In the Supreme Court of Georgia



                                                  Decided: September 12, 2016


                      S16A1081. SANDERS v. THE STATE.


       BLACKWELL, Justice.

       Benji Cortez Sanders was tried by a Sumter County jury and convicted of

the murder of Sheila Freeman. Sanders appeals, contending that the evidence is

legally insufficient to sustain his conviction, that the trial court erred when it

denied his motion for a mistrial, and that it erred when it discharged a juror after

the trial was underway. Upon our review of the record and briefs, we see no

error, and we affirm.1


       1
         Freeman was killed on April 30, 2002. A Sumter County grand jury indicted Sanders
on July 11, 2002, charging him with malice murder, felony murder, aggravated battery, and
child cruelty in the second degree. Sanders’s trial began on May 27, 2003. The jury returned
its verdict two days later, finding Sanders guilty of malice murder, felony murder, and
aggravated battery and not guilty of child cruelty. On June 3, 2003, Sanders was sentenced
to imprisonment for life for malice murder. The verdict as to felony murder was vacated by
operation of law, Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993), and
the aggravated battery merged with the malice murder. On July 15, 2010, Sanders requested
leave to file an out-of-time motion for new trial. That same day, the trial court granted the
request, and Sanders filed a motion for new trial. Sanders amended his motion on October
7, 2010, and the trial court denied Sanders’s motion for new trial on November 2, 2015.
Sanders timely filed a notice of appeal on November 10, 2015. The case was docketed in this
Court for the April 2016 term and submitted for decision on the briefs.
       1. Viewed in the light most favorable to the verdict, the evidence shows

that Sanders and Freeman were the parents of a one-year-old girl, and Sanders

lived “on and off” with Freeman and their daughter in Americus. Around 2:30

on the morning of April 30, 2002, Freeman called her mother and said that she

planned to let Sanders know that he was no longer welcome to stay at her home.

About an hour later, Sanders called Freeman’s mother and admitted that he and

Freeman had “been fighting” and that Freeman was not breathing.

       Minutes later, first responders arrived at Freeman’s home and found her

unresponsive on her bed. Sanders was “very excited,” “going from room to

room, hitting the walls,” and said something about Freeman attacking him.

Sanders also spontaneously told police officers at the scene that he had “f***ed

up.” The medical examiner testified that Freeman had been struck with a blunt

object and strangled to death.

       Sanders claims that the evidence is insufficient to sustain his conviction.2

His appellate brief does not explain why he believes this to be so, but at the


       2
          Sanders also argues that the verdict is against the weight of the evidence, but an
appellate court “cannot consider whether the verdict is consistent with the weight of the
evidence, and [its] review is limited instead to the legal sufficiency of the evidence.” Cotton
v. State, 297 Ga. 257, 258 (1) (773 SE2d 242) (2015).

                                              2
hearing on his motion for new trial, Sanders noted that there was no evidence

of a struggle, asserted that Freeman was too strong to have been strangled to

death without a struggle, and speculated that Freeman could have died as the

result of choking or sleep apnea. But especially given the testimony from

Freeman’s mother, the incriminating statements made by Sanders, and the

medical evidence of bruising and hemorrhages that was consistent with Freeman

having been hit with a blunt object and strangled to death (and that was

inconsistent with choking and sleep apnea), the evidence “was sufficient to

exclude every reasonable hypothesis other than [Sanders’s] guilt and to

authorize a rational trier of fact to find beyond a reasonable doubt that he was

guilty of the crime[] of which he was convicted.” Washington v. State, 294 Ga.

560, 563 (1) (755 SE2d 160) (2014) (citing Jackson v. Virginia, 443 U. S. 307,

319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)).

      2. Sanders claims that the trial court erred when it denied his motion for

mistrial based on pre-trial publicity. According to Sanders, the jury was biased

against him because some of the jurors had seen a front-page article in the local

newspaper about his trial. The article quoted Freeman’s mother, who said that

Sanders had a history of abusing Freeman.

                                       3
       The trial court, however, allowed Sanders to ask the prospective jurors

about the article, and the trial court was “satisfied from the responses given . .

. of . . . their commitment to render a verdict based solely on the evidence

presented at trial.” Sanders can only speculate that the prospective jurors were

influenced by the article despite their assertions to the contrary, and he has not

shown “that any publicity was factually incorrect, inflammatory, or reflective

of an atmosphere of hostility” or that he could not receive a fair trial. Eckman

v. State, 274 Ga. 63, 68 (4) (548 SE2d 310) (2001). As a result, the trial court

did not err when it denied his motion. See id. See also Ellington v. State, 292

Ga. 109, 140 (8) (b) (735 SE2d 736) (2012) (“[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 findings are to be given deference”) (citation

omitted).

       3. Finally, Sanders contends that the trial court erroneously discharged a

juror after the trial had begun. The record does not reveal why the juror was

excused,3 but it is clear that the trial court announced its intention to excuse the

       3
         The record shows that – as one of the State’s witnesses was testifying – the trial
judge asked him to “hold on just a second” and announced that there would be “a little
break.” The jury was excused from the courtroom, and the judge informed the parties that he

                                            4
juror in open court, and Sanders offered no objection even when the trial court

specifically asked him if there was any matter that needed to be addressed before

the jury was brought back into the courtroom. Sanders failed to object when the

trial court excused the juror, and he cannot be heard to complain about it on

appeal. See Hudson v. State, 250 Ga. 479, 484 (3) (b) (299 SE2d 531) (1983)

(“no objection was made to the dismissal of the juror at trial. Errors not objected

to at trial will not be entertained by this court on appeal.”) (citation omitted). See

also Ensley v. State, 294 Ga. 200, 203 (2) (751 SE2d 396) (2013) (where

appellant did not object to juror’s continued service, “he has thus waived

appellate review of the alleged impropriety. In any event, the trial court is vested

with discretion to discharge a juror under OCGA § 15-12-172.”) (citations

omitted).

       Judgment affirmed. All the Justices concur.




had received a note saying that one of the jurors “need[ed] to be dismissed from jury duty”
and allowed to go home.

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