Henry v. State

507 S.E.2d 419, 269 Ga. 851
CourtSupreme Court of Georgia
DecidedSeptember 14, 1998
DocketS98P0719
StatusPublished
Cited by49 cases

This text of 507 S.E.2d 419 (Henry 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
Henry v. State, 507 S.E.2d 419, 269 Ga. 851 (Ga. 1998).

Opinions

Hunstein, Justice.

George Russell Henry pled guilty to malice murder in the shoot[852]*852ing death of Cobb County Police Officer Robert Ingram. The jury in his sentencing trial recommended a death sentence for the murder, finding two statutory aggravating circumstances: the offense of murder was committed against a peace officer while engaged in the performance of his official duties, OCGA § 17-10-30 (b) (8), and the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest. Id. at (b) (10). The trial court denied Henry’s motions to set aside the guilty plea and for a new trial. Henry appeals, and we affirm.1

1. The evidence adduced at the sentencing trial showed that Henry was serving a burglary sentence at the Cobb County Correctional Institute when he told several other inmates shortly before his release that he would kill a police officer before he would return to jail again. Henry was released on July 1, 1993. He stayed with a friend until July 12 when he was asked to leave because his roommates suspected Henry was stealing from them. That evening Henry’s friend dropped him off in the “Elizabeth” area of Cobb County. Henry, dressed in black, had a bag containing his possessions including a Davis Industries .380 semiautomatic pistol, which Henry’s girl friend had purchased at his request during Henry’s incarceration. Henry walked to a nearby industrial park and began looking for a business to burglarize.

At 12:39 a.m. on July 13, 1993, Cobb County Police Officer Robert Ingram was on a routine patrol in the Elizabeth area when he radioed his dispatcher that he was going to conduct an investigatory stop of a suspicious “white male dressed in all black carrying some type of a bag.” Four minutes later, the dispatcher tried to contact Officer Ingram but received no response. Other officers arrived at the area within minutes but there was no sign of a patrol car. Officer Ingram’s body was found shortly thereafter, only 14 minutes having elapsed since the time he first notified the dispatcher of the suspicious person. Officer Ingram’s pistol was still snapped in its holster and Henry’s wallet containing his identification was found a few feet from the body. Officer Ingram had been shot twice, once in the face and once in the back of the head. Expert testimony established that both shots were fired from a distance of less than one foot and that [853]*853Officer Ingram was standing when shot in the face but was on the ground when shot in the back of the head. A security guard in the area testified that he heard two pistol shots fired four to seven seconds apart.

The police discovered the missing patrol car at a municipal golf course and arrested Henry who was seen, still dressed in black, talking on a nearby pay phone. Henry admitted that he had been at the murder scene but initially claimed that another person had used his pistol to kill the officer. Henry then led the police to places on the golf course where he had hidden some of his possessions, including the .380 pistol that was later determined to be the murder weapon. Henry was taken to the police station where he confessed to the killing. He stated that Officer Ingram approached him, requested his identification, and asked him what was in the bag. According to Henry, Officer Ingram’s demeanor during this exchange was “pleasant and respectful.” Henry pulled some of his possessions out of his bag to show the officer but realized that Officer Ingram had seen the ammunition for Henry’s pistol. Realizing that a search would lead to his arrest for being a felon in possession of a firearm, Henry retrieved the weapon from its hiding place and shot Officer Ingram in the face; when the officer moved or moaned, Henry shot him again in the back of the head. Henry then gathered his possessions, accidentally dropping his wallet in the process, and fled the scene in the patrol car.

Although Henry pled guilty, we find that the evidence adduced at the sentencing trial was sufficient to enable any rational trier of fact both to find Henry guilty of malice murder and to find the two statutory aggravating circumstances beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also OCGA § 17-10-35 (c) (2).

2. Henry claims that the trial court erred by denying the motion to set aside his guilty plea. Henry asserts that when accepting the plea the trial court failed to determine the factual basis of the plea as required by Uniform Superior Court Rule 33.9. However, Henry did not move to set aside his guilty plea until two years and approximately twelve court terms had passed since his sentencing. See OCGA § 15-6-3 (11) (superior court of Cobb Judicial Circuit has six terms of court per year). It is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea. Jarrett v. State, 217 Ga. App. 627 (1) (458 SE2d 414) (1995). Henry’s only available means to withdraw his guilty plea is through habeas corpus proceedings, id. at 628, and the trial court therefore properly denied Henry’s motion.

In addition, Henry’s guilty plea was accepted on the first day of trial, and a sentencing trial followed where the overwhelming evi[854]*854dence summarized in Division 1 of this opinion was presented. Thus, even if Henry’s motion had been timely filed and the trial court had been unaware of the factual basis when accepting the plea, we find that the subsequent evidence does not support the withdrawal of the plea to correct a “manifest injustice.” USCR 33.12; State v. Evans, 265 Ga. 332 (3) (454 SE2d 468) (1995). See also Wharton v. Henry, 266 Ga. 557 (2) (469 SE2d 27) (1996) (evidence other than record created at plea hearing may be considered in manifest injustice analysis).

3. Henry claims that his two trial lawyers were laboring under a conflict of interest that violated his Sixth Amendment right to counsel. See Cuyler v. Sullivan, 446 U. S. 335 (IV) (B) (100 SC 1708, 64 LE2d 333) (1980). In order for Henry to prevail on this claim, he must show that an actual conflict of interest adversely affected his lawyers’ performance. Id. The conflict of interest “must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction [or sentence] which is supported by competent evidence.” Lamb v. State, 267 Ga. 41, 42 (472 SE2d 683) (1996). According to Henry, the conflict of interest existed for two reasons: both of his lawyers served as hosts for a political fond raiser for the Cobb County district attorney about seven months before his trial; and both of his lawyers own an office building as tenants in common with an attorney who has contracted with the district attorney’s office as a child support collector.

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Bluebook (online)
507 S.E.2d 419, 269 Ga. 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-state-ga-1998.