*1 679 v. THE STATE. JENNINGS S07A1517.
(653 SE2d
CARLEY, Justice. Jennings April morning several 11,2003, James W. told of
On the girlfriend, Mary people Elizabeth he killed his he believed that that choking by beating brother took him to a Treadwell, her. His and drug emergency for a overdose where he was treated room hospital personnel injuries. Jennings that he dreamed told minor and if he Treadwell, kill himself and that would that he had killed Ms. gun. arrived, tried to enforcement officers After law had a specific Jennings location, could not be but Ms. Treadwell’s determine emergency being Upon from the released her as to whereabouts. body After Ms. Treadwell’s room, taken to the sheriffs office. he was rights pursuant Jennings to Miranda found, informed ofhis (86 was was 694) (1966) gave 1602, LE2d and Arizona, U. SC 16 S. 436 brutally and been beaten The victim had a more detailed statement. strangled samples and hands Blood taken from to death. jeans the victim’s DNA. matched charged
Jennings malice murder alternative counts of was aggravated felony assault. the commission of murder and Although guilty jury both counts. trial, found After a was guilty judgments on the two of conviction the trial court entered imprisonment, imposed it of life concurrent sentences verdicts and finding properly judgment trial, for new on motion corrected surplusage felony vacated, be and should murder count was striking 263 Ga. on that count. Malcolm the sentence based new trial was The motion for 369, Jennings appeals.* denied, and otherwise most that, when construed the evidence reveals 1. A review of jury’s strongly verdict, to find it is sufficient beyond Jennings guilty doubt. Jackson ofmalice murder 560) (1979); (99 Virginia, 2781, Teal v. LE2d U. S. 307 SC 319, ineffective rendered that his trial counsel 2. contends capacity by failing as a of his mental to raise the issue assistance completed to determine his a mental evaluation defense and to have capacity Barrett, trial. See Martin to stand judgment June granted Jennings’ the briefs. same [*] denied, day. The homicide 2003. The on November The case motion to was docketed in this Court occurred on judgment found 2004. The motion pursue April corrected, 11, 2003, out-of-time guilty on June for new trial was filed on October on June and the appeal, 21,2007, grand jury 2006. On 15, 2004, he filed a notice of May returned an indictment and the trial on November submitted for 3, 2007, the trial court appeal court entered decision on on that on It Washington, prevail this claim under Strickland v. To on “ 674) (1984), Jennings LE2d ‘must U. S. 668 SC preju- performance by trial counsel and actual deficient show both “ appeal, accept (Cits.)’ Barrett, ‘On “we [Cit.]” Martin v. dice. credibility findings un- determinations the trial court’s factual independently apply legal prin- clearly erroneous, but we less ciples *2 (Cits.)” (Cit.)’ State, [Cit.]” the facts. Sanders v. to (2006). (3) (635 SE2d the murder of Ms. Before and his incarceration for facility. However, the Treadwell, was treated at a mental any expert testimony, records, or record does not contain medical diagnosis Compare treatment. Martin v. other evidence of his or supra Barrett, “The burden is on the defendant to show at 595-596. prejudiced attorney’s here, omissions have his that he that his case — investigated a mental condition that should have been has offered” as proof liability Ms. of a defense to criminal for Treadwell’s incompetence to trial for that offense. murder or ofhis stand Williams (7) (368 State, SE2d v. Ga. [Jennings’]
The trial record . . . does not demonstrate that sanity competency significant or was or should have been a [Jennings] any trial, did not offer at the issue at evidence hearing on his claim ofineffective assistance oftrial counsel sanity competency his assertion that his or should Accordingly, been as an at trial. con- have raised issue we [Jennings] carry prove clude that has failed to his burden to prejudice prong of his claim that trial counsel was failing request independent psychiatric ineffective for [Cits.] examination.
Bergeson
(2) (530
State,
v.
evidence and an to sheriffs investigator. custody His contention is that he was in given warnings. time and was not Miranda warnings required person (1) Miranda are when a “is for- mally (2) degree arrested or restrained to the associated person [Cit.] with a formal arrest.” the Unless reasonable suspect’s perceive situation would that he was in cus- tody, warnings necessary. [Cit.] Miranda are not State, Robinson Ga. spoke to the law enforcement officers at the
When by hospital, he “had not been released from medical treatment or told personnel hospital. signifi medical that he could leave the More police cantly, by questioning....” he was not isolated for Robinson v. investigative, State, setting. Thus, medical, in a rather than an Moyer App. (3) (a) (620
See also 837) (2005) (defendant emergency was in room and not an any part hospital). isolated pre-Miranda questions regarding did not ask officers may what he have done to Ms. supra (2).They merely Treadwell. Robinson v. him at 301-302 asked attempt expeditiously was, she in an to locate her and to where may assist her if she was alive. The fact that suspected Jennings the officers have having committed a murder did not render the statements at issue violative ofMiranda. person custody, long As as a is not in it is irrelevant to the analysis “(1) investigators might Miranda have focused suspicions upon person questioned, being their or already have decided that will take the into custody charge [him] [Cit.] with an offense.” *3 (where supra (2) police already State, Robinson v. at had obtained bloody clothes). investigator’s defendant’s uncontradicted testi- mony hearing suppress at the on the motion to potentially was that was person, under observation as a restrained, suicidal that he was never police custody free and that “he was not but was to leave supra. State, as far as law enforcement was concerned.” Robinson v. testimony “supports finding [Jennings] the The officers’ that custody purposes Miranda at time he made the it was not error to not for the the hospital. Consequently ... at the [Cit.] statements suppress urged.” refuse to the statements on the basis Robinson v. (599 App. (2) State, State, See also Alwin v. 267 Ga. App. SE2d 216) (2004). Compare Mayberry State, v. 267 Ga. (600 703) (2004) (numerous defendant’s freedom SE2d restrictions on (3) (b) (defen by police); Moyer supra State, at instituted v. gurney). Therefore, dant held down and handcuffed to subsequent alleged that the Miranda violation tainted his contention statement at the sheriff s office is moot. closing argument prosecutor during
4. The made comments reasonably be construed as comments which contends could testify. on his failure to improperly determining prosecutor has com-
In whether a testify, mented on an accused’s failure to we must evaluate prosecutor’s to com- manifest intention was whether “the testify’ “the failure to or whether ment on the accused’s naturally character that a would remark was of such a necessarily the accused’s it to be a comment on take Having testify.” record, the evaluated we [Cits.] failure to satisfy prosecutor’s [s do] not the comment conclude prong test. either of this 809) (2005). (3)
Washington State, 722, 724 SE2d opening pros- referring statement, counsel’s the After to defense defense, case, the course of this “[t]he stated that ecutor subsequently began presented evidence,” to refer to what Jen- no opening nings’ attorney statement, stated that said in and later experienced lawyer person.” a fine At each defense counsel “is an points, objected argument, to the these three defense counsel prosecutor “The State’s the trial court told the to move on. comments testify; instead, not directed at the defendant’s decision not to were they explain directed at defense counsel’s failure to rebut or were (15) (a) State, [Cits.]” State’s evidence. Johnson also See Matthews Ga. complained portion pros- [of] “The closing argument [Jennings’] failure to ecutor’s was a comment on testify. produce prohibited evidence, [his] comment on failure to not a [Cits.]” White Ga. except Judgment concur, Sears, J., All the Justices C. affirmed. specially. Hunstein, J., P. who concur concurring specially. Justice, Chief SEARS, disagree
I determination in 3 that the Court’s Division properly made to the trial court admitted statements police rights he of his under at before was advised my Jennings’s view, Miranda In v.Arizona.1 perceived custody’ “in situation would have himself to be when hospital by questioned the sheriffs homicide detective.2 *4 (1966). U. LE2d S. 436 SC Alvarado, 938) (2004); Yarborough SC 158 LE2d 541 U. S. Keohane, Thompson courts 516 U. S. SC 133 LE2d The lower progenitors struggled apply Yarborough articulated in and its in the have to the standard Winbush, hospital interrogations, varying Kimberly context of with results. See J. What Hospital by Interrogation" at Police Within Rule Miranda v. Constitutes “Custodial Officer of Rights Requiring Suspect Her Federal Constitutional Arizona Be His or of Before Informed - Crime, Suspect Injured Interrogation or Taken III or Commission Custodial Before After (2007) (collecting analyzing cases). ALR6th 379 and Jennings’s guilt However, ing, was overwhelm- because the evidence of agree harmless, I the Court that the the error was and should be affirmed. conviction hospital morning question, Jennings in arrived at the
On the
bloody
wearing
blood on his hands. He was there for
clothes with
physical injury.
drug overdose,
He told
not an external
treatment of a
—
— including hospital personnel
anyone
that he
who would listen
body
girlfriend
thought
left her
in a
had beaten his
to death and
he
Naturally,
hospital
the sheriffs
the
staff informed
wooded area.
shortly
department
Jennings’s
armed,
claims,
thereafter, an
and
Jennings
deputy
guard
in
and stood
over
his
uniformed
arrived
hospital
investigator Paul Godden arrived at
room. When homicide
immediately began questioning Jennings regarding
hospital,
the
he
eliciting
happened
girlfriend,
the incrimi-
to his
and after
what had
nating
Jennings’s bloody
question,
bagged
in
he
clothes
statements
right
the
of his
and left hands
as evidence and swabbed
eight
surface
places
samples
for later forensic
different
to collect blood
person
analysis.
circumstances,
would not
Under these
a reasonable
depart
go about his business as
believed that he was free to
have
pleased.3
primarily
argument
contrary rests
on the
The State’s
to the
Jennings
testimony
However,
claim that
“was
of Godden.
Godden’s
concerned” strains
free to leave as far as law enforcement was
breaking point.
responsible
credulity
law enforcement
to the
No
—
up a man like
who showed
officer would allow
injuries
hospital
physical
own,
blood,
of his
covered in
with no
—
up
just
simply get
claiming
to
he had
beaten someone to death
disprove
enough Godden’s
leave. If common sense alone were not
directly contradictory testimony claim,
be the
there would still
deputy
actually guarded
that he would
armed
sheriff who
further instruc-
to leave the room without
not have allowed
superiors.
any
subjective
event,
intent of Godden
from his
In
the
tions
deputy
determinative;
what matters is what
sheriff is not
taking
person
Jennings’s condition,
account all the
into
reasonable
position
circumstances,
his
to be.
would have believed
relevant
deputies
Similarly
claim that sheriffs
untenable is Godden’s
solely
Jennings’s
room
for observation
were stationed
those
terminate
there a formal arrest or
mination:
are
arrest.”)
reconstructed,
circumstances,
Yarborough,
(quoting Thompson, supra,
first,
interrogation
what were the circumstances
the court
supra,
would
restraint on freedom of movement of
For the Court. joins Presiding Justice Hunstein
I am authorized to state that special this concurrence. 5, 2007.
Decided November appellant. Claridge, for Barbara B. Daniel J. Attorney, Sheppard,
Craig, Assis- District Charles R. Attorney, Attorney Baker, General, A. tant Thurbert E. David District appellee. Attorney Zisook, General, for Assistant HUNG v. THE STATE. S07A1679.
CARLEY, Justice. Hung jointly Appellant Mac The was tried with co-defendant jury guilty Le, them murder and Thach three counts of and a found each of of malice judgments aggravated assault. The trial court entered Appellant life im of conviction on those verdicts and sentenced years prisonment murder and consecutive terms of for the three for aggravated Appellant’s He assaults. motion for new trial was denied. appealed subsequently filed a motion for remand on the issue of ineffective assistance of counsel.* strongly guilty
1. When construed most following: verdicts, shows the The four victims evidence apartment complex intending pick up drove into an began shooting friend. Twomen four into the vehicle. Three of occupants hit, and one of them died. Two of the were positively [Appellant] victims identified Le and as the shooters. * 17, 2000, grand jury The crimes occurred on December returned an indictment 6,2001, February 13,2001. Appellant guilty found on November and the trial court on judgment The motion for new trial filed on November entered on November 2001. April appeal April filed and amended 2001 and denied on 2007. Anotice of on 20, 2007, May 16, July orally argued on docketed in this Court on on 2007. The case was October