Freeman v. the State
Freeman v. the State
Opinion of the Court
Following a jury trial, Leonard Freeman was convicted of burglary
Construed in favor of the verdict,
An investigator arrived at the scene and learned of a small hammer and axe handle found near a pool of blood in a bedroom of Nelson’s house. The investigator visited Freeman at his home, and Freeman told the investigator he had been asleep in his house at 3:00 a.m. when his phone rang, and upon seeing Nelson’s name on his caller identification, he went to go check on her. When later visited by an investigator at Nelson’s hospital room, Freeman later claimed that the axe handle belonged to him, but denied ownership of the hammer. During another subsequent conversation with police outside his home, Freeman told an investigator that earlier he had misled police about being asleep, and he had actually been outside his house drinking liquor.
Freeman later gave a recorded interview at the police department, and following that, he agreed to undergo a polygraph test by a Georgia Bureau of Investigation interviewer. Before beginning the polygraph examination, Freeman met for a pre-interview session, during which he was administered a Miranda
Freeman was charged with aggravated assault, burglary, and attempted malice murder. Following a trial, the jury found him guilty on all three counts, and the trial court sentenced him on the burglary and attempted murder charges, merging the aggravated assault charge into the attempted murder charge. Freeman moved for a new trial, which motion was denied, giving rise to this appeal.
1. Freeman contends that the trial court erred by admitting statements he made to the police investigator immediately after his
The trial court addressed Freeman’s challenge to the statement during a Jackson v. Denno
2. Freeman next argues that the trial court erred by admitting hearsay testimony from the EMS worker who treated Nelson at the scene and told the jury what she said about the attack. The record shows that the responding officer radioed for EMS immediately upon discovering “Nelson on the floor at the end of her bed[,]... covered in blood.” The challenged testimony came from the EMS worker who was dispatched to the scene. He described Nelson as having a laceration to the top of her head with some “obvious bleeding” that was under control by the time he arrived. As he evaluated Nelson, the EMS worker “spoke with the patient just to do my initial assessment ... like I would do with every patient to find out... how she got her injury and then... what happened during and so forth there with the injury[. S]he was alert at the time and was able to answer all of our questions.” Over Freeman’s objection, the EMS worker stated that when, as part of his treatment routine, he asked Nelson how she was injured, she responded that “she had gotten up to go to the
Freeman objected to the testimony on the grounds that it was hearsay and a violation of his constitutional right to confrontation under Crawford v. Washington.
was responsible for emergency medical diagnosis and treatment, to which the cause of the injury was relevant. Statements made for purposes of medical diagnosis or treatment and describing the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment have long been admissible under [statutory hearsay exceptions] and continue to be admissible even after Crawford.... [Nelson’s] statement to the paramedic was made during his initial examination of her to ascertain the scope, diagnosis, and treatment of her injuries, and does not fall within any of the classes of testimonial statements described in Crawford.10
Therefore, under the circumstances of Nelson’s statements to the EMS worker, we discern no error here.
3. Freeman next argues that the trial court erred by denying his motion for a mistrial made by his trial counsel upon learning that the State had access to real-time court reporting via an Internet feed on a laptop at counsel’s table. The feed displayed the text of the transcript as entered by the court reporter, and until 11:30 a.m. on the third day of the four-day trial, Freeman’s counsel was unaware that it had been available to the State and the court during trial.
Freeman’s counsel objected, and during a bench conference it was established that he was aware that the system existed, but had not requested it (nor was he aware that it was readily available in that case).*
“The trial court exercises wide discretion in controlling and regulating the business of the court, and appellate courts should never interfere with the exercise of this discretion unless it is plainly apparent that wrong has resulted from the abuse.”
4. Freeman also asserts as error the trial court’s closure of the courtroom for one witness’s testimony during his sentencing hearing.
Freeman now asserts that the trial court erred by closing the courtroom, but because Freeman agreed to the closure, “the issue of closure may only be raised in the context of an ineffective assistance of counsel claim.”
Despite this waiver, the dissent argues that the courtroom’s closure requires reversal, emphasizing the importance of a public trial. But this precise concern was addressed in State v. Abernathy, in which the Supreme Court of Georgia explained that (1) “the right to public trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial,”
Nevertheless, in the present case, it is clear that the trial court held a hearing on the record in which it considered the least intrusive way to protect Freeman’s interests in presenting mitigation evidence without hindering the State’s ongoing criminal investigation.
5. Freeman also challenges the trial court’s failure to sentence him as a first offender under OCGA § 42-8-60 et seq. “[Wjhether or not to sentence a defendant under the first offender statute lies entirely within the discretion of the trial court.”
Here, although Freeman did not request first offender treatment, it is apparent from the record that the trial court knew of Freeman’s lack of criminal convictions but nevertheless sentenced him to 30 years (to serve ten) and 20 years consecutive on probation. The trial court’s sentencing shows that it found the nature of the crime to be severe, and the court gave no indication that it felt constrained to ignore the potential for first-offender sentencing. Further, we note that Freeman was found guilty of attempting to commit malice murder, a serious violent felony that, if completed, is ineligible for first offender treatment.
6. Freeman argues that his trial counsel was ineffective in several ways. Under Strickland v. Washington,
(a) Failure to present closing argument at the Jackson-Denno hearing. Freeman points to his trial counsel’s decision, at the conclusion of the testimony adduced at the Jackson-Denno hearing, to rest on the evidence “in this specific situation,” and not present argument. The State elected to do the same. The transcript shows that Freeman’s trial counsel had vigorously cross-examined the State’s witness with probative and leading questions, revealing inconsistencies and challenging their answers. Trial counsel’s questioning laid a clear foundation to support his theory that Freeman’s statements were the product of improper interrogation, and he was not sufficiently Mirandized. Trial counsel’s approach is in line with the common and reasonable tactic to perfect the record and not use further court time to make an argument that has become obvious through counsel’s questioning. As such, in the absence of any showing that counsel’s tactic was unreasonable or inadvertent, waiving argument at the hearing in this case affords no basis for reversal. “Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.”
(b) Failure to object to certain statements. Freeman argues that his trial counsel should have objected on hearsay grounds to portions of a recorded police interview as well as testimony by an officer regarding Nelson’s account of the shirt color (either orange or yellow) of her assailant. With respect to the recorded interview, trial counsel had unsuccessfully attempted to exclude the interview during the Jackson v. Denno hearing. In light of that ruling, counsel elected to have the entire interview admitted rather than redact it, as part of a trial strategy to point out inconsistencies as to the assailant’s shirt color. Trial counsel further highlighted the inconsistencies in his closing argument. With respect to statements by the officer regarding shirt color, Freeman does not identify the particular objectionable testimony, but these statements would have been subject to the same trial strategy employed by trial counsel.
(c) Consenting to close the courtroom during sentencing. Freeman also argues that his trial counsel performed deficiently by consenting to closing the courtroom during sentencing. But, as noted in Division 4, this decision was a strategic one designed to allow mitigation evidence during sentencing. Prior to sentencing, trial counsel stated that he believed that law enforcement witnesses would be more forthcoming if the courtroom were closed. In light of this reasonable strategic decision, and in light of any showing of harm, Freeman has failed to meet his burden under Strickland.
(d) Failure to request first offender sentencing. Finally, Freeman argues that his trial counsel should have requested sentencing under the first offender statute. But the record shows no inclination by the trial court to allow first offender status in light of the nature of the offenses Freeman committed. Nor was there evidence that the trial court was constrained to impose the sentence Freeman received. To the contrary, the trial court noted Freeman’s lack of a criminal record and that it could have sentenced Freeman from one to thirty years for the attempted murder count. Nevertheless, after recounting on the record Freeman’s use of a hammer, Nelson’s fractured skull, staples “all up her head,” the pool of blood, and Nelson’s fear that she was going to be suffocated, the trial court imposed a sentence of 30 years with 10 to serve.
Pursuant to Strickland, Freeman must offer more than speculation that the trial court would have sentenced him as a first
Judgment affirmed.
OCGA § 16-7-1 (b).
OCGA §§ 16-4-1; 16-5-1 (a).
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
(Punctuation omitted.) Boynton v. State, 277 Ga. 130, 131 (3) (587 SE2d 3) (2003).
(Punctuation omitted.) Mangrum v. State, 285 Ga. 676, 678-679 (3) (681 SE2d 130) (2009) (addressing a two-hour break between interviews), citing Williams v. State, 244 Ga. 485, 488 (4) (b) (260 SE2d 879) (1979) (“no duty to repeat the Miranda warnings given the day before [because] the interviews were part of a continuing interrogation”); Watson v. State, 227 Ga. 698, 700 (1) (182 SE2d 446) (1971) (further warning not necessary after seven-hour lapse between statements).
Boynton, 277 Ga. at 131 (3).
541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004).
Hester v. State, 283 Ga. 367, 371-372 (4) (659 SE2d 600) (2008), quoting Thomas v. State, 288 Ga. App. 602, 608 (3) (654 SE2d 682) (2007) (no error in admitting hearsay statements “made to a nurse and doctor while they were examining the victim to ascertain the scope, diagnosis, and treatment of his injuries.”).
Counsel’s prior experience with the real-time system involved a deaf client for whom special arrangements had been made.
Williams v. State, 205 Ga. App. 445, 447 (3) (422 SE2d 309) (1992).
See Christopher v. State, 262 Ga. App. 257, 264 (6) (585 SE2d 107) (2003) (harm as well as error must be shown).
The trial court initially approved of courtroom closure for three witnesses, but during the hearing the closure was limited to only one witness.
State v. Abernathy, 289 Ga. 603, 611 (5) (715 SE2d 48) (2011) (punctuation omitted) (quoting Reid v. State, 286 Ga. 484, 487 (3) (c) (690 SE2d 177) (2010)). Freeman relies on R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982), for the proposition that motions to close the courtroom must be in writing and meet other procedural safeguards. But that case relied on Code Ann. § 24-3363 of the 1933 Code which is no longer in effect, and it addressed a trial court ruling on a request by news reporters to remain present in the courtroom during a suppression hearing. See id. at 580 (5). The reversal in R. W. Page Corp. was therefore limited to the trial court’s ruling on the reporters’ requests to be present, and it did not address the underlying criminal conviction of the defendant.
(Punctuation omitted.) Anthony v. State, 275 Ga. App. 274, 278-279 (5) (620 SE2d 491) (2005).
Reid, 286 Ga. at 488 (3) (c). See also Grant v. State, 295 Ga. 126, 128 (3) (757 SE2d 831) (2014) (“Appellant’s claim that the trial court erred by closing the courtroom to inquire whether the State had made a deal with a witness has not been preserved for appeal because no objection to the closure was made at trial.”); Benson v. State, 294 Ga. 618 (2) (754 SE2d 23) (2014) (Appellant’s family members were improperly excluded from voir dire but because “[ajppellant... did not object to the closure at trial], he was] procedurally barred from raising the issue on appeal.”).
(Punctuation omitted.) 289 Ga. at 611 (5).
See id. Freeman’s ineffective assistance claim is addressed in Division 6 (c).
See, e.g., Presley v. Georgia, 558 U. S. 209, 214 (130 SCt 721, 175 LE2d 675) (2010).
See id.
See id.
(Citation omitted.) Tew v. State, 320 Ga. App. 127 (739 SE2d 423) (2013).
(Punctuation omitted.) Id. at 128.
See OCGA §§ 42-8-60 (d) (1) (first offender statute); 17-10-6.1 (a) (1) (listing serious violent felonies); 16-5-1 (a) (defining malice murder).
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
See id. at 687-688, 694 (III) (A)-(B).
(Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).
See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).
(Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
(Punctuation omitted.) Welch v. State, 318 Ga. App. 202, 207 (2) (733 SE2d 482) (2012).
See Rice v. State, 292 Ga. 191, 210-211 (9) (f) (733 SE2d 755) (2012) (holding that, even assuming that trial counsel performed deficiently by failing to make an objection, the defendant’s ineffective assistance claim failed because there was no prejudice due, in part, to the overwhelming evidence of his guilt). See also Boyd v. State, 286 Ga. 166, 168 (2) (686 SE2d 109) (2009) (overwhelming evidence can render harmless a Crawford violation arising from the admission of hearsay).
See Muse v. State, 293 Ga. 647, 651 (2) (a) (748 SE2d 904) (2013) (Addressing a temporary courtroom closure during voir dire on jury members’ experience with sensitive sexual topics, “[w] e cannot say that it was unreasonable for the lawyer to think that closing the courtroom might facilitate his efforts to [obtain a favorable jury composition], and Appellant has failed, therefore, to overcome the strong presumption that the failure of her lawyer to object to the closing was a reasonable trial strategy.”); Abernathy, 289 Ga. at 611 (5) (“Given that the [closure] was designed with the express purpose of maximizing the odds of... a fair trial, [the defendant] cannot make” the required showing of harm.).
See, e.g., Valentine v. State, 293 Ga. 533, 537 (3) (748 SE2d 437) (2013).
See generally Humphrey v. Walker, 294 Ga. 855, 860 (II) (A) (757 SE2d 68) (2014) (“[T]o show prejudice, the errors of counsel must beso serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”) (punctuation omitted).
Concurring in Part
concurring in part and dissenting in part.
While I agree with Divisions 1, 2, 3, 5, and 6 of the majority opinion, I cannot agree with the majority opinion as to Division 4. The Constitution of the State of Georgia mandates that “[i]n criminal cases, the defendant shall have a public and speedy trial by an impartial jury[.]” (Emphasis supplied.) Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a). The First and Sixth Amendments to the Constitution of the United States also guarantee the right to a public trial. U. S. Const. Amend. 1; U. S. Const. Amend. 6; Presley v. Georgia, 558 U. S. 209, 212 (130 SCt 721, 175 LE2d 675) (2010). Federal courts have held that the First and Sixth Amendment rights to a public trial attach to sentencing proceedings. See, e.g., United States v. Thompson, 713 F3d 388, 393-394 (II) (8th Cir. 2013); United States v. Rivera, 682 F3d 1223, 1228-1229 (II) (B) (1) (9th Cir. 2012).
That is what we have here. Freeman was tried and convicted by a jury in open court, and then the State moved to close the courtroom for a portion of the sentencing proceedings. Freeman agreed to the closure. While Freeman may have waived his Sixth Amendment right to a hearing in open court by acquiescing in the State’s request, a defendant cannot waive the public’s interest in being present for the sentencing portion of the trial. See Rivera, supra, 682 F3d at 1228 (II) (B) (1) (recognizing that the “judge and prosecutor continue to bear grave responsibilities, both to the accused and to the broader community, during sentencing proceedings”) (emphasis supplied).
Courtrooms in Georgia have too often been closed, and there are only rare circumstances in which a trial court may conduct proceedings outside the presence of the public. See Presley, supra, 558 U. S. at 213; Judicial Qualifications Commission, Opinion No. 239. While “[t]he right to an open trial may give way in certain cases to other rights and interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information[,] . . . [s]uch circumstances will be rare . . . and the balance of
[t]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
(Citation and punctuation omitted.) Id. at 214.
In this case, the State did not advance an overriding interest that compelled the courtroom to be closed. Notably, in requesting that the courtroom be closed, the State merely stated that it expected to present evidence regarding open Georgia Bureau of Investigation (GBI) cases and that this “evidence if presented in open court may prejudice those investigations.” (Emphasis supplied.) The State then called a GBI officer who testified that Freeman cooperated in certain investigations, but that his assistance did not yield any valuable information.
Simply arguing that evidence may be related to a pending investigation does not satisfy the State’s burden of establishing an overriding interest. If we were to hold otherwise, a trial court would be authorized to close a courtroom based on conjecture. Trial judges are the keepers of the courtroom, entrusted with serious responsibilities to the parties and to the public at large. Maintaining public access serves to guarantee the fairness of trials because it provides an opportunity for public scrutiny upon the administration of justice. See Munoz v. American Lawyer Media, L.P., 236 Ga. App. 462, 464 (1) (a) (512 SE2d 347) (1999) (recognizing that the news media serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice in both civil and criminal cases).
Closing courtrooms is the exception, not the rule, and, even where the parties request closure, the trial court must protect the public’s constitutional right to access and limit such access only when vitally necessary. See Presley, supra, 558 U. S. at 212-213; Judicial Qualifications Commission, Opinion No. 239. Where, as here, the trial court unnecessarily closes the courtroom, the public’s trust and confidence injudicial proceedings is eroded. For this reason, I dissent.
I am authorized to state that Chief Judge Phipps and Presiding Judge Ellington join in this dissent.
Although the trial court initially ordered the courtroom to be closed for other witnesses as well, the record shows that the trial judge opened the courtroom after the GBI officer testified.
Reference
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- Leonard Freeman v. State
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