Hargett v. State

674 S.E.2d 261, 285 Ga. 82, 2009 Fulton County D. Rep. 274, 2009 Ga. LEXIS 19
CourtSupreme Court of Georgia
DecidedJanuary 26, 2009
DocketS08A1589, S08A1590, S08A1591
StatusPublished
Cited by25 cases

This text of 674 S.E.2d 261 (Hargett v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hargett v. State, 674 S.E.2d 261, 285 Ga. 82, 2009 Fulton County D. Rep. 274, 2009 Ga. LEXIS 19 (Ga. 2009).

Opinions

HUNSTEIN, Presiding Justice.

Benjamin Hargett, his brother Angelo Armstrong and their cousin Michael Cox were convicted of murder in the shooting death of Tavares Redwine, the aggravated assaults of Adrian “A.J.” Wood and Artis McGinty, and burglary arising out of a home invasion in Coweta County. They appeal from the denial of their motions for new trial.1 We consolidated their appeals and affirm for the reasons that follow.

1. The evidence adduced at trial authorized the jury to find that, in the early hours of May 8, 2006, appellants and at least one other unidentified man forced entrance into a house rented by Redwine and McGinty. Appellants Hargett and Armstrong, with their faces uncovered and armed with handguns and an assault rifle, led the group; appellant Cox, wearing a bandana that covered half of his face, entered later and demanded money and drugs. Wood, who was a guest sleeping on the living room couch, was shot twice as he tried to run away. He survived by pretending to be dead, although his wounds left him permanently unable to use his left arm, and at trial identified appellants as his assailants, testifying that he had known them for years prior to the crimes in issue. McGinty was hit multiple times in the legs and hip by the assault rifle as he left his bedroom and stepped into the lit hallway; appellant Hargett then stood [83]*83directly over McGinty, demanded he “give it up,” and shot McGinty again in the buttocks. McGinty also testified that, as appellant Hargett was taking the money McGinty offered, the murder victim, Redwine, entered the hallway from his separate bedroom in response to the commotion; appellant Hargett shot Redwine in the midsection, causing him to fall back into the room; appellant Hargett, joined by appellant Armstrong, then went into Redwine’s room and stood over him; they demanded that Redwine “give it up” and when he did not, they shot him repeatedly in the body and genitals, urged on by appellant Cox, who was standing near the front of the house. McGinty also testified that, before leaving, appellant Armstrong knelt beside Redwine and fired a final shot into his head while appellant Hargett put a gun to McGinty’s head and said “I’ll do you in too.” Redwine survived long enough to drag himself to the doorway before succumbing to his injuries. McGinty, despite suffering ten to fourteen gunshot wounds, survived and identified appellants as his assailants, testifying at trial that he was previously acquainted with appellant Hargett, was related to appellant Armstrong by marriage and recognized appellant Cox as someone he had previously “seen around” at various parties and football games.

The evidence adduced amply authorized a rational trier of fact to find appellants guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In a motion not joined by counsel for the other appellants, counsel for appellant Cox moved to strike potential juror Burgess for cause because the juror’s father had been a police officer and assistant district attorney in California, she indicated she would believe a police officer over other witnesses at trial and she stated at one point that she had formed an impression about the guilt of appellants. The transcript of voir dire also showed that the juror was rehabilitated by questions posed by the State in which Burgess stated, inter alia, that she would not come in favoring the prosecution and that she both could and would judge the case based on the facts as established by the evidence and the law as given by the trial court. Because Burgess never stated a fixed and definite opinion of appellants’ guilt, we conclude that the trial court did not abuse its discretion in failing to strike Burgess for cause. See Lampley v. State, 284 Ga. 37 (3) (663 SE2d 184) (2008).

3. It is well established that the failure to object in the trial court constitutes a waiver of a party’s right to raise a matter on appeal. See, e.g., Rosser v. State, 284 Ga. 335 (3) (667 SE2d 62) (2008). Appellants have enumerated seven alleged errors on appeal that the record establishes are waived for failure to make a proper objection in the trial court. However, appellants have also raised those same [84]*84matters in their claim of ineffective assistance of trial counsel. We thus consider the alleged errors asserted by appellants within the analytical framework of an ineffectiveness claim, under which, in order to prevail, each appellant must show both that his trial counsel’s performance was deficient and that, but for the deficient performance, there is a reasonable probability the outcome of the trial would have been different. Id. at 337 (4). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985).

(a) For the reason set forth in Division 2, supra, appellants Hargett and Armstrong cannot establish an ineffectiveness claim based on their counsel’s failure to join in the motion to strike potential juror Burgess for cause.

(b) Appellants contend trial counsel should have objected on the record to the trial court’s failure to strike potential juror Green for cause2 because she stated she knew victim Redwine, a friend, in that she had attended school and “hung out together sometimes” with him, and initially acknowledged that her friendship would impact her ability to be fair and impartial. But immediately after making these statements, Green affirmatively acknowledged that she could put that relationship aside and decide the case based on the facts from the evidence and the law. Green later stated she also knew the aggravated assault victims and reiterated she could be fair and impartial.

For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993)]; McClain v. State, 267 Ga. 378, 380 (1) (a) (477 SE2d 814) (1996). A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Waldrip v. State, 267 Ga. 739, 745 (8) (c) (482 SE2d 299) (1997). ... A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those [85]*85findings are to be given deference. Kirkland v. State, 271 Ga. 217, 219 (2) (518 SE2d 687) (1999).

Corza v. State, 273 Ga. 164, 166-167 (3) (539 SE2d 149) (2000). Because our review of the voir dire record does not reveal that Green had formed a “fixed and definite opinion” as to appellants’ guilt, appellants cannot show how they were prejudiced by trial counsel’s failure to move to strike Green for cause.

(c) After the rule of sequestration was properly invoked, the State failed to request the court’s permission to allow Detective Yarborough, the lead investigator of the crimes, to remain in the courtroom. Defense counsel raised no objections to Yarborough’s presence beside the prosecutor during the testimony of the first seven State witnesses.

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Bluebook (online)
674 S.E.2d 261, 285 Ga. 82, 2009 Fulton County D. Rep. 274, 2009 Ga. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hargett-v-state-ga-2009.