Freeman v. State, S93A1574
| Decision Date | 28 February 1994 |
| Docket Number | No. S93A1574,S93A1574 |
| Citation | 264 Ga. 27,440 S.E.2d 181 |
| Parties | FREEMAN v. STATE. |
| Court | Georgia Supreme Court |
Jimmy D. Berry, Marc D. Cella, Marietta, for Freeman.
Thomas J. Charron, Dist. Atty., Frank R. Cox, Russell J. Parker, Asst. Dist. Attys., Marietta, for the State.
Michael J. Bowers, Atty. Gen., Atlanta.
Paige M. Reese, Staff Atty., Atlanta.
Debra Halpern Bernes, Nancy I. Jordan, Asst. Dist. Attys., Marietta, for other appellee.
In this interim review in a death penalty case, appellant Ronald Freeman enumerates as error certain rulings by the trial judge. The principle issues on appeal involve the state's proposed use of similar transaction evidence, the constitutionality of OCGA § 17-10-16, providing for a sentence of life without parole, and the propriety of a change of venue. We affirm in part and reverse in part.
On June 25, 1992, Freeman and co-defendant Enrico Williams were indicted for a murder and armed robbery which occurred at a Burger King restaurant on Powers Ferry Road in Cobb County (Burger King I). Five months later, Williams, pursuant to a plea bargain, pleaded guilty to the armed robbery charge; the murder charge against him was placed on the dead docket in return for a statement and agreement to testify against Freeman. As a result of the statement made by Williams, five more indictments were returned against Freeman, charging him with: armed robbery of a Burger King restaurant on Cobb Parkway in Cobb County (Burger King II); murder and armed robbery at a Circle K convenience store on Six Flags Drive in Cobb County; murder and armed robbery at an RK convenience store on Franklin Road in Cobb County; armed robbery of a hotel; and three counts of aggravated assault. The state sought the death penalty on the Burger King I, Circle K and RK indictments.
In January 1993, Freeman was tried on the aggravated assault indictment and found guilty of all three counts; he was sentenced to 60 years in prison. In February 1993, Freeman was tried and found guilty of the armed robbery of a Burger King restaurant (Burger King II) and sentenced to life imprisonment consecutive to the 60 year aggravated assault sentence. In March, 1993, the death penalty case involving the murder and armed robbery at the RK convenience store was called for jury trial. At this trial, Freeman moved for a change of venue; the trial judge denied the motion but ordered a change of venue as to the two remaining untried death penalty cases (Circle K and Burger King I). Also, prior to jury selection the state, in compliance with Uniform Superior Court Rule 31.3(b), filed its notice of intent to present evidence of similar transactions. The trial court ruled that the murder and armed robbery at the Circle K convenience store, the murder and armed robbery at the RK convenience store, the armed robbery at Burger King (Burger King II), and the murder and armed robbery at Burger King (Burger King I) were "relevant, probative and therefore admissible in the trial of each of" the other cases. In June a jury found Freeman guilty of the murder and armed robbery at the RK convenience store; the jury declined the death penalty, imposing a sentence of life imprisonment on the murder conviction.
Pre-trial proceedings in the instant case involving the murder and armed robbery at the Circle K convenience store began in July of 1993, and pursuant to OCGA § 17-10-35.1, the trial judge certified various issues for interim review in this death penalty case.
1. Freeman enumerates as error the trial court's order allowing the State to present evidence of his convictions for the armed robbery of the Burger King (Burger King II) and the armed robbery and murder at the RK convenience store, and of the pending indictment for murder and armed robbery at Burger King (Burger King I). While unconnected crimes are generally inadmissible because of prejudice tending to place the defendant's character into evidence, the State may introduce such evidence provided that it satisfies two conditions. Davis v. State, 249 Ga. 309, 311, 290 S.E.2d 273 (1982). First, there must be evidence that the defendant did in fact commit the independent crime; second, there must be sufficient similarity between the independent crime and the crime charged such that proof of the former tends to prove the latter. Id. Once these two conditions have been satisfied, evidence of the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. Id. In this case, both conditions are met as there was sufficient evidence that Freeman committed each of the independent crimes, and sufficient similarity between the independent crimes and the crime with which Freeman is charged.
2. Both Freeman and the State contend that OCGA § 17-10-16, the life-without-parole statute, is unconstitutional. We disagree.
a. Section 7 of the act creating OCGA § 17-10-16 provides that the statute applies only to crimes committed after its effective date of May 1, 1993, unless the defendant requests in writing and the State gives its express written consent that the life-without-parole statute apply. Freeman argues that the statute violates the equal protection clause of the Fourteenth Amendment because it places the discretion to withhold the presentation of a life-without-parole sentence in cases of crimes committed before May 1, 1993, in the hands of the prosecutor. This contention is without merit for the same reasons stated in Knight v. State, 243 Ga. 770, 257 S.E.2d 182 (1979).
Prosecutorial discretion in this situation is no different from prosecutorial discretion in any other. Given any set of facts, prosecutors must exercise discretion as to what the criminal charge will be. Homicides could be indicted as murder, voluntary manslaughter, or involuntary manslaughter. By not seeking the death penalty in a murder case, a prosecutor in effect fixes the sentence--that is, life imprisonment. Therefore, since prosecutorial discretion comes into play under every criminal statute,...
To continue reading
Request your trial
-
Mobley v. State
...ruling as to the constitutionality of OCGA § 17-10-16, the life-without-parole statute, are without merit. See Freeman v. State, 264 Ga. 27, 28(2)(a), 440 S.E.2d 181 (1994). studies "that suggest a possible genetic basis for violent and impu......
-
Sullivan v. State
...P.2d 191, 196 (1975). 26. See 18 U.S.C. § 1958 (prohibiting interstate travel to commit murder-for hire). 27. See Freeman v. State, 264 Ga. 27, 29, 440 S.E.2d 181 (1994) ("`Given any set of facts, prosecutors must exercise discretion as to what the criminal charge will be.' 28. United State......
-
Pace v. State
...Grogan's homes were properly admitted as similar transactions to show identity, scheme, and course of conduct. See Freeman v. State, 264 Ga. 27(1), 440 S.E.2d 181 (1994); Williams v. State, 261 Ga. at 640(2), 409 S.E.2d 20. Pace's claim that a State's witness provided false testimony is wit......
-
Presnell v. State
...parole upon agreement by the State, is unconstitutional. This argument is controlled adversely to Presnell by Freeman v. State, 264 Ga. 27(2)(a), 440 S.E.2d 181 (1994). ...
-
Criminal Law - Frank C. Mills, Iii
...death penalty may be imposed and who is sentenced to imprisonment for life without parole shall not be eligible for any form of parole. 12. 264 Ga. 27, 440 S.E.2d 181 (1994). 13. Id. at 27, 440 S.E.2d at 182. 14. Id. at 29, 440 S.E.2d at 183. 15. Id. at 27, 440 S.E.2d at 183. 16. Id. at 29,......