In the Supreme Court of Georgia

Decided: May 3, 2021

S21A0066. KESSLER v. THE STATE.

 MELTON, Chief Justice.

Following a jury trial, Dana Michael Kessler was convicted of 

felony murder and related offenses in connection with the shooting 

death of Jeffrey Morgan, Jr.1 On appeal, Kessler raises three claims 

 1 On August 20, 2013, a Muscogee County grand jury jointly indicted 

Kessler and Timothy Robinson for four counts of felony murder predicated on 

aggravated assault, armed robbery, aggravated assault with intent to rob, and

violating the Georgia Controlled Substances Act (Counts 1 – 4); one count of 

malice murder (Count 5); two counts of aggravated assault (Counts 6 – 7); one 

count of violating the Georgia Controlled Substances Act (Count 8); armed 

robbery (Count 9); hijacking a motor vehicle (Count 10); possession of a firearm 

during the commission of a crime (Count 11); possession of marijuana with 

intent to distribute (Count 12); and possession of a firearm by a convicted felon 

(Count 13). 

At a joint jury trial from October 28 through November 7, 2013, Kessler 

was found guilty of four counts of felony murder (Counts 1 – 4), two counts of 

aggravated assault (Counts 6 – 7), and possession of a firearm during the 

commission of a crime (Count 11). Kessler was acquitted of the remaining 

charges, except Count 13, which was nolle prossed. Kessler was sentenced to 

life in prison without the possibility of parole for Count 1 and five years in 

prison consecutive for Count 11. All remaining counts were merged for 

sentencing purposes. Kessler filed a motion for new trial on November 19, 
2

of trial court error and argues that the cumulative effect of these 

errors requires the reversal of his convictions and entitles him to a 

new trial. We affirm.

1. Relevant to this appeal,2 the evidence presented at trial 

showed that, on April 6, 2012, Kessler’s co-defendant Timothy 

Robinson arranged to purchase marijuana from Morgan. That

afternoon, Morgan and his friend, Shatoric Hinton, drove separately 

to the parking lot of an apartment complex located on Martin Luther 

King Boulevard in Muscogee County. Hinton testified that, prior to 

the drug transaction, Morgan parked his green Mazda next to 

Hinton’s white SUV. Hinton got out of his SUV and sat in the front 

passenger’s seat of Morgan’s Mazda while Morgan remained in the 

driver’s seat.

 

2013, which he amended on March 6, 2017, and amended a second time 

through new counsel on November 27, 2019. After a hearing, the trial court 

denied the motion as amended on March 5, 2020. Kessler timely filed a notice 

of appeal, which was docketed to the term of this Court beginning in December

2020, and the case was orally argued on December 10, 2020.

2 Kessler does not allege that the evidence was insufficient to support his 

convictions, and this Court no longer routinely reviews the sufficiency of the 

evidence sua sponte. See Davenport v. State, 309 Ga. 385, 391-392 (4) (846 

SE2d 83) (2020). 
3

Then, a gray Mitsubishi Galant pulled into the same parking 

lot. Kessler and Robinson exited the Galant and headed for 

Morgan’s vehicle while a third man, Edward Love, remained in the 

backseat of the Galant; Robinson got into the Mazda and sat in the 

rear driver’s side seat behind Morgan while Kessler sat behind 

Hinton. Morgan handed a bag of marijuana to Robinson. Upon 

seeing the drugs, Kessler stated, “[Y]eah, that’s the same thing we 

had.” When Morgan looked down to retrieve more drugs from the 

floor, Kessler brandished a gun and pointed it at Morgan. Morgan 

said, “Hold on, man. Don’t do that. Don’t do that. Please, don’t do 

that. . . . Please don’t shoot me, man.” Despite Morgan’s pleas,

Kessler shot Morgan.

After the shooting, Love drove away in the Galant. Hinton ran 

from the Mazda and headed to a tire shop across the street. When 

he looked back at the scene, he saw Kessler throw Morgan from the 

driver’s seat onto the ground; Kessler then got into the Mazda and 

drove away.

A short time later, Gregory Rivers, Sr., saw two vehicles – an 
4

older car occupied by two men, and Morgan’s green Mazda –

traveling down Talley Avenue in Columbus near Rivers’ home. The 

man driving the Mazda parked directly in front of Rivers’ driveway. 

The man exited the Mazda, removed a duffle bag from the trunk, 

entered the second car with the other two men, and then the group 

drove off, leaving the Mazda behind. 

Rivers called the police; when officers arrived they searched 

the Mazda and located marijuana on the floorboards and in the front 

passenger’s seat. They also dusted the car for fingerprints, and a

set of fingerprints on the rear passenger’s side door handle was later 

matched to Kessler’s prints.

A separate set of officers responded to the scene of the shooting

at the apartment complex parking lot. When they arrived, they 

found Morgan lying face down on the ground, with most of his body 

positioned under Hinton’s SUV. Morgan’s cell phone was near his 

body, and his pants were pulled down to his ankles. Officers found 

small baggies of marijuana, as well as some loose marijuana, by 

Morgan’s feet. Nearby witnesses told the officers that Morgan had 
5

been shot and that “they stole his car.” An autopsy revealed that 

Morgan suffered a single gunshot wound to the back right shoulder. 

The bullet traveled through Morgan’s body, piercing his aorta and 

left lung, causing his death.

Robinson was arrested on April 8, 2012, and gave a statement 

to officers wherein he admitted: setting up a drug deal with Morgan,

arriving at the scene of the crime in a Mitsubishi Galant3 with other 

individuals, being in Morgan’s car during the drug transaction and 

when the shooting occurred, and leaving the scene in the Galant and 

going to another location where Morgan’s Mazda was present. 

Robinson also told officers that a .45 caliber handgun was used in 

the shooting.

Kessler was arrested later that evening. Officers found him 

lying on top of a bed fully dressed with his shoes on, and he appeared 

to be feigning sleep. A Mitsubishi Galant was parked outside of the 

home, and Kessler’s fingerprints were found on the outside of that 

 3 Robinson told officers that the Galant belonged to a person he only 

knew as “New York.” This nickname was later linked to Kessler.
6

vehicle. Upon searching the residence, officers found more than 45 

grams of marijuana hidden throughout the home.

Kessler was taken to the sheriff’s office, where he waived his 

Miranda4 rights and agreed to speak with officers in a videorecorded interview. Though he initially denied any involvement, 

Kessler eventually admitted that he and his associates attempted to 

rob Morgan during a drug deal. Specifically, Kessler admitted that 

he had been in Morgan’s car during the drug deal and that he was 

the only person with a firearm, specifically, a .45-caliber pistol. He 

told officers that Morgan reached toward the gun, and it accidentally 

fired. He further admitted that he pulled Morgan out of the car and 

drove away in the Mazda. He stated that he obtained two bags of 

marijuana from Morgan’s car and that he and some other people

divvied up the marijuana and gave it away. Kessler told one of the 

detectives that he wanted to take full responsibility for the incident.

At trial, Kessler took the stand and testified that he

accidentally shot Morgan during a gun sale.

 4 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
7

2. Kessler contends that the trial court erred by denying his 

“Motion for Exclusion of Involuntary Admissions and Confessions,” 

arguing that his confession was induced by an impermissible hope 

of benefit in violation of OCGA § 24-8-824 (“To make a confession 

admissible, it shall have been made voluntarily, without being 

induced by another by the slightest hope of benefit or remotest fear 

of injury.”). It is well settled that 

[t]he trial court determines the admissibility of a 

defendant’s statement under the preponderance of the 

evidence standard considering the totality of the 

circumstances. (Citation omitted.) Vergara v. State, 283 

Ga. 175, 176 (657 SE2d 863) (2008). Although we defer to 

the trial court’s findings of disputed facts, we review de 

novo the trial court’s application of the law to the facts.

Clay v. State, 290 Ga. 822, 822-823 (725 SE2d 260) (2012). 

We will not disturb the trial court’s factual and credibility 

determinations unless they are clearly erroneous, Wright 

v. State, 285 Ga. 428, 432 (677 SE2d 82) (2009); however, 

where controlling facts are not in dispute, such as those 

facts discernible from a videotape, our review is de novo, 

Vergara, 283 Ga. at 178 (657 SE2d 863) (citation omitted).

Norwood v. State, 303 Ga. 78, 80 (2) (810 SE2d 554) (2018). Applying 

these principles, we see no error.

Prior to trial, Kessler filed a motion to suppress his custodial 
8

statement to officers, arguing that detectives offered him an 

improper hope of benefit in violation of OCGA § 24-8-824. The trial 

court denied the motion, generally finding that Kessler made “his

statement freely and voluntarily without any hope of benefit or fear 

of injury.” Concerning Kessler’s claim of inducement, the trial court 

concluded, in pertinent part:

The preponderance of the evidence show[ed] that 

[Kessler’s] statement was not induced by hope of benefit. 

[Kessler] testified at the motion to suppress hearing and 

denied thinking that his cooperation with police might 

result in any reduced sentence. He stated that he thought 

he would go on to the jail cell to get some sleep. [Kessler] 

himself did not think he was being offered any reduced 

sentence for his statement, so [Kessler’s] statement was 

not induced by hope of benefit of a reduced sentence.

On appeal, Kessler points to 15 separate statements, as well as a 

short colloquy between him and the lead detective, all of which, 

Kessler argues, show that the officers consistently promised reduced 

charges or a reduced sentence in order to secure a confession.5 

 5 For example, Kessler claims that the following statements constituted 

an impermissible hope of benefit: “You’re gonna go to prison but how long you 

go to prison, you still have some control over that”; “Don’t let the State of 

Georgia lock you away and throw away the key. Give them some reason that 
9

Pretermitting whether any of the disputed statements constituted 

an impermissible hope of benefit, Kessler’s claim fails because none 

of the allegedly improper statements actually induced him to admit 

to shooting Morgan. 

As this Court has previously explained, the “slightest hope of 

benefit refers to promises related to reduced criminal punishment –

a shorter sentence, lesser charges, or no charges at all.” (Citation

and punctuation omitted). Budhani v. State, 306 Ga. 315, 325 (2) (b) 

(830 SE2d 195) (2019). However, pursuant to OCGA § 24-8-824, 

“establishing that law enforcement has promised an impermissible 

hope of benefit is not itself sufficient” to render a confession

inadmissible, as the hope of benefit must “actually induce the 

defendant’s statements.” (Citation and punctuation omitted; 

emphasis supplied.) Id. at 326. 

At a pre-trial Jackson-Denno6 hearing, Kessler testified and 

 

they can see that you have a chance to be saved, that you have a chance for 

salvation”; and “Tell me the ‘why’ in this case. That’s the only thing I don’t 

know. And that’s the one thing you can cling onto that can change how long 

you go to prison.” 

6 See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
10

specifically denied that his motivation for confessing was based upon 

a hope that doing so would lead to reduced charges or a reduced 

sentence. Moreover, at trial, Kessler testified that when he gave “an 

admission” to the lead detective, it was “because we had a nice 

conversation talking about God and everything. And he came in 

there with my Bible because I carry a Bible on me.” See OCGA § 24-

8-825 (“[T]he fact that a confession has been made under spiritual 

exhortation, promise of secrecy, or a promise of a collateral benefit 

shall not exclude it.”). Finally, the video-recorded interview shows 

that Kessler made no admissions and did not confess immediately 

after any of the disputed statements; instead, Kessler confessed to 

shooting Morgan approximately 20 minutes after the final allegedly 

improper statement. Based on the foregoing, we conclude that the 

trial court did not err in finding that Kessler’s confession was not 

induced by any improper hope of benefit under OCGA § 24-8-824

and did not err in denying Kessler’s motion to suppress his custodial 

statement on this ground. See Pulley v. State, 291 Ga. 330, 333 (2)

(729 SE2d 338) (2012) (holding that law enforcement promises alone 
11

are insufficient to render a confession inadmissible and that “there 

must also be a causal connection between the police conduct and the 

confession.” (Citation and punctuation omitted; emphasis in 

original)). See also State v. Brown, 308 Ga. App. 480, 489 (2) (708 

SE2d 63) (2011) (holding that even if officers’ promises to the 

defendant created an improper hope of benefit, the officers’

statements did not “actually induce” the defendant’s confession)

aff’d, Brown v. State, 290 Ga. 865 (2) (c) (725 SE2d 320) (2012).

3. Kessler argues that the trial court erred by not granting 

his motion for mistrial when the prosecutor allegedly made

improper statements during closing argument.7 During the State’s 

closing, the prosecutor stated:

Now, as far as the verdict form goes, you’re going to see –

you’re going to see on there what’s called lesser included 

crimes and you’ll see felony murder – or you’ll see like 

malice murder and then felony murder. And then you’ll 

see under that involuntary manslaughter. I submit to 

you, you should disregard involuntary manslaughter. 

That is a misdemeanor and that is not in this case. They 

want you to let these two thugs get away with robbing and 

 7 Because of the joint jury trial, the order of closing arguments was as 

follows: first, counsel for Robinson; second, counsel for Kessler; and third, the 

prosecutor. 
12

killing somebody and it being a misdemeanor. It is not. It 

is based on reckless conduct. Well, yes, armed robbery 

could be considered reckless, but armed robbery is a 

felony. It is not a misdemeanor and it does not fit 

involuntary manslaughter. It is felony murder -

Kessler objected and, during a bench conference, moved for a 

mistrial, arguing that the prosecutor had improperly discussed

sentencing in front of the jury and mischaracterized the charge of 

involuntary manslaughter. The trial court denied the motion for 

mistrial and told the prosecutor to “move on.” 

The parties left the bench conference, and the prosecutor 

continued with her closing argument, stating:

What you need to do to hold these two thugs accountable 

is find them guilty of all the murders. Now, you can just 

circle guilty and just leave blank where it says 

involuntary manslaughter. But it can’t be both. It has to 

be one or the other. You can find them guilty of all these 

murders. It does not mean that they’re going to get more 

time or something like that. 

Kessler objected again, arguing that the prosecutor had continued

to improperly talk about sentencing in front of the jury. Kessler did 

not, however, move for a mistrial. The court responded, “That’s 

right. The punishment belongs to the Court,” and told the prosecutor 
13

to move on. The prosecutor resumed argument, stating, “[t]hey’re 

not going to be held responsible for more than one even though you 

pick more than one. We, meaning the Judge and the lawyers, will 

pick out one of the ones that you pick from.” Robinson objected to 

this statement, but Kessler did not join or adopt the objection; the 

trial court sustained Robinson’s objection, instructed the jury “that 

the punishment would be left up to the Court,” and once again 

instructed the prosecutor to “[p]lease move on.” Finally, the 

prosecutor told the jury:

So you can pick all of those and you should because they 

did all of them. I don’t want you to be confused when you 

get in there and say which of these do we have to pick? 

You don’t have to pick. You can pick all of them and you 

should.

Kessler argues that the trial court erred in failing to grant his 

motion for mistrial because the statements made by the prosecutor 

were legally incorrect, rose to the level of prosecutorial misconduct, 

and improperly injected sentencing into the jury’s consideration. We 

conclude that the trial court did not abuse its discretion in denying 

the motion for mistrial.
14

As an initial matter, although Kessler lodged two objections 

during closing argument, the second objection was sustained by the 

trial court, and Kessler did not move for a mistrial at that time. 

Kessler also did not join Robinson’s later objection. Consequently, 

only Kessler’s motion for mistrial – based upon his first objection to

the prosecutor improperly discussing sentencing in front of the jury 

and mischaracterizing the charge of involuntary manslaughter – is 

preserved for appellate review.8 See Stephens v. State, 307 Ga. 731 

(1) (b) (838 SE2d 275) (2020) (where defendant fails to adopt or ask 

to join objection of a co-defendant, the issue is not preserved for 

review). See also Gates v. State, 298 Ga. 324 (4) (781 SE2d 772) 

(2016) (holding that alleged errors based on improper remarks made 

during closing argument are not subject to plain error review).

Turning to that mistrial motion, “[t]rial courts are vested with 

 8 Kessler also raises a claim of prosecutorial misconduct for the first time 

on appeal. However, because this claim was not raised in or ruled upon by the 

trial court, it is not preserved for review on appeal. See Duvall v. State, 290 

Ga. 475, 476 (2) (a) (722 SE2d 62) (2012) (defendant’s claim of prosecutorial 

misconduct generally cannot be raised for the first time on appeal).
15

great discretion to grant or deny mistrials because they are in the 

best possible position to determine whether one is warranted.” 

Ragan v. State, 299 Ga. 828, 834 (3) (792 SE2d 342) (2016). “The 

decision whether to grant a mistrial will not be disturbed on appeal 

unless there is a showing that a mistrial is essential to the 

preservation of the right to a fair trial.” (Citation and punctuation 

omitted.) Simmons v. State, 308 Ga. 327, 329 (2) (840 SE2d 365)

(2020). 

Here, Kessler cannot show that a mistrial was essential to the 

preservation of his right to a fair trial because the trial court 

corrected any confusion that could have been caused by the 

prosecutor’s misstatement of the law. The trial court twice 

instructed the jury during closing argument – once after sustaining 

Kessler’s second objection, and again in response to Robinson’s 

objection – that sentencing was an issue solely left to the court. 

Shortly thereafter, during the final jury charge, the trial court 

instructed the jury on involuntary manslaughter based on reckless 

conduct, reckless conduct, malice murder, felony murder, 
16

aggravated assault, armed robbery, and intent, and again instructed 

the jury not to concern itself with sentencing. “[W]e presume that 

jurors follow the law.” (Citations omitted.) Venturino v. State, 306 

Ga. 391, 400 (4) (830 SE2d 110) (2019). Thus, assuming without 

deciding that the prosecutor’s statements were improper, the trial 

court took appropriate corrective action to address the statements 

without having to declare a mistrial. Consequently, this 

enumeration fails.

4. During the charge conference, Kessler objected to the trial 

court giving the State’s requested charge on the definition of a 

“crime” that included a reference to “criminal negligence.” The 

requested charge stated as follows: “This defendant is charged with 

a crime against the laws of this state. A crime is a violation of a 

statute of this state in which there is a joint operation of an act (or 

omission to act) and intention (or criminal negligence).” See Ga. 

Suggested Pattern Instructions, Vol. II: Criminal Cases § 1.40.10

(4th ed. 2007) (Definition of a Crime). Kessler argued that, because 

the charge did not also include the definition of “criminal 
17

negligence,”9 it would confuse the jury and lower the burden of proof 

for felony murder. The trial court overruled the objection and, 

during its final jury charge, instructed the jury on the definition of 

a “crime” as follows: “[T]his defendant is charged with a crime 

against the laws of this state. A crime is a violation of a statute of 

this state in which there is a joint operation of an act or an omission 

to act and intention or criminal negligence.” 

Kessler argues that this was error. We disagree, because the 

trial court’s instruction was an accurate statement of the law. See 

OCGA § 16-2-1 (a) (“A ‘crime’ is a violation of a statute of this state 

in which there is a joint operation of an act or omission to act and 

intention or criminal negligence.”). Further, at Kessler’s request,

the jury was instructed on the lesser included offense of involuntary 

manslaughter based on reckless conduct. And, as this Court has 

recently explained, “[r]eckless conduct is an act of criminal 

negligence, rather than an intentional act, that causes bodily harm 

 9 “Criminal negligence is an act or failure to act which demonstrates a 

willful, wanton, or reckless disregard for the safety of others who might 

reasonably be expected to be injured thereby.” OCGA § 16-2-1 (b).
18

or endangers the bodily safety of another.” Stepp-McCommons v. 

State, 309 Ga. 400, 405 (2) (c) (845 SE2d 643) (2020). See also Banta 

v. State, 282 Ga. 392, 397-398 (5) (651 SE2d 21) (2007). The trial 

court also properly charged the jury on the general law of intent, as 

well as the intent required to prove malice murder, felony murder, 

aggravated assault, armed robbery, aggravated assault with intent 

to rob, and violating the Georgia Controlled Substances Act. 

Accordingly, the trial court did not err by including a reference to 

“criminal negligence” within its definition of a “crime” during the 

jury charge.

5. Finally, Kessler argues that the cumulative effect of the 

alleged trial court errors entitles him to a new trial. See State v. 

Lane, 308 Ga. 10, 14 (838 SE2d 808) (2020) (“Georgia courts 

considering whether a criminal defendant is entitled to a new trial 

should consider collectively the prejudicial effect of trial court errors 

and any deficient performance by counsel – at least where those 

errors by the court and counsel involve evidentiary issues.”). 

However, “when reviewing such a claim, we evaluate only the effects 
19

of matters determined to be error, not the cumulative effect of nonerrors.” (Citation and punctuation omitted.) Cox v. State, 306 Ga. 

736, 743 (832 SE2d 354) (2019). Because Kessler has failed to show 

any errors that would provide this Court with a basis for evaluating 

their cumulative effect, this claim fails.

Judgment affirmed. All the Justices concur.