Justia.com Opinion Summary:Download as PDF
Defendant was convicted of felony murder and aggravated assault with the shooting death of the victim. Defendant subsequently appealed from the denial of his motion for new trial, arguing that a search warrant for his medical records and the introduction of the records into evidence violated his constitutional rights; the trial court erred in admitting his custodial statements; and his trial counsel was ineffective. The court held that defendant could not claim an expectation of privacy in the medical records to the extent that they contained information he disclosed to medical personnel or they disclosed to him in the presence of two officers and, even if defendant had a reasonable expectation of privacy, the search and seizure of the medical records pursuant to a valid warrant was lawful. The court also held that admitting the medical records into evidence at trial did not violate the Confrontation Clause and, in any event, none of the medical records were testimonial inasmuch as the circumstances surrounding their creation and the statements and actions of the parties objectively indicated that the records were prepared for the primary purpose of facilitating defendant's medical care. The court further held that the trial court's error in admitting defendant's response to an officer's inquiry was harmless beyond a reasonable doubt, as the statement was cumulative of numerous admissible statements defendant made and that defendant's voluntary, unsolicited statements made to or in the presence of officers at the medical center were properly admitted into evidence. The court finally held that trial counsel's strategic decision to forego filing an out-of-time demand for speedy trial to continue to pursue his investigation was reasonable and did not constitute ineffective assistance. Accordingly, the judgment was affirmed.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: October 17, 2011
S11A1014. BOWLING v. THE STATE.
HUNSTEIN, Chief Justice.
Following a trial, a jury convicted appellant Larry Bowling of felony
murder and aggravated assault in connection with the shooting death of Melody
Harrell. Bowling appeals from the denial of his motion for new trial,1 arguing
that a search warrant for his medical records and the introduction of the records
into evidence violated his constitutional rights; the trial court erred in admitting
his custodial statements; and his trial counsel was ineffective. We affirm
1. The evidence at trial authorized the jury to find that on the evening of
The crimes occurred on April 24, 2004, and a Gwinnett County grand jury
returned a true bill of indictment against Bowling on July 21, 2004, charging him with
malice murder, felony murder, and aggravated assault. By notice of appeal filed October
8, 2008, Bowling appealed to this Court from the trial court’s order denying his second
motion to dismiss based on violation of his state and federal constitutional right to a
speedy trial. This Court affirmed. Bowling v. State, 285 Ga. 43 (673 SE2d 194) (2009).
Bowling was tried before a jury on May 18-22 and May 26, 2009. The jury returned its
verdict on May 26, 2009, convicting Bowling of felony murder and aggravated assault
and acquitting him of malice murder. The trial court merged the aggravated assault
conviction into the felony murder conviction and sentenced Bowling to life in prison for
felony murder. Bowling’s motion for new trial, filed May 27, 2009 and amended August
27, 2010, was denied October 1, 2010. The appeal was docketed to the April 2011 term
in this Court and orally argued on June 13, 2011.
April 23, 2004, Bowling, victim Harrell, and several of Bowling’s family
members went to a bar in Buford, the Hideaway, to celebrate Bowling’s
birthday. Bowling drank shots of liquor and began to disturb other customers.
Around midnight, police responded to a call from the Hideaway. Personnel
from the bar reported that Bowling had struck Harrell and needed to leave.
Bowling was in the parking lot when police arrived. He refused to leave at first
but ultimately departed in a van driven by Harrell.
At approximately 2:42 a.m. on April 24, 2004, Gwinnett County police
officer Miles Shapiro responded to a reported traffic accident in the Bona Road
area. Upon arriving, Shapiro observed a van that had crashed into the right front
corner of a house at 615 Bona Road and saw Bowling standing over Harrell,
who was lying in the driveway with a large amount of blood around her head.
Shapiro asked Bowling what happened, and Bowling replied that he accidentally
shot Harrell when a gun discharged from his ankle and Harrell, who was
driving, lost control of the van. Shapiro asked where the weapon was, but
Bowling stated that he did not know. Shapiro decided to take Bowling into
custody. He handcuffed Bowling’s right wrist through Bowling’s belt and
beltloop but left the left wrist free because Bowling was complaining of a
shoulder injury, and he had Bowling lie on the ground. Shapiro again asked
Bowling about the location of the gun. Bowling said that he thought it was in
Officer Joseph Morales subsequently arrived at the scene followed by
Sergeant Scott Killian. As Morales attempted to assess Harrell’s condition,
Bowling told him that it was an accident and she was shot. Morales asked
Bowling where the gun was, and Bowling stated that it was under his leg. When
Killian arrived, Bowling was yelling that he had shot her, it was an accident, and
the police needed to help her. Killian asked Bowling, “What happened?” and
“Where’s the gun?” Bowling replied that the gun went off accidentally and that
the gun was under his left leg, but when Killian clarified that he wanted to know
where it was “right now,” Bowling said he did not know. As Killian examined
Bowling’s pant leg, Bowling told Killian that the gun was under the seat under
his left leg. Shapiro ultimately located a loaded .380 caliber handgun some six
to eight feet from the van’s passenger door under a window of the house.
Bowling and Harrell were transported to Gwinnett Medical Center, where
Harrell died from a gunshot wound to her head shortly after midnight on April
25, 2004. At the hospital, Bowling asked Shapiro to come into the room where
he was being treated. Bowling told the doctor that he was in the car with his
girlfriend while she was driving and a gun accidentally went off. As part of his
treatment, Bowling’s blood and urine were drawn and analyzed. The lab results
showed his blood alcohol content was .142; his urine drug screen was positive
for cocaine, marijuana, opiates, and benzodiazepines.
Investigator Dave Henry introduced himself to Bowling at the hospital and
asked Bowling his name and the victim’s name, which Bowling provided.
Without prompting, Bowling stated that the weapon was under his leg, he pulled
it out, and when it was raised to head level, it accidentally went off. After
checking on Harrell, Henry advised Bowling that he was under arrest and
secured an arrest warrant. Officer Larry Stone relieved Shapiro at around 7:00
a.m. As Stone stood outside the treatment room, Bowling said that “he loved
her, it was an accident and that he would never hurt her.” Bowling asked Stone
to come into the room, where Bowling stated that he pulled the gun from under
the passenger seat and when he had it up, it just discharged. While en route to
jail, Bowling asked Stone whether he had ever had a gun “just go off.”
Kelley Cross, who lived with Bowling in August 2008 when Bowling was
out on bond, testified that Bowling told him that, on the date in question, he sent
Harrell to Bona Road to buy cocaine, but the substance she purchased was not
cocaine, so he had Harrell drive him back to Bona Road. According to Cross,
Bowling said that when they found the seller, he brandished his gun and
demanded his money or the drugs and “[Harrell] . . . started freaking out . . . so
he turned the gun on her and told her to quit tripping and she knocked his arm
back. And right when she knocked his arm back, that’s when he . . . shot her.”
Viewed in the light most favorable to the verdict, the evidence was
sufficient to enable the jury to find beyond a reasonable doubt that Bowling was
guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S.
307 (99 SC 2781, 61 LE2d 560) (1979).
2. On May 13, 2009, an investigator with the district attorney’s office
obtained and executed a search warrant authorizing a search of Gwinnett
Medical Center for records regarding the examination, treatment, and care of
Bowling on April 24, 2004. Bowling contends that the search warrant was
unconstitutional and the medical records should have been suppressed at trial.
a. Bowling maintains that the privacy guarantees inherent in the Fourth
Amendment to the U.S. Constitution and Art. I, Sec. I, Para. XIII of the Georgia
Constitution prohibited the search and seizure of his personal medical records,
even pursuant to a valid search warrant. We disagree.
We do not dispute that both the Fourth Amendment and the corresponding
provision of the Georgia Constitution protect personal privacy. See, e.g., City
of Ontario, Cal. v. Quon, – U.S. – (130 SC 2619 (II), 177 LE2d 216) (2010);
King v. State, 272 Ga. 788 (1) (535 SE2d 492) (2000) (“King I”). Indeed, an
individual may challenge the legality of a search under the Fourth Amendment
or Ga. Const., Art. I, Sec. I, Para. XIII only if he or she has “manifested a
subjective expectation of privacy in the object of the challenged search and
society is willing to recognize that expectation as reasonable. [Cit.]”
(Punctuation omitted.) Kyllo v. United States, 533 U.S. 27, 33 (II) (121 SC
2038, 150 LE2d 94) (2001). See also Espinoza v. State, 265 Ga. 171 (2) (454
SE2d 765) (1995); Thomas v. State, 263 Ga. 85 (3) (428 SE2d 564) (1993).
Even assuming for purposes of this opinion that patients generally
maintain a reasonable expectation of privacy in their medical records for
purposes of the Fourth Amendment and Ga. Const., Art. I, Sec. I, Para. XIII,
Bowling’s attempt to establish a reasonable expectation of privacy in his
medical records under the particular circumstances of this case founders by
virtue of the fact that he invited two law enforcement officers into the room
where he was being treated. Bowling cannot claim an expectation of privacy in
the medical records to the extent that they contain information he disclosed to
medical personnel or they disclosed to him in those two officers’ presence. See
Thomas, supra, 263 Ga. at 86 (“What a person knowingly exposes to the public
. . . is not a subject of Fourth Amendment protection. [Cit.]”).
Even if we further assume that, despite inviting the officers into his room,
Bowling nonetheless maintained a reasonable expectation of privacy in some
portion of the medical records, the search and seizure of those records pursuant
to a valid warrant was lawful. The privacy protections afforded by the Fourth
Amendment are not absolute. Rather, “the permissibility of a particular practice
‘is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate government interests.’ [Cits.]”
Cooper v. State, 277 Ga. 282, 286 (587 SE2d 605) (2003). In rejecting an
appellant’s argument that his state constitutional due process rights entitled him
to notice and opportunity to be heard prior to issuance of a search warrant for
his medical records, we explained:
When the State’s reason to believe incriminating evidence will be found
becomes sufficiently great, the invasion of privacy becomes justified and
a warrant . . . will issue. . . .[T]he Fourth Amendment has itself struck the
balance between privacy and public need, and there is no occasion or
justification for a court to revise the Amendment and strike a new balance.
(Footnotes and punctuation omitted.) King v. State, 276 Ga. 126, 128-129 (2)
(577 SE2d 764) (2003) (“King II”). Although Bowling is not asserting a due
process violation, these statements apply with even greater force to defeat the
violations of the Fourth Amendment and Georgia Constitution alleged here.
Seeking to persuade us that disclosure of personal medical records
pursuant to a search warrant is contrary to contemporary standards of privacy,
Bowling cites a number of federal and state statutes. Although Bowling refers
generally to the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”) and the HIPAA Privacy Rule, 45 CFR §§ 160, 164, he fails to
acknowledge that the Privacy Rule authorizes disclosure of protected health
information without notice, consent, or opportunity to object “[i]n compliance
with and as limited by the relevant requirements of: (A) A . . .court-ordered
warrant.” 45 CFR § 164.512 (f) (1) (ii) (A).2 Bowling also suggests that 42 USC
§ 290dd-2 and its implementing regulations establish a standard for law
See also Standards for Privacy of Individually Identifiable Health Information,
65 Fed. Reg. 82462, 82464 (Dec. 28, 2000) (“Individuals’ right to privacy in information
about themselves is not absolute. It does not, for instance, prevent reporting of public
health information . . . or stop law enforcement from getting information when due
process has been observed”).
enforcement to obtain private medical records. In fact, 42 U.S.C. § 290dd-2
designates as confidential and limits disclosure only of records:
of the identity, diagnosis, prognosis, or treatment of any patient which are
maintained in connection with the performance of any program or activity
relating to substance abuse education, prevention, training, treatment,
rehabilitation, or research, which is conducted, regulated, or directly or
indirectly assisted by any department or agency of the United States.
42 USC § 290dd-2 (a). Even assuming the applicability of 42 USC § 290dd-2
and regulations promulgated thereunder, which Bowling does not attempt to
establish3, a court is authorized to order disclosure of confidential
communications on the ground that “[t]he disclosure is necessary in connection
with investigation or prosecution of an extremely serious crime . . . including
homicide.” 42 CFR § 2.63 (a) (2).
Bowling’s reliance on Georgia statutes is equally unavailing. While
OCGA § 24-9-40 (a) establishes the confidentiality of medical information
concerning a patient, it also authorizes release of information “on appropriate
court order.” The other statutes upon which Bowling relies are inapplicable and,
An emergency room qualifies as a “program” only if it “holds itself out as
providing, and provides, alcohol or drug abuse diagnosis, treatment or referral for
treatment” or the “primary function” of emergency room personnel “is the provision of
alcohol or drug abuse diagnosis, treatment or referral for treatment and [they] are
identified as such providers.” 42 CFR § 2.11. See also 42 CFR § 2.12 (e) (1).
in any event, permit disclosure of confidential records under a host of
circumstances, including under a court order. See OCGA §§ 24-9-47, 37-3-166,
Finally, Bowling asserts that his medical records enjoy immunity from
disclosure under Warden v. Hayden, 387 U.S. 294 (87 SC 1642, 18 LE2d 782
(1967). As we explained in Brogdon v. State, 287 Ga. 528, 532-533 n.7 (2)
(697 SE2d 211) (2010), in Hayden, the U.S. Supreme Court repudiated the
“mere evidence” rule, under which items of evidential value only could not be
the subject of a search warrant, but left open the possibility that an individual’s
private papers might have protection under the Fifth Amendment. Since
Hayden, the Supreme Court has continued to put distance between itself and the
broad language used in one of its prior opinions, Boyd v. United States, 116
U.S. 616 (6 SC 524, 29 LE2d 746) (1886), regarding the Fifth Amendment
protection afforded to the contents of private documents. See Brogdon, supra,
287 Ga. at 533 n.7. We need not decide in this case whether the concept that the
Fifth Amendment shields the contents of private papers has any remaining
viability since the medical records at issue, which were neither owned nor
possessed by Bowling, are not Bowling’s private papers. See id. at 533-534 (2)
(term “private papers” in OCGA § 17-5-21 (a) (4) did not include a defendant’s
medical records; they were not “private papers” as term was understood in 1966
when statute was enacted).
b. Bowling further argues that his medical records should receive Fifth
Amendment protection since they reflect information he was “compelled” to
disclose to medical personnel and the results of blood and urine tests to which
he was “compelled” to consent to obtain appropriate medical treatment.
As an initial matter, the Fifth Amendment privilege against selfincrimination “protects an accused only from being compelled to testify against
himself, or otherwise provide the State with evidence of a testimonial or
communicative nature.” (Footnote omitted.) Schmerber v. California, 384 U.S.
757, 761 (II) (86 SC 1826, 16 LE2d 908) (1966). Since neither the taking nor
the chemical analysis of Bowling’s blood and urine compelled him to provide
testimony or evidence of a communicative nature, the results of the analyses
performed on his blood and urine are not within the scope of the SelfIncrimination Clause of the Fifth Amendment. See id. at 765 (II).4
Bowling argues that the privilege against self-incrimination sweeps more broadly
under Georgia law. While Art. I, Sec. I., Para. XVI of the Georgia Constitution and
OCGA § 24-9-20 (a) apply to oral or real evidence as opposed to testimony alone, see
Creamer v. State, 229 Ga. 511, 516 (192 SE2d 350) (1972), this Court has held that “[t]he
Further, “coercive police activity is a necessary predicate to finding that
a statement is not voluntary.” (Punctuation and citation omitted.) United States
v. Romero, 897 F2d 47, 52 (II) (B) (1) (2d Cir. 1990) (defendant’s statement to
nurse in emergency room was voluntary absent evidence of police coercion).
Because Bowling does not assert that he divulged information to medical
personnel or consented to tests as a result of coercive police activity, he has no
basis for asserting a violation of his Fifth Amendment privilege against selfincrimination.
c. Finally, Bowling maintains that the search warrant was overbroad. The
search warrant was no broader than the one we approved in King II, supra, 276
Ga. at 129. There, as here, the warrant was “narrowly drafted to seek only the
medical records related to the . . . treatment of [appellant] on the night of [the
crimes].” Id. Contary to Bowling’s arguments, his medical records were
relevant and admissible. Evidence of Bowling’s drug and alcohol use around
the time of the shooting was admissible as part of the res gestae and relevant to
removal of a substance from the body through a minor intrusion does not cause the person
to be a witness against himself within the meaning of the Fifth Amendment and similar
provisions of Georgia law.” Strong v. State, 231 Ga. 514, 519 (202 SE2d 428) (1973).
See also Fortune v. State, 300 Ga. App. 550 (2) (b) (685 SE2d 466) (2009).
Bowling’s state of mind at the time of the crimes. See Johnson v. State, 264 Ga.
456 (3) (448 SE2d 177) (1994).5
3. Bowling contends that use of his medical records at trial violated his
rights under the Confrontation Clause of the Sixth Amendment.
The admission of out-of-court statements that are testimonial in nature
violates the Confrontation Clause unless the declarant is unavailable and the
defendant had a prior opportunity for cross examination.
Washington, 541 U.S. 36, 68 (124 SC 1354, 158 LE2d 177) (2004). An out-ofcourt statement is not testimonial, however, unless “procured with a primary
purpose of creating an out-of-court substitute for trial testimony.” Michigan v.
Bryant, – U.S. – (131 SC 1143, 1155 (II), 179 LE2d 93) (2011).
Admitting Bowling’s medical records into evidence at trial did not violate
the Confrontation Clause. The emergency room physician primarily responsible
for Bowling’s care testified at trial. Since she was subject to cross-examination,
the Supreme Court’s decisions in Crawford and its progeny have no application
to her own statements in the report she prepared after meeting with Bowling.
Bowling also contends that his trial counsel was ineffective to the extent that he
failed to adequately preserve an objection to the records’ relevancy. His trial counsel
could not have been ineffective, however, for failing to make or preserve a meritless
objection. See Wesley v. State, 286 Ga. 355 (3) (a) (689 SE2d 280) (2010).
See McKnight v. State, 283 Ga. 56 (2) (i) (656 SE2d 830) (2008). In any event,
none of the medical records are testimonial inasmuch as the circumstances
surrounding their creation and the statements and actions of the parties
objectively indicate that the records were prepared with a primary purpose of
facilitating Bowling’s medical care. See Bryant, 131 SC at 1156 (III). The
records were created by medical personnel in connection with treatment
rendered to Bowling in an emergency situation and are devoted to documenting
and assessing Bowling’s medical history and condition and describing his
treatment. As to the drug and urine screens, Bowling’s physician testified that
she ordered the tests for medical purposes. Medical records created for
treatment purposes are not testimonial. See Melendez-Diaz v. Massachusetts,
– U.S. – (129 SC 2527, 2533 n.2, 2542, 174 LE2d 314) (2009) (holding that
affidavits of state laboratory analysts reporting results of chemical analysis of
seized substance were testimonial but stating that “medical reports created for
treatment purposes . . . would not be testimonial under our decision today”);
Massachusetts v. Dyer, 934 NE2d 293, 298-299 (Mass. Ct. App. 2010)
(admission of medical records revealing defendant’s blood alcohol level did not
violate Confrontation Clause).
4. Bowling argues that the trial court erred in denying his motion to
suppress statements he made at the crime scene and the hospital prior to
receiving Miranda warnings.
a. Crime Scene. The first officer on the scene, Shapiro, testified at the
Jackson-Denno hearing that he believed that he was merely investigating a
traffic accident and did not know what had happened. It was only after
Bowling, in response to Shapiro’s initial inquiries, stated that he had
accidentally shot Harrell and did not know where the weapon was that Shapiro
took Bowling into custody. “Where an accused is neither in custody nor so
restrained as to equate to a formal arrest, any statements made to an
investigating officer are made under noncustodial circumstances and Miranda
warnings are not required. [Cit.]” (Punctuation omitted.) Heckman v. State, 276
Ga. 141, 143 (1) (576 SE2d 834) (2003). Since Bowling was not in custody at
the time of Shapiro’s initial inquiries, Bowling’s responses to those inquiries
were admissible. See generally Gabriel v. State, 280 Ga. 237 (2) (626 SE2d
After taking Bowling into custody, Shapiro again asked Bowling where
the weapon was. In New York v. Quarles, 467 U.S. 649, 656 (104 SC 2626, 81
LE2d 550) (1984), the U.S. Supreme Court recognized an exception to the
requirement that Miranda warnings be given that applies in situations in which
“police officers ask questions reasonably prompted by a concern for public
safety.” See also Smith v. State, 264 Ga. 857 (3) (452 SE2d 494) (1995). Like
the officers in Quarles, Shapiro was confronted with an immediate need to
locate a gun that the suspect recently possessed, likely was discarded nearby,
and “posed more than one danger to the public safety.” Quarles, supra, 467
U.S. at 657. Accordingly, Shapiro’s inquiry about the location of the gun was
Within approximately 15 minutes of Shapiro’s arrival, Morales arrived on
the scene, followed by Killian. Upon the arrival of each officer, Bowling made
unsolicited statements regarding what happened. Since “it is clear that [these]
statements were spontaneous and voluntary and were not made in response to
custodial interrogation or its functional equivalent [cit.],” (citation and
punctuation omitted), they were properly admitted into evidence. Hatcher v.
State, 286 Ga. 491, 493-494 (3) (690 SE2d 174) (2010). Like Shapiro, both
Morales and Killian asked Bowling about the location of the weapon. Given that
the gun was still missing, the scene was not yet secure, and Bowling’s statements
as to the location of the gun were confusing and inconsistent, these inquiries fell
within the scope of the public safety exception.
Killian also asked Bowling what happened, prompting Bowling to respond
that the gun went off accidentally. This inquiry did not fall within the public
safety exception. When Killian arrived, the other officers already understood the
general nature of the situation, and as soon Killian arrived, he heard Bowling
yelling that he had shot Harrell and that it was an accident.
circumstances, the existing exigency facing officers was locating the gun, and
Killian’s broader inquiry about what happened was not focused on this issue.
Compare Quarles, supra, 467 U.S. at 659 (officer “asked only the question
necessary to locate the missing gun”). Nonetheless, the trial court’s error in
admitting Bowling’s response to Killian’s inquiry was harmless beyond a
reasonable doubt, as the statement was cumulative of numerous admissible
statements Bowling made. See Frazier v. State, 278 Ga. 297 (4) (602 SE2d 588)
b. Hospital. Bowling’s voluntary, unsolicited statements made to or in the
presence of Henry and Stone at Gwinnett Medical Center were properly admitted
into evidence. See Hatcher, supra, 286 Ga. at 493-494 (3).
5. Finally, Bowling contends that his trial counsel rendered ineffective
assistance by failing to file an out-of-time demand for a speedy trial. To succeed
on this claim, Bowling must show that his trial counsel’s performance was
professionally deficient and that, but for such deficient performance, a reasonable
probability exists that the outcome of the trial would have been different.
Strickland v. Washington, 466 U.S. 668 (104 SC 2052, 80 LEd2d 674) (1984).
At an October 24, 2006 hearing on Bowling’s motion to dismiss based on
violation of his right to a speedy trial, the trial court verbally denied the motion
but stated that it would allow Bowling to file an out-of-time statutory demand for
a speedy trial before the end of the month. At the motion for new trial hearing,
Bowling’s trial counsel testified that he made a strategic decision not to file a
demand in light of his continuing investigation. Bowling’s trial counsel (his
second appointed attorney) began representing Bowling in January 2005. The
record reflects that trial counsel retained an investigator, who began looking for
witnesses to corroborate the defense theory that a third person was in the van at
the time of the shooting. The investigator followed several leads, but was
unsuccessful until he located Delores Daniel in October 2007. Although she was
subjected to vigorous cross-examination by the State, Daniel testified for the
defense at trial that she resided on Bona Road on April 24, 2004 and was outside
with friends in the early morning when she saw a van pass by, heard a gunshot,
and discovered that the van had run into a house. She stated that she thought she
saw someone jump from the van and run behind the house.
“The decision to file a speedy trial demand is usually tactical in nature.”
(Footnote omitted.) Napier v. State, 276 Ga. 769, 776 (8) (583 SE2d 825) (2003).
Reasonable trial strategy and tactics do not amount to ineffective assistance of
counsel. Johnson v. State, 286 Ga. 787 (2) (692 SE2d 575) (2010). Trial
counsel’s strategic decision to forego filing an out-of-time demand for speedy
trial to continue to pursue his investigation was reasonable and did not constitute
Judgment affirmed. All the Justices concur.