560 S.E.2d 642
S01A1669.Supreme Court of Georgia.
DECIDED: FEBRUARY 11, 2002
THOMPSON, Justice.
A jury convicted defendant Lamon Harris of malice murder and he was sentenced to life in prison.[1] He moved for a new trial on the grounds of juror misconduct and ineffective assistance of counsel. The motion was denied and he appeals. We find no error and affirm.
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1. Following a fight between Harris and the victim, Ohrohnday Diallo Wells, Harris left; then he returned with a gun. Harris approached the victim, took the gun out of his pocket, and shot the victim five times. One bullet fatally pierced the victim’s heart and lungs; another lodged in his spine.
The evidence was sufficient to enable any rational trier of fact to find Harris guilty beyond a reasonable doubt of malice murder. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. During voir dire, juror Sallet did not respond when the panel was asked general voir dire questions concerning knowledge of the case. At the hearing on the motion for a new trial, Harris presented testimony tending to show that juror Sallet knew, and discussed the facts of the case before trial, visited the crime scene, and was pressured to find Harris guilty. Based on that testimony, Harris asserts the trial court erred in denying the motion for a new trial. We disagree. The new trial testimony upon which Harris relies was contradicted by juror Sallet, and two other jurors, who denied the allegations of misconduct or wrongdoing. Thus, the trial court — which was the trier of fact upon the motion for a new trial — was authorized to conclude that there was no misconduct on the part of juror Sallet, and that that juror assessed the evidence fairly and impartially. See Fugarinov. State, 243 Ga. App. 268, 270 (531 S.E.2d 187) (2000) (trial court did not abuse its discretion in denying motion for new trial based on juror misconduct where evidence of alleged misconduct is conflicting).
3. Harris asserts his trial counsel was ineffective because he withdrew a previously requested charge on voluntary manslaughter, and thereby eliminated mitigating factors from the jury’s consideration. This assertion is without merit. Trial counsel testified that he withdrew the voluntary manslaughter charge because he decided to employ an “all or nothing” strategy. In this regard, counsel expressed the fear that the jury would decide to convict Harris of voluntary manslaughter in order to reach a compromise verdict. Counsel added that he did not withdraw the charge until he consulted with Harris (who did not voice an objection to the withdrawal of the charge). Counsel’s decision was plainly strategic. Barner v. State, 263 Ga. 365, 368
(434 S.E.2d 484) (1993); Van Alstine v. State, 263 Ga. 1
(426 S.E.2d 360) (1993). And it cannot be said that that decision fell outside the “`wide range of reasonable professional assistance.'”Rucker v. State, 271 Ga. 426, 427 (520 S.E.2d 693) (1999), citingRussell v. State, 269 Ga. 511 (501 S.E.2d 206) (1998). It was not, therefore, constitutionally deficient.
Judgment affirmed. All the Justices concur.
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DECIDED FEBRUARY 11, 2002.
Murder. Ware Superior Court. Before Judge Blount.
Kathy R. Griffin, for appellant.
Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, Thurbert E. Baker, Attorney General, Ruth M. Bebko, Assistant Attorney General, for appellee.