiring
the defendant to remain in shackles in part because the court failed
to make individualized determinations based on each defendant’s
unique security risk).
7. Finally, Dewberry contends that the rule of sequestration
was violated when the prosecutor spoke privately with Denison at
the beginning of his testimony, after Denison had “plead[ed] the
Fifth” in response to the prosecutor’s first question about where
Denison was from. Dewberry cites no authority in support of this
claim, but even assuming the claim is not abandoned under our Rule
22, it fails. The rule of sequestration prevents witnesses from
hearing the testimony of other witnesses, see OCGA § 24-6-615, but
it does not prohibit witnesses from speaking privately with the
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attorney who called them. Rather, a trial court has “discretion in
permitting, upon request, counsel for one of the parties an
opportunity to converse with a witness in the case for limited
purposes, and that discretion will not be controlled unless abused.”
Smith v. State, 244 Ga. 814, 818 (2) (262 SE2d 116) (1979). On
appeal, Dewberry does not explain how or why the trial court abused
its discretion in allowing such a conversation here at the
prosecutor’s request, except for making the conclusory assertion
that “[i]t was improper for the prosecutor to take Denison aside after
he had “plead[ed] the Fifth.” Absent any such showing, this claim
fails, too.
Judgments affirmed. All the Justices concur.
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