Frisby v. State

• Decision Date: 20 August 2018
• Docket Number: S18A0777
• Citation: 304 Ga. 271,818 S.E.2d 543
• Parties: FRISBY v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 271

818 S.E.2d 543

FRISBY

v.The STATE.

S18A0777

Supreme Court of Georgia.

Decided: August 20, 2018

Christopher D. Frisby, GDC# 831786, COFFEE CORRECTIONAL FACILITY, P.O. Box 650, Nicholls, Georgia 31554, for Appellant.

Christine Sieger Barker, A.D.A., Margaret Ellen Heap, District Attorney, OFFICE OF THE DISTRICT ATTORNEY EASTERN JUDICIAL CIRCUIT, P.O. Box 2309, Savannah, Georgia 31402, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

NAHMIAS, Justice.

Appellant Christopher Frisby challenges the trial court’s order denying his motion for an out-of-time appeal of his 1995 convictions based on guilty pleas to malice murder and other crimes related to the stabbing death of Karen Benning and the attempted murder of Carrie Missinne. Pretermitting whether Appellant has shown a proper excuse for not filing a timely appeal, the record shows that he is not entitled to an out-of-time appeal. Accordingly, we affirm.

1. On March 23, 1994, a Chatham County grand jury indicted Appellant for the following crimes in connection with Benning’s death: malice murder, felony murder, kidnapping with bodily injury, rape, armed robbery, two counts of burglary, theft by taking, and six counts of possession of a firearm during the commission of a crime. The indictment also charged Appellant with the attempted murder of Missinne and one count of burglary of her apartment. On May 5, 1995, Appellant entered negotiated guilty pleas to malice murder, kidnapping with bodily injury, rape, armed robbery, attempted murder, two counts of burglary (one of Benning’s apartment and the other of Missinne’s), and theft by taking. In exchange, the State agreed to nolle pros the remaining charges and to recommend that the court sentence Appellant to serve two consecutive terms of life in prison for the murder and kidnapping, with the possibility of parole, and concurrent and consecutive terms adding an additional 40 years for the other convictions.

At the plea hearing, the prosecutor represented that the evidence, if there were a trial, would show the following. On September 8, 1993, Benning, who was 22 years old, was stabbed 15 times in the neck, face, chest, stomach, and back with a pair of scissors in the bedroom of her apartment in Savannah. The next morning, the police were called when Benning failed to arrive for work; they found her dead, and her white Mitsubishi Eclipse, the keys to the car, a watch, a silver spoon, and two necklaces were missing. The police also found a bullet in the ceiling of Benning’s apartment.

Later that day, the police received information from witnesses who said that Appellant, who was then 16 years old, and his friend Timothy Fox had driven Benning’s Eclipse to their high school, brought a pistol to the school, and told classmates that they had beaten, raped, and stabbed Benning. They also said that they had broken into Missinne’s apartment to kill her and take her car, but when they discovered that she was not home, they took a CD player and some CDs and left. On September 10, Benning’s Eclipse was involved in a hit and run accident, and minutes later, the police found the car abandoned on the side of the road; a witness to the accident identified Appellant as the driver of the car. In the car, the police found a .32-caliber pistol, a school tardy slip for Appellant, and school books that belonged to Appellant and Fox.

Appellant was arrested later that day, and after being advised of his constitutional rights and in the presence of his mother and stepfather, he gave a detailed confession. He told the police that several days before Benning’s murder, he, Fox, and another friend planned to break into Missinne’s apartment, kill her, and steal her car. According to Appellant, when he and his friends arrived at Missinne’s apartment and discovered that she was not there, he broke a window; entered the apartment; took a CD player, some CDs, change, and a jewelry box; and left. Appellant said that a couple of days later, he and Fox saw Benning entering her apartment and made a plan to break in and take her car. They returned to her apartment on the afternoon of September 8 to execute their plan. Appellant was carrying a .32-caliber pistol he had taken from his father’s drawer, and he and Fox forced their way into the apartment after Benning answered their knock on her door. Appellant told the police that he and Fox raped Benning, and she then grabbed Appellant’s pistol and fired it at them but missed. Appellant grabbed Benning and held her down on the bedroom floor, and Fox stabbed her repeatedly with a pair of scissors. Benning died moments later, and Appellant and Fox put her on the bed and wrapped blankets around her. They then wiped down the apartment, took Benning’s car keys, and left with Appellant driving Benning’s car.

Fox also confessed, and his statement corroborated Appellant’s. During their investigation, the police recovered from Appellant and Fox the watch, spoon, and necklaces stolen from Benning’s apartment. The police also determined that the bullet found in the ceiling of the apartment was fired from the pistol that belonged to Appellant’s father and was later found in the Eclipse. In addition, DNA testing showed the presence of Appellant’s semen on Benning’s body.

During his plea colloquy with the trial court, Appellant said that he understood the charges against him and the consequences of the negotiated plea agreement. The court then asked, "Do you understand that you have the right to enter a plea of not guilty, and that by entering this plea, you are giving up your right to a jury trial?" and Appellant answered, "Yes, sir." The court asked Appellant if he understood that "at a jury trial ... you would have a right not to testify against yourself?"; Appellant replied, "Yes, sir." He also told the court that he understood that he was waiving his right to testify, offer evidence, and confront any witnesses against him at a trial, that he understood the presumption of innocence, and that no one had made any promise or threat to make him plead guilty. The court added, "Do you understand that by pleading not guilty or by remaining silent and not doing anything, you would get a jury trial?"; Appellant responded, "Yes, sir." Appellant then entered his guilty pleas. The court asked him if he was pleading guilty because he was in fact guilty, and Appellant replied, "Yes sir." Appellant confirmed that he had discussed the pleas with his attorney and that he was satisfied with his attorney’s performance. Appellant also signed a guilty plea form verifying his answers to the court during the plea colloquy. After finding that there was "more than a sufficient factual basis" to believe the crimes were committed as alleged and that Appellant had made a knowing, intelligent, and voluntary waiver of his constitutional rights, the court accepted the guilty pleas.

The trial court sentenced Appellant in accordance with the plea agreement. The court then allowed Benning’s sister to make a statement. As she addressed the court, Benning’s father lunged at Appellant, and when deputy sheriffs attempted to assist Appellant, he was attacked by another member of the audience. According to the plea hearing transcript, "additional members of the audience then entered the bench area and a fracas ensued with other deputies which lasted approximately four minutes." The courtroom was eventually cleared, and the proceedings did not resume.

More than 22 years passed before Appellant filed a pro se motion for an out-of-time appeal on June 21, 2017, claiming that he was denied his right to appeal his convictions by his plea counsel’s failure to file a...