Jennings v. State , 282 Ga. 679 ( 2007 )

CARLEY, Justice.

On the morning of April 11,2003, James W. Jennings told several people that he believed that he killed his girlfriend, Mary Elizabeth Treadwell, by beating and choking her. His brother took him to a hospital emergency room where he was treated for a drug overdose and minor injuries. Jennings told hospital personnel that he dreamed that he had killed Ms. Treadwell, and that he would kill himself if he had a gun. After law enforcement officers arrived, they tried to determine Ms. Treadwell’s location, but Jennings could not be specific as to her whereabouts. Upon being released from the emergency room, he was taken to the sheriffs office. After Ms. Treadwell’s body was found, Jennings was informed of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) and gave a more detailed statement. The victim had been brutally beaten and strangled to death. Blood samples taken from Jennings’ hands and jeans matched the victim’s DNA.

Jennings was charged with alternative counts of malice murder and felony murder during the commission of aggravated assault. After a jury trial, Jennings was found guilty of both counts. Although the trial court entered judgments of conviction on the two guilty verdicts and imposed concurrent sentences of life imprisonment, it corrected the judgment on motion for new trial, properly finding that the felony murder count was surplusage and should be vacated, and striking the sentence based on that count. Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). The motion for new trial was otherwise denied, and Jennings appeals.^*

1. A review of the evidence reveals that, when construed most strongly in support of the jury’s verdict, it is sufficient to find Jennings guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Teal v. State, 282 Ga. 319, 321 (1) (647 SE2d 15) (2007).

2. Jennings contends that his trial counsel rendered ineffective assistance by failing to raise the issue of his mental capacity as a defense and to have a mental evaluation completed to determine his capacity to stand trial. See Martin v. Barrett, 279 Ga. 593 (619 SE2d 656) (2005). To prevail on this claim under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), Jennings “ ‘must show both deficient performance by trial counsel and actual prejudice. (Cits.)’ [Cit.]” Martin v. Barrett, supra. “ ‘On appeal, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. (Cits.)” (Cit.)’ [Cit.]” Sanders v. State, 281 Ga. 36, 39 (3) (635 SE2d 772) (2006).

Before and during his incarceration for the murder of Ms. Treadwell, Jennings was treated at a mental facility. However, the record does not contain any medical records, expert testimony, or other evidence of his diagnosis or treatment. Compare Martin v. Barrett, supra at 595-596. “The burden is on the defendant to show that his attorney’s omissions have prejudiced his case — here, that he has a mental condition that should have been investigated and offered” as proof of a defense to criminal liability for Ms. Treadwell’s murder or of his incompetence to stand trial for that offense. Williams v. State, 258 Ga. 281, 289-290 (7) (368 SE2d 742) (1988).

The trial record . . . does not demonstrate that [Jennings’] sanity or competency was or should have been a significant issue at trial, and [Jennings] did not offer any evidence at the hearing on his claim of ineffective assistance of trial counsel to support his assertion that his sanity or competency should have been raised as an issue at trial. Accordingly, we conclude that [Jennings] has failed to carry his burden to prove the prejudice prong of his claim that trial counsel was ineffective for failing to request an independent psychiatric examination. [Cits.]

Bergeson v. State, 272 Ga. 382-383 (2) (530 SE2d 190) (2000). See also Williams v. State, supra. Therefore, Jennings’ “claim of ineffective assistance of counsel must fail, and we do not need to consider the performance prong of the Strickland test. [Cit.]” Sanders v. State, supra.

3. Jennings urges that the trial court erred in admitting into evidence the statements he made at the hospital to a sheriffs deputy and an investigator. His contention is that he was in custody at the time and was not given the Miranda warnings.

Miranda warnings are required when a person “is (1) formally arrested or (2) restrained to the degree associated with a formal arrest.” [Cit.] Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary. [Cit.]

Robinson v. State, 278 Ga. 299, 301 (2) (602 SE2d 574) (2004).

When Jennings spoke to the law enforcement officers at the hospital, he “had not been released from medical treatment or told by medical personnel that he could leave the hospital. More significantly, he was not isolated by police for questioning....” Robinson v. State, supra. Thus, he was in a medical, rather than an investigative, setting. See also Moyer v. State, 275 Ga. App. 366, 371 (3) (a) (620 SE2d 837) (2005) (defendant was in emergency room and not an isolated part of the hospital). The officers did not ask Jennings any pre-Miranda questions regarding what he may have done to Ms. Treadwell. Robinson v. State, supra at 301-302 (2). They merely asked him where she was, in an attempt to locate her expeditiously and to assist her if she was alive. The fact that the officers may have suspected Jennings of having committed a murder

did not render the statements at issue violative of Miranda. As long as a person is not in custody, it is irrelevant to the Miranda analysis that investigators “(1) might have focused their suspicions upon the person being questioned, or (2) have already decided that they will take the person into custody and charge [him] with an offense.” [Cit.]

Robinson v. State, supra at 302 (2) (where police had already obtained defendant’s bloody clothes). The investigator’s uncontradicted testimony at the hearing on the motion to suppress was that Jennings was under observation as a potentially suicidal person, that he was never restrained, and that “he was not in police custody but was free to leave as far as law enforcement was concerned.” Robinson v. State, supra.

The officers’ testimony “supports the finding that [Jennings] was not in custody for the purposes of Miranda at the time he made the statements ... at the hospital. [Cit.] Consequently it was not error to refuse to suppress the statements on the basis urged.” Robinson v. State, supra. See also Alwin v. State, 267 Ga. App. 236, 239 (2) (599 SE2d 216) (2004). Compare Mayberry v. State, 267 Ga. App. 620, 623 (600 SE2d 703) (2004) (numerous restrictions on defendant’s freedom instituted by police); Moyer v. State, supra at 371-372 (3) (b) (defendant held down and handcuffed to gurney). Therefore, Jennings’ contention that the alleged Miranda violation tainted his subsequent statement at the sheriff s office is moot.

4. The prosecutor made comments during closing argument which Jennings contends could reasonably be construed as comments on his failure to testify.

In determining whether a prosecutor has improperly commented on an accused’s failure to testify, we must evaluate whether “the prosecutor’s manifest intention was to comment on the accused’s failure to testify’ or whether “the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.” [Cits.] Having evaluated the record, we conclude that the prosecutor’s comment [s do] not satisfy either prong of this test.

Washington v. State, 279 Ga. 722, 724 (3) (620 SE2d 809) (2005).

After referring to defense counsel’s opening statement, the prosecutor stated that “[t]he defense, during the course of this case, presented no evidence,” subsequently began to refer to what Jennings’ attorney said in opening statement, and later stated that defense counsel “is an experienced lawyer and a fine person.” At each of these three points, defense counsel objected to the argument, and the trial court told the prosecutor to move on. “The State’s comments were not directed at the defendant’s decision not to testify; instead, they were directed at defense counsel’s failure to rebut or explain the State’s evidence. [Cits.]” Johnson v. State, 271 Ga. 375, 383 (15) (a) (519 SE2d 221) (1999). See also Matthews v. State, 268 Ga. 798, 804 (6) (493 SE2d 136) (1997). “The complained [of] portion of the prosecutor’s closing argument was a comment on [Jennings’] failure to produce evidence, not a prohibited comment on [his] failure to testify. [Cits.]” White v. State, 242 Ga. 21, 22 (5) (247 SE2d 759) (1978).

Judgment affirmed.

All the Justices concur, except Sears, C. J., and Hunstein, P. J., who concur specially.

* The homicide occurred on April 11, 2003, and the grand jury returned an indictment on June 10, 2003. The jury found Jennings guilty on October 15, 2004, and the trial court entered judgment on November 16, 2004. The motion for new trial was filed on November 15, 2004. It was denied, and the judgment was corrected, on June 5, 2006. On May 3, 2007, the trial court granted Jennings’ motion to pursue an out-of-time appeal, and he filed a notice of appeal on that same day. The case was docketed in this Court on June 21,2007, and submitted for decision on the briefs.