Bennett v. State, S91P1566

• Decision Date: 13 March 1992
• Docket Number: No. S91P1566,S91P1566
• Citation: 262 Ga. 149,414 S.E.2d 218
• Parties: BENNETT v. The STATE.
• Court: Georgia Supreme Court

Page 218

414 S.E.2d 218

262 Ga. 149

BENNETT v. The STATE.

No. S91P1566.

Supreme Court of Georgia.

March 13, 1992.

Reconsideration Denied April 2, 1992.

Kenneth W. Krontz, Lithia Springs, and Jennifer McLeod, Edwards and McLeod, Douglasville, for Bennett.

David J. McDade, Dist. Atty., Douglasville, Michael J. Bowers, Atty. Gen. and Robert D. McCullers, Staff Atty., Atlanta, for the State.

Patsy Morris, Atlanta, and Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna, for other party.

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 S.Ct. 2781, 61 L.Ed.2d 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 disclose 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(44e), 386 S.E.2d 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 S.E. 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 the first time after trial, Wright v. Davis, 184 Ga. 846, 852, 193 S.E. 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 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 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 S.E.2d 762 (1987). Compare Brown v. State, 260 Ga. 153, 158, 391 S.E.2d 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, 261 Ga. 766(9), 410 S.E.2d 725 (1991); Cape v. State, 246 Ga. 520(6), 272 S.E.2d 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:

(a) Bennett requested a charge on insanity which placed the burden of proving sanity beyond a reasonable doubt on the prosecution. The court did not err by declining to deliver the defendant's requested instruction. As the court correctly instructed the jury, the defendant bears the burden of proving insanity by a preponderance of the evidence. Brown v. State, 250 Ga. 66, 70(1), 295 S.E.2d 727 (1982).

(b) Bennett's requested guilt-phase charges numbered 2, 6 and 23 were covered in substance by the "charge actually given," and the court's refusal to give these requested charges was not error. Pruitt v. State, 258 Ga. 583, 588(13), 373 S.E.2d 192 (1988).

(c) Relying on Brown v. State, 228 Ga. 215, 219(3), 184 S.E.2d 655 (1971), Bennett contends the trial court erred by refusing to charge the jury that:

the act itself may be so utterly senseless and abnormal as to furnish satisfactory proof of a diseased mind to warrant a finding of insanity on the part of the defendant.

The court delivered a charge on the insanity defense.

This was a sufficient instruction. To charge further [as requested by the defendant] ... would, under the circumstances, have been argumentative, and the request was properly refused. [Freeman v. State, 132 Ga.App. 742, 744, 209 S.E.2d 127 (1974) ].

See also Duck v. State, 250 Ga. 592, 596(2a), 300 S.E.2d 121 (1983). ²

(d) For the same reason, the court did not err by refusing to deliver Bennett's request to charge number 7.

(e) During the charge conference, the court told the defendant it would deliver the pattern charge concerning the effect of a verdict of guilty but mentally ill as required by OCGA § 17-7-131(b)(3)(B). However, although the court instructed the jury about the effect of a verdict of not guilty by reason of insanity, as set forth in OCGA § 17-7-131(b)(3)(A), and about the effect of a verdict of guilty but mentally retarded, as set forth in OCGA § 17-7-131(b)(3)(C), the court inadvertently omitted to charge OCGA § 17-7-131(b)(3)(B) concerning the effect of a verdict of guilty but mentally ill.

At the conclusion of the charge, the court asked the defendant's attorney if the court had omitted "anything that I told you I would charge ...?" The defendant's attorney answered, "Not that I recall, no." Because the defendant failed to object to the court's omission to charge, this claim of error has not been preserved for review. Thomas v. State, 234 Ga. 615, 618, 216 S.E.2d 859 (1975). (Overruled on other grounds in White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979).)

(f) The evidence does not support the defendant's 24th request to charge, and the court did not err by refusing to deliver it. Pruitt v. State, supra, 258 Ga. at 588, 373 S.E.2d 192.

(g) We find no insufficiency in the court's instructions to the jury about the applicability of the defendant's insanity defense to the possible lesser included offense of voluntary manslaughter as well as to murder (even assuming this issue is not mooted by the jury's rejection of the insanity defense and verdict of guilty of murder).

8. The defendant moved for a mistrial when the prosecutor referred in his opening statement to the victim and her family. The denial of mistrial was not error. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (19...