Reconsideration denied July 31, 2014 -- Cert. applied for.
[Copyrighted Material Omitted]
Burglary, etc. Union Superior Court. Before Judge George.
Monica P. Baron, for appellant.
W. Jeffrey Langley, District Attorney, for appellee.
DOYLE, Presiding Judge. Andrews, P. J., Dillard and McMillian, JJ., concur. Phipps, C. J., Ellington, P. J., and Miller, J., concur in part and dissent in part.
Doyle, Presiding Judge.
Following a jury trial, Leonard Freeman was convicted of burglary and attempted malice murder. He now appeals from the denial of his motion for new trial, assigning as error (1) the admission of statements he made during a police interview, (2) the admission of hearsay testimony of an emergency medical worker who attended to the victim, (3) the denial of his motion for a mistrial due to lack of access to real-time court reporting, (4) the closure of the courtroom during sentencing, (5) failure to sentence him as a first offender, and (6) ineffective assistance of counsel. For the reasons that follow, we affirm.
Construed in favor of the verdict, the evidence shows that a police officer responded to a nighttime 911 call about a burglary in progress and encountered Freeman, whom the officer knew, walking near the victim's address. Freeman, who lived across the street, denied any knowledge of the burglary, so the officer investigated the house for damage and, upon shining his flashlight in a bedroom window, saw Jan Nelson, Freeman's mother-in-law, on the floor covered in blood. The officer radioed for emergency medical services [328 Ga.App. 757] (" EMS" ), and a responding medical technician, Russell Fortenberry, spoke to Nelson about her injuries. Nelson told Fortenberry that she had awoken to go to the bathroom and found someone in her house who tried to smother her by putting a bag over her head, and she had somehow hit her head.
An investigator arrived at the scene and learned of a small hammer and axe handle found near a pool of blood in a bedroom of Nelson's house. The investigator visited Freeman at his home, and Freeman told the investigator he had been asleep in his house at 3:00 a.m. when his phone rang, and upon seeing Nelson's name on his caller identification, he went to go check on her. When later visited by an investigator at Nelson's hospital room, Freeman later claimed that the axe handle belonged to him, but denied ownership of the hammer. During another subsequent conversation with police outside his home, Freeman told an investigator that earlier he had misled police about being asleep, and he had actually been outside his house drinking liquor.
Freeman later gave a recorded interview at the police department, and following that, he agreed to undergo a polygraph test by a Georgia Bureau of Investigation interviewer. Before beginning the polygraph examination, Freeman met for a pre-interview session, during which he was administered a Miranda  waiver, which he signed. During the pre-interview, Freeman told the GBI interviewer that he put a bag over Nelson's head and hit her twice with a hammer. He explained that he had only " roughed [her] up" for the purpose of scaring her so that she would not continue to live alone. As a result of those statements, the polygraph test was never administered, and the GBI agent immediately advised the police investigator of Freeman's statements. Freeman, the GBI agent, and the police investigator went to a separate interview room where Freeman again told the investigator that he had placed a bag over Nelson's head and hit her in the head with a hammer. After that interview, Freeman was formally arrested.
Freeman was charged with aggravated assault, burglary, and attempted malice murder. Following a trial, the jury found him guilty on all three counts, and the trial court sentenced him on the burglary and attempted murder charges, merging the aggravated assault charge into the attempted murder charge. Freeman moved for a new trial, which motion was denied, giving rise to this appeal.
1. Freeman contends that the trial court erred by admitting statements he made to the police investigator immediately after his [328 Ga.App. 758] confession during the GBI pre-interview for the polygraph test. Specifically, Freeman argues that he should have been given an additional Miranda warning for purposes of the statement he made to the police investigator. We disagree.
The trial court addressed Freeman's challenge to the statement during a Jackson v. Denno  hearing. " Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a defendant's statement at a Jackson v. Denno hearing will be upheld on appeal."  The record from the hearing shows that Freeman was properly advised of his Miranda rights before the pre-interview, there was no significant time gap between the two interviews, and the second interview (during which the initial interviewer was present) was of a similarly non-coercive nature, even if conducted in a different interview room. Thus, " the lack of a Miranda warning after the break is of no consequence [because Freeman] was informed of and waived his Miranda rights before the first interview and the second interview was part of a continuous series of interviews."  " Thus, it cannot be said that the trial court erred in ruling that the [subsequent] statement was admissible." 
2. Freeman next argues that the trial court erred by admitting hearsay testimony from the EMS worker who treated Nelson at the scene and told the jury what she said about the attack. The record shows that the responding officer radioed for EMS immediately upon discovering " Nelson on the floor at the end of her bed[,] ... covered in blood." The challenged testimony came from the EMS worker who was dispatched to the scene. He described Nelson as having a laceration to the top of her head with some " obvious bleeding" that was under control by the time he arrived. As he evaluated Nelson, the EMS worker " spoke with the patient just to do my initial assessment ... like I would do with every patient to find out ... how she got her injury and then ... what happened during and so forth there with the injury[. S]he was alert at the time and was able to answer all of our questions." Over Freeman's objection, the EMS worker stated that when, as part of his treatment routine, he asked Nelson how she was injured, she responded that " she had gotten up to go to the [328 Ga.App. 759] bathroom and found someone in the house and they [sat on her,] had tried to smother her, and put a bag over her head, and she was unaware of exactly how she got the laceration to the top of the head."
Freeman objected to the testimony on the grounds that it was hearsay and a violation of his constitutional right to confrontation under Crawfor ...