Hardegree v. State, 495 S.E.2d 347 (Ga. Ct. App. 1998). · Go Syfert
Hardegree v. State, 495 S.E.2d 347 (Ga. Ct. App. 1998). Cases Citing This Book View Copy Cite
54 citation events (50 in the last 25 years) across 1 distinct court.
Strongest positive: Thomas v. State (gactapp, 2007-05-08)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 22 distinct citers.
discussed Cited as authority (rule) Thomas v. State
Ga. Ct. App. · 2007 · confidence medium
See also Conaway v. State, 277 Ga. 422, 424 (2) ( 589 SE2d 108 ) (2003); OCGA § 16-3-26. 6 Compare Jones v. State, 226 Ga. App. 619, 621 (1) ( 487 SE2d 371 ) (1997) (defendant’s testimony that his co-defendant forced his participation by pointing a gun at him, giving him orders, and causing him to fear for his life entitled him to a charge on coercion, even absent a request). 7 (Citation omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 8 (Citation and punctuation omitted.) Green…
discussed Cited as authority (rule) Meyers v. State
Ga. Ct. App. · 2006 · confidence medium
See Burger v. State, 242 Ga. 28, 32-33 (8) ( 247 SE2d 834 ) (1978) (evidence that defendant’s co-indictee sodomized the victim after they kidnapped him but before they murdered him was admissible as res gestae, even though the defendant was not charged with kidnapping or sodomy, because the offenses were all part of one on-going criminal transaction); Hardegree v. State, 230 Ga. App. 111, 111-112 (1) ( 495 SE2d 347 ) (1998) (victim testified that, after the defendant broke into her home but before he raped her, defendant told her that he was “running from the law, had been drinking, was on…
discussed Cited as authority (rule) Long v. State (2×) also: Cited "see"
Ga. Ct. App. · 2006 · confidence medium
(Citations omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998).
discussed Cited as authority (rule) Robertson v. State
Ga. Ct. App. · 2006 · confidence medium
Accordingly, this issue was not preserved for appellate review. 6 (Citation omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 7 (Citation and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) ( 523 SE2d 632 ) (1999). 8 Williams v. State, 234 Ga. App. 191, 193 (2) ( 506 SE2d 237 ) (1998). 9 During the hearing, the trial judge recalled that he remembered the case very well, that almost all of trial counsel’s objections were sustained, and that she successfully argu…
discussed Cited as authority (rule) Grier v. State
Ga. Ct. App. · 2005 · confidence medium
There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.”) (citation omitted). 10 (Citations omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998). 11 (Citations and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) ( 523 SE2d 632 ) (1999). 12 (Citations omitted.) Powell v. State, 272 Ga. App. 628, 630 (2) ( 612 SE2d 916 ) (2005). 13 (Citation and punctuation omitted.) Id. 14 See OCGA § 24-2-3. 15 See Benton v. State, 259 Ga. App. 303, 306 (5) ( 576 SE2d 674 ) (2003). 16 391 …
discussed Cited as authority (rule) Polk v. State
Ga. Ct. App. · 2005 · confidence medium
Andrews, P. J., and Phipps, J., concur. 1 Viewed in favor of the verdict, the evidence shows that the charges arose out of an incident wherein Polk kicked in the door of the home of his ex-girlfriend, Latreasa Stubbins, in violation of a temporary protective order, and fought with her boyfriend, Ray Williams. 2 (Citations omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998). 3 (Citations and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) ( 523 SE2d 632 ) (1999). 4 Hopper v. Hampton, 244 Ga. 361, 362 ( 260 SE2d 73 ) (1979). 5 (Footnote omitted.) S…
discussed Cited as authority (rule) Pate v. State
Ga. Ct. App. · 2005 · confidence medium
Blackburn, P. J., and Barnes, J., concur. 1 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2 (Footnotes omitted.) Brewster v. State, 261 Ga. App. 795 (1) ( 584 SE2d 66 ) (2003). 3 (Citations omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998). 4 (Citation and punctuation omitted.) Williams v. State, 234 Ga. App. 191, 193 (2) ( 506 SE2d 237 ) (1998). 5 (Footnote omitted.) Villegas v. State, 262 Ga. App. 55, 57 (3) (b) ( 584 SE2d 666 ) (2003). 6 (Punctuation and footnote omitted.) Doss v. State, 264 Ga. App. 205, 207 (2) ( 590 SE2d 208 ) (2003). 7 See OCGA § 16-6-22…
discussed Cited as authority (rule) Mealor v. State
Ga. Ct. App. · 2004 · confidence medium
In this regard, Mealor complains that trial counsel (a) failed to object to evidence of a mock "Christmas gift" from C.M. to her boyfriend, which was left by Mealor at C.M.'s grandparents' home; (b) failed to object to the testimony of witnesses who testified as to statements made by C.M. about the abuse; (c) failed to object when witnesses testified as to C.M.'s veracity; (d) failed to file a motion to sever on his behalf; (e) called Mealor's son to testify about the mock "Christmas gift" and referred to the gift and Mealor as "warped"; and, (f) failed to reserve objection to the court's char…
discussed Cited as authority (rule) Mealor v. State
Ga. Ct. App. · 2004 · confidence medium
M.’s veracity; (d) failed to file a motion to sever on his behalf; (e) called Mealor’s son to testify about the mock “Christmas gift” and referred to the gift and Mealor as “warped”; and, (f) failed to reserve objection to the court’s charge. 1 “To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies.” Hardegree v. State, 230 Ga…
cited Cited as authority (rule) Rowe v. State
Ga. Ct. App. · 2003 · signal: cf. · confidence medium
Cf. Hardegree v. State, 230 Ga. App. 111, 113 (4) (b) ( 495 SE2d 347 ) (1998).
discussed Cited as authority (rule) Gilmer v. State (2×) also: Cited "see"
Ga. Ct. App. · 2003 · confidence medium
(Citations omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998).
cited Cited as authority (rule) Petty v. State
Ga. Ct. App. · 2003 · confidence medium
Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998).
cited Cited as authority (rule) Biswas v. State
Ga. Ct. App. · 2002 · confidence medium
Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998).
examined Cited as authority (rule) Creed v. State (3×) also: Cited "see"
Ga. Ct. App. · 2002 · confidence medium
“To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies.” Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998).
discussed Cited as authority (rule) Collins v. State
Ga. Ct. App. · 2002 · confidence medium
Andrews, P. J., and Eldridge, J., concur. 1 Under OCGA § 16-6-4 (a), a person commits child molestation “when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” 2 “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c). 3 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (19…
discussed Cited as authority (rule) Cupe v. State (2×)
Ga. Ct. App. · 2002 · confidence medium
Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998).
discussed Cited as authority (rule) Herring v. State
Ga. Ct. App. · 2001 · confidence medium
Pope, P. J., and Mikell, J., concur. 1 Ryals v. State, 238 Ga. App. 578 ( 519 SE2d 505 ) (1999). 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Investigator Asbell testified that he went to Herring’s house on the day of the attack to follow up on information that he received from Corporal Rebecca Baudree of the Cairo Police Department and Investigator Scott Newberry with the Grady County Sheriff’s Department that Herring came home that morning with blood on his clothing. 4 Woodford v. State, 240 Ga. App. 875, 876 ( 525 SE2d 408 ) (1999). 5 Bryant v. State, 268 Ga.…
discussed Cited as authority (rule) Jones v. State
Ga. Ct. App. · 2001 · confidence medium
Several items were thrown at the police car from the car that Jones was driving. 2 The trial court granted the prosecution’s motion to enter nolle prosequi as to the remaining charges. 3 (Citations and punctuation omitted.) Morgan v. State, 191 Ga. App. 367 -368 (1) ( 381 SE2d 583 ) (1989). 4 Clowers v. Sikes, 272 Ga. 463, 464 ( 532 SE2d 98 ) (2000). 5 (Citations omitted.) Swan v. State, 251 Ga. App. 80, 81 (2) ( 553 SE2d 383 ) (2001). 6 Cook v. State, 230 Ga. App. 507 ( 496 SE2d 785 ) (1998). 7 Jones raised an ineffective assistance of counsel claim in his motion for leave to amend to withd…
cited Cited as authority (rule) Collins v. State
Ga. Ct. App. · 2001 · confidence medium
(Citations omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998).
discussed Cited as authority (rule) MacK v. State
Ga. Ct. App. · 2000 · confidence medium
Pierce, Assistant District Attorney, for appellee. 1 Davis v. State, 223 Ga. App. 346, 347 (1) ( 477 SE2d 639 ) (1996). 2 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Davis, supra; Lockett v. State, 147 Ga. App. 102 (1) ( 248 SE2d 177 ) (1978). 4 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 5 Id.; Etheridge v. State, 228 Ga. App. 788, 789 (2) ( 492 SE2d 755 ) (1997). 6 (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77, 78 (1) ( 447 SE2d 74 ) (1994). 7 (Citation and punctuation omitted.) Williams v. State, 219 Ga. App. 167, 168 (2) ( 464 SE2d 404 ) (1995). 8 Cf. id…
discussed Cited "see" Williams v. State (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See OCGA § 5-6-41 (a), (b). 6 (Citation omitted.) Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 7 (Citation and punctuation omitted.) Mendoza v. State, 274 Ga. App. 662, 664 (3) ( 618 SE2d 712 ) (2005). 8 (Citation and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) ( 523 SE2d 632 ) (1999). 9 (Citation and punctuation omitted.) Carey v. State, 281 Ga. App. 816, 818 (2) ( 637 SE2d 757 ) (2006). 10 Burdette v. State, 276 Ga. App. 695, 700 (3) (624 SE2d 253 ) (2005). 11 …
discussed Cited "see" Ojemuyiwa v. State (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See generally Phillips v. State, 162 Ga. App. 199, 200 (2) ( 290 SE2d 142 ) (1982) (“one who, by a single act, injures more than one person may be charged with multiple offenses”) (citations omitted). 14 (Citation and punctuation omitted.) Ellis v. State, 282 Ga. App. 17, 20 (2) ( 637 SE2d 729 ) (2006). 15 Hardegree v. State, 230 Ga. App. 111, 113 (4) ( 495 SE2d 347 ) (1998), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). 16 (Citation and punctuation omitted.) Mendoza v. State, 274 Ga. App. 662, 664 (3) ( 618 SE2d 712 ) (2005). 17 (Citation and punctuatio…
Hardegree
v.
the State
A97A1844.
Court of Appeals of Georgia.
Jan 8, 1998.
495 S.E.2d 347
Jerry W. Moncus, Michael A. Corbin, for appellant., Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.
Harold R. Banke.
Cited by 25 opinions  |  Published
Judge Harold R. Banke.

Richard Scott Hardegree was convicted of rape, sodomy, and burglary. He enumerates five errors on appeal.

This case arose as the pregnant victim and her 11-year-old son slept. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Hardegree crawled in a window, cut eye and mouth holes in a pair of the victim’s maternity underwear, placed it over his face, and woke the victim. Then he placed a razor to her throat and asked for money. He “said he was running from the law and he had been drinking, he was on drugs real bad, [and] he needed money for gas.” After Hardegree prevented her from reaching toward a can of Mace on her nightstand, the victim told him she was only getting a cigarette. Hardegree then gave her one of his, a GPC brand, and ordered the victim to show him where the phone was located.

As she left her bedroom, he shoved her into a spare room, pushed her onto the bed, and ordered her to remove his pants. When the victim refused, he stripped her, removed his pants, and attempted oral sex on her. Then he forced her to perform oral sex on him, turned her over a big stuffed animal, and raped her. While in that position, the victim noticed a hammer Hardegree had placed beside the bed. After Hardegree forced the victim to perform oral sex on him a second time, ejaculating into her hair and face, the victim struck him with the hammer. The victim and Hardegree then wrestled over the hammer until his mask ripped. He then yelled, “Oh my God,” and ran. Held:

1. The victim’s testimony that her attacker stated he was running from the law, had been drinking, was on drugs really bad, and needed money for gas was not impermissible character evidence. Had this issue been properly preserved for appeal, we would have found that the statements at issue, made during the commission of the[*112] offenses, were admissible as res gestae. OCGA § 24-3-3; Wynn v. State, 225 Ga. App. 206 (3), 207 (483 SE2d 352) (1997); Basu v. State, 228 Ga. App. 591, 592-593 (1) (492 SE2d 329) (1997) (failure to raise issue at trial constitutes waiver).

2. The identity evidence, viewed in the light most favorable to the verdict, was sufficient for the jury to find that Hardegree committed the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Although the victim and her son could not identify the attacker because of the mask, strong circumstantial evidence linked Hardegree to the crimes. The victim described the perpetrator as a thin, white male with curly, brown hair, a description matching Hardegree. DNA evidence retrieved from the semen on the victim’s face and hair also matched Hardegree. The cigarette the attacker gave the victim was Hardegree’s brand. Police traced the hammer to Hardegree’s former employer, who testified that Hardegree borrowed it on his first day at work. He also testified that the. day after the offenses Hardegree claimed he lost the hammer and borrowed another. Hardegree was observed with a leg injury after the offenses occurred. Consonant with the victim’s testimony, Hardegree’s girl friend testified that on the night of the offenses, he had been drinking and he was running from the police, as she had called them to make him leave after a fight. The identity evidence was further strengthened by similar transaction testimony that Hardegree had raped another woman at knifepoint. This evidence was sufficient to exclude every reasonable hypothesis except that of guilt and entitled the jury to reject Hardegree’s contention that the victim consented to sex with him. Dean v. State, 181 Ga. App. 452 (352 SE2d 633) (1987).

3. The trial court’s failure to give curative instructions regarding the victim’s violation of the rule of sequestration on rebuttal does not require reversal. In response to a juror’s request, the evidence was reopened and the victim was presented with two additional questions in rebuttal despite the fact that she had remained in the courtroom after testifying. The victim was asked whether she had consensual sex with Hardegree the day before or day of the rape and whether she saw him on those days.

It does not appear from the record that the rule of sequestration was invoked. See Watson v. State, 222 Ga. App. 158, 159 (2) (473 SE2d 262) (1996). Nor did Hardegree request such an instruction. Assuming the issue is properly before us, however, we find the error, if any, was harmless. Violations of the rule of sequestration go to the witness’s credibility, not to competency to testify. Keller v. State, 221 Ga. App. 846, 848 (3) (473 SE2d 194) (1996). The trial court charged the jury on credibility, and during rebuttal, Hardegree cross-examined the victim about her presence in the courtroom during[*113] Hardegree’s testimony. Moreover, the victim’s initial testimony that she had met Hardegree only once before, while accompanied by her boyfriend, rendered the evidence garnered on rebuttal cumulative. Manchester v. State, 226 Ga. App. 653, 656 (3) (487 SE2d 449) (1997).

4. Hardegree did not receive ineffective assistance of counsel. [1] To establish ineffectiveness, a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Absent a showing of prejudice, inquiry into counsel’s alleged deficiency is unnecessary. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). Hardegree alleges ineffectiveness on several grounds.

(a) We reject Hardegree’s contention that his counsel was ineffective for failing to move for a directed verdict of acquittal at the close of the State’s case. As analyzed in Division 2, the evidence, though circumstantial, was sufficient to support the verdict, which precludes a showing of prejudice. See Mitchell v. State, 223 Ga. App. 319, 321 (6) (477 SE2d 612) (1996).

(b) Counsel’s failure to object when the victim testified that her attacker “said he was running from the law and he had been drinking, he was on drugs real bad, [and] he needed money for gas” did not constitute ineffectiveness. Hardegree cannot show prejudice when the testimony was admissible as res gestae, and any such objection would have been properly overruled.

. (c) Hardegree failed to show prejudice arising from his counsel’s failure to file a written request to charge on the victim’s violation of the rule of sequestration during rebuttal. Because the testimony was cumulative of that presented during the case in chief, we see no probability that the absence of this charge was outcome determinative. Moreover, Hardegree failed to demonstrate that the rule was invoked. Watson, 222 Ga. App. at 159 (2); see Court of Appeals Rule 27 (c) (3) (i).

5. We reject Hardegree’s claim that his burglary conviction[*114] merged with the rape and aggravated sodomy charges. Here, the burglary was completed when Hardegree entered the apartment without authority, with the intent to commit the two other crimes charged. Childs v. State, 257 Ga. 243, 251-252 (12) (357 SE2d 48) (1987). Thus, proof that he actually committed the rape and aggravated sodomy was unnecessary to establish the burglary offense. Id. at 252 (12). Accordingly, Hardegree was not sentenced twice for the same conduct. OCGA § 16-1-7.

Decided January 8, 1998. Jerry W. Moncus, Michael A. Corbin, for appellant. Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.
1

Hardegree raised the ineffectiveness issue for the first time on appeal. Ordinarily, where appellate counsel makes a first appearance on direct appeal, as here, the case is remanded for an ineffectiveness hearing in the trial court. White v. Kelso, 261. Ga. 32 (401 SE2d 733) (1991); Elrod v. State, 222 Ga. App. 704, 705 (1) (475 SE2d 710) (1996). When remand would “serve no useful purpose,” however, the issue may be decided on the record by this Court. Id. at 705-706; Brundage v. State, 208 Ga. App. 58, 59 (2) (430 SE2d 173) (1993). Having analyzed Hardegree’s ineffectiveness claims on their merits in Divisions 1, 2, and 3 and found neither harm nor error, we find it apparent as a matter of law that he cannot establish ineffectiveness. Thus, we need not remand for a hearing on the matter. Id.