Harris v. State, 554 S.E.2d 458 (Ga. 2001). · Go Syfert
Harris v. State, 554 S.E.2d 458 (Ga. 2001). Cases Citing This Book View Copy Cite
“hile a trial court may charge on a lesser included offense on its own motion, the failure to do so, without a written request is not error”
118 citation events (118 in the last 25 years) across 2 distinct courts.
Strongest positive: Rodney Miles v. State (gactapp, 2022-01-18)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 42 distinct citers. How cited ↗
discussed Cited as authority (quoted) Rodney Miles v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2022 · quote attribution · 1 verbatim quote · confidence low
hile a trial court may charge on a lesser included offense on its own motion, the failure to do so, without a written request is not error
discussed Cited as authority (rule) Reddick v. State (2×)
Ga. · 2025 · confidence medium
Defense of habitation is governed by OCGA § 16-3-23, which sets forth when a person is authorized to use force in the defense of habitation and also sets forth three specific contexts in which deadly force is authorized.2 See Clark v. State, 307 Ga. 537 , 2 OCGA § 16-3-23 provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is…
discussed Cited as authority (rule) Willerson v. State (2×)
Ga. · 2021 · confidence medium
“A person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third party[.]” OCGA § 16-3-21 (a). “[Deadly force] is not justified if the degree of force used by the defendant exceeds that which a reasonable person would believe necessary to defend against the victim’s unlawful actions.” Harris v. State, 274 Ga. 422, 423 (1) (554 SE2d 458) (2001).
discussed Cited as authority (rule) Huffman v. State (2×)
Ga. · 2021 · confidence medium
All the Justices concur. 6 See also North Carolina v. Butler, 441 U. S. 369, 373 (99 SCt 1755, 60 LE2d 286) (1979) (“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.”); Harris v. State, 274 Ga. 422, 424 (3) (554 SE2d 458) (2001) (“Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effe…
cited Cited as authority (rule) Grant v. State
Ga. · 2014 · confidence medium
See id.; Stokes v. State, 281 Ga. 875, 877 ( 644 SE2d 116 ) (2007); Harris v. State, 274 Ga. 422, 426 ( 554 SE2d 458 ) (2001).
discussed Cited as authority (rule) Futch v. State
Ga. Ct. App. · 2014 · confidence medium
Ultimately, when confronted with the possibility that something could have happened between Futch and the victim while Futch was intoxicated, Futch stated that “anything is possible.” Our Supreme Court has held that the “[u] se of trickery and deceit to obtain a confession does not render it inadmissible, so long as the means employed are not calculated to procure an untrue statement.” (Citation and punctuation omitted.) Harris v. State, 274 Ga. 422, 424 (3) ( 554 SE2d 458 ) (2001).
discussed Cited as authority (rule) Reuben Amory Futch, III v. State
Ga. Ct. App. · 2014 · confidence medium
Ultimately, when confronted with the possibility that something could have happened between Futch and the victim while Futch was intoxicated, Futch stated that “anything is possible.” 17 Our Supreme Court has held that the “[u]se of trickery and deceit to obtain a confession does not render it inadmissible, so long as the means employed are not calculated to procure an untrue statement.” (Citation and punctuation omitted.) Harris v. State, 274 Ga. 422, 424 (3) ( 554 SE2d 458 ) (2001).
discussed Cited as authority (rule) State v. Christopher Cooper
Ga. Ct. App. · 2013 · confidence medium
E.g., Harris v. State, 274 Ga. 422, 423 (1) ( 554 SE2d 458 ) (2001) (jury was authorized to find that defendant’s act of stabbing victim multiple times, killing him, was excessive and not reasonably necessary to defendant against victim’s sexual assault of defendant, and thus defendant’s act was not justified); In the Interest of Q.
discussed Cited as authority (rule) State v. Cooper
Ga. Ct. App. · 2013 · confidence medium
E.g., Harris v. State, 274 Ga. 422, 423 (1) ( 554 SE2d 458 ) (2001) (jury was authorized to find that defendant’s act of stabbing victim multiple times, killing him, was excessive and not reasonably necessary to defend against victim’s sexual assault of defendant, and thus defendant’s act was not justified); In the Interest of Q.
cited Cited as authority (rule) Vega v. State
Ga. · 2009 · confidence medium
See Nix v. State, 280 Ga. 141, 144 (5) ( 625 SE2d 746 ) (2006); Harris v. State, 274 Ga. 422, 426 (5) ( 554 SE2d 458 ) (2001).
discussed Cited as authority (rule) Espinosa v. State
Ga. Ct. App. · 2007 · confidence medium
The defendant shall be entitled to make a closing argument prior to the concluding argument of the prosecuting attorney.’ ” Warren v. State, 281 Ga. App. 490, 491 (2) ( 636 SE2d 671 ) (2006). 18 See Harris v. State, 274 Ga. 422, 427-428 (9) ( 554 SE2d 458 ) (2001); Dewberry v. State, 271 Ga. 624, 625 (2) ( 523 SE2d 26 ) (1999); Rowland v. State, 228 Ga. App. 66, 70 (3) (e) ( 491 SE2d 119 ) (1997). 19 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).
discussed Cited as authority (rule) Hill v. State (2×)
Ga. Ct. App. · 2006 · confidence medium
Harris v. State, 274 Ga. 422, 424 (3) ( 554 SE2d 458 ) (2001); Christenson v. State, 261 Ga. 80, 85 (3) ( 402 SE2d 41 ) (1991).
discussed Cited as authority (rule) Wright v. State
Ga. Ct. App. · 2006 · confidence medium
Miller and Ellington, JJ., concur. 1 Burdette v. State, 251 Ga. App. 30, 31 (1) ( 553 SE2d 340 ) (2001). 2 Id. 3 Davis v. United States, 512 U. S. 452, 459 (114 SC 2350, 129 LE2d 362) (1994); Braham *157 v. State, 260 Ga. App. 533, 534 ( 580 SE2d 256 ) (2003). 4 (Citation and punctuation omitted.) Smith v. State, 231 Ga. App. 677, 682 (3) ( 499 SE2d 663 ) (1998). 5 See Harris v. State, 274 Ga. 422, 424 (3) ( 554 SE2d 458 ) (2001). 6 See Richardson v. State, 265 Ga. App. 711, 715 (1) ( 595 SE2d 565 ) (2004). 7 See DeYoung v. State, 268 Ga. 780, 789 (8) ( 493 SE2d 157 ) (1997). 8 Id.
discussed Cited as authority (rule) Garlington v. State
Ga. Ct. App. · 2004 · confidence medium
Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give. 26 (Footnote omitted.) Brown v. State, 246 Ga. App. 517, 522 (8) ( 541 SE2d 112 ) (2000). 27 Id. 28 (Citation omitted.) Lowery v. State, 260 Ga. App. 260 ( 581 SE2d 593 ) (2003). 29 Lovelace v. State, 241 Ga. App. 774, 775 (3) ( 527 SE2d 878 ) (2000). 30 See Green v. State, 240 Ga. App. 650, 652-653 (3) ( 523 S…
discussed Cited as authority (rule) Falak v. State
Ga. Ct. App. · 2003 · confidence medium
Eldridge and Mikell, JJ., concur. 1 Davenport v. State, 255 Ga. App. 593 (1) ( 565 SE2d 900 ) (2002). 2 Id. 3 Id. 4 OCGA §§ 16-6-4; 16-6-22; 16-6-22.2. 5 Ferrell v. State, 256 Ga. App. 692, 694 (1) ( 569 SE2d 899 ) (2002) (no corroboration necessary for child molestation); Sewell v. State, 244 Ga. App. 449, 451 (1) (c) ( 536 SE2d 173 ) (2000) (testimony of a single witness generally sufficient to establish a fact; no corroboration required in aggravated child molestation case); Scales v. State, 171 Ga. App. 924 (2) ( 321 SE2d 764 ) (1984) (no corroboration needed in incest case); OCGA § 16-…
discussed Cited as authority (rule) Horne v. State
Ga. Ct. App. · 2003 · confidence medium
Eldridge and Mikell, JJ., concur. 1 Russau v. State, 250 Ga. App. 717, 718 (1) ( 552 SE2d 890 ) (2001). 2 Id. 3 See Lewis v. State, 247 Ga. App. 808, 809 (1) ( 545 SE2d 381 ) (2001); Starks v. State, 237 Ga. App. 741 ( 516 SE2d 590 ) (1999). 4 Fults v. State, 274 Ga. 82, 83-84 (2) ( 548 SE2d 315 ) (2001). 5 Kilpatrick v. State, 252 Ga. App. 900, 902 (1) ( 557 SE2d 460 ) (2001). 6 Rucker v. State, 271 Ga. 426, 427 ( 520 SE2d 693 ) (1999). 7 See Bagwell v. State, 270 Ga. 175, 179 (1) (e) ( 508 SE2d 385 ) (1998). 8 See Cofield v. State, 216 Ga. App. 623, 627 (5) ( 455 SE2d 342 ) (1995). 9 See Ben…
cited Cited as authority (rule) Roberts v. State
Ga. · 2003 · confidence medium
“However, the error was not of constitutional magnitude. [Cit.]” Harris v. State, 274 Ga. 422, 426 (6) (d) ( 554 SE2d 458 ) (2001).
discussed Cited as authority (rule) Cochran v. State (2×)
Ga. · 2003 · confidence medium
It is well-settled that a Harris violation is "not of constitutional magnitude. [Cit.]" Harris v. State, 274 Ga. 422, 426 (6)(d), 554 S.E.2d 458 (2001).
discussed Cited as authority (rule) Stockford v. State
Ga. · 2003 · confidence medium
Stockford filed a notice of appeal on April 10, 2002; the record was filed in the clerk’s office on July 18, 2002; and the case was orally argued on October 22, 2002. 2 273 Ga. 608 ( 543 SE2d 716 ) (2001). 3 See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 4 See Rouse v. State, 275 Ga. 605 ( 571 SE2d 353 ) (2002); Scott v. State, 275 Ga. 305, 308 ( 565 SE2d 810 ) (2002); Harris v. State, 274 Ga. 422, 426-427 ( 554 SE2d 458 ) (2001). 5 See Curtis v. State, 275 Ga. 576, 578 ( 571 SE2d 376 ) (2002) (issue of merger of included offenses not waived by the defendant’s fai…
discussed Cited as authority (rule) Brown v. State
Ga. · 2003 · confidence medium
Brown filed a notice of appeal on July 18, 2002; the record was filed in the clerk’s office on August 20, 2002; and the case was submitted for decision without oral arguments on October 14, 2002. 2 See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 273 Ga. 608 ( 543 SE2d 716 ) (2001). 4 See, e.g., Harris v. State, 274 Ga. 422, 426-427 ( 554 SE2d 458 ) (2001). 5 See Rouse v. State, 275 Ga. 605 ( 571 SE2d 353 ) (2002).
cited Cited as authority (rule) Terrell v. State
Ga. · 2002 · confidence medium
See Austin v. State, 275 Ga. 346, 347-348 ( 566 SE2d 673 ) (2002); Harris v. State, 274 Ga. 422, 426-427 ( 554 SE2d 458 ) (2001).
discussed Cited as authority (rule) Doctor v. State (2×)
Ga. · 2002 · confidence medium
The trial court correctly overruled this objection, "as the record shows that [it] took `particularized safeguards' to insure the jurors' limited consideration of the transcript. [Cits.]" Harris v. State, 274 Ga. 422, 427 (7), 554 S.E.2d 458 (2001). 5.
discussed Cited as authority (rule) In the Interest of Q. M. L. (2×)
Ga. Ct. App. · 2002 · confidence medium
Furthermore, her attack would not have been justified “if the degree of force used . . . exceed [ed] that which a reasonable person would believe necessary to defend against the victim’s unlawful actions. [Cits.]” Harris v. State, 274 Ga. 422, 423 (1) ( 554 SE2d 458 ) (2001); see Clark v. State, 271 Ga. 27, 29 (2) ( 518 SE2d 117 ) (1999).
discussed Cited as authority (rule) In Re QML (2×)
Ga. Ct. App. · 2002 · confidence medium
Furthermore, her attack would not have been justified "if the degree of force used ... exceed[ed] that which a reasonable person would believe necessary to defend against the victim's unlawful actions. [Cits.]" Harris v. State, 274 Ga. 422, 423 (1), 554 S.E.2d 458 (2001); see Clark v. State, 271 Ga. 27, 29 (2), 518 S.E.2d 117 (1999).
discussed Cited as authority (rule) Lawrence v. State
Ga. · 2002 · confidence medium
Gotwalt, for appellant. “ [Preservation of the right to [open and conclude] closing argument ... is a recognized strategy of trial counsel. . . . [Cit.] Similarly, the degree to which an attorney chooses to cross-examine . . . witnesses and the manner in which to attack their credibility fall within the ambit of trial tactics.” Harris v. State, 274 Ga. 422, 427 (9) ( 554 SE2d 458 ) (2001).
discussed Cited as authority (rule) Anderson v. State
Ga. · 2002 · confidence medium
The case was docketed here on June 20, 2001 and orally argued on September 17, 2001. 2 See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 See Moore v. State, 273 Ga. 11, 12 ( 537 SE2d 334 ) (2000). 4 See Mullins v. State, 270 Ga. 450, 451 ( 511 SE2d 165 ) (1999); Senase v. State, 258 Ga. 592, 592 ( 372 SE2d 813 ) (1988); see also Heidler v. State, 273 Ga. 54, 54 ( 537 SE2d 44 ) (2000). 5 261 Ga. 865 ( 414 SE2d 865 ) (1992). 6 See Bryant v. State, 271 Ga. 99, 101-102 ( 515 SE2d 836 ) (1999); Williams v. State, 255 Ga. 21, 23 ( 334 SE2d 691 ) (1985). 7 See Barron v. State…
discussed Cited "see" Reaves v. State (2×)
Ga. · 2013 · signal: see · confidence high
See Harris v. State, 274 Ga. 422 (5) ( 554 SE2d 458 ) (2001).
discussed Cited "see" SOILBERRY v. State (2×)
Ga. · 2011 · signal: see · confidence high
See Harris v. State, 274 Ga. 422 (3) ( 554 SE2d 458 ) (2001) (overstatement by the investigators as to how much inculpatory evidence they presently possessed does not affect the admissibility of statement).
discussed Cited "see" Johnson v. State (2×)
Ga. · 2011 · signal: see · confidence high
See Harris v. State, 274 Ga. 422, 424 ( 554 SE2d 458 ) (2001).
discussed Cited "see" Daniel v. State (2×)
Ga. · 2009 · signal: see · confidence high
See Harris v. State, 274 Ga. 422 (3) ( 554 SE2d 458 ) (2001) (overstatement by the investigators as to how much inculpatory evidence they presently possessed does not affect the admissibility of statement).
discussed Cited "see" Nguyen v. State (2×)
Ga. Ct. App. · 2009 · signal: see · confidence high
The act of sodomy is defined as performing or submitting to a sexual act involving the sex organs of one in the mouth or anus of another. 11 Van Alstine v. State, 263 Ga. 1, 4 ( 426 SE2d 360 ) (1993). 12 Berry v. State, 267 Ga. 476, 479 (4) ( 480 SE2d 32 ) (1997). 13 Allen v. State, 283 Ga. 304, 307 (4) ( 658 SE2d 580 ) (2008). 14 Strickland, supra at 689 (III) (A) (citation omitted). 15 King v. State, 282 Ga. 505, 507 (2) (a) ( 651 SE2d 711 ) (2007). 16 Id. (citations and punctuation omitted). 17 Id. (citation and punctuation omitted); see Harris v. State, 274 Ga. 422, 428 (9) ( 554 SE2d 458 …
discussed Cited "see" Griffin v. State (2×)
Ga. · 2006 · signal: see · confidence high
See Harris v. State, 274 Ga. 422 (9) ( 554 SE2d 458 ) (2001).
discussed Cited "see" Hunt v. State (2×)
Ga. · 2004 · signal: see · confidence high
See Harris v. State, 274 Ga. 422 (9) ( 554 SE2d 458 ) (2001).
discussed Cited "see" Blocker v. State (2×)
Ga. Ct. App. · 2004 · signal: see · confidence high
See Shelton, supra (aggravated assault was complete when defendant held a weapon to the victim’s side and forced her into her vehicle, and armed robbery occurred moments later when the defendant took a checkbook from the victim’s purse). 9 (Citation and punctuation omitted.) Golden v. State, 233 Ga. App. 703, 705 (2) (c) ( 505 SE2d 242 ) (1998). 10 (Punctuation and footnote omitted.) Kirton v. State, 246 Ga. App. 670, 672 (2) ( 541 SE2d 673 ) (2000). 11 (Citations omitted.) Butler v. State, 273 Ga. 380, 384 (10) ( 541 SE2d 653 ) (2001). 12 (Citations and punctuation omitted.) Green v. Stat…
discussed Cited "see" Richardson v. State (2×)
Ga. Ct. App. · 2004 · signal: accord · confidence high
See also McConville v. State, 228 Ga. App. 463, 465 (1) ( 491 SE2d 900 ) (1997). 4 See Metheny v. State, 197 Ga. App. 882, 884 (1) (a) ( 400 SE2d 25 ) (1990) (officer did nothing which would have communicated to defendant he was in custody); accord Lancaster v. State, 240 Ga. App. 359, 362 (2) ( 522 SE2d 30 ) (1999). 5 (Citation and punctuation omitted.) Stansbury v. California, 511 U. S. 318, 324-325 (114 SC 1526, 128 LE2d 293) (1994). 6 Hodges v. State, supra at 872 (2). 7 Patterson v. State, 274 Ga. 713, 715-716 (2) ( 559 SE2d 472 ) (2002) (warrantless arrest is valid if arresting officer h…
discussed Cited "see" Hudson v. State (2×)
Ga. · 2004 · signal: see · confidence high
See id. (d) Defense counsel exercised reasonable trial strategy when he chose to preserve opening and concluding closing argument instead of offering evidence to impeach a police officer with pre-trial testimony that did not conflict with his trial testimony or to impeach one of the two eyewitnesses by using a 1990 felony conviction. 8 See Harris v. State, 274 Ga. 422 (9) ( 554 SE2d 458 ) (2001).
examined Cited "see" Ellis v. State (3×)
Ga. Ct. App. · 2002 · signal: see · confidence high
See Harris v. State, 274 Ga. 422, 425 (5) ( 554 SE2d 458 ) (2001).
discussed Cited "see" Austin v. State (2×)
Ga. · 2002 · signal: see · confidence high
See Harris v. State, 274 Ga. 422, 426 (6) (d) ( 554 SE2d 458 ) (2001). 3. (a) In a search of the residence that appellant and his father shared, the officers found a pistol in a duffel bag in the bedroom apparently occupied by the victim.
discussed Cited "see, e.g." Brown v. State (2×)
Ga. · 2009 · signal: see also · confidence medium
See also Harris v. State, 274 Ga. 422, 425 (4) ( 554 SE2d 458 ) (2001).
discussed Cited "see, e.g." Richards v. State (2×)
Ga. Ct. App. · 2007 · signal: see also · confidence medium
In the Interest of Q.M.L., 257 Ga. App. 22, 23 (2) ( 570 SE2d 92 ) (2002) (stabbing with knife to repel weaponless attack was excessive force and did not qualify as self-defense); see also Harris v. State, 274 Ga. 422, 423 (1) ( 554 SE2d 458 ) (2001).
discussed Cited "see, e.g." Linzy v. State (2×)
Ga. Ct. App. · 2006 · signal: see also · confidence medium
Stines, Assistant District Attorney, for appellee. 1 Lawson v. State, 275 Ga. App. 334, 335 (1) ( 620 SE2d 600 ) (2005). 2 See id. 3 Id. 4 See Giddens v. State, 276 Ga. App. 353, 355 (1) ( 623 SE2d 204 ) (2005). 5 (Punctuation omitted.) Id.; see also Slaughter v. State, 278 Ga. 896, 896-897 ( 608 SE2d 227 ) (2005). 6 See Hutchinson v. State, 158 Ga. App. 73, 73-74 ( 279 SE2d 313 ) (1981) (physical precedent only). 7 See Giddens, supra. 8 See Harris v. State, 274 Ga. 422, 423 (1) ( 554 SE2d 458 ) (2001); In the Interest of Q.
discussed Cited "see, e.g." Guillen v. State (2×)
Ga. Ct. App. · 2005 · signal: see also · confidence medium
See also Harris v. State, 274 Ga. 422, 426 (6) (a) ( 554 SE2d 458 ) (2001); Epps v. State, 262 Ga. App. 113, 117 (5) ( 584 SE2d 701 ) (2003). 7 Hall, supra. 8 (Citations omitted.) Turner v. State, 245 Ga. App. 294, 295 (4) ( 536 SE2d 814 ) (2000). 9 (Citation omitted.) Id. at 298 (4) (g). 10 Landers v. State, 270 Ga. 189, 191 (4) ( 508 SE2d 637 ) (1998).
Retrieving the full opinion text from the archive…
Harris
v.
the State
S01A1236.
Supreme Court of Georgia.
Oct 22, 2001.
554 S.E.2d 458
Rich & Smith, Randolph G. Rich, for appellant., Daniel J. Porter, District Attorney, Phil Wiley, Niria D. Baggett, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Tammie J. Philbrick, Assistant Attorney General, for appellee.
Carley.
Cited by 49 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 70%
Citer courts: Court of Appeals of Georgia (1)
Carley, Justice.

A jury convicted Preston Lewis Harris of malice murder and two alternative counts of felony murder, armed robbery, theft by taking and possession of a knife during the commission of a felony. Concluding that the evidence sufficiently supported the verdict as to malice murder, the trial court imposed a life sentence for that offense, a concurrent life sentence for armed robbery, a consecutive ten-year term for theft by taking, and a concurrent five-year term for the weapons offense. See Malcolm v. State, 263 Ga. 369, 371 (4) (434 SE2d 479) (1993). Following the denial of a motion for new trial, Harris brings this appeal. [1]

1. Harris admits that he killed Tyrone Gay, but urges that, as a matter of law, he is not guilty of malice murder. He contends that the homicide was justified because he was forced to defend himself against a sexual assault by the victim.

Harris met Gay in Atlanta and accepted an invitation to spend the night at the victim’s Gwinnett County apartment. Despite some sexual innuendoes, the night passed without incident and, a few days later, Harris contacted the victim and asked for lodging. The victim agreed and drove into Atlanta to pick him up. He arrived to find both appellant and an acquaintance known only as “Rodney,” and the two accompanied him back to his apartment. After Rodney left, appellant voluntarily engaged in a homosexual act with Gay. Thereafter, the victim went to purchase cocaine for Harris’ consumption. After the victim returned with the drugs, they began another sexual encounter, but appellant became upset. He returned to the living room where he smoked the rest of the cocaine and drank more beer. When Gay continued to make suggestive remarks, Harris retreated toward the kitchen. The victim followed and became increasingly insistent. Harris picked up a knife and stabbed Gay multiple times. The victim ultimately died from massive bleeding caused by a knife wound to his heart and lung. Harris fled to Tennessee in Gay’s automobile, taking several items of the victim’s property from the apartment. The vehicle was found in Chattanooga a short time later. The driver informed the officers that he obtained the car from Harris. The Tennessee authorities brought Harris in for questioning, and he gave them a statement. When the Gwinnett County officers arrived shortly there[*423] after, he also made a statement to them.

A person is justified in using deadly force “only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” OCGA § 16-3-21 (a). Thus, a homicide is not justified if the degree of force used by the defendant exceeds that which a reasonable person would believe necessary to defend against the victim’s unlawful actions. See Clark v. State, 271 Ga. 27, 29 (2) (518 SE2d 117) (1999); Hickman v. State, 186 Ga. App. 118 (1) (366 SE2d 426) (1988). After hearing the evidence and the trial court’s instructions on self-defense, the jury found that Harris’ use of a knife to stab Gay multiple times was excessive and not reasonably necessary to defend against the type of assault which he attributed to the victim. Clark v. State, supra at 28 (1). Construing the evidence most strongly in favor of the verdict, it was sufficient to authorize a reasonable trier of fact to find him guilty of malice murder and of the other offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Harris filed a post-trial motion to compel the State to identify a latent fingerprint found in the victim’s car. The purpose of identifying the print was to determine whether it might have been left by Rodney, whose last name was unknown. According to appellant, Rodney was potentially an important defense witness who could corroborate that the victim was a homosexual and, thus, bolster the claim of justifiable homicide. Harris enumerates the denial of the motion as error.

Unlike DNA testing, the identification procedure requested by Harris would not prove his innocence. He admitted stabbing the victim, and the only question was whether he acted in self-defense. According to appellant, Rodney was not even present at the time of the homicide, because he left Gay’s apartment some time previously. Therefore, Rodney could not give eyewitness testimony about the immediate circumstances leading to the stabbing. In fact, Harris admitted that Rodney left before Gay broached the topic of sex. Thus, he could not even corroborate the victim’s sexual orientation.

The jury heard considerable evidence showing that the victim was a homosexual, including graphic testimony about photos of nude men that he apparently took. Even if the testing had shown that the print was Rodney’s and if he could be located and was prepared to testify as Harris contends, a new trial still would not be authorized, as he could only provide cumulative testimony which would be unlikely to produce a different result. OCGA § 5-5-23; Spann v. State, 263 Ga. 336, 337 (3) (434 SE2d 54) (1993). See also Davis v. State, 244 Ga. App. 345, 348 (6) (535 SE2d 528) (2000). The trial court cor[*424] rectly denied Harris’ post-trial motion for identification of the fingerprint.

3. Appellant enumerates as error the admission of both of his in-custody statements. The evidence produced at the Jackson-Denno hearing authorized the trial court to find that Harris made his first statement only after the Tennessee authorities advised him of the Miranda rights and obtained a written waiver. The failure at the outset to identify the specific subject of the interrogation as the murder of Gay does not render the ensuing statement inadmissible. Christenson v. State, 261 Ga. 80, 85 (3) (402 SE2d 41) (1991). Harris spoke to the officers readily and did not ask for legal representation. “Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights.” Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111) (1988). “[U]se of trickery and deceit to obtain a confession does not render it inadmissible, so long as the means employed are not calculated to procure an untrue statement. [Cit.]” State v. Ritter, 268 Ga. 108, 110 (1) (485 SE2d 492) (1997). Thus, a mere overstatement by the investigators as to how much inculpatory evidence they presently possessed does not affect the admissibility of Harris’ statement. Moreover, his admission was not induced by any hope of benefit or threat of punishment, since “admonitions to tell the truth will not invalidate a confession. [Cits.]” State v. Roberts, 273 Ga. 514, 516 (3) (543 SE2d 725) (2001). “The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.” OCGA § 24-3-51. Harris himself raised the issue of the severity of the sentence he might receive for his acts, and the officers did not jeopardize the admission of his statement by pursuing that topic with him. “[T]his simply made the defendant aware of potential legal consequences associated therewith. [Cit.]” Davis v. State, 245 Ga. App. 508, 509 (538 SE2d 159) (2000). Compare State v. Ray, 272 Ga. 450, 452 (2) (531 SE2d 705) (2000). The trial court did not err in admitting the Tennessee statement for the jury’s consideration.

Because the initial statement was not “tainted,” Harris’ subsequent admission to the Gwinnett County authorities is not subject to the “fruit of the poisonous tree” doctrine. See Moore v. State, 263 Ga. 11 (1) (427 SE2d 766) (1993). Although he contends that those officers should have obtained an additional Miranda waiver from him, that was unnecessary considering the continuing nature of the interrogation and the short interval between the original waiver and his statement to the Georgia investigators. McKenzie v. State, 187 Ga. App. 840, 844 (4) (371 SE2d 869) (1988). Encouragement by the Tennessee police to tell the truth to the Gwinnett officers does not[*425] compromise the admissibility of the statement which he gave to them. State v. Roberts, supra. That subsequent admission was not induced by any hope of benefit or fear of injury, and the trial court properly admitted it into evidence.

4. Although Harris enumerates as error the trial court’s failure to charge on voluntary manslaughter as a lesser included offense, he did not request such an instruction. While a trial court may charge on a lesser included offense on its own motion, the “failure to do so, without a written request ... , is not error.” State v. Stonaker, 236 Ga. 1, 2 (2) (222 SE2d 354) (1976). Moreover, appellant expressly declined the trial court’s offer to give an instruction on voluntary manslaughter. Having elected an all-or-nothing strategy pursuant to which the jury could only find him either guilty of murder or not guilty by reason of justification, he cannot complain of the consequences of that decision. Jackson v. State, 234 Ga. 549 (216 SE2d 834) (1975).

5. Relying on the “necessity” exception, Harris sought to introduce the pre-trial statements of two of Gay’s friends who identified him as a homosexual. The trial court determined that the evidence was inadmissible because of a lack of diligence by the defense in locating the potential witnesses. Appellant enumerates this ruling as error.

One of the determinative factors in the admissibility of evidence under the necessity exception is whether the party offering the evidence has made a reasonable effort to locate the hearsay declarant and to ensure his presence at trial. This is a strict standard. Holmes v. State, 271 Ga. 138, 139 (2) (516 SE2d 61) (1999). In applying that standard, “[i]t is within the sound discretion of the trial court to determine the unavailability of a witness and a party’s diligence in searching for that witness. [Cit.]” Battle v. State, 244 Ga. App. 771, 774 (536 SE2d 761) (2000). Considering that the two were friends of the victim, they could be reticent to make themselves available to the defense. An investigator working for trial counsel made several unsuccessful attempts to contact the two friends at their last known home address. Despite receiving information indicating that they still lived there, no effort was made to verify that report with the apartment manager. At most, Harris showed a lack of pre-trial service of subpoenas on the two witnesses, and did not demonstrate an inability to serve them after a diligent, but unsuccessful effort. Under these circumstances, the trial court was authorized to conclude that the two were not “unavailable” so as to render their pretrial statements admissible. See Rosser v. State, 211 Ga. App. 402, 405-406 (1) (439 SE2d 72) (1993), overruled on other grounds, Livingston v. State, 268 Ga. 205, 209 (1) (486 SE2d 845) (1997). Compare Holmes v. State, supra; Battle v. State, supra. As the trial court did[*426] not abuse its discretion, its evidentiary ruling will not be disturbed.

Moreover, the state did not dispute the victim’s sexual orientation. Other evidence to that effect was proffered and admitted for the jury’s consideration. Therefore, it was not crucial for the defense to introduce the cumulative statements of the victim’s friends. The only question for the factfinder was whether Harris committed a murder or a justifiable homicide. The victim’s two friends had nothing to add to that issue. Thus, even if the defense had shown that they were unavailable and that their statements were trustworthy, exclusion of the hearsay evidence still would not have constituted reversible error. See Hooten v. State, 256 Ga. 31, 33 (1) (343 SE2d 481) (1986).

6. Several enumerations of error relate to the jury charge.

(a) Appellant requested a charge dealing with the credibility of a State witness who testifies under a grant of immunity or promise of leniency, but the trial court refused to give it based upon a lack of evidentiary support. The record shows that the trial court ruled correctly, as all witnesses for the prosecution who were facing criminal charges expressly denied receiving such a grant or promise in exchange for their testimony against Harris. A request to charge must be authorized by the evidence. Kessel v. State, 236 Ga. 373, 374 (2) (223 SE2d 811) (1976).

(b) In charging on prior inconsistent statements, the trial court made what appellant concedes was a mere slip of the tongue. Although he enumerates the instruction as error, he does not contend that the misstatement was harmful and argues only that it was never corrected. Accordingly, this enumeration is without merit. Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981).

(c) Harris asserts that when instructing on “felony murder,” the trial court erred in referring to that crime as “murder.” There is only one offense of “murder” which can be “committed either with ‘malice aforethought’ or while ‘in the commission of a felony.’ [Cit.]” (Emphasis in original.) Lumpkins v. State, 264 Ga. 255 (1) (443 SE2d 619) (1994). See also Leutner v. State, 235 Ga. 77, 79 (2) (218 SE2d 820) (1975). Thus, the trial court did not err in using the term “murder” in connection with its instructions on the alternative felony murder charge.

(d) The trial court did err in charging on the inference of an intent to kill arising from use of a deadly weapon. Harris v. State, 273 Ga. 608, 609 (2) (543 SE2d 716) (2001). However, the error was not of constitutional magnitude. Compare Pace v. State, 274 Ga. 69, 70 (2), fn. 9 (548 SE2d 307) (2001). While in Harris, the evidence of malice was weak, here it is strong and borders on being overwhelming. Appellant claimed that he was defending against an unlawful sexual assault, but he himself initiated the fatal meeting by contacting the victim and he acknowledged engaging in sexual activity prior to stab[*427] bing him multiple times. He also admitted that, before the homicide, he had several opportunities to leave the victim’s apartment and chose to remain. He did not call the police to report that he had been assaulted by the victim, and he delayed his flight long enough to steal numerous items of Gay’s property, including his automobile. Thus, the charge, though erroneous, is harmless under the particular circumstances of this case. Compare Harris v. State, supra.

(e) Contrary to appellant’s contention, review of the record shows that the trial court’s recharge did instruct the jury that the burden was on the State to prove intent and to disprove self-defense beyond a reasonable doubt.

7. The trial court permitted the jurors to refer to a transcript of Harris’ statement to the Gwinnett County authorities while they were listening to a tape recording of that statement. The State provided the transcript to defense counsel before trial, and the sufficiency of its authentication was not challenged below. Carey v. State, 257 Ga. 134, 135 (2) (356 SE2d 507) (1987). Harris raised only a general objection to the use of the transcript, asserting that the jury should hear only the tape. This is without merit, as the record shows that the trial court took “particularized safeguards” to insure the jurors’ limited consideration of the transcript. Slakman v. State, 272 Ga. 662, 666 (2) (533 SE2d 383) (2000). See also Washington v. State, 268 Ga. 598, 600 (3) (492 SE2d 197) (1997).

8. The trial court denied Harris’ Batson motion and upheld the State’s use of a peremptory strike to remove one of two African-Americans from the jury panel. As the reason for using the strike, the prosecution relied upon the prospective juror’s acknowledgment of a possible subconscious bias toward a criminal defendant and against the State, based upon his own younger brother’s experience with the criminal justice system. This admission of possible bias was a racially neutral reason for striking the juror. Slade v. State, 270 Ga. 305, 306 (1) (509 SE2d 618) (1998). Appellant urges that the State’s explanation was only a pretext for racial discrimination, but no other prospective juror who was accepted acknowledged a possible lack of impartiality. The finding of the trial court is entitled to great deference, and will not be disturbed unless clearly erroneous. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). Because the finding that racial discrimination played no part in the peremptory strike here is not clearly erroneous, this enumeration is without merit.

9. Harris contends that his trial counsel was ineffective for failing to introduce documentary evidence or to call defense witnesses. At the hearing on the motion for new trial, however, she indicated that preservation of the right to opening and closing argument was used as a trial tactic. This is a recognized strategy of trial counsel[*428] which, under the circumstances of this case, does not demonstrate ineffective assistance. Dewberry v. State, 271 Ga. 624, 625 (2) (523 SE2d 26) (1999).

Decided October 22, 2001. Rich & Smith, Randolph G. Rich, for appellant. Daniel J. Porter, District Attorney, Phil Wiley, Niria D. Baggett, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Tammie J. Philbrick, Assistant Attorney General, for appellee.

Similarly, the degree to which an attorney chooses to cross-examine opposing parties’ witnesses and the manner in which to attack their credibility fall within the ambit of trial tactics. “The fact that present counsel would pursue a different strategy does not render trial counsel’s strategy unreasonable. [Cit.]” Nhek v. State, 271 Ga. 245, 248 (3) (517 SE2d 521) (1999).

Harris testified that his attorney told him that, if he requested a charge on voluntary manslaughter, he would likely be convicted and have no issues to raise on appeal. While admitting that she informed him of the likelihood of a conviction, she testified that she did not advise him that he would lose the right to appeal if he were found guilty of voluntary manslaughter. The trial court was authorized to believe trial counsel’s testimony rather than that of appellant. Moreover, considering the strength of the evidence, including Harris’ own inculpatory admissions, a conviction of at least voluntary manslaughter was almost a certainty and he would have no chance of prevailing on an appeal of the general grounds. Thus, even under appellant’s own version of the advice he received from his attorney, his decision to seek an acquittal based on self-defense rather than a conviction of a lesser included offense was a well-informed one.

Judgments affirmed.

All the Justices concur.
1

The crimes occurred on October 25,1998. The grand jury indicted Harris on April 14, 1999. The jury found him guilty on November 22, 1999. The trial court entered its judgments of conviction and imposed the sentences on November 22, 1999. Appellant filed a motion for new trial on December 13,1999, and the trial court denied that motion on March 15, 2001. He filed a notice of appeal on April 2, 2001, and the case was docketed in this Court on May 16, 2001. Harris submitted the appeal for decision on August 14, 2001.