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Benton v. State

Supreme Court of Georgia

May 1, 2017

BENTON
v.
THE STATE.

          MELTON, Presiding Justice.

         Following a jury trial, Freedell Benton was found guilty of malice murder, possession of a firearm by a convicted felon, and various other offenses in connection with the shooting death of Drexel Berry.[1] On appeal, Benton contends that the evidence presented at trial was insufficient to support his conviction, that the trial court erred by allowing the jurors to submit questions to be posed to witnesses, that the trial court erred when it allowed into evidence certain autopsy photographs, and that his trial counsel was ineffective. For the reasons set forth below, we affirm in part, vacate in part, and remand for resentencing on the count of possession of a firearm by a convicted felon.

         1. Viewed in the light most favorable to the jury's verdict, the record shows that, on May 29, 2013, Benton and his co-defendant, Quantavious Guffie, were part of a group of fifteen to twenty people hanging around an apartment complex located at 574 Cooper Street. The victim, Berry, arrived at the complex with Joshua Smith, looking to purchase some marijuana. The group informed Berry that they had no marijuana to sell, and Berry began to leave. One of the members of the group, Antoine Jester, was wheelchair bound, and informed others, including Benton, that Berry had played a role in putting Jester in a wheelchair, because Berry was one of the individuals involved in a prior shooting that had paralyzed Jester. After speaking with Jester, Benton stepped into the street to flag down Smith's car and prevent Berry from leaving. Benton informed Berry that if he returned to the apartment complex, Benton would sell him some marijuana. While Benton spoke to Smith and Berry, co-defendant Guffie entered one of the apartments and retrieved a handgun. Berry agreed to return to the complex while Smith waited in the car, and Benton led him to a courtyard area behind the complex where Guffie joined them.

         Two eyewitnesses from the apartment complex who saw the men near the courtyard stated that following a brief discussion between the three men, Berry began to run, while Benton and Guffie pursued and fired guns at Berry.[2] The three ran out of the witnesses' sight, but more shots could be heard coming from the courtyard. A few minutes later, only Benton and Guffie emerged from the stairwell leading to the courtyard.

         A police officer found Berry at a house located at 580 Pryor Street. Berry had moved from the apartment complex to the house, leaving a blood trail back to the courtyard where police found ten 9mm shell casings and one .380 caliber shell casing. Berry had been shot three times, once in the arm, once in the leg, and once in the back. Police found Berry drifting in and out of consciousness, and moved him to a hospital, where he died.

         The evidence was sufficient to enable a rational trier of fact to find Benton guilty of all the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also OCGA § 16-2-21 (parties to a crime).[3]

         2. Although the evidence was sufficient to support the jury's guilty verdicts, we have noted an error with respect to the merger of certain counts for sentencing purposes. Specifically, the trial court purported to merge the possession of a firearm by a convicted felon count against Benton into the malice murder count against him for sentencing purposes. However, "possession of a firearm by a convicted felon does not merge into a conviction for malice murder." Chester v. State, 284 Ga. 162, 162 (1) (664 S.E.2d 220) (2008), overruled on other grounds by Williams v. State, 287 Ga. 192, 194 (695 S.E.2d 244) (2010), and Harper v. State, 286 Ga. 216, 218 (1) (1686 S.E.2d 786) (2009). "[A]s no merger occurred, [Benton] should have been sentenced on the [possession of a firearm] count." Hulett v. State, 296 Ga. 49, 55 (2) (b) (766 S.E.2d 1) (2014). Accordingly, we vacate the portion of the sentence purporting to merge the possession of a firearm by a convicted felon count into the malice murder count and remand this case to the trial court for resentencing on the possession of a firearm count.

         3. Benton claims that the trial court erred by allowing jurors to submit questions to be posed to the witnesses. However, it is well established that, "[w]hile jurors in Georgia courts may not ask questions of witnesses directly, a trial court may receive written questions from the jury and ask those questions which the court finds proper, or allow counsel for either party to ask a testifying witness the questions found to be proper."Allen v. State, 286 Ga. 392, 396 (3) (687 S.E.2d 799) (2010). See also Hernandez v. State, 299 Ga. 796, 799 (2) (792 S.E.2d 373) (2016). Here, the written questions were properly reviewed by the trial judge and counsel for the parties before being posed to the witnesses by the trial court once the court found the questions to be proper. The trial court committed no error by following the approved procedure outlined in Allen and its progeny.

         To the extent that Benton argues that the trial court erred by failing to use the exact words that the jurors used in their written questions when the court posed the questions to the witnesses, this argument is without merit. Indeed, a trial court is not required to use the exact language of the jurors in posing their questions, as "[a] trial judge may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides." (Citations omitted.) Dickens v. State, 280 Ga. 320 (3) (627 S.E.2d 587) (2006). The judge here reviewed and approved the questions by the jurors and posed them in the manner that he believed to be most appropriate for developing the truth of the case and clarifying the witness' testimony consistent with the jurors' requests. In doing so, the trial court fulfilled its duty to ensure a fair trial for both sides and did not inappropriately intimate or express an opinion as to the matters proved at trial or the guilt or innocence of the accused. See OCGA § 17-8-57 (a) (1). Accordingly, we find no error.

         4. Benton contends the trial court committed plain error by admitting into evidence three autopsy photographs (Exhibits 115, 126, and 127).[4] To satisfy plain error review:

First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

(Citations, punctuation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d 232) (2011). Our determination of whether legal error exists requires us to first consider whether the autopsy photos constituted relevant, admissible evidence.

Under Georgia's new Evidence Code, "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." OCGA § 24-4-403 ("Rule 403"). The application of Rule 403 is a matter committed principally to the discretion of the trial courts, and as we have explained before, the exclusion of relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly. See Da ...

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