*1 unnecessary dangerous and unwar- the condition of attributed pursuits. high-speed ranted support plaintiffs pointed to some evidence the
Because City’s properly motion denied the claim, the trial court nuisance their ruling judgment, summary be affirmed. should for — July 16, 2014 Decided — July 31, 2014 denied Reconsiderations Eisenberg, appel- Cathy Hampton, Burton, for S. Seth R. Laura lant. appellees Morriss, Shim, Shim, F. Daniel for & Bruce
Morriss A14A0602). (case no. Bryant appellee (case III, Lekan, F. for no. Green Sandra
W. A14A0691). THE
A14A0610. FREEMAN v. STATE. DOYLE, Presiding Judge. burg Following jury trial, Freeman was convicted of a Leonard appeals lary1 attemрted from the murder.2 He now malice (1) assigning for as error admission denial ofhis motion new (2) police interview, a the admission of of statements made hearsay testimony emergency medical worker who attended (3) victim, to lack of denial of his motion a mistrial due reporting, (4) closure of courtroom access real-time during sentencing, (5) offender, failure sentence him as a first follow, we of counsel. For reasons ineffective assistance affirm. verdict,3 a evidence shows that
Construed in favor of responded burglary police nighttime 911 call about officer wаlking progress Freeman, knew, and encountered whom the officer street, Freeman, lived across the near the victim’s address. who investigated any knowledge burglary, so the officer denied damage upon shining flashlight and, bedroom house for mother-in-law, window, Nelson, floor saw Jan emergency medical services The officer radioed for covered blood. OCGA 16-7-1 OCGA §§ See Short v. § 16-4-1; (b). 16-5-1 (a). (507 SE2d (“EMS”), responding Fortenberry, technician, and a medical Russell spoke injuries. Fortenberry to Nelson about her Nelson told that she go awoken to bathroom and found someone in her house by putting bаg head, *2 who her tried smother a over her and she had hit her head. somehow investigator
An at arrived the scene and learned aof small pool and hammer axe handle found near a blood a bedroom of investigator home, house. The at Nelson’s visited Freeman his and investigator asleep told he Freeman a.m. had been his house 3:00 phone rang, upon seeing and when his Nelson’s on name his go identification, caller he went check on her. visited When later investigator hospital room, an at Nelson’s later claimed Freeman belonged ownership him, that the axe handle but denied During subsequent police hammer. another conversation with out- investigator home, side Freeman an told he had earlier police being asleep, actually misled about and he been outside his drinking liquor. house gave police depart
Freeman later a recorded interview at the following agreed undergo polygraph ment, that, and he a test a Georgia Investigation beginning Bureau of interviewer. Before polygraph pre-interview examination, Freeman for a session, met during waiver, which he administered a Miranda4 which signed. pre-interview, During the Freeman told the GBI interviewer put bag that he a over Nelson’s head and hit her with twice a hammer. purpose explained only “roughed up” He that he had [her] for the scaring her so that she would not continue to alone. result live As a polygraph statements, administered, those test was never and agent immediately police investigator the GBI advised the of Free agent, police Freeman, man’s statements. gator the GBI and the investi separate again to a went interview room where Freeman told investigator placed bag that he had a over Nelson’s head and hit her in the head a interview, with hammer. After that Freeman was formally arrested. charged aggravated burglary, assault,
Freeman was attempted Following jury guilty trial, malice murder. a found him burglary counts, on all three and the trial court sentenced him on the attempted charges, aggravated merging murder assault charge attempted charge. into the murder moved for a new appeal. giving denied, which motion was rise to this by admitting
1. Freeman
contends
trial court erred
police investigator immediately
statements he
made
after his
Arizona,
Miranda v.
injury[. alert at the time and was able answer all of S]he was objection, questions.” the EMS worker stated our Over part when, routine, Nelson how she as ofhis treatment asked gotten up go injured, responded that “she had was she U. S. 368 LE2d (2003). Boynton (3) (587 (Punctuation omitted.) SE2d v. 277 Ga. 676, 678-679 Mangrum State, 130) (2009) (Punctuation omitted.) v. citing 485, 488 (4) (addressing interviews), a two-hour break between Williams v. day duty repeat given (b) (260 879) (1979) (“no warnings before the Miranda continuing interrogation”); Watson Ga. the interviews were [because] lapse 446) (1971) (further necessary warning between not after seven-hour 700 statements).
8 Boynton,
(3).
3. Freeman next
that the trial court erred
upon learning
motion for a mistrial made
his trial counsel
reporting
State had
a
access
real-time court
via an Internet
on
feed
laptop
displayed
at counsel’s table. The feed
the text of the tran-
script
reporter,
as entered
the court
and until 11:30 a.m.
day
four-day third
Freeman’s counsel was unaware that
during
it had been available to the State and the court
trial.
objected,
Freeman’s counsel
a bench conference it
*4
system
was established that he
existed,
was awarе that the
but had
requested
(nor
readily
not
it
was he aware
it
that was
in
available
11
case).*
explained
system
that
The State
that it had referred to the
only
quickly-recited
poly
once to make a list of
connections on the
graph apparatus
ultimately
that
used in the case. No
transcripts
printed
any
been
out for the State’s use at
time. The
9
1354,
(124
trial court informed Freeman’s continued, network, trial over wireless and the the local request for a mistrial. controlling in court exercises wide discretion
“The trial appellate regulating court, and courts should business of the the plainly it is unless with the exercise of discretion never interfere apparent wrong apparent It has from the abuse.”12 is resulted transcript available to Freeman’s that the service was from the trial requested it, State had not concealed he access to the trial counsel had using it, that the State was the trial court was unaware its use of Further, able to see Freeman’s counsel was it and Freeman was not. immediately given everything courtroom, he was the and hear access point any specific upon request, harm that he did not any particular time have made the real use would occurred up transcript point. circumstances, no discern Under these we reversible error.13 the the
4. alsо as error trial court’s closure of asserts testimony during sentencing heari for one witness’s courtroom ng.14 proffered hearing, that, ofhis At the Freeman’s counsel as police mitigation testimony defense, Free he would elicit cooperation ongoing criminal inves man would offer substantial impede open investigations tigations. did not want to The State requested investigations, revealing those so State information about public during trial those witnesses’ testi that the court exclude mony. object it he believed Freeman’s counsel did not because would testimony showing his cliеnt to the law enforcement benefit facilitate cooperation. his client’s by closing trial
Freeman now that the court erred asserts agreed closure, courtroom, “the but because Freeman issue may only be closure raised in context of ineffective assistance be “[a] claim.”15This is because defendant will not allowed of counsel 12 (1992). 309) 447 Williams v. SE2d 13 App. 257, (6) (585 107) (2003) (harm Christopher well v. SE2d as Ga. shown). error must be witnesses, during approved initially of courtroom closure for three but The only hearing the witness. closure limited to one 48) (2011) (punctuation omitted) Abernathy, v. State (3) (c) (690 177) (2010)). (quoting relies on R. W. Reid Ga. proposition Page Corp. Lumpkin, (1982), for the that motions Ga. 576 safeguards. procedural writing But that case must be in and meet other close courtroom effect, longer it addressed a of the 1933 Code which relied on Code Ann. 24-3363 § request by reporters present ruling to remain courtroom trial court on a news Page Corp. suppression (5). limited hearing. in R. W. was therefore See id. at 580 reversal requests ruling reporters’ present, it did not address court’s be underlying criminal conviction defendant. *5 silently hoping acquittal, error, induce asserted sit for impermis obtain a new trial when tactic fails. Induced error is ground sible and furnishes no “[T]o for reversal.”16 hold otherwise encourage justice system manipulate would defense counsel to intentionally object failing to in order [to closure] to ensure an appeal.”17 automatic reversal on
Despite waiver, the dissent the courtroom’s requires emphasizing importance public reversal, closure precise Abernathy, trial. But this concern was addressed in State v. in Supreme Georgia explained (1) right which the Court of “the public may give way rights interests, certain cases to other right (2) suсh trial,”18 as the defendant’s to a fair the defendant’s object appellate failure to waived ofthe consideration issue outside of presented a claim for counsel, ineffective assistance of which not this enumeration.19 present
Nevertheless,
case,
in the
it is clear that
held a
way protect
on the record in which it considered the least intrusive
presenting mitigation
Freeman’s interests
hindering
ongoing
investigation.20
without
the State’s
criminal
The
carefully
temporary
trial court
considered alternatives to the
closure
ways
only
testimony.21
as well as
to limit closure to
certain witnesses’
explicit findings
The court made
overriding
on the record and identified the
process
nature of Freeman’s due
interest and the State’s
protecting
interest in
criminal
sensitive information involved in the
investigation.22
parties proffered specific
supporting
facts
findings
trial court’s
and exercise of discretion. The closure was
narrowly
single
promptly
witness,
tailored to a
and the courtroom reopened
presented;
after the relevant evidence was
there is no
transcript
sentencing
indication that the full
theof
withheld
evеr
anyone seeking
light
from
circumstances,
it. Under these
and in
lant...
(Appellant’s family
(2005).
(2014) (“Appellant’s
appeal.”).
State had made a deal
[20]
21 See id.
See,
22 See id.
18 (Punctuation omitted.)
[17]
Reid,
16 (Punctuation
closure was made
See id. Freeman’s ineffective
did not
e.g.,
object
Presley Georgia,
Ga. at 488
claim that the trial court erred
members
omitted.) Anthony
to the closure at
with witness has
(3)
trial.”);
were
Here, did not offender Freeman apparent the that trial court knew of ment, it is record the convictions but nevertheless sentenced lack of criminal Freeman’s years years (to ten) probation. on and 20 consecutive him to 30 serve sentencing it nature of the that found the The trial shows court’s gave no it felt severe, and the court indication crime to be sentencing. ignore potential for first-offender constrained Further, guilty attempting to that Freeman was found we note completed, felony murder, that, if is a serious violent commit malice ineligible Pretermitting whether an for first offender treatment.25 differently a be treated than successful unsuccessful murder should sufficiently purposes, the conduct here was of a one for first offender ofthe nature that we discern no abuse ofdiscretion on serious failing to Freeman as a first offender. trial court for sentence ineffective in that his trial counsel was 6. Washington,26 ways. to succeed on an several Under Strickland claim, a criminal defendant must demonstrate ineffective assistance performance was deficient and that there both that his trial counsel’s probability the trial rеsult have been is reasonable would strong performance.27 “There different if not for deficient performance presumption that the of trial counsel falls within the range professional The reasonable wide of reasonable assistance. time under the ness of the conduct is viewed at the of trial and appellant If an fails meet his burden circumstances the case.”28 reviewing proving prong test, either Strickland 23 423) (2013). (Citation omitted.) 127 Tew 24 (Punctuation omitted.) Id. at 128. 25 (d) (first statute); (a) (listing offender 17-10-6.1 serious See OCGA 42-8-60 §§ (a) (defining murder). felonies); 16-5-1 malice violent 674) (1984). LE2d 4 66 U. S. 687-688, (III) (A)-(B). See id. at punctuatiоn omitted.) (Citation Williams v. prong.29 reviewing other In trial court’s need not examine the credibility accept findings decision, “[w]e court’s factual clearly independently apply erroneous, we determinations unless but legal principles to the facts.”30 present argument (a) closing at the Jackson-Denno Failure hearing. points decision, to his trial counsel’s conclu testimony hearing, adduced at the Jackson-Denno to rest sion specific present argument. situation,” “in transcript The State elected to do the same. The shows that Free vigorously man’s trial counsel had cross-examined the State’s wit probative leading questions, revealing ness with inconsistencies challenging questioning their answers. Trial counsel’s laid support theory clear foundation to statements *7 product improper interrogation, were the ciently of and he suffi approach Mirandized. Trial in counsel’s line with the perfect common and reasonable tactic to the record and not use argument further court time to make an that has become obvious through questioning. any showing such, counsel’s As the absence of waiving argu that counsel’s tactic inаdvertent, was unreasonable or ment at the in this case affords no basis for reversal. “Trial strategy, hindsight, tactics and matter no how mistaken in are almost adequate grounds finding never for trial counsel ineffective unless they patently competent attorney are so unreasonable that no would have chosen them.”31
(b)
object
argues
to
Failure
to certain statements. Freeman
objected
hearsay grounds
portions
his trial counsel should have
on
police
testimony by
aof
recorded
interview
well
as
as
an officer
regarding
(either orange
yellow)
Nеlson’s account of the shirt color
respect
her
of
assailant. With
interview,
to the recorded
trial counsel
unsuccessfully attempted
to exclude the interview
hearing.
light
ruling,
Jackson v. Denno
In
of counsel elected to
have the entire interview admitted rather
it,
than redact
of a
strategy
point
trial
out
shirt
inconsistencies as to the assailant’s
highlighted
color. Trial counsel further
the inconsistencies in his
closing argument.
respect
by
regarding
With
to statements
the officer
identify
objectionable
particular
color,
shirt
Freeman does not
testimony,
subject
but these statements would have been
to the same
strategy employed by
trial
trial counsel.
Strickland, supra,
(IV);
505,
Furthermore, about the guilt. of After evidence the other were overwhelmed assailant warning, given being volunteered Freeman twice a Miranda put bag investigators her and hit Nelson’s head that he over us, we discern on the record before a hammer. Based head with predicated of counsel effectiveness reversible error challenged testimony.32 rеspect to the during sentencing. Consenting
(c) Freeman the courtroom to close deficiently consenting performed argues that his trial counsel also during sentencing. closing But, as noted in Division the courtroom mitigation designed strategic to allow was a one this decision sentencing, during sentencing. trial counsel stated Prior to would be more witnesses that he believed that forthcoming law enforcement light closed. In of this reasonable if the courtroom were showing any strategic light harm, has decision, his burden under Strickland.33 failed to meet Finally, sentencing request sentencing. (d) Failure first offender requested under trial counsel should by the But the record shows no inclination the first offender statute. light allow first offender status in nature of court to the trial Nor there evidence that offenses Freeman committed. impose To the sentence Freeman received. court was constrained contrary, court noted Freeman’s lack of a criminal record the trial thirty years from one to and that it have sentenced Freeman could recounting attempted Nevertheless, after murder count. staples skull, hammer, record Freeman’s Nelson’s fracturеd use *8 pool up head,” blood, and fear that she was “all her of Nelson’s imposed years going a 30 suffocated, be the trial court sentence of with 10 to serve. specu- Strickland, more than
Pursuant Freeman must offer a have him as first lation that the trial court would sentenced has overwhelming temporary to the admission sexual dant’s ineffective assistance assuming courtroom (2009) (overwhelming defendant] [closure] failed, therefore, [32] closing topics, Muse See Rice v. See of might courtroom closure cannot hearsay). designed “[w] evidence trial counsel fаcilitate his efforts to e cannot a reasonable trial make” the to overcome with the of say performed deficiently claim guilt). required that it was unreasonable express purpose maximizing can render 191, failed because See also strategy.”); Abernathy, strong 647, 210-211 voir dire on showing [obtain presumption harmless Boyd (9) (f) (2) (a) a favorable of v. there harm.). by jury (733 failing a was that the members’ Crawford [286] jury lawyer Ga. 755) (2012) the odds of... Ga. at make prejudice failure composition], and 166, 168 violation experience to think that an of objection, due, her (holding that, (2) arising (“Given lawyer a fair (686 with (Addressing in part, closing the defen Appellant sensitive object even 109) [the light us, In offender.34 of the record before has met burden.35 Judgment Andrews, J., McMillian, JJ., P. Dillard and affirmed. Phipps, Ellington, part J., J., Miller, J.,
concur. P. and C. concur in part. and in dissent Judge, concurring dissenting part. in and MILLER, agree majority 2, 3, I 1, 5,
While Divisions and of the opinion, agree majority opinion I cannot with the as to 4. Division The Georgia Constitution of the State of that “[i]n mandates criminal public speedy cases, the defendant shall have a trial Const, impartial (Emphasis jury[.]” supplied.) 1983, I, Ga. Art. Sec. (a). I, Par. XI The First and Sixth Amendments to the Constitution of guаrantee right public the United States also to a trial. U. S. Presley Georgia, 1; 6; U. Const. Amend. S. Const. Amend. 558 U. S. 209, 175 LE2d Federal courts have rights public held that the First Sixth Amendment to a trial sentencing proceedings. e.g., Thomp- See, attach to son, United States v. (II) (8th 2013); F3d 393-394 Rivera, Cir. United States v. (II) (B) (1) (9th 2012). 682 F3d 1228-1229 Cir. we
That what
have here. Freeman was tried and convicted
open
jury
court,
and then the State moved to close the courtroom
portion
sentencing proceedings.
agreed
for a
may
right
closure. While Freeman
have waived his Sixth Amendment
open
by acquiescing
request,
to a
court
in the State’s
public’s
being present
defendant cannot waive the
interest in
for the
sentencing portion
supra,
(II)
Rivera,
See
trial.
Courtrooms in closed, too often been and there are only may proceed- rare circumstances in which a conduct ings presence public. Presley, supra, outside the 558 U. S. Opinion 213; Qualifications Commission, Judicial No. 239. While right open may give way “[t]he to аn in certain cases other rights right interests, such as the defendant’s to a fair trial or the government’s inhibiting interest in disclosure of sensitive informa- . . tion[,] [s]uch . circumstances will be rare . . . the balance of show a trial whose result *9 34 See, e.g., prejudice, generally Valentine v. errors Humphrey reliable.”) of counsel must beso (punctuation omitted). Walker, Ga. serious as to deprive (II) (A) (757 the defendant of 68) (2014) (“[T]o fair trial, empha- (Citation special omitted; care.” must be struck with interests Presley, supra, supplied.) a trial court can U. S. at 213. Before sis any stage public a criminal exclude the seeking party must advance an to close [t]he likely prejudiced, overriding to be closure interest that is necessary protect interest, to that no broader than must be to alternatives court must consider reasonable the trial closing findings adequate proceeding, it and must make support the closure. omitted.) punctuation (Citation Id. at 214. overriding that case, not advance an interest the State did
In this Notably, requesting compelled that the to be closed. the courtroom merely expected closed, it the State stated courtroom be Georgia Investigation regarding open present Bureau of evidence presented open may (GBI) court cases and that this “evidence if (Emphasis prejudice investigations.” supplied.) The State then those cooperated a GBI testified that Freeman in certain called officer who any yield investigations, but that assistance did not valuable any testimony The officer’s did disclose sensitive information.36 any possibly jeopardized pending cases, that could have information any pending present did not evidence that the cases and the State required any investigation. There other reasonable additional were open available, could established in alternatives as the State ultimately unhelpful. cooperative that Freeman was but pending Simply arguing may be related to a establishing investigation satisfy does not the State’s burden an overriding otherwise, If a trial court would interest. we were hold conjecture. judges courtroom based on Trial be authorized close a responsi keepers courtroom, are the entrusted with serious parties public large. public Maintaining bilities provides guarantee oftriаls it access opportunity the fairness because serves scrutiny upon justice. public the administration of Lawyer Media, L.P., See Munoz v.American (a) (512 347) (1999) (recognizing the news serves to media bring guarantee and to to bear beneficial the fairness trials upon justice public scrutiny the administration of both effects cases). civil and criminal initially Although for other witnesses the trial court ordered the courtroom to be closed well, judge opened officer the trial the courtroom after the GBI record shows that
testified.
Closing exception, rule, and, is courtrooms not the even parties request protect closure, where the court must public’s right only constitutional to access and limit such access when vitally necessary. Presley, supra, 212-213; U. S. at Judicial Opinion Commission, Where, here, Qualifications No. 239. as unnecessarily public’s courtroom, trial court closes the trust and injudicial proceedings reason, For confidence eroded. this I dissent. Judge Phipps Presiding I Chief am authorized to state that join Judge Ellington in this dissent. — July 16, Decided — July 31,
Reconsideration denied appellant. Baron, Monica P for Jeffrey Langley, Attorney, appellee.
W. District for
A14A0700. MURPHY v. MURPHY. Judge. MCFADDEN, Nanсy Murphy appeals Michelle two orders entered in this custody brought by modification action husband, her former John Murphy. Murphy appeal. John has moved to dismiss the findWe jurisdiction Nancy Murphy’s arguments we to consider Michelle regarding deny Murphy’s orders, both and we therefore John motion appeal. Nancy hold, however, dismiss the We Michelle Mur- phy’s challenges to the orders have no merit and find that she filed appeal purposes delay. impose this frivolous We therefore affirm and
appeal penalty. Nancy Murphy Murphy Michelle and John were divorced in Murphy seeking modify 2012, 2006. In action, John filed this custody provisions parties’ August child of the divorce decree. On Murphy’s 2013, the trial court entered an order that denied John temporarily change physical custody motion to children, hold- ing physical custody changed time,” would “not be ratify quo parties’ went on to the status as to visitation practices ongoing that, to out-of-state travel. court held should parties custody be unable to settle all issues in the after case completed, evaluation had been then the court would conduct a final custody parenting issues time before November September 22, denying Nancy 2013. On the trial court entered order Murphy’s disqualify guardian
Michelle motion