Bennett v. State

414 S.E.2d 218, 262 Ga. 149, 1992 Ga. LEXIS 217
Supreme Court of Georgia·Decided March 13, 1992·No. S91P1566·Published·Cited by 32 cases

Opinions

Fletcher, Justice.

This is a death penalty case. Jack Bennett got married on June 24, 1989. On the morning of June 28, 1989, Bennett stabbed his wife as she lay sleeping. The autopsist testified at trial that he had counted over 100 stab wounds on the victim’s body. At least two wounds penetrated to her heart. Although her stab wounds would ultimately have proven fatal, they were not immediately fatal. Bennett, feeling the victim “wouldn’t die” after having been stabbed over 100 times, also used a claw hammer to “cave in” the left side of her head.

The defendant contended he suffered from the delusion that his wife and a third party were plotting to kill him and he killed her in self-defense. The state theorized that Bennett had killed the victim in a jealous rage after discovering mementos of an affair which she had ended not long before her marriage to the defendant.

The evidence supports the defendant’s conviction for murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).1

1. Bennett first contends he is entitled to a new trial because one member of the jury was a convicted felon. This fact was discovered by the defense during the sentencing phase of the trial, but was not brought to the attention of the court until several weeks after the trial.

(a) Bennett contends the juror intentionally misled him during voir dire.

Prior to the oral voir dire examination, the prospective juror filled out a written questionnaire prepared primarily by the defense. Question 24 asked the juror:

Have you ever been arrested? If yes, when? On what charges. Where? Were you found not guilty? If not, what was the sentence?

The juror answered, “Yes, 1982 in Valdosta, DUI.” He did not dis[150] close his 1984 felony conviction and probated sentence for the offense of operating a motor vehicle after having been declared a habitual violator. See OCGA § 40-5-58 (c). At the hearing on the motion for new trial, the juror explained that he believed once he “fulfilled his obligations of probation without. . . any other violations that the case was to be dismissed or off his record so to speak.” Being called for jury service reinforced his belief that his habitual-violator conviction had been removed from his record.

Although the juror’s belief was incorrect (he had not been sentenced under the first offender act, see OCGA § 42-8-60 et seq.), the trial court was authorized to conclude that he did not intentionally answer the questionnaire untruthfully. Isaacs v. State, 259 Ga. 717 (44 e) (386 SE2d 316) (1989).

(b) Bennett further contends the court restricted his voir dire examination on this issue. We do not agree. The court simply stated at the outset of the voir dire examination that the parties should not repeat questions that already had been answered on the questionnaire. The court did not preclude follow-up questions, or questions about matters not answered on the questionnaire.

(c) Bennett argues that in any event, he is entitled to a new trial because the jury was “illegally constituted,” and its verdict was “void.”

There is no statute specifically prohibiting jury service by one who has been convicted of a felony. Compare OCGA § 15-12-60. (Person convicted of a felony is incompetent to serve as grand juror.) However, our cases have found such disqualification based on the common law. See, e.g., Williams v. State, 12 Ga. App. 337, 338-339 (77 SE 189) (1913):

At common law, one who was found guilty of larceny was “infamous,” and, by reason of that infamy, he was disqualified from jury service. . . . [T]he right of jury trial ... in Georgia . . . must be governed by the same rules. . . .

But such disqualification is not necessarily permanent,

because it has sometimes happened that men who afterward became model citizens had in their youth committed offenses which were fully expiated or atoned for by a subsequent course of exemplary rectitude. [Ibid.]

In this case, the juror had no felony convictions aside from his traffic-offense habitual-violator conviction several years before this trial. Assuming that he would have been excusable for cause if he had been timely challenged, we do not think his crime was so “infamous” or so recent that he was subject to a challenge propter delictum for [151] the first time after trial, Wright v. Davis, 184 Ga. 846, 852 (193 SE 757) (1937), at least where, as here, the defense learned of the possible disqualification during trial and did not immediately raise the issue.

(d) Finally, we do not agree that the trial court should have appointed additional counsel to litigate the issue of trial counsel’s effectiveness merely because the trial court ruled against the defendant on procedural grounds. Cf. Todd v. State, 261 Ga. 766 (13) (410 SE2d 725) (1991).

2. The trial court did not err by excusing three prospective jurors on grounds of hardship, OCGA § 15-12-1 (a); Blankenship v. State, 258 Ga. 43 (3) (365 SE2d 265) (1988), or by excusing a fourth prospective juror who had serious difficulty speaking and understanding English. Robinson v. State, 258 Ga. 279, 280 (2) (368 SE2d 513) (1988).

3. The trial court’s rulings on the qualifications of the prospective jurors were “within the deference due the trial judge’s determination.” Jefferson v. State, 256 Ga. 821, 824 (2) (353 SE2d 468) (1987).

4. The trial court did not abuse its discretion by admitting in evidence photographs of the injuries inflicted on the victim by the defendant. Hicks v. State, 256 Ga. 715 (13) (352 SE2d 762) (1987). Compare Brown v. State, 260 Ga. 153, 158 (391 SE2d 108) (1990) (Fletcher, J., dissenting).

5. Nor did the court err by allowing in evidence exhibits from the crime scene, some of which were bloody and allegedly malodorous. Todd v. State, supra, 261 Ga. at (9); Cape v. State, 246 Ga. 520 (6) (272 SE2d 487) (1980).

6. Statements made before her death by the victim about her adulterous relationship with someone other than the defendant were relevant to prove the defendant’s motive for committing murder and were properly admitted over the defendant’s hearsay objection. OCGA § 24-3-8.

7. Bennett raises various complaints about the guilt-phase charge:

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Bennett v. State, 414 S.E.2d 218, 262 Ga. 149, 1992 Ga. LEXIS 217 (Ga. 1992).

414 S.E.2d 218 (Bennett v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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