Freeman v. State

• Citation: 776 So.2d 160
• Parties: David FREEMAN v. STATE.
• Decision Date: 30 April 1999
• Court: Alabama Court of Criminal Appeals

776 So.2d 160

David FREEMAN v. STATE.

CR-95-2080.

Court of Criminal Appeals of Alabama.

April 30, 1999.

Rehearing Denied June 18, 1999.

Thomas M. Goggans, Montgomery, for appellant.

David Freeman, appellant, pro se.

Bill Pryor, atty. gen., and Paul H. Blackwell, Jr., asst. atty. gen., for appellee.

LONG, Presiding Judge.

In June 1988, the appellant, David Freeman, was indicted for six counts of capital murder in connection with the murders of Mary Gordon and Sylvia Gordon. Count I of the indictment charged Freeman with the murder of two or more persons by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala.Code 1975. Count II charged Freeman with the murder of Sylvia Gordon during a burglary in the first degree, see § 13A-5-40(a)(4), Ala.Code 1975. Count III charged Freeman with the murder of Mary Gordon during a burglary in the first degree, see § 13A-5-40(a)(4), Ala.Code 1975. Count IV charged Freeman with the murder of Sylvia Gordon during a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975. Count V charged Freeman with the murder of Mary Gordon during a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975. Lastly, Count VI of the indictment charged Freeman with the murder of Mary Gordon during a rape in the first degree, see § 13A-5-40(a)(3), Ala.Code 1975. In August 1989, a jury found Freeman guilty of all six counts of capital murder charged in the indictment. The jury recommended, by a vote of 11-1, that Freeman be sentenced to death; the trial court accepted the jury's recommendation and sentenced Freeman to death by electrocution.

On direct appeal, this court reversed Freeman's convictions and remanded the cause for a new trial based on the prosecution's discriminatory use of its peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Freeman v. State, 651 So.2d 573 (Ala.Cr.App.1992), rev'd on return to remand, 651 So.2d 576 (Ala.Cr. App.1994). Freeman was retried in 1996, and he was once again found guilty of all six counts of capital murder charged in the indictment. The jury again recommended, by a vote of 11-1, that Freeman be sentenced to death; the trial court accepted the jury's recommendation and sentenced Freeman to death by electrocution. This appeal follows.

At trial, Freeman did not deny that he murdered Mary Gordon and Sylvia Gordon. Instead, he pleaded not guilty by reason of mental disease or defect, and he argued to the jury that as a result of his alleged mental disease or defect, he was unable to conform his conduct to the requirements of the law. The evidence against Freeman was overwhelming. In its sentencing order, the trial court made the following findings of fact concerning the crime and Freeman's participation in the murders:

"On March 11, 1988, Deborah Gordon Hosford picked up her sister, [17-year-old] Sylvia Gordon, from Lanier High School [in Montgomery] and drove to their home at 29 Rosebud Court, arriving at approximately 3:30 p.m. Waiting on the porch was the defendant, David Freeman, who had ridden his bicycle to their home. Freeman ... lived in a trailer near the Gordon home, and he wanted a romantic relationship with Sylvia Gordon. Sylvia was not romantically interested in Freeman, and was planning to tell him that she no longer wished to see him. Deborah, Sylvia, and Freeman entered the home. Deborah had to return to work and left at approximately 3:45 p.m. When she left, Freeman and Sylvia were sitting on the couch.

"Freeman had given Sylvia a note essentially stating that he did not like seeing her only once a week, that he loved her, and that he did not want to lose her like all of his other girlfriends. Sylvia in return gave Freeman a note stating that she viewed the relationship only as friendship and that she did not want to have a serious relationship. Approximately a week prior to the murders, Freeman had a conversation with Francis Boozer, a co-worker, and told her that he would rather see Sylvia dead than [for] someone else have her.

"At about 1:00 a.m. Deborah Gordon Hosford returned home. She found the lights of the home turned off and the door unlocked and slightly ajar. She went inside and noticed that the house had been ransacked. She went to her sister's bedroom and found Sylvia, dead, in her bed with multiple stab wounds and clad only in a T-shirt and socks. As she was fleeing the house, she saw her mother, [43-year-old] Mary Gordon, lying in a pool of blood on the floor of her bedroom. Mrs. Gordon was clad only in a shirt, with her body being nude from the waist down with her legs spread apart.

"Police arrived at the Gordon home and found blood throughout most of the house. Mary Gordon was stabbed 14 times by Freeman; two wounds were fatal. She lived for about five minutes [after being stabbed the first time]. She had also been raped, and the semen deposited in her was consistent as having been left by Freeman. Sylvia Gordon was stabbed 22 times by him, and she remained conscious for eight to ten minutes after the first wound was inflicted. None of the wounds were fatal; Sylvia Gordon bled to death. Examination also revealed that Sylvia Gordon had tears in her vagina. Additionally, police found a shoe print on the shirt of Mary Gordon and a shoe print on a card found on the floor near the body of Mary Gordon. Police also noted that all [telephone] lines in the house had been cut.

"Freeman had brought a knife with him and used it to brutally kill Sylvia Gordon because she did not want a relationship, as well as [to] kill Mary Gordon when she walked in on the murder. After committing the murders, Freeman stole the Gordons' 1980 Pontiac Sunbird and put his bike that he had ridden to the Gordon home in it and fled the scene. He attempted to establish an alibi by later going to work. The Gordons' car was found in a parking lot near Freeman's apartment. Freeman's fingerprint was found on the car and blood that was consistent with that of Sylvia Gordon and Mary Gordon was also in the car. Additionally found in the car was a butcher knife that had been cleaned of blood. The butcher knife was examined by an expert in trace evidence with the Department of Forensic Sciences and was determined to be consistent with having caused the wounds to Mary Gordon, to cut the bra and panties of Mary Gordon, and to cut the jeans of Sylvia Gordon.

"When the police arrived at Freeman's apartment, Freeman answered the door, and the officers noted a bandage on Freeman's right hand. When asked how he cut his hand, Freeman lied, claiming that he had cut his hand while repairing a chair. Freeman was arrested at his apartment. The police, upon a consent to search, found the clothing worn by Freeman, which had blood consistent with that of Sylvia Gordon on them. A mixture of blood and semen was found in the underwear that he had worn. His shoes were seized and compared to the prints found on the shirt of Mary Gordon and the card found in the Gordon home. Examination revealed that Freeman's shoes were consistent with the prints found at the scene. Bite marks were noted on Freeman's arm, which were [determined to have been] made by Sylvia Gordon.

"Freeman initially lied to the police as to his involvement in the crimes. He tried to establish an alibi for his whereabouts. However, when confronted with the evidence, Freeman admitted to stabbing Sylvia Gordon and stated that upon Mary Gordon's entering the home he had no choice but to stab her. Freeman also claimed to have blacked out on two occasions during the crimes.

"In late 1988 and early 1989 Freeman was mentally evaluated by the staff at Taylor Hardin Secure Medical Facility, who found that he suffered no mental disease or defect which caused him to lack the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. In 1995, he was evaluated by Dr. Guy Renfro, an expert forensic psychologist, who also found [that] he was responsible for his acts at the time of the offense."

(C. 1224-27.) The trial court's findings in its sentencing order were supported by the evidence presented at trial.

On appeal from his convictions, Freeman raises 16 issues, most of which he did not raise by objection in the trial court. Because Freeman was sentenced to death, his failure to object at trial does not bar our review of these issues; however, it does weigh against Freeman as to any claim of prejudice he now makes on appeal. See Dill v. State, 600 So.2d 343 (Ala.Cr.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App. 1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

Rule 45A, Ala.R.App.P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

This court has recognized that "`the plain error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Burton v. State, 651 So.2d 641, 645 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995), quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)). Accordingly, we will address the issues raised by Freeman on appeal.

I.

Freeman contends that the trial court erred in failing to conduct a competency hearing to determine whether he...