MYRTLE BEACH, SC (WMBF) - Nearly 16 years have passed since Myrtle Beach Police Officer Joe McGarry, 28, was shot and killed in a parking lot along Kings Highway, his murderer is now requesting a new trial.
Luzenski Allen Cottrell was sentenced in 2014 for the second time for the murder of McGarry. On Monday, he filed a request asking for a new trial because his trial attorneys failed to remove two jurors whose views impaired their ability to be unbiased.
The court documents stated the following:
10.) Grounds for Relief: Mr. Cottrell’s right to the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 3 and 14 of the South Carolina Constitution, was violated when his trial attorneys failed to exercise peremptory strikes to remove two jurors whose views, expressed during voir dire *(preliminary examination), prevented or substantially impaired their ability to consider constitutionally relevant mitigating evidence.
11.) Supporting Facts: During voir dire (judicial review), two jurors — Juror 450 and Juror 148 — stated unequivocally that they would not regard evidence of a defendant’s “background characteristics” as “relevant” in selecting an appropriate penalty for murder, Tr, 328-329; 359. Defense counsel rightly recognized these statements as conclusive indicators that each juror lacked the capacity to perceive and give effect to mitigating evidence mandated by the Eighth Amendment, and objected to the jurors’ qualification on the ground that each was “mitigation impaired.” Tr. 341; 365-366.
However, once the trial court overruled their objections, see Tr. 342-343; 367, trial counsel deficiently failed to exercise peremptory strikes necessary to ensure the unqualified jurors would not be seated on the jury. As a result, both unqualified jurors were seated, and both participated in the guilt-or-innocence and penalty determinations. Because of their self-professed unwillingness to consider a broad range of constitutionally relevant mitigating evidence, it is at least reasonably probable that one or both jurors adversely affected the outcome of the penalty phase deliberations, and that, absent their participation, the result of those deliberations would have been different.
McGarry was with the police department for four years when he was killed on Dec. 29, 2002 while confronting a possible suspect outside a Myrtle Beach doughnut shop, according to police.
Cottrell, was taken into custody the night of the crime.
On April 6, 2005, Cottrell was found guilty for killing McGarry and faced the death penalty with charges of murder, assault with intent to kill, grand larceny and resisting arrest.
Following his conviction, the South Carolina Supreme Court overturned the ruling in 2008, saying the jury did not consider a possible verdict of voluntary manslaughter.
On September 27, 2014, Judge Larry Hyman sentenced Cottrell to death after being found guilty twice for killing McGarry.
The Supreme Court of the United States affirmed Mr. Contrell’s conviction and sentence on December 20, 2017.