Freeman v. State of Ga., 78-2871

• Decision Date: 18 July 1979
• Docket Number: No. 78-2871,78-2871
• Parties: Holman FREEMAN, Petitioner-Appellant, v. STATE OF GEORGIA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 65

599 F.2d 65

Holman FREEMAN, Petitioner-Appellant, v. STATE OF GEORGIA, Respondent-Appellee.

No. 78-2871.

United States Court of Appeals Fifth Circuit.

July 18, 1979.

Theodore S. Worozbyt, Atlanta, Ga., for petitioner-appellant.

Lewis Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.

TUTTLE, Circuit Judge:

This habeas appeal involves the effect of an investigating city homicide detective's concealment of a key eyewitness.

Freeman is in state custody ¹ pursuant to his voluntary manslaughter conviction in the Fulton County Superior Court for shooting one Frank Saffles to death. He was indicted for two counts of murder and one count of aggravated assault. He was convicted of the murder of Ray Hill and the killing of Frank Saffles under the voluntary manslaughter statute, but was acquitted of aggravated assault on one of the eyewitnesses. He received a death sentence for the murder conviction and twenty years imprisonment for voluntary manslaughter. The trial court granted Freeman's motion for a new trial as to the murder conviction on discretionary grounds, ² but denied the motion as to the manslaughter conviction. This denial was appealed to the Georgia Court of Appeals, which affirmed the conviction. Freeman v. State, 130 Ga.App. 718, 204 S.E.2d 445 (1974) (not raising the grounds urged here). Freeman then instituted a state habeas corpus application, alleging, Inter alia, that he had been denied due process of law in violation of the 14th Amendment because the state had deprived him of a fair trial by knowingly suppressing exculpatory evidence. The state habeas court denied the writ after an evidentiary hearing and state review was exhausted when the Georgia Supreme Court refused to hear the appeal (both actions unreported). Freeman filed a § 2254 petition in federal court, which was "dismissed" by the district court based on a magistrate's recommendation to deny the petition without evidentiary hearing.

The facts present a bizarre murder-love story revolving around a mysterious Darlene McLane (a/k/a Darlene Brooks and subsequently Darlene Fitzgerald). The principal characters are these: Holman Freeman, a sometimes non-paid employee of Seymour Zimmerman, the proprietor of an Atlanta nightclub; Darlene Brooks McLane, the former wife of an alleged pimp, Paul McLane, and present wife of former Atlanta homicide detective Richard Fitzgerald; and two ex-convicts, Ray Hill and Frank Saffles.

The dime store novel scenario began when a former female employee of Zimmerman asked to return to work at his nightclub, having become disenchanted with work as a prostitute for Paul McLane. Zimmerman consented, thereby enraging McLane, who came to express his displeasure with Zimmerman face to face. To emphasize his dissatisfaction, McLane came to Zimmerman's nightclub armed. Upon entering the bar, McLane was confronted by Freeman, who, while acting as an unpaid bouncer, relieved McLane of his pistol and beat him up in the process, thereby exacerbating McLane's unhappiness with Zimmerman.

Later, McLane gathered a few cronies at his apartment to hatch a plot to kill Zimmerman and Freeman by blowing up Zimmerman's nightclub. Darlene was frightened by the plan and decided to leave her husband. Needing someone to turn to, she found comfort in Ray Hill, a recently released convict, who had been Darlene's "pen pal." Darlene and Hill had been corresponding for several years during Hill's incarceration and when Hill got out of jail, he wanted to get to know his loyal pen pal. Darlene needed a friend and found protection in Hill. Hill sensed an opportunity for a quick buck and arranged a meeting with Zimmerman to warn him of McLane's plot, in hopes of receiving a "reward" for this information. Zimmerman was not buying a "pig in the poke" and had a "contact" at the Atlanta police department check out this information. Finding Hill's tip about McLane's purchasing guns and explosives to be true, Zimmerman gave Hill $500 for his help.

A short time later, Hill called the nightclub asking for more money as compensation for his life saving information. Zimmerman was unavailable so Hill spoke with Freeman, directing him to relay the message. Zimmerman concluded he would furnish only an additional $100, and asked Freeman to notify and deliver the money to Hill.

Hill refused to come to the bar to pick up the money so a meeting was arranged for the early morning hours in a parking lot in Buckhead. Darlene picked up Hill, who was accompanied by Saffles another recently released inmate whom Hill had met in prison to attend the rendezvous. Both men had been drinking all evening. Saffles was playing with a two shot .22 cal. derringer that he had taken from his pocket and Darlene later revealed that Hill had a .38 cal. pistol. Darlene's car arrived early and parked near the meeting place. Shortly thereafter, as found by the magistrate, the group noticed Freeman emerge from a nearby car; as he approached Darlene's car from the passenger's side, Hill was sitting in the front passenger's seat, Saffles was behind Hill, and Darlene was at the wheel. Still, according to the magistrate, there was some small talk and Freeman reached into the car to pull a cigarette from Hill's mouth, as he was about to light the filter.

At this point in the scenario, the shooting began and the theories diverge, with Freeman contending he fired in self-defense only after Hill and Saffles unexpectedly drew their weapons and attempted to shoot him, whereas the state argued that Hill was unarmed and was shot down in cold blood, with Saffles only drawing his weapon after Freeman started shooting.

When the smoke cleared, Hill and Saffles were dead. Darlene received only a few scratches. Two pistols were found in Darlene's Cadillac the .22 derringer and a .38. Both had been fired, with only spent cartridges remaining in the guns.

At trial, the state attempted to establish a gangland type killing, whereby Freeman and Darlene plotted with others to kill Hill and Saffles. In support of its theory, the state presented the testimony of two eyewitnesses other than Darlene. Both testified that several cars drove up to Darlene's Cadillac, Freeman emerged from one car shooting a pistol into the Cadillac from the passenger's side, and that only after the shooting started was a weaker sounding shot heard emanating from the car. One of these eyewitnesses testified that immediately after the shooting, he looked into the car and saw no pistol present near Hill but a derringer lying near Saffles. A few minutes later, the witness testified, another man approached from the driver's side and leaned into the car, and that immediately thereafter he again looked into the car and saw a pistol lying in the seat next to Hill. The prosecutor evidently considered this evidence that a confederate of Freeman's planted the .38 next to the body of Hill important, spending a significant portion of his opening and closing argument stressing that Hill was unarmed. Since the jury found only manslaughter as to Saffles but first degree murder as to Hill, it too must have considered this evidence significant because the facts surrounding the killing of both men were the same except the jury knew Saffles was armed but had heard evidence and argument that Hill was not. Further, although these witnesses testified that Freeman fired first, the jury apparently considered one of them at least partially unworthy of belief as it acquitted Freeman on the charge of aggravated assault on the witness even though the witness testified that Freeman had tried to shoot him.

The appeal centers around the elusive Darlene and her failure to appear at Freeman's state trial. Immediately after the shooting, the police got an ambiguous statement from Darlene that could be read as consistent with both the state's theory and Freeman's defense. It was subsequently recanted in part, and significantly, did not include the testimony that Hill was armed. After being held briefly as a material witness, Darlene seemed to disappear. In the course of attempting to prepare its case, the state sought to locate Darlene and even had a material witness arrest warrant for her. Agents of the district attorney could not find her at the address furnished. Sgt. Richard Fitzgerald, a city homicide detective who investigated the shooting, was requested to help locate Darlene but consistently maintained that he did not know of her whereabouts. At the trial, he testified under oath that he did not "know exactly" where she had been during the months preceding the trial and that although the prosecutor had asked him for an address for Darlene, he had not furnished any such address. In fact, Fitzgerald had not only located Darlene but he had become her trusted confident. He had spoken with her on a monthly basis from the time of the shooting until the trial and had been to her apartment three weeks prior to trial. ³ For apparently personal reasons, Fitzgerald had helped conceal Darlene in an attempt to shield the witness from some apprehended danger involving her violence prone husband or some other spurious or illogical reason, allegedly involving politically warring factions within the Atlanta Police Department. This close relationship developed into an O'Henry ending as Darlene married Sgt. Fitzgerald one year after the trial.

The issues thus presented in this appeal are whether the actions of detective Fitzgerald in knowingly concealing Darlene amounted to the state suppressing evidence favorable to the accused, thereby depriving him of due process in violation of the 14th Amendment, and whether Freeman waived his right to object to Darlene's failure to appear by not attempting to subpoena her or moving for a continuance or mistrial when she did not appear....