313 Ga. 781
Ga.2022Background
- On Nov. 1, 2016, Octavius Brooks was shot and killed at an apartment complex; eyewitness Cicely Thicklin saw Neloms approach with a shotgun, point it at Brooks, and heard two shots. No weapon was found at the crime scene; medical and firearms testimony showed close-range shotgun wounds.
- Neloms was arrested months later in Savannah after FBI agents located him at a La Quinta; agents patted him down and Agent Dye testified Neloms said, if there was a gun it was in the hotel room and it was his.
- A pretrial motion had suppressed evidence from the Savannah hotel room search; the prosecutor stated he would not introduce that evidence at trial.
- At trial a defense witness (Thompson) repeatedly invoked the Fifth and testified largely that he could not remember; the prosecutor called investigator Fred Glenn, who testified about Thompson’s prior statements implicating Neloms (Glenn was present when Thompson met with the prosecutor and said Thompson had described seeing Neloms shoot Brooks).
- Neloms twice indicated during trial that he was dissatisfied with counsel and asked about replacing counsel or proceeding pro se; he did not make an unequivocal, pretrial Faretta assertion and ultimately confirmed he would continue with the appointed attorney.
- Neloms was convicted of malice murder and related offenses and sentenced to life without parole plus consecutive terms; on appeal he raised three claims: (1) trial court should have sua sponte declared a mistrial over Agent Dye’s testimony, (2) the court erred by not conducting a Faretta hearing when Neloms asked for new counsel, and (3) counsel was ineffective for failing to object to Glenn’s testimony as hearsay.
Issues
| Issue | Appellant's argument | State's argument | Held |
|---|---|---|---|
| Trial court should have declared a mistrial sua sponte when Agent Dye related Neloms’ statement that a gun was in the hotel room | Prosecutor’s conduct and the admission of the custodial statement (despite suppression of the room search) created manifest necessity for mistrial; curative instruction insufficient | Defense requested a curative instruction (not a mistrial); court struck the remark and instructed jury; defendant waived contemporaneous mistrial motion so issue not preserved | Waived; no sua sponte mistrial required where defendant sought and received curative instruction and made no contemporaneous mistrial motion |
| District court erred by not holding a Faretta hearing when Neloms said he wanted new lawyers / to proceed pro se mid-trial | Neloms’ statements showed a desire to replace counsel or proceed pro se and thus required a Faretta inquiry into knowing and intelligent waiver | Request was made mid-trial, was not an unequivocal pretrial assertion of the right to self-representation, and Neloms ultimately confirmed he would keep counsel | No error; mid-trial, equivocal remarks do not require Faretta hearing when defendant elects to continue with counsel |
| Trial counsel ineffective for failing to object to investigator Glenn’s testimony about Thompson’s prior statements | Glenn’s testimony was hearsay and counsel’s failure to object was deficient and prejudicial | Thompson was on the stand, claimed lack of memory, and was subject to cross-examination; Glenn’s testimony recounted prior inconsistent statements admissible under OCGA § 24-6-613(b) and not hearsay | No ineffective assistance; objection would have been meritless because prior inconsistent-statement foundation and cross-examination of Thompson rendered Glenn’s testimony admissible |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (1975) (defendant has right to self-representation; waiver must be knowing and intelligent)
- Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation requires Miranda warnings)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Thomas v. State, 310 Ga. 579 (2020) (motion for mistrial must be made promptly or issue is waived)
- Danenberg v. State, 291 Ga. 439 (2012) (pretrial unequivocal Faretta request requires a hearing; midtrial requests are treated differently)
- Thaxton v. State, 260 Ga. 141 (1990) (dissatisfaction with counsel is not necessarily an unequivocal request to proceed pro se)
- Merritt v. State, 310 Ga. 433 (2020) (reciting Strickland standards and deference to counsel’s performance)
- Murdock v. State, 299 Ga. 177 (2016) (prior inconsistent-statement exception permits testimony about a witness’s prior statements when memory or denial is asserted)
- Hood v. State, 299 Ga. 95 (2016) (failure to remember may provide foundation for proving prior statements)
- London v. State, 308 Ga. 63 (2020) (procedural requirements for admitting prior inconsistent statements)