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.
2

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. 
3

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 
4

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. 
5

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.
6

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.
7

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 
8

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 
9

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. 
10

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 
11

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 
12

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 
13

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).
14

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.
15

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 
16

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) 
17

(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.