Freeman v. State

• Decision Date: 30 June 1997
• Docket Number: No. S97A0422,S97A0422
• Citation: 268 Ga. 185,486 S.E.2d 348
• Parties: , 97 FCDR 2353 FREEMAN v. The STATE.
• Court: Georgia Supreme Court

Page 348

486 S.E.2d 348

268 Ga. 185, 97 FCDR 2353

FREEMAN v. The STATE.

No. S97A0422.

Supreme Court of Georgia.

June 30, 1997

Reconsideration Denied July 11, 1997.

Antoinette D. Johnson, Marietta, for Ronald Lupez Freeman.

Debra Halpern Bernes, Asst. Dist. Atty., Thomas J. Charron, Dist. Atty., Nancy I. Jordan, Asst. Dist. Atty., Russell J. Parker, Asst. Dist. Atty., Marietta, Thurbert E. Baker, Atty. Gen., Allison Beth Goldberg, Paula K. Smith, Senior Asst. Atty. Gen., Atlanta, for State.

CARLEY, Justice.

A jury found Ronald Lupez Freeman guilty of felony murder while in the commission of an armed robbery. Although the State had sought the death penalty, the jury recommended life imprisonment. After the trial court entered a judgment of conviction and a life sentence, Freeman filed a motion for new trial. The trial court denied the motion for new trial and Freeman appeals. ¹

1. Construing the evidence most strongly against Freeman shows the following: The victim was a Cobb County convenience store owner who was shot in the head and died shortly after being transported to the hospital. Two additional bullets were found in the walls of the store and several thousand dollars in cash and money orders were missing. Approximately one month after the murder, a friend of Freeman's reported to the police that Freeman had admitted shooting the victim. When the police arrested Freeman, he was armed with a revolver. A State firearms expert testified that one of the bullets found in the wall of the store was fired from Freeman's revolver and that it was "probable" that the bullet recovered from the victim's body also was fired from that weapon. Freeman was involved in other recent armed robberies of Cobb County convenience and fast food stores wherein store personnel were killed. See Freeman v. State, 268 Ga. 181, 486 S.E.2d 161 (1997); Freeman v. State, 266 Ga. 343, 467 S.E.2d 515 (1996). Freeman's accomplice in one of those recent similar crimes testified that Freeman had admitted killing the victim and stealing the cash and money orders. This evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of Freeman's guilt of felony murder while in the commission of an armed robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Freeman enumerates as error the denial of his motion for a change of venue based upon pre-trial publicity. Such a change of venue is appropriate when "a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity." Jones v. State, 261 Ga. 665, 666(2)(b), 409 S.E.2d 642 (1991). Although the extent and timing of the pre-trial publicity are factors in determining whether there has been such a showing, the decisive factor is the effect of the publicity on the ability of prospective jurors to be objective. See Thornton v. State, 264 Ga. 563, 574(17), 449 S.E.2d 98 (1994).

Ninety-six prospective jurors underwent extensive voir dire. Although forty-one were excused for cause, only nine of them were excused because of the opinions they had formed as the result of exposure to pre-trial publicity. Thus, the percentage of prospective jurors excused for cause due to pre-trial publicity is half that found problematical in Jones, supra. Moreover, every qualified prospective juror who had been exposed to pre-trial publicity stated that he or she could set that exposure aside and reach a verdict based solely on the evidence presented. Under these circumstances, we conclude that the voir dire does not reflect a "substantive showing" of the likelihood of prejudice by reason of extensive pre-trial publicity. CompareJones v. State, supra.

3. Freeman urges that the trial court erred when it ordered him to provide the State with the names, addresses and written reports of all of his experts. Although the trial court's ruling in this regard was correct at the time it was made, we subsequently held in Rower v. State, 264 Ga. 323, 324(5), 443 S.E.2d 839 (1994) that the State is entitled to only the written reports of experts which the defense intends to introduce at trial. Accordingly, the trial court's order was erroneously overbroad. See Childress v. State, 266 Ga. 425, 432(3), 467 S.E.2d 865 (1996); Johnson v. State, 265 Ga. 833, 463 S.E.2d 123 (1995).

The error, however, must be harmful to be reversible. Mobley v. State, 265 Ga. 292, 294(4), 455 S.E.2d 61 (1995). Freeman urges that, because the trial court erroneously ordered him to furnish an unfavorable report of his ballistics expert to the State, he was harmed by being required to call that expert as a witness at trial. The record shows, however, that the State relied entirely upon the testimony of its own ballistics expert to connect Freeman's revolver with the bullets. Although Freeman was certainly not compelled to do so, he thereafter elected to call his ballistics expert in an apparent attempt to counteract the testimony of the State's expert and, if Freeman failed in this attempt, it was not the result of the trial court's erroneous discovery order. Compare Childress v. State, supra. Since Freeman has shown no harm, the error does not warrant a new trial.

4. Freeman urges that the trial court's charge was erroneous because it failed to specify the appropriate standard of proof applicable to the similar crimes evidence. Freeman requested that the trial court give a charge that the State had the burden of proving his similar offenses "beyond a reasonable doubt." It was not error to refuse to give this request, since the similar offenses were not an element of any offense for which Freeman was being tried. Wallace v. State, 246 Ga. 738, 742(5), 273 S.E.2d 143 (1980).

There is a wide split of authority as to the proper standard of proof for similar crimes, with jurisdictions traditionally opting between three different standards. Although a few jurisdictions do appear to apply the "beyond a reasonable doubt" standard, the prevailing view is that the "clear and convincing evidence" standard applies, but support for that standard is eroding and a significant minority of jurisdictions now applies the "preponderance of the evidence " standard. Imwinkelried, Uncharged Misconduct Evidence § 2:08. In Williams v. State, 251 Ga. 749, 755(4), 312 S.E.2d 40 (1983), we held that the State is required to show "sufficient evidence tying [the defendant] to the perpetration of the independent crimes...." Although we did not explicitly define "sufficient evidence," it is clear from a review of the strongly worded dissent of Justice Smith that "sufficient evidence" is certainly a lesser standard than "clear and convincing evidence." Williams v. State, supra at 816(1)(b)(2), 312 S.E.2d 40 (Dissent of Justice Smith). According to Justice Smith, the applicable standard was "clear and convincing" and the majority incorrectly found evidence of other crimes to be admissible under a theory which was "at odds with the rule of evidence which requires clear proof of the accused's commission of each and every extrinsic offense." Williams v. State, supra at 817(1)(b)(2), 312 S.E.2d 40 (Dissent of Justice Smith).

If the applicable standard of proof is less than "beyond a reasonable doubt" under Wallace, supra, and less than "clear and convincing evidence" under Williams, supra, then the applicable standard of proof in Georgia would appear to be a "preponderance of the evidence." This standard is consistent with persuasive authority from the Supreme Court of the United States. Huddleston v. U.S., 485 U.S. 681, 687, fn. 5, 108 S.Ct. 1496, 1500, fn. 5, 99 L.Ed.2d 771 (1988) clearly holds that the admissibility of similar crimes is dependent upon a preliminary showing by a "preponderance of the evidence," rather than a showing by "clear and convincing evidence." The authority from other jurisdictions supporting the "clear and convincing evidence" standard is certainly no more persuasive than a decision of the Supreme Court of the United States. Although the proponents of the "clear and convincing evidence" standard have criticized Huddleston, support for the "clear and convincing evidence" standard nevertheless has weakened as courts in various jurisdictions have shifted to Huddleston 's "preponderance of the evidence" standard. Imwinkelried, Uncharged Misconduct Evidence § 2:08. Moreover, despite the criticism leveled at Huddleston, the Supreme Court has continued to apply the preponderance standard. Estelle v. McGuire, 502 U.S. 62, 74(II), 112 S.Ct. 475, 483, 116 L.Ed.2d 385 (1991). "[W]e find 'nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard.' " Bourjaily v. U.S., 483 U.S. 171, 175-176, 107 S.Ct. 2775, 2779, 97 L.Ed.2d 144 (1987) (cited with approval in Huddleston v. U.S., supra at 687, fn. 5, 108 S.Ct. at 1500, fn. 5). Accordingly, we adhere to the "preponderance of the evidence" standard for the admission of similar crimes evidence which was implicitly adopted in Williams, supra. See also Smith v. State, 267 Ga. 363, 364(2), 478 S.E.2d 379 (1996); Freeman v. State, supra.

In a criminal case, the trial court is not required to give an unrequested charge as to any collateral matter and the manner in which the jury should consider the testimony of witnesses is a collateral matter. Burger v. State, 245 Ga. 458, 459(1), 265 S.E.2d 796 (1980). It has long been the rule in this state that a request to charge must be correct, even perfect, and that it must also be legal, apt, precisely adjusted to some principle involved in the case and be authorized by the evidence. Kessel v. State, 236 Ga. 373, 374(2), 223 S.E.2d 811 (1976). See also McCoy v. State, 262 Ga. 699, 701(3)(a), 425 S.E.2d 646 (1993); Hill v. State, 211 Ga. 683, 685(4), 88 S.E.2d 145 (1955); Key v. State, 211 Ga. 384, 385(5), 86 S.E.2d 212 (1955); Lewis v. State, 196 Ga. 755, 760(3), 27 S.E.2d 659 (1943)...