George Russell Henry, 28, was sentenced to death in Cobb County in November 1994 for shooting to death a police officer. Officer Robert Ingram, a two-year police veteran, was shot in the face and behind his left ear while he was investigating a report of a suspicious person.

Mr. Henry had previously been convicted of burglaries and forgery and was on probation at the time of the murder. His first appeal to the state Supreme Court hasn't been filed yet.

George Russell Henry pled guilty to malice murder in the shooting death of Cobb County Police Officer Robert Ingram. The jury in his sentencing trial recommended a death sentence for the murder, finding two statutory aggravating circumstances: the offense of murder was committed against a peace officer while engaged in the performance of his official duties, OCGA 17-10-30 (b) (8), and the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest. Id. at (b) (10). The trial court denied Henry's motions to set aside the guilty plea and for a new trial. Henry appeals, and we affirm. 1

1. The evidence adduced at the sentencing trial showed that Henry was serving a burglary sentence at the Cobb County Correctional Institute when he told several other inmates shortly before his release that he would kill a police officer before he would return to jail again. Henry was released on July 1, 1993.

He stayed with a friend until July 12 when he was asked to leave because his roommates suspected Henry was stealing from them. That evening Henry's friend dropped him off in the "Elizabeth" area of Cobb County. Henry, dressed in black, had a bag containing his possessions including a Davis Industries .380 semiautomatic pistol, which Henry's girl friend had purchased at his request during Henry's incarceration. Henry walked to a nearby industrial park and began looking for a business to burglarize.

At 12:39 a.m. on July 13, 1993, Cobb County Police Officer Robert Ingram was on a routine patrol in the Elizabeth area when he radioed his dispatcher that he was going to conduct an investigatory stop of a suspicious "white male dressed in all black carrying some type of a bag." Four minutes later, the dispatcher tried to contact Officer Ingram but received no response. Other officers arrived at the area within minutes but there was no sign of a patrol car.

Officer Ingram's body was found shortly thereafter, only 14 minutes having elapsed since the time he first notified the dispatcher of the suspicious person. Officer Ingram's pistol was still snapped in its holster and Henry's wallet containing his identification was found a few feet from the body. Officer Ingram had been shot twice, once in the face and once in the back of the head. Expert testimony established that both shots were fired from a distance of less than one foot and that Officer Ingram was standing when shot in the face but was on the ground when shot in the back of the head. A security guard in the area testified that he heard two pistol shots fired four to seven seconds apart.

The police discovered the missing patrol car at a municipal golf course and arrested Henry who was seen, still dressed in black, talking on a nearby pay phone. Henry admitted that he had been at the murder scene but initially claimed that another person had used his pistol to kill the officer. Henry then led the police to places on the golf course where he had hidden some of his possessions, including the .380 pistol that was later determined to be the murder weapon.

Henry was taken to the police station where he confessed to the killing. He stated that Officer Ingram approached him, requested his identification, and asked him what was in the bag. According to Henry, Officer Ingram's demeanor during this exchange was "pleasant and respectful." Henry pulled some of his possessions out of his bag to show the officer but realized that Officer Ingram had seen the ammunition for Henry's pistol.

Realizing that a search would lead to his arrest for being a felon in possession of a firearm, Henry retrieved the weapon from its hiding place and shot Officer Ingram in the face; when the officer moved or moaned, Henry shot him again in the back of the head. Henry then gathered his possessions, accidentally dropping his wallet in the process, and fled the scene in the patrol car.

Although Henry pled guilty, we find that the evidence adduced at the sentencing trial was sufficient to enable any rational trier of fact both to find Henry guilty of malice murder and to find the two statutory aggravating circumstances beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also OCGA 17-10-35 (c) (2).

2. Henry claims that the trial court erred by denying the motion to set aside his guilty plea. Henry asserts that when accepting the plea the trial court failed to determine the factual basis of the plea as required by Uniform Superior Court Rule 33.9. However, Henry did not move to set aside his guilty plea until two years and approximately twelve court terms had passed since his sentencing. See OCGA 15-6-3 (11) (superior court of Cobb Judicial Circuit has six terms of court per year). It is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea. Jarrett v. State, 217 Ga. App. 627 (1) (458 SE2d 414) (1995). Henry's only available means to withdraw his guilty plea is through habeas corpus proceedings, id. at 628, and the trial court therefore properly denied Henry's motion.

In addition, Henry's guilty plea was accepted on the first day of trial, and a sentencing trial followed where the overwhelming evidence summarized in Division 1 of this opinion was presented. Thus, even if Henry's motion had been timely filed and the trial court had been unaware of the factual basis when accepting the plea, we find that the subsequent evidence does not support the withdrawal of the plea to correct a "manifest injustice." USCR 33.12; State v. Evans, 265 Ga. 332 (3) (454 SE2d 468) (1995). See also Wharton v. Henry, 266 Ga. 557 (2) (469 SE2d 27) (1996) (evidence other than record created at plea hearing may be considered in manifest injustice analysis).

3. Henry claims that his two trial lawyers were laboring under a conflict of interest that violated his Sixth Amendment right to counsel. See Cuyler v. Sullivan, 446 U. S. 335 (IV) (B) (100 SC 1708, 64 LE2d 333) (1980). In order for Henry to prevail on this claim, he must show that an actual conflict of interest adversely affected his lawyers' performance. Id. The conflict of interest "must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction [or sentence] which is supported by competent evidence." Lamb v. State, 267 Ga. 41, 42 (472 SE2d 683) (1996).

According to Henry, the conflict of interest existed for two reasons: both of his lawyers served as hosts for a political fund raiser for the Cobb County district attorney about seven months before his trial; and both of his lawyers own an office building as tenants in common with an attorney who has contracted with the district attorney's office as a child support collector.

As to the fund raiser, the record from the hearing on Henry's motion for new trial established that Henry's trial counsel and sixteen other individuals co-hosted the one-time joint event for the district attorney and solicitor general of Cobb County and that Henry's trial counsel regularly contribute to various local political campaigns and attend fund raisers. No evidence was introduced to rebut trial counsel's testimony that their involvement in such events has no effect on the zealous representation of their clients. As to the second alleged conflict, the record established uncontrovertedly that the attorney with whom trial counsel are tenants in common has a completely separate practice.

Based on our examination of the record, we conclude that Henry's assertions of conflict are mere conjecture and are therefore insufficient to support a finding of actual conflict. Id.; Hudson v. State, 250 Ga. 479, 482 (1) (299 SE2d 531) (1983) (" 'actual conflict' . . . mean[s] more than the bare possibility that a conflict might have developed"). We find no violation of Henry's Sixth Amendment right to counsel.

4. Henry's challenge to the trial court's instruction to the jury regarding life without parole 2 has been resolved adversely to him. Bishop v. State, 268 Ga. 286 (8) (486 SE2d 887) (1997); Henry v. State, 265 Ga. 732 (10) (c) (462 SE2d 737) (1995).

(b) Henry claims that trial counsel failed to object to the State's improper cross-examination of the psychologist. On cross-examination, the prosecutor attempted to impeach the psychologist by questioning him about past specific instances of misconduct that had been referred to a professional review board. The psychologist responded that each of the charges had been dismissed or "thrown out." The State also asked about an incident in a case in Fulton County that had resulted in a written rebuke by the trial judge in that case. Henry claims that his counsel should have objected to this line of questioning by the prosecutor because impeaching a witness with specific bad acts is not permissible. See OCGA 24-9-84; Wetta v. State, 217 Ga. App. 128 (3) (456 SE2d 696) (1995).

At the motion for new trial hearing, lead trial counsel explained that although he and co-counsel discussed objecting to the prosecutor's questioning, they chose not to do so because:

[w]e felt like [the prosecutor] was looking bad at that point. We felt like he was making a mistake by jumping on [the psychologist] like this, and that we were just going to give him enough rope to hang himself at that part of the trial. We felt that this was not a part of the trial that [the prosecutor] was making headway, that he was . . . picking on . . . a professional who was just doing his job. And . . . we just felt like he was hurting his own case.

Trial counsel's decision under these circumstances to raise no objection was a reasonable tactical decision which any competent attorney in a similar situation could have made. Accord Hammond v. State, 264 Ga. 879 (3) (a) (452 SE2d 745) (1995). That Henry now disagrees with the difficult tactical choices made by trial counsel during his trial does not require a finding that trial counsel's performance was deficient. Id. Henry's trial counsel was not ineffective. Strickland, supra.

6. Henry's death sentence was not imposed as the result of impermissible passion, prejudice or other arbitrary factor. OCGA 17-10-35 (c) (1). The death sentence is also not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. OCGA 17-10-35 (c) (3). The similar cases listed in the Appendix support the imposition of the death penalty in this case, in that all involve the deliberate killing of a peace officer in the performance of his official duties, and thus show the willingness of juries to impose the death penalty under these circumstances.

APPENDIX.

Davis v. State, 263 Ga. 5 (426 SE2d 844) (1993); Hill v. State, 250 Ga. 277 (295 SE2d 518) (1982); Wallace v. State, 248 Ga. 255 (282 SE2d 325) (1981); Stevens v. State, 247 Ga. 698 (278 SE2d 398) (1981); McClesky v. State, 245 Ga. 108 (263 SE2d 146) (1980); Collier v. State, 244 Ga. 553 (261 SE2d 364) (1979).

Notes

Edwin J. Wilson, for appellant.

DECIDED SEPTEMBER 14, 1998 -- RECONSIDERATION DENIED OCTOBER 2, 1998.

George Russell Henry

The victim

Officer Robert James Ingram 1969-1993

Officer Robert "Robbie" Ingram was born January 27, 1969, in Atlanta, Georgia. Robbie grew up in the area and graduated from Sprayberry High School in 1987.

Robbie attended Valdosta State University for one year, studying sports medicine before joining the United States Air Force in 1988. After being honorably discharged from the Air Force in 1990, Robbie joined the Cobb County Police Department on March 31, 1991.

Assigned to the Uniform Patrol Bureau, Robbie was sent to Precinct 3 for training, and upon completion of his training, was assigned to Precinct 1 Morning Watch.

On July 13,1993, while checking a suspicious person near the railroad tracks in the Elizabeth area, Robbie was shot to death by a man who had recently been released from prison. He had a .380 caliber automatic handgun hidden in a bag he was carrying.

The suspect then stole Robbie's police cruiser to make his getaway. Around daylight on July 13, 1993, the police cruiser was abandoned near the Marietta City Club. Not long after the police cruiser was found George Russell Henry was taken into custody on Atlanta Road south of Marietta. George Henry now awaits execution on Georgia's death row.

Robbie, 24, was killed only a few short months after he married and was the first officer to be killed by a firearm in the line of duty. He was well liked and respected as a top notch officer by all who knew him.

Officer Robbie Ingram was posthumously awarded the Cobb County Police Department's Medal of Valor.