295 Ga. 108
FINAL COPY


                        S14A0312. GREEN v. THE STATE.


       HINES, Presiding Justice.

       Steven James Green appeals the denial of his motion for new trial and his

convictions for malice murder, burglary, aggravated assault, possession of a firearm

during the commission of a felony, and possession of a firearm by a convicted felon

in connection with the fatal shooting of Anthony Shane Augustus and the aggravated

assault of Shyrome Marshall as well as the burglary of his home. Green claims that

he was denied a fair trial due to a juror’s untruthful responses to questions during voir

dire and that his trial counsel rendered ineffective assistance. Finding the juror

challenge to be without merit, we affirm Green’s convictions, but remand on the issue

of the alleged ineffectiveness of trial counsel.1

       1
         The crimes occurred on October 1, 2011. On January 4, 2012, a Gwinnett County grand jury
returned an indictment against Green and Isaac Vincente Sandoval: Count 1 – malice murder; Count
2 – felony murder while in the commission of burglary; Count 3 – felony murder while in the
commission of the aggravated assault of Augustus; Count 4 – burglary; Count 5 – the aggravated
assault of Marshall; Count 6 – the aggravated assault of Augustus; and Count 7 – possession of a
firearm or knife during the commission of a felony. Green was additionally indicted for Count 8 –
possession of a firearm by a convicted felon. Green was tried before a jury July 16-21, 2012, and
found guilty of all charges. He was sentenced to life in prison on Count 1; a consecutive 20 years
in prison on Count 5; 20 years to be served on probation on Count 4, consecutive to the sentences
of incarceration; five years to be served on probation on Count 7, consecutive to the sentences of
incarceration; and 15 years to be served on probation on Count 8, consecutive to the sentences of
incarceration. The verdicts on Counts 2 and 3 stood vacated by operation of law, and that on Count
6 was found to merge with Count 1 for the purpose of sentencing. On July 31, 2012, trial counsel
       The evidence construed in favor of the verdicts showed the following. On the

evening of October 1, 2011, Marshall returned to his apartment; he had with him his

baby boy and his friend, Augustus. Marshall carried his infant son to the apartment

while Augustus retrieved items from the car in which they arrived. Marshall observed

that there were no lights on in his apartment, which was unusual, and when he

reached the apartment door, he saw that it had been “busted open.” Marshall entered

and immediately was struck 15 or 16 times by a pistol; the assault was “brutal.” The

assailant put the pistol to the back of Marshall’s head, forced him to his knees with

his hands in the air, and told him, “you know what to do, just give me the god-damn

money.” As Augustus was heard entering the apartment, Marshall took advantage of

the distraction, reached for the pistol, and managed to “flip over” his assailant, whose

face he plainly saw and whose voice he recognized as Green’s. He knew Green from

having been “locked up together.” Marshall managed to break free and rushed to his

neighbor’s apartment for help. Augustus was shot in the lower abdomen. Green and

Sandoval fled Marshall’s apartment. The fatally wounded Augustus managed to walk

out of the apartment, and get the attention of a neighbor before he collapsed.




filed a motion for new trial on Green’s behalf, and then filed an amended motion for new trial on
February 19, 2013. The motion for new trial, as amended, was denied on August 21, 2013. New
appellate counsel filed a notice of appeal on September 17, 2013. The case was docketed in this
Court’s January 2014 term, and the appeal was submitted for decision on the briefs.

                                               2
Augustus died as the result of a gunshot wound to the right inguinal area that

transected his right femoral artery.

      1. The evidence was sufficient to enable a rational trier of fact to find Green

guilty beyond a reasonable doubt of all of the crimes of which he was convicted.

Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. Green contends that the trial court erred in overruling his post-trial claim that

he was denied a fair trial due to a juror’s untruthful responses during voir dire. He

maintains that the juror in question (“Juror”), who served on his case, answered

untruthfully when he failed to respond affirmatively that he knew Green, that he had

previously been prosecuted in Gwinnett County or elsewhere, and that he had

previously been arrested. Green also characterizes Juror as untruthful because during

general voir dire Juror indicated that he had had a bad experience with law

enforcement, but subsequently denied this during individual voir dire.

      Certainly, a defendant has the right to trial by a fair and impartial jury, and in

pursuit of that end is entitled to exercise knowledgeable challenges; however, an

incorrect response given by a potential juror on voir dire does not necessarily call for

a new trial. Jones v. State, 247 Ga. 268, 270 (2) (b) (275 SE2d 67) (1981). The

determinative question is whether there exists bias on the part of the juror which

results in prejudice to the defendant. Id. If the prospective juror’s response was given

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in good faith without the deliberate intent to mislead, the trial court may well find that

no prejudice resulted, even in the situation in which the lack of disclosure might have

impaired the defendant's right to knowledgeably exercise a peremptory challenge. Id.

The question of juror impartiality is one of both law and fact, and a trial court's

findings on the question will be set aside only where manifest prejudice to the

defendant has been shown. Id. Indeed, in order for a defendant to be entitled to a

new trial because of voir dire examination, the defendant has to show both that the

juror failed to answer honestly a material question, and that a correct response would

have provided a valid basis for a challenge for cause. Glover v. State, 274 Ga. 213,

214 (2) (552 SE2d 804) (2001).

       Juror testified at the hearing on Green’s motion for new trial, as amended.

Following the hearing, the trial court issued its order denying Green a new trial.2 In

so doing, the trial court made findings, which are supported by the record: post-trial

investigation revealed that Juror was arrested in Gwinnett County in 2010 for

kidnapping, aggravated sexual battery, and aggravated sodomy; on February 8, 2012,

Juror entered a guilty plea to false imprisonment and terroristic threats and was



       2
        The order expressly stated that Green’s claim of entitlement to a new trial was premised
upon Juror’s failure to disclose his criminal history and arrest, and that Juror had been housed in the
same Gwinnett County Detention Center pod as Green, and therefore, allegedly could have shared
inadmissible evidence with his fellow jurors.

                                                  4
sentenced to fifteen years probation under the First Offender Act; Juror was released

from custody in February 2012, approximately five months prior to serving on

Green’s jury; despite Juror’s arrest and prosecution, he failed to respond affirmatively

to related inquiries during voir dire; the evidence showed that Juror and Green were

incarcerated in the same Gwinnett County Detention Center pod from November

2011 to February 2012; and Juror testified that he did not know Green, did not recall

being incarcerated with him, did not consider the incarceration while deliberating on

Green’s case, and did not share with the other jurors any information gleaned from

that incarceration. He also testified that his verdicts were based only on the evidence

presented at trial. Green testified that he did not recognize Juror during the trial of his

case, and that only after trial did he learn of Juror’s service on his case. The trial

court concluded that Juror did not act with partiality or manifest injustice toward

Green in rendering his verdicts; that despite Juror’s failure to appropriately respond

during voir dire, he acted properly in his service as a juror on Green’s case; that there

was no showing that Juror had an “evil motive” or that he acted with other than the

required impartiality; that there was no indication that Juror did anything during jury

deliberations which was unfair or evidenced that Juror had any ulterior motives in

failing to give truthful and accurate responses during voir dire; that there was no

evidence indicating that Juror shared inadmissible evidence with the other jurors; and

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that in fact, another juror testified that Juror did not share any such information.

       Again, in order for Green to obtain a new trial because of Juror’s inaccurate

responses during voir dire, he had to show more than the inaccuracies, that is, he had

to demonstrate that correct responses by the Juror would have provided a valid basis

for a challenge for cause for favor.3 Glover, 274 Ga. at 214 (2). A juror's knowledge

of, or non-familial relationship with, a witness, attorney, or party provides a basis for

disqualification only if it is shown that it has resulted in the juror having a fixed

opinion of the accused’s guilt or innocence or a bias for or against the accused. Bester

v. State, 294 Ga. 195, 196 (2) (a) (751 SE2d 360) (2013). Compare OCGA § 15-12-

135 (a).4     And, the evidence of record does not demonstrate either Juror’s

preconception of Green’s innocence or guilt or of any bias toward him.5

       3
        Green does not claim that had Juror given more accurate responses, he would have had to
be excused for principal cause for having been convicted of a felony. See OCGA §§ 15-12-40; 15-
12-163 (b) (5). Indeed, as it appears that Juror was sentenced under the First Offender Act, OCGA
§ 42-8-60 et seq., he was not incompetent to serve as a petit juror under OCGA § 15-12-163 (b) (5).
 Humphreys v. State, 287 Ga. 63, 71 (4) (694 SE2d 316) (2010).

       4
        OCGA § 15-12-135 (a) provides:
       All trial jurors in the courts of this state shall be disqualified to act or serve in any case or
       matter when such jurors are related by consanguinity or affinity to any party interested in the
       result of the case or matter within the sixth degree as computed according to the civil law.
       Relationship more remote shall not be a disqualification.



       5
        Green cites as “of relevant and controlling note” a comment by the trial court during the
motion-for-new-trial hearing to the effect that Juror would have been excluded had the correct
information been known; however, the trial court was bound to examine the evidence in the context

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Consequently, Green was not entitled to a new trial based upon his juror challenge.

       3. Green further contends that a new trial is warranted because his trial counsel

was ineffective.6 Such a claim has to be raised at the earliest practicable moment.

Mangrum v. State, 285 Ga. 676, 683 (12) (681 SE2d 130) (2009). And, inasmuch as

it appears that appellate counsel did not participate in the motion for new trial, as

amended, there was no opportunity to raise the ineffectiveness claim prior to the

appeal, and thus, the claim of ineffective assistance of trial counsel has been raised

at the earliest practicable moment. Id. Accordingly, this case is remanded to the trial

court for a hearing and determination on the ineffectiveness claim.7 Id.

       Judgments affirmed in part and case remanded with direction. All the

Justices concur.




of the law applicable to the post-conviction posture of the case.
       6
         Green maintains that trial counsel was ineffective due to a conflict of interest from
simultaneously representing an individual, whom he characterizes as a key State’s witness, and
because of trial counsel’s failure to make certain objections at trial to questions and testimony
involving this witness.

       7
         Green has filed a motion to remand for a hearing on his claim of ineffective assistance of
trial counsel, and the State has agreed that remand is required in this case.

                                                 7
                           Decided April 22, 2014.

      Murder. Gwinnett Superior Court. Before Judge Ray.

      G. Richard Stepp, for appellant.

      Daniel J. Porter, District Attorney, Richard A. Vandever, Wesley C. Ross,

Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B.

Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Katherine L. Iannuzzi, Assistant Attorney General, for

appellee.




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