text:
    A13A0199.
    JOHNSON v. THE STATE.
    (744 SE2d 903)
   Phipps, Chief Judge.

In connection with an attack upon a female acquaintance, Gregory Johnson was convicted of false imprisonment, rape, aggravated assault (for striking her on and about the head with a hammer), and three counts of aggravated battery (for inflicting upon her disfiguring injuries to her skull, nose, and hands). In this appeal, Johnson challenges several evidentiary rulings and the rejection of his claim of ineffective assistance of counsel. We affirm.

Johnson had known the victim, D. C., for about eight months prior to the attack, which occurred during the early morning hours of January 11, 2007. D. C. was 5'1" and weighed about 95 pounds; Johnson was 6'2" and weighed about 190 pounds.

D. C. testified to the following. On the evening of January 10, Johnson had gone with her to purchase crack cocaine; then they went to a house that he claimed he was house-sitting for the owner. Inside the house, D. C. gave Johnson half the drug, and drank an alcoholic beverage that he provided.

When she started to leave, Johnson punched her in the face with his fist, choked her, and began kicking her; he ordered her to take off her clothes and lie on the floor. When she complied, Johnson put his penis in her mouth, then in her vagina. D. C. told Johnson that, based on what appeared to be light from flashlights, the police were outside. Johnson got off her and left the room, but returned, angry. He brought with him a knife and a hammer. He began slashing at her with the knife. She tried to flee outside, but found all the exterior doors dead-bolted. She threw furniture through several windows and also at Johnson, but he continued to block her attempts to escape. She threw furniture against the walls, hoping that someone would hear the noises and come to her aid. Johnson began swinging the hammer at her. She grabbed a liquor bottle and hit him on the head, hoping he would pass out. He did not, and threatened her, “You are going to die, bitch.” As D. C. described, “it just got worse” — Johnson beat her as he chased her around the house. Finally, she was able to hide inside a closet. After an extended period, she peered outside the closet and saw the back door standing open. D. C. dashed through it, but fell down steps she had not seen; she crawled away from the house, then passed out.

But D. C.’s screams and the other sounds from the violent altercation had been heard by individuals who lived next door to the house where the crimes occurred. One of them testified that, at about 12:00 a.m. on January 11, 2007, she heard ongoing loud noises, the sound of breaking glass, and a woman pleading for her life; although she had been unable to pinpoint the origin of these sounds, she summoned the police several times. She recalled that, when the police appeared in the neighborhood, the screams and noises stopped; when the police drove away, they resumed. By approximately 3:00 a.m., the screams and noises had ceased, and the woman had observed Johnson walking outside the house next door. Then, between 3:00 and 4:00 a.m., the woman heard a “commotion” outside and a person moaning. When her boyfriend went out to investigate, he discovered D. C. lying in the driveway between the two residences. D. C. was naked, bloody, badly bruised, and unconscious. Police were called to the scene.

D. C. was hospitalized for almost two weeks. Her skull had been cracked to the point that a piece of that bone was protruding into her brain. For this injury, D. C. underwent emergency surgery. D. C. required surgery also for fractures she had sustained to her nasal bones. Additionally, D. C. had sustained fractures to other facial bones and to an arm bone, and numerous lacerations across her face and on her fingers. D. C. had bruises around her eyes and upon her back, and several of her teeth had been knocked out.

Police officers investigating the crime scene foundblood throughout the house — inside a closet, and on windows, walls, and floors, as well as upon various objects, including a broken liquor bottle. Windows were broken, and furniture lay strewn about.

At trial, the state presented similar transaction evidence to show the perpetrator’s identity, state of mind, and intent. T. F. testified that Johnson was one of two men who together attacked her on August 27, 2000. T. F. recounted that, as she was walking around the side of a building to meet the other man, Johnson appeared “behind me with a stick. And the next thing I know, I was — I passed out and ended up back behind [a different building] with my clothes off.” When she regained consciousness, Johnson stood over her, while the other man hit her, which caused her to temporarily lose consciousness again. She testified that the two men held her hostage, nude, for at least an hour, attempting to rape her. Then the other man left to get some crack cocaine; Johnson stayed, threatening to “beat [her] half to death with the stick” if she ran. Johnson ordered T. F. to perform oral sex on him, which she refused to do. As he threatened to beat her with the stick, she escaped on foot and reported the incident to police. T. F. recalled at trial that she was “bleeding from the face down” and that the skin on some part of her body was “peeled” as a result of the incident. T. F. further testified that Johnson was found by police sitting in the same location where she had been beaten, and was arrested.

Johnson called no witnesses at trial. However, he took the stand and denied all charges with respect to D. C. Johnson testified that, after he and D. C. went inside his friend’s house, they smoked crack cocaine. D. C. consented to sexual intercourse with him, but he lost his erection and thus did not penetrate her. Johnson testified that he got out of bed, and D. C. became angry. She got out of the bed, then hit him on the head with a wine bottle, which broke and cut her hand. Next, she began running throughout the house — turning over furniture and throwing furniture at him and at the windows. She choked him, and stabbed a knife into his finger, elbow, and thigh. She tried to hit him with a hammer, but he took it from her and pushed her to the floor, at which point he blacked out. When he regained consciousness, he could not locate D. C. inside the house. So, he got dressed and left the house on foot at about 2:30 a.m.

Johnson testified that, because of D. C.’s attack upon him, “I think I did have to hit her once or twice.” He denied, however, causing the extensive and severe injuries to D. C. that had been shown to the jury. Johnson claimed that before he blacked out, the only injury D. C. had was a cut to her hand, which she caused when the wine bottle shattered.

Johnson also denied the allegations of the similar transaction witness, T. F. He recalled a day in 2000 when he happened upon T. F. and a man in a parking lot. According to Johnson, “the man had her in position to be having sex with her. [The man] looked up and saw me and the stick that I was carrying. He ran off. She got up later and did the same thing.”

The prosecutor began asking Johnson about “two women [who] come and say that you —.” Johnson interrupted the question, however, and responded, ‘You ain’t talking about two women. You are talking about two crackheads.”

1. Johnson contends that the trial court erred by admitting in evidence a letter he purportedly wrote to the woman who had called the police upon hearing the screams and loud noises. Johnson argues that the state failed to sufficiently authenticate the letter as written by him. He asserts that the letter was “inculpatory,” citing language that D. C. “deserve[d]” her injuries. “We review the trial court’s admission of this evidence for an abuse of discretion.”

The cited language appeared in this context:

She attacks me, then the house, furniture and windows, Hand bleed from striking me with bottle. She wipes blood on wall, Attack me with chair, then knives. I defended self. She disappears. I get dressed, fleed to safety.... I fleed to return for fear of my life and not to be attacked again Stabbed in the finger, elbow, thigh, Her wounds I look at as self inflicted or another source yet I could be wrong think not But she deserves them.

Johnson has demonstrated no reversible error. “The genuineness of a letter may be proved by circumstantial evidence.” Here, the trial court overruled Johnson’s objection, based on the state’s showing that the letter bore Johnson’s name and booking number, and that the envelope bore a stamp that appeared to be from the county jail where Johnson was being held on charges relating to the underlying incident. Furthermore, the letter set forth a detailed account of what happened inside the house when Johnson and D. C. were alone, which account was consistent with Johnson’s version of events. “Under all of these circumstances, it is very unlikely that anyone other than [Johnson] had written the letter. Accordingly, the circumstances were sufficient to make a prima facie showing of authenticity.”

2. Johnson contends that the trial court erred by granting the state’s motion in limine to exclude evidence that he and D. C. had a prior consensual sexual relationship.

The Rape Shield Statute bars the admission of evidence relating to the victim’s past sexual behavior unless it directly involves the accused’s participation and supports an inference that the accused could have reasonably believed that the victim consented to the conduct at issue. [] The evidence may also be admitted on a finding that it “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.”[] We review the trial court’s exclusion of the evidence for abuse of discretion.

During the hearing on this matter, the state urged the court to bar certain evidence under the Rape Shield Statute in light of the violence inflicted upon D. C., asserting also that any prior instances of consensual sexual conduct were too remote in time. Although defense counsel argued that the evidence should be allowed, the trial court granted the state’s motion, finding no inference, given the circumstances surrounding the episode that gave rise to the charges, that Johnson could reasonably have believed that D. C. consented to sexual intercourse, even if she had previously consented to it.

In light of the victim’s testimony,... the crime scene, and the evidence of her injuries, we cannot say that [Johnson’s] . . . prior consensual sex with her substantially supports the conclusion that he reasonably believed she consented on the night of the offense. Nor does justice mandate the admission of such testimony. Accordingly, we decline to find that the trial court abused its discretion.

Johnson also contends that the trial court erred by “foreclosing any hearing on [his] offer of proof relating to the complaining witness’s past sexual behavior, as provided in [former OCGA] § 24-2-3 (c).” A review of the transcript shows plainly that, outside the presence of the jury, the trial court conducted a hearing on the state’s motion, at which hearing the prosecutor specified what evidence the state believed was inadmissible, and defense counsel argued that that evidence should be allowed. Defense counsel in no way intimated that there was any additional evidence that implicated the Rape Shield Statute; nor did defense counsel request a more formal hearing.

If defendant desired a more formal hearing and an opportunity to present witnesses ... he should have insisted upon doing so. Instead, defendant went along with the trial court’s in camera format without objection. At any rate, we cannot see how defendant was prejudiced by the in camera hearing which the trial court afforded him.

3. Johnson challenges, on various grounds, the admission of the similar transaction evidence.

(a) Johnson claims that the state failed to show at the similar transaction hearing that he was the perpetrator of any attack committed upon the similar transaction witness. Johnson points out that the prosecutor presented no testimony at the hearing. However, the prosecutor made a proffer at that hearing, which proffer identified Johnson as a participant in a beating and sexual attack upon a woman (who ultimately testified at the trial). Contrary to Johnson’s argument, the fact that the state presented no testimony at the similar transaction hearing did not render the similar transaction evidence inadmissible at trial.

(b) Johnson points out that the state failed to show the final disposition of any charge(s) relating to the similar transaction, which Johnson asserts, “rais[es] serious questions about whether Johnson even committed the prior offense [s].” But because it is not necessary that the former offenses resulted in a trial or a conviction, we cannot say that the trial court erred.

(c) Johnson complains that the state notified him less than ten days before trial that it intended to call the similar transaction witness.

If the state fails to comply with a statutory discovery requirement, the trial court, pursuant to OCGA § 17-16-6,

may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

In enacting OCGA § 17-16-6,

the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial. Thus, the remedy a trial court fashions to cure a discovery violation is reviewed on appeal only for abuse of discretion.

When Johnson’s lawyer objected at the similar transaction hearing that the state had failed to give the defense the required statutory notice, the prosecutor responded, “We did just get it. And as soon as we received it, we did serve it on defense.” Upon confirmation by Johnson’s lawyer that the defense was not alleging any bad faith on the part of the state, the trial judge ruled:

I’m going to allow it to come in. But I will not allow the state to make any mention of this in the opening. And the state is instructed ... until I know that you have the alleged victim in hand and [defense counsel] has had an opportunity to speak to this victim, the state is not allowed under any circumstances to mention this to any member of the jury.

Johnson’s lawyer complained further at the similar transaction hearing, “The other problem I’m having as far as prejudice is, I don’t have enough time to run a criminal background check on the alleged victim.” The prosecutor proposed to provide the defense with any criminal background of the similar transaction witness; the court accepted that proposal; and defense counsel objected no further about the lack of timely notice.

The trial transcript reveals that, before the similar transaction witness was called to the stand, Johnson’s lawyer told the court that he expected the evidence to show criminal theft charges pending against that witness. And, the transcript reveals that Johnson’s lawyer was given an opportunity to interview that witness (also before she was called to the stand).

The trial court did not abuse its discretion in fashioning the remedy. Although Johnson maintains that the trial court should not have allowed the similar transaction witness to testify, the circumstances did not require the trial court to find that the state had acted in bad faith or that Johnson was prejudiced to the extent that a more severe remedy of OCGA § 17-16-6 should have been employed.

4. Johnson contends that the trial court erred by rejecting his claim of ineffective assistance of counsel.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review the trial court’s legal conclusions de novo.

Johnson asserts that his trial lawyer did not adequately investigate his case and thus did not provide him with any meaningful advice when the state extended a plea offer to serve 25 years in confinement. He asserts that a reasonable probability exists that, had his trial lawyer given him meaningful advice, he would have accepted that offer.

[Pjrior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. An attorney ordinarily may satisfy the duty to provide informed legal advice regarding a plea offer by discussing with the accused the risks of going to trial, the evidence against him or her, and differences in possible sentences that would be imposed following a guilty plea and following a conviction at trial.

There is a rebuttable presumption that counsel exercised reasonable professional judgment, and counsel’s decisions are examined in light of the circumstances existing at the time of trial rather than in hindsight.

The sole witness called at the motion for new trial hearing was Johnson’s trial lawyer. He elaborated upon, inter alia, his pretrial conferences with Johnson, investigation of the case, and research of the law, including applicable sentencing provisions. The lawyer testified further that he had advised Johnson of the foregoing and had concluded that Johnson was sufficiently aware of the consequences of the choices confronting him, including pleading guilty or going to trial.

Decided July 2, 2013.

Gregory D. Smith, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Given the record before us, we find that the trial court was authorized to conclude that Johnson had failed to demonstrate that his trial lawyer had performed deficiently. Consequently, we find no error in the trial court’s rejection of Johnson’s claim of ineffective assistance of counsel.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

        Twiggs v. State, 315 Ga. App. 191, 197 (2) (726 SE2d 680) (2012).

        Johnson v. State, 273 Ga. 872, 873 (1) (548 SE2d 292) (2001) (citation omitted).

        Arevalo v. State, 275 Ga. 392, 395-396 (5) (567 SE2d 303) (2002) (citations and punctuation omitted) (noting that the details set forth in letter rendered it very unlikely that anyone other than the purported author had written it, and thus finding circumstances sufficient to make a prima facie showing of authenticity); see Johnson, supra (concluding that details, such as aspects of documents and content of letter, were sufficient to establish authenticity).

       See OCGA § 24-2-3 (b) (2009), which was applicable at the time of Johnson’s 2009 trial.

       OCGA § 24-2-3 (c) (2) (2009).

        Davis v. State, 235 Ga. App. 362, 363 (1) (509 SE2d 655) (1998) (citations and punctuation omitted).

       Id. (citation omitted); see Williams v. State, 257 Ga. App. 54, 56 (1) (570 SE2d 362) (2002) (concluding that evidence of force and lack of consent supported the trial court’s conclusion that defendant could not reasonably have believed that the victims willingly had sex with him).

        Ford v. State, 189 Ga. App. 395 (1) (376 SE2d 418) (1988) (citations omitted); see Brown v. State, 260 Ga. App. 77, 80 (3) (579 SE2d 87) (2003).

       See Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012) (approving two standards of review for admission of similar transaction evidence: clear error for the trial court’s findings of fact and abuse of discretion for the trial court’s evidentiary rulings).

       See High v. State, 271 Ga. App. 388, 389 (1) (a) (609 SE2d 722) (2005) (“USCR 31.3 clearly grants the trial court the discretion as to the reception of evidence. There is no per se right to an evidentiary hearing, only to a hearing, nor any mandatory obligation to produce testimonial evidence.”) (emphasis in original); McCann v. State, 203 Ga. App. 880, 881 (1) (418 SE2d 144) (1992) (relying on prosecutor’s statement of what he expected the evidence would show to uphold trial court’s ruling that the similar transaction was admissible).

        Dean v. State, 292 Ga. App. 695, 700-701 (3) (665 SE2d 406) (2008) (noting that admitting evidence of the prior similar transaction “does not require that the accused be convicted of the similar transaction”); Brown v. State, 183 Ga. App. 476, 477 (1) (359 SE2d 233) (1987) (“A similar offense is admissible, and it is not necessary that such offense have resulted in indictment or conviction.”).

       See generally OCGA § 17-16-8.

        Jones v. State, 290 Ga. 576, 577 (2) (722 SE2d 853) (2012), quoting OCGA § 17-16-6.

        Jones, supra at 577-578 (2) (citation omitted).

       See id.

       See id.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 88 (4).

        Cammer v. Walker, 290 Ga. 251, 255 (2) (719 SE2d 437) (2011) (citations and punctuation omitted); see Lloyd v. State, 258 Ga. 645, 648 (2) (a) (373 SE2d 1) (1988) (defendant “is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him”).

       See Strickland, supra at 689-690 (III) (A).

         See Cammer, supra at 256 (2); Johnson v. State, 276 Ga. 57, 60 (4) (a) (573 SE2d 362) (2002) (finding that trial counsel’s testimony at the new trial hearing that he had discussed with appellant matters such as the risks of going to trial, the evidence against him, and the possible punishment, was sufficient for the trial court to conclude that appellant had not demonstrated that his trial counsel was deficient in his duty to provide informed legal advice).

       See Cammer, supra; Evans v. State, 288 Ga. 571, 576 (7) (707 SE2d 353) (2011) (noting that, if an appellant fails to satisfy either prong of the Strickland test, the reviewing court need not examine the other prong).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A0300.
    JUHAN v. THE STATE.
    (744 SE2d 910)
   DOYLE, Presiding Judge.

Following a bench trial, Derrick James Juhan was convicted of felony escape. He appeals the denial of his motion for new trial, arguing that the evidence was insufficient to support the crime as alleged in the indictment. For the reasons that follow, we affirm.

Construed in favor of the verdict, the record shows that in January 2004, Juhan was convicted of financial transaction card theft and of entering an automobile with intent to commit theft, and he was sentenced to serve seven years on probation. In October 2007, he was sentenced to a work release program for a period of 18 months for violating his probation by committing the new offenses of felony theft by taking, entering an automobile, and simple battery. In December 2007, Juhan was convicted of the theft by taking charge and sentenced to a total of five years, with six months to be served in a prison work camp and the remainder on probation, provided that he followed the terms and conditions of his probation, including not “violat[ing] the criminal laws of any governmental unit.” While he served his sentence on work release, Juhan was also under sentence for two separate convictions.

On September 18,2008, Juhan left the work release program and failed to return. On June 10, 2009, he was indicted for felony escape, and he was subsequently arrested and taken into custody on November 11, 2011. At the conclusion of the March 12, 2012 bench trial, the trial court orally announced that it found Juhan guilty of felony escape and pronounced sentence. On March 15, 2012, Juhan filed a motion for new trial, and the judgment was entered the following day, March 16, 2012. The trial court denied Juhan’s motion for new trial, and this appeal followed.

On appeal, Juhan concedes that he left the work release program in September 2008 and did not return, but he argues that his conviction should be reversed because the State failed to prove that he was serving a lawful sentence for theft by taking at the time of his escape as alleged in the indictment. This argument is without merit.

The indictment alleged that on September 19, 2008, Juhan “did then and there unlawfully after having been convicted of Theft by Taking, a felony, intentionally escape from the lawful custody of Gwinnett County Comprehensive Correctional Complex, contrary to the laws of said State, the peace, good order, and dignity thereof.” At trial, the inmate active records supervisor for the Gwinnett County Sheriff’s Department testified that Juhan completed his sentence for his 2007 conviction for theft by taking on March 20, 2008, and when Juhan escaped the work release program on September 18, 2008, he was serving a different sentence for a 2003 conviction and a 2008 conviction.

Decided July 2, 2013.

Brown & Gill, Angela B. Dillon, for appellant. -

Daniel J. Porter, District Attorney, Marlene S. Zekser, Assistant District Attorney, for appellee.

OCGA § 16-10-52 (a) (1) provides: “Aperson commits the offense of escape when he ... [, h]aving been convicted of a felony or misdemeanor or of the violation of a municipal ordinance, intentionally escapes from lawful custody or from any place of lawful confinement.” “The lawful confinement of the [accused] at the time of his escape was a necessary element of that offense.” As we have previously explained, “[t]he gravamen of the offense [of escape], under the common law and under our statute as we construe it, is the intentional departure from lawful confinement or custody.” The only purpose of the allegation in the indictment that Juhan was in custody for theft by taking “was to show lawful confinement, which was both alleged and proved without regard to the . . . allegation,” which was “merely surplusage.” Accordingly, there was no fatal variance between the indictment and the proof at trial, and the trial court did not err by denying Juhan’s motion for new trial.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-10-52 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       In a recent civil case, the Supreme Court of Georgia held that “a motion for new trial that is filed prior to the entry of the judgment on the verdict is premature and invalid, and no amendment can be filed to such a void motion.” (Punctuation omitted.) Tremble v. Tremble, 288 Ga. 666, 668 (1) (706 SE2d 453) (2011). The Supreme Court did not, however, apply this rule to a subsequent criminal case, instead reviewing the merits of the defendant’s appeal of the denial of the motion for new trial prematurely filed the day before the entry of judgment. See Rockholt v. State, 291 Ga. 85, 86, n. *(727 SE2d 492) (2012). Therefore, inline with Rockholt, we conclude that Juhan’s motion for new trial ripened upon the entry of his judgment of conviction. See, e.g., McClanahan v. State, 196 Ga. App. 737 (1) (397 SE2d 24) (1990), overruled on other grounds by Wilson v. State, 277 Ga. 195, 199 (586 SE2d 669) (2003).

       (Punctuation omitted.) Zant v. Owens, 244 Ga. 494 (260 SE2d 886) (1979), quoting Dixon v. State, 234 Ga. 157 (1) (215 SE2d 5) (1975).

        Fears v. State, 138 Ga. App. 885, 886 (1) (227 SE2d 785) (1976).

        Zant, 244 Ga. at 494-495.

       See id.


author: McMillian, Judge.

text:
    A13A0164.
    WRIGHT v. THE STATE.
    (745 SE2d 866)
   McMillian, Judge.

Mark Wright was convicted by a jury of two counts of child molestation, and sentenced to twenty years, ten to serve in prison. He appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to convict him and that his counsel was ineffective. Having reviewed the record and transcript, and considered his claims of error, we now affirm.

1. Although Wright offers no specific argument in support of his enumeration that the evidence was insufficient to support his conviction, we have considered the evidence adduced at trial, including the victim’s testimony, and find it sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979) to authorize Wright’s conviction of two counts of child molestation as charged in the indictment.

2. Wright next challenges the effectiveness of his trial counsel.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, hut for counsel’s deficiency.

(Citation and punctuation omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). And “[a] trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous.” (Citation and punctuation omitted.) Andrews v. State, 320 Ga. App. 816, 817 (1) (739 SE2d 445) (2013).

Moreover, in determining whether counsel’s performance was deficient, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citation and punctuation omitted.) Ellis v. State, 292 Ga. 276, 286-287 (4) (e) (736 SE2d 412) (2013). Thus,

decisions on which witnesses to call, whether to put on evidence so as to preserve the final word in closing argument, how to conduct cross-examinations, what motions to file, and what objections to make are strategic and tactical decisions that, after thorough investigation and client consultation, are virtually unchallengeable and do not require a finding of ineffective assistance of counsel.

(Citations omitted.) Schwindler v. State, 254 Ga. App. 579, 589 (10) (563 SE2d 154) (2002). See also Sevostiyanova v. State, 313 Ga. App. 729, 738 (11) (e) (722 SE2d 333) (2012).

(a) We first consider Wright’s contention that his trial counsel was ineffective because he did not properly advise Wright of the risks associated with going to trial and the possible penalties he faced if convicted, with the result that Wright refused to accept the State’s plea deal, which he says he now realizes he should have accepted.

As to this issue, the record shows that the State offered Wright a plea bargain deal of twenty years, two to be served in confinement. Following his conviction, Wright was sentenced to twenty years on each count, to run concurrently, with ten years to serve.

According to Wright’s testimony at the motion for new trial hearing, he did not know that he was facing the possibility of a 20-year sentence on each child molestation count until the day of trial. Further, he decided not to take the State’s offer because his counsel advised him that he would have to register as a sex offender and because counsel told him that he believed Wright’s case was “strong.”

Trial counsel also testified at the motion for new trial hearing, and stated he informed Wright on at least one occasion that he could be sentenced to 20 years on each child molestation count, and that although he informed Wright that he “believed” the judge would sentence him to five years, he also advised him that he could not be sure what the judge would do. Further, trial counsel testified that Wright wanted the charges dismissed and was not willing to accept any plea deal that required confinement. Moreover, at a motions hearing about six months before trial, the trial judge questioned Wright on the record to make sure that Wright had been told about the State’s plea offer, confirmed that Wright had rejected that offer, and confirmed that Wright understood that he could be sentenced to whatever the judge thought was fair if he went to trial and was found guilty.

Based on the foregoing, we find that the record belies Wright’s assertion that his trial counsel made “affirmative misrepresentations as to the penalties [he] faced.” Thus, his reliance on cases such as State v. Patel, 280 Ga. 181, 183 (626 SE2d 121) (2006), in which trial counsel made affirmative misrepresentations in response to his client’s direct inquiries about the consequences of the entry of a plea of nolo contendere on his medical license is clearly misplaced.

Further, “in order to succeed on his claim he must show not only deficient performance, but also resulting prejudice. In the context of a rejected plea offer, such prejudice can only be shown by some indication that the defendant was amenable to the offer.” (Citation and punctuation omitted.) Port v. State, 295 Ga. App. 109, 112-113(2) (b) (671 SE2d 200) (2008). Although Wright argues on appeal that he would have taken the State’s plea offer if he had known the maximum penalty, the record again shows otherwise. First, as stated above, not only does the record, in fact, show that Wright knew otherwise, but it also shows that he was not amenable to any offer that involved any time spent in confinement, which, according to trial counsel, was the only offer the State was willing to make. Thus, Wright has also failed to meet the prejudice prong of the ineffectiveness test. Id. Accordingly, this enumeration presents no grounds for reversal of the denial of Wright’s motion for new trial.

(b) In his next enumeration, Wright claims that his counsel was ineffective because he failed to preserve all parts of the trial for review on appeal. However, although appellate counsel questioned both Wright and his trial counsel about the failure to have voir dire and the opening and closing remarks of counsel transcribed, Wright has posited no argument in support of this enumeration in his brief on appeal. Thus, this claim of error is deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2).

(c) Wright also contends that his trial counsel was ineffective because he did not object when the trial court, at the jury’s request, replayed the victim’s videotaped interview and because he did not request that the trial court give instructions on replaying the video.

As Wright acknowledges, the decision whether to grant a jury’s request to view a videotape of testimony or a statement a second time lies within the discretion of the trial court. “It has been recognized for more than a hundred years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” Lopez v. State, 291 Ga. App. 210, 214 (3) (661 SE2d 618) (2008). Further, an instruction is not required absent a request. Berman v. State, 279 Ga. App. 867, 871 (5) (632 SE2d 757) (2006).

Trial counsel testified at the motion for new trial hearing that he did not object when the video was replayed because such an objection would be meritless. And it is well settled that failure to lodge a meritless objection does not equate to ineffective assistance of counsel. Sims v. State, 281 Ga. 541, 543 (2) (640 SE2d 260) (2007). Further, trial counsel testified on cross-examination that he did not want to bring attention to the videotape because his strategy was to portray Wright as having nothing to hide. We cannot say this strategy was unsound; accordingly, this enumeration also provides no basis for reversal.

(d) Lastly, Wright contends his trial counsel was ineffective because he did not object to the admission of approximately nine pornographic videotapes that were introduced into evidence at trial.

The record shows that the basis of one of the counts of child molestation was that Wright had shown the victim a DVD containing “adult nudity and sexual conduct.” As to that count, the victim testified that she was in Wright’s bedroom watching cartoons when Wright entered the room, turned off the program she was watching and inserted a DVD that showed nude people “laying down” and kissing. Wright also testified at trial, and denied that he showed the victim a pornographic video. Instead, according to Wright, the victim, who was at that time about eight years old, had, on her own initiative, started watching a “bachelorette party tape,” which showed women in their “bra and panties and high heels, . . . gyrating [i]n front of guys,” but which did not contain any nudity. Wright also identified the pornographic DVDs that were introduced into evidence, admitted they were his, and said he kept them under the television in his bedroom.

Wright now argues that trial counsel should have objected when the DVDs were admitted into evidence, arguing they were irrelevant and prejudicial to the issues being tried. However, we agree with the trial court that the DVDs were relevant and admissible on the disputed issue of whether Wright was guilty of showing the victim a DVD that depicted nude men and women engaged in sexual activity, as the victim testified at trial. See Williams v. State, 284 Ga. App. 255, 258-259 (3) (643 SE2d 749) (2007), and cites; Frazier v. State, 252 Ga. App. 627, 632-633 (7) (b) (557 SE2d 12) (2001); Beck v. State, 250 Ga. App. 654, 657 (2) (551 SE2d 68) (2001). As we stated in Division (2) (c), counsel is not ineffective because he or she fails to make a fruitless objection. E.g., Jackson v. State, 316 Ga. App. 80, 82 (1) (729 SE2d 404) (2012).

Moreover, although trial counsel testified at the motion for new trial hearing that in hindsight he realized he should have objected to the number of DVDs that were admitted, Wright volunteered during his testimony that he owned additional DVDs and VHS tapes of the same type that were not seized. In light of this testimony, Wright cannot show he was prejudiced by his counsel’s failure to object on this basis since he himself informed the jury that he owned more pornographic recordings than were actually seized by the State. Accordingly, Wright is not entitled to a new trial on this basis.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

Decided July 3, 2013.

Ashleigh B. Merchant, for appellant.

Layla H. Zon, District Attorney, Morgan & Morgan, Peter H. Boehm, for appellee.

       Wright was charged with fondling the buttocks of the victim and showing her a pornographic videotape.

       Wright has failed to follow our rules concerning the structure of his brief, particularly our rule regarding the sequence and numbering of enumerations of error and supporting arguments, see Court of Appeals Rule 25 (c) (1), which has hampered our ability to consider his claims of error.

       The videos were admitted through the testimony of the officer who searched Wright’s residence and were not played for the jurors.


text:
    A13A0225.
    GREATER ATLANTA HOME BUILDERS ASSOCIATION, INC. et al. v. CITY OF MCDONOUGH.
    (745 SE2d 830)
   DOYLE, Presiding Judge.

Greater Atlanta Home Builders Association, Inc., as proposed class representative, (“plaintiffs”) filed a class action lawsuit against the City of McDonough to recover impact fees the City assessed against developers from July 2002 through July 2003. The plaintiffs also sought attorney fees and expenses of litigation under OCGA § 13-6-11. Following certification of the plaintiff class under OCGA § 9-11-23, the trial court granted summary judgment to the plaintiffs on their claim for return of the impact fees, but denied the plaintiffs’ motion for summary judgment as to their claim for attorney fees and costs based on their failure to provide ante litem notice to the City pursuant to OCGA § 36-33-5. The plaintiffs appeal the trial court’s denial of their motion for summary judgment as to attorney fees and costs, and we reverse, for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that on July 19, 2002, the City adopted a moratorium on the issuance of development permits pursuant to City Ordinance No. 02-27-19. The ordinance did, however, contain an exemption for developers who signed a ‘Moratorium Agreement” and paid certain interim fees. It is undisputed that prior to July 21, 2003, the City did not have an impact fee ordinance. Nevertheless, the City assessed and collected approximately $370,000 in impact, or interim, fees against and from developers from July 2002 through July 2003.

After multiple unsuccessful meetings with City officials, the plaintiffs filed suit against the City, seeking a refund of the impact fees paid and attorney fees and expenses, contending that collection of the fees was ultra vires. The trial court granted the plaintiffs’ motion to certify the class, and this Court subsequently affirmed the certification in an unpublished opinion. The parties then filed cross-motions for summary judgment. Following a hearing, the trial court entered an order granting summary judgment to the plaintiffs as to their claims for the return of all impact fees collected between July 2002 and July 2003, plus interest. The trial court denied, however, the plaintiffs’ motion for attorney fees and costs pursuant to OCGA § 13-6-11, relying on Dover v. City of Jackson.

1. The plaintiffs contend that the trial court erred by denying their motion for summary judgment with respect to attorney fees and costs, arguing that contrary to the trial court’s ruling, they were not required to give ante litem notice of their claim for fees and costs under OCGA § 36-33-5. We agree.

OCGA § 36-33-5 (a) provides:

No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.

Pursuant to OCGA § 36-33-5 (b), the notice must be given within six months of the event upon which the claim is predicated, must be in writing, and must state “the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury.” “This statute is in derogation of the common law, which did not require such ante litem notice; therefore it must be strictly construed and not extended beyond its plain and explicit terms.” As the Supreme Court of Georgia held in City of Statesboro v. Dabbs, this statute therefore “applies to tort claims regarding personal injury or property damage” and not to other types of claims.

“The issue before us, therefore, is not merely whether the complaint sought ‘money damages,’ but also whether there has been a claim ‘on account of injuries to person or property.’ ” Here, the plaintiffs sought reimbursement for the pre-ordinance impact fees and for attorney fees and costs pursuant to OCGA § 13-6-11. Neither of these claims involve “injuries to person or property.” Therefore, OCGA § 36-33-5 does not apply to this case, and the plaintiffs were not required to give ante litem notice of their request for attorney fees.

In Dover, the case relied upon by the trial court, the plaintiffs sought a declaratory judgment to determine whether a Jackson County zoning ordinance, as applied to specific property, was unconstitutional. The plaintiffs also sought attorney fees and costs pursuant to OCGA § 13-6-11. This Court improperly concluded that

a claim for attorney fees and costs of litigation under OCGA § 13-6-11 is clearly a claim for damages and clearly seeks monetary, rather than equitable, relief. Even though [the plaintiff’s] claim for attorney fees and costs of litigation may be ancillary to its claim for equitable relief, it is nonetheless a claim for money damages. Thus, under a strict reading of the ante litem notice statute, [the plaintiff’s] failure to comply with the notice requirement of OCGA § 36-33-5 precludes its ability under Georgia state law to sue for money damages in the form of attorney fees and costs of litigation.

This holding is contrary to the specific language in OCGA § 36-33-5 limiting its applicability to claims brought “on account of injuries to person or property,” and it ignores our duty to strictly construe this Code section in light of its derogation of common law. Division 1 of Dover v. City of Jackson is, therefore, overruled.

Decided July 3, 2013

Shannon L. Goessling, for appellants.

Leigh C. Hancher, Andrew J. Whalen III, for appellee.

Here, the plaintiffs were not required to give ante litem notice of their claim for attorney fees and costs pursuant to OCGA § 13-6-11, and the trial court erred by denying their motion for summary judgment as to this claim.

2. The plaintiffs also argue that they did in fact give the City the requisite ante litem notice required under OCGA § 36-33-5. We need not reach this argument in light of our holding in Division 1.

Judgment reversed.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       At least one developer noted on its check to the City for payment of the impact fee that it was paying it under protest.

       OCGA § 36-71-3 (a) authorizes “Municipalities... which have adopted a comprehensive plan containing a capital improvements element... to impose by ordinance development impact fees as a condition of development approval on all development.” (emphasis supplied).

        City of McDonough v. Greater Atlanta Home Builders Assn., 302 Ga. App. XXIII (Jan. 26, 2010).

       246 Ga. App. 524 (541 SE2d 92) (2000).

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Punctuation omitted.) City of Atlanta v. Benator, 310 Ga. App. 597, 601 (3) (714 SE2d 109) (2011), quoting Neely v. City of Riverdale, 298 Ga. App. 884, 885 (1) (681 SE2d 677) (2009).

       289 Ga. 669 (715 SE2d 73) (2011).

       Id. at 670 (1) (a).

        Benator, 310 Ga. App. at 601 (3).

       See Dabbs, 289 Ga. at 670 (1) (a); Benator, 310 Ga. App. at 601 (3).

       See Dover, 246 Ga. App. at 524.

       See id.

        Dover, 246 Ga. App. at 526 (1).

       See Dabbs, 289 Ga. at 670 (1) (a).


author: ANDREWS, Presiding Judge. DILLARD, Judge,

text:
    A13A0244.
    FELTON v. THE STATE.
    (745 SE2d 832)
   ANDREWS, Presiding Judge.

Jermoris Felton appeals his conviction for possession of marijuana. He contends the trial court erred by denying his motion to suppress evidence seized from his person in violation of his right to be free from unreasonable search and seizure. We agree and reverse his conviction.

1. Felton’s sole enumeration of error alleges that the trial court erred by denying his motion to suppress. He contends that the facts of this case do not support a brief investigative stop, the pat-down was unwarranted, and the removal of the item from his pocket exceeded the officer’s authority. When reviewing a trial court’s decision on a motion to suppress, an appellate court’s

responsibility is to ensure that there was a substantial basis for the decision. We are guided by three principles when interpreting the trial court’s determination of the facts. When considering such a motion the trial court is the trier of facts. The court hears the evidence, and when its findings are based upon conflicting evidence, they are analogous to a jury verdict and must not be disturbed by an appellate court if any evidence supports them. Also, the trial court’s decisions regarding questions of fact and credibility of witnesses must be accepted unless they are clearly erroneous, and the evidence must be construed most favorably toward upholding the trial court’s findings and judgment. Additionally, when the evidence is uncontroverted and no question about a witness’s credibility exists, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) Hobbs v. State, 272 Ga. App. 148 (1) (611 SE2d 775) (2005). To the extent this issue concerns mixed questions of fact and law, we will accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts. Morrow v. State, 272 Ga. 691, 693 (1) (532 SE2d 78) (2000). “Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.” Whitehead v. State, 258 Ga. App. 271, 273 (1) (574 SE2d 351) (2002). As the evidence is uncontroverted and no question about witness credibility is present, the trial court’s ruling on Felton’s motion to suppress is subject to de novo appellate review.

Viewed in this manner, the evidence shows that a police officer responded to a dispatch based upon a 911 call from a concerned citizen about a violent, verbal dispute between a man and a woman in a white car parked in a convenience store parking lot. He was dispatched to investigate “a domestic disturbance in progress.” When the officer arrived at the location, however, he found a white car stopped in the turn lane of the roadway with a woman behind the steering wheel. A man, later identified as Felton, was walking near the car toward the convenience store. The officer directed the woman to drive the car into the store’s parking lot, and motioned to Felton to come to the police car so the officer could talk to him about what was going on. Felton did not immediately comply with the officer’s request, but ultimately did so. The officer was investigating a domestic disturbance in progress, but he did not see Felton commit any crime.

About this time, a second officer arrived on the scene, and the first officer directed Felton to talk to the second officer. The first officer then spoke with the woman in the car, who was crying. The officers did not have a clue what was going on. The first officer then spoke with the concerned citizen who told him she was pumping gas when she heard the two in a “heated argument verbally”; she said it was so volatile she decided to call 911.

The second officer spoke with Felton who told him that he and his girlfriend had been arguing. Felton kept putting his hand in his coat pocket. The officer repeatedly ordered Felton to remove his hand from his coat pocket and noted that Felton was becoming increasingly nervous. Felton was very hesitant to answer any of the questions he was asked; he was very hesitant and fidgety. At first, Felton did not take his hands out of his pockets even though he was directed to do so, but he ultimately did so. From the officer’s experience, people who are hesitant to remove their hands from their pockets might be hiding something. As a result of his concern that Felton might be hiding something in his pockets, the officer asked Felton if he could pat him down for “any weapons or illegal items” and when Felton did not respond, he patted down Felton. Felton had not been aggressive before this, and his demeanor was quiet. The officer stated it was a Terry frisk.

The officer felt a large item in Felton’s right front pocket. The officer asked Felton what the item was, and Felton responded he did not know. The officer then asked Felton if he could remove the item, and Felton answered, “I don’t care.” The officer removed the item from Felton’s pocket and found a purple Crown Royal cloth bag. The officer testified that as soon as he pulled it out, he noticed the “strong, distinct odor” of marijuana. Felton tried to walk away, but was detained by the officer.

At the conclusion of the hearing, the trial court denied the motion to suppress. The trial court found that the officers’ detention of Felton was authorized because the officers were attempting to ascertain what was going on. In regard to the pat-down, the trial court concluded that if officers had “a right to detain temporarily, then they have a right to pat down to protect themselves.” Based upon this conclusion, the court found that the pat-down was authorized.

Later, upon Felton’s motion for the trial court to reconsider this ruling, the trial court issued a written order denying the motion. The trial court found that the 911 call gave the officers “reasonable, articulable suspicion and a particularized and objective basis for suspecting [Felton] was, or was about to be, engaged in criminal activity.” Thus, the court found that Felton’s brief detainment was a second tier Terry stop.

Addressing Felton’s allegation that the search and removal of the bag from Felton’s pocket was unauthorized, the trial court found that a Terry pat-down permits an officer to look for weapons only, and the officer is not authorized to search for or remove anything other than weapons. During the pat-down, the officer felt a large soft item in Felton’s pocket. When the officer requested permission to remove the item, Felton’s response of “I don’t care” consented to the officer’s removal of the object. The trial court denied the motion for reconsideration. After Felton was convicted of possession of marijuana, this appeal followed.

2. Felton argues that the facts of this case do not support a Terry stop because there was no evidence Felton was engaged in or about to engage in criminal activity. A Terry stop is a “brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, [and] may be most reasonable in light of the facts known to the officer at the time. [Cits.]” Stiggers v. State, 151 Ga. App. 546, 547 (260 SE2d 413) (1979).

The U. S. Supreme Court recognized the difficulty in defining “the elusive concept of what cause is sufficient to authorize police to stop a person,” and concluded that the essence of the elusive concept was to take the totality of the circumstances into account, and determine whether the detaining officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). “This demand for specificity in the information upon which police action is predicated is the central teaching of [the Supreme Court’s] Fourth Amendment jurisprudence.” Terry v. Ohio, [392 U. S. 1, 21, n. 18 (88 SCt 1868, 20 LE2d 889) (1968)].

Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). Thus,

[b]alancing the inestimable right of personal security against the interest of effective law enforcement, the U. S. Supreme Court has determined that a law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. Over a decade later, the Court restated the standard when it held that an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. The Cortez court went on to elaborate: based upon the totality of the circumstances, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Thus, the inferences and deductions of a trained officer, drawn from objective observation, must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.

(Citation and punctuation omitted.) Postell v. State, 264 Ga. 249 (443 SE2d 628) (1994). The reasons justifying an investigatory stop need not rise to the level of probable cause, but must be more than a mere hunch and must not be arbitrary or harassing. State v. White, 197 Ga. App. 426, 427 (398 SE2d 778) (1990). Indeed, the officer’s action “must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006). Additionally, the officer “must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.” Id.

In this case the basis for the stop was clear and the complaint by the concerned citizen, who remained on the scene, provided ample basis for concluding that the officers’ actions were neither arbitrary nor harassing. Further, although the evidence did not show that Felton was engaging in criminal activity at the time, based upon the complaint, the officers were authorized to detain him briefly to determine whether he was about to engage in such activity.

3. Felton contends the trial court erred by finding that the pat-down was authorized. We agree. The State bears the burden of proving the lawfulness of a pat-down search for weapons. Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010). When conducting an investigatory stop, an officer is entitled to conduct a limited pat-down of the suspect for weapons if the officer reasonably believes that the suspect poses a threat to his safety or that of others. Terry, 392 U. S. at 28-31. It is not required that the officer “be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27. A pat-down for weapons is authorized “only if the officer has a reasonable belief preparatory to an intended pat-down that the suspect is armed and presents a danger to the officer or others.” (Punctuation and footnote omitted; emphasis in original.) Ramsey v. State, 306 Ga. App. 726, 728 (703 SE2d 339) (2010).

The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

Sibron v. New York, 392 U. S. 40, 64 (88 SCt 1889, 20 LE2d 917) (1968). “[T]he issue is whether the officer has objectively reasonable grounds to believe or suspect that the person may be armed.” State v. Kipple, 294 Ga. App. 420, 421 (1) (669 SE2d 185) (2008).

Here the officer who conducted the pat-down of Felton’s outer clothing never testified that he believed that Felton was armed and dangerous. Instead, he merely asserted that he believed that people who kept their hands in their pockets might be hiding something. Accordingly, the State failed to establish that the officer was authorized to conduct a pat-down of Felton, and the trial court’s conclusion that because the officers were conducting an authorized Terry stop, they were authorized to conduct a pat-down of Felton’s person is contrary to our law. Therefore, the trial court erred by denying the motion to suppress the evidence seized as a result of the pat-down.

4. Felton further contends that he did not consent to be searched when the officer asked him for permission to conduct a pat-down, and the evidence shows that when asked for permission to conduct the pat-down, Felton did not respond. Based on this evidence, the trial court found that Felton “neither consented nor objected to the pat-down.” As this finding is not clearly erroneous, we are obligated to accept it.

Pretermitting whether Felton consented to the officer searching his pocket to remove the item the officer found in the pat-down by saying “I don’t care,” is the fact that the seizure of the Crown Royal bag and its contents was the product of the illegal pat-down. Therefore, the initial illegal pat-down tainted all evidence obtained as a result thereof. Clare v. State, 135 Ga. App. 281, 285-286 (5) (217 SE2d 638) (1975).

Accordingly, for the reasons explained above, we find that the officer was not authorized to pat down Felton, and the trial court erred by denying Felton’s motion to suppress.

Judgment reversed.

McMillian, J., concurs. Dillard, J., concurs in Divisions 1 and 2 and in the judgment.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only as to Divisions 3 and 4 because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent as to those divisions. See Court of Appeals Rule 33 (a).

Decided July 3, 2013.

Angela M. Coggins, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.


author: Dillard, Judge.

text:
    A13A0371.
    THE STATE v. CONNER.
    (745 SE2d 837)
   Dillard, Judge.

Jason Conner was stopped at a police roadblock and arrested for driving under the influence of alcohol. Conner thereafter moved to suppress evidence obtained as a result of the traffic stop, arguing that the roadblock was unlawful. The trial court granted Conner’s motion, finding that the roadblock was indeed unlawful because it was not “well-identified as a police checkpoint.” The State now appeals, arguing, inter alia, that the trial court erred in ruling that the roadblock was not well identified. For the reasons set forth infra, we agree and reverse.

Viewed in the light most favorable to the trial court’s findings and judgment, the evidence shows that around 1:00 a.m. on October 28, 2012, Cobb County police officers implemented a traffic-safety checkpoint on Shiloh Road for the purpose of examining driver’s licenses, confirming compliance with seat-belt laws, and checking proof of insurance, as well as checking for other violations. The roadblock was positioned on the street between a business park and parking lot, and consisted of six patrol vehicles with flashing blue lights. Approximately ten officers wearing reflective safety vests and carrying flashlights manned the roadblock, with some assigned to ensuring that approaching motorists slowed down and others assigned to screening the motorists as they were stopped. Shortly after 3:00 a.m., Conner was stopped at the roadblock, and one of the screening officers asked to see his license. As Conner complied, the screening officer smelled an alcoholic-beverage odor on Conner’s breath. Consequently, Conner was arrested on suspicion of driving under the influence of alcohol.

Thereafter, Conner was charged, via accusation, with one count of DUI less safe and one count of DUI per se. He timely filed a motion to suppress the evidence resulting from his detainment at the police roadblock, arguing, inter alia, that the roadblock was not well identified as a police checkpoint. The trial court held a hearing on the motion, during which two officers gave testimony concerning the roadblock in question. The trial court ultimately granted the motion to suppress, and this appeal from the State follows.

At the outset, we note that in reviewing a trial court’s decision on a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of witnesses are adopted unless they are clearly erroneous.” But we review de novo the trial court’s “application of law to the undisputed facts.” With these guiding principles in mind, we turn now to the State’s enumeration of error.

Specifically, the State argues that the trial court’s decision to grant Conner’s motion to suppress constituted error because the roadblock was, in fact, well identified as a police checkpoint. We agree.

The Supreme Court of the United States has interpreted the Fourth and Fifth Amendments to permit roadblocks, holding that although the stops need not be based on probable cause, they must still be conducted in a manner making them reasonable under the Fourth Amendment. The requirements for determining the constitutionality and lawfulness of a police roadblock under Georgia law are set forth in LaFontaine v. State, which held that

[a] roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the screening officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

These factors are not general guidelines, but are instead “minimum constitutional prerequisites.”

Here, our focus is on the fourth factor of LaFontaine, which requires that the roadblock operation be “well identified as a police checkpoint.” And as previously noted, the two officers who testified at the suppression hearing explained that the roadblock was well-lit by several police vehicles and spotlights and was manned by ten officers wearing reflective vests and carrying flashlights.

Nevertheless, because the officers had different recollections regarding the presence of cones at the roadblock, the trial court found that there were no cones present at the scene, and cited their absence as a reason for granting Conner’s motion. In addition, the trial court found that there were no signs identifying the roadblock. We, of course, defer to those factual findings.

But regardless of the foregoing, under the facts as determined by the trial court, whether the roadblock at issue was “well identified as a police checkpoint” is a question of law and, thus, is subject to de novo review. And we do not agree with the trial court that the lack of signs or cones prevented the roadblock from being well identified as a police checkpoint as a matter of law.

To be sure, cones and signs can be relevant identifying characteristics in determining whether a roadblock was well identified. Nevertheless, we have repeatedly noted the lack of any precedential authority in Georgia “for the proposition that the Fourth Amendment requires that roadblocks be identified with orange cones . . . .” Similarly, we find no authority requiring roadblocks to be identified by signs. To reiterate, the roadblock here was identified by six police vehicles with their blue lights flashing and ten policemen wearing reflective vests and carrying flashlights. And this Court has previously held police roadblocks with similar identifying characteristics to be well identified as a matter of law.

Moreover, although the trial court also based its order on testimony from one of the officers, in which he stated that he could not say whether a driver from 200 yards away would be able to discern whether the significant police presence up ahead was a roadblock or the scene of an accident, we are unaware of any precedent placing such importance on the subjective perception of stopped motorists as to whether they are aware of the specific details pertaining to the police presence (i.e., that a driver be able to definitively discern that the police presence is indeed related to a checkpoint). Instead, our previous decisions have used objective criteria in determining whether a police checkpoint is well identified. What we have not done until now, and what we do today, is state the obvious: The question of whether a roadblock is “well identified as a police checkpoint” within the meaning of LaFontaine can only be answered by evaluating the totality of circumstances (i.e., objective observations) surrounding that roadblock. This is not a new test. It is simply a characterization of the analytical framework currently being used by this Court in determining whether a roadblock is well identified.

Decided July 3, 2013

Barry E. Morgan, Solicitor-General, Kevin D. Bradberry, Kristi M. Pearson, Assistant Solicitors-General, for appellant.

Charles T. Magarahan, Jeffrey R. Filipovits, for appellee.

We also take this opportunity to expressly reject the notion that the absence of any one item, such as cones or signs, renders a police roadblock unlawful. The overarching purpose of the “well identified” requirement is simply to lessen the amount of fright or concern to drivers and permit those drivers to “see visible signs of the officers’ authority,” not to advertise the checkpoint as if it were the “coming attractions” on a movie theater’s marquee. Our case law requires that a roadblock be well identified as a police checkpoint, not that it be explicitly identified as such.

For all of the foregoing reasons, we conclude that the roadblock at issue was sufficiently well identified as a police checkpoint and, therefore, was lawful under LaFontaine and its progeny. Accordingly, we reverse the trial court’s order granting Conner’s motion to suppress.

Judgment reversed.

Andrews, P. J., and McMillian, J., concur.

        See Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

        See OCGA § 40-6-391 (a) (1).

        See OCGA § 40-6-391 (a) (5).

        Hammont, 309 Ga. App. at 396 (punctuation omitted).

        Young v. State, 310 Ga. App. 270, 271 (712 SE2d 652) (2011).

        See U. S. Const. amend. IV & V.

        Michigan Dep’t. of State Police v. Sitz, 496 U. S. 444, 450 (110 SCt 2481, 110 LE2d 412) (1990).

       269 Ga. 251 (497 SE2d 367) (1998).

        Id. at 253 (3); see also Clark v. State, 318 Ga. App. 873, 874-875 (734 SE2d 839) (2012) (same); Sutton v. State, 297 Ga. App. 865, 867-868 (678 SE2d 564) (2009) (same).

        Baker v. State, 252 Ga. App. 695, 701 (1) (556 SE2d 892) (2001).

        LaFontaine, 269 Ga. at 253 (3).

        See Hammont, 309 Ga. App. at 396.

        See Phillips v. State, 287 Ga. 560, 562-63 (2) (697 SE2d 818) (2010) (identifying signs and cones as two of several factors that allowed the court to find that the roadblock was well identified); Brent v. State, 270 Ga. 160, 162 (2) (510 SE2d 14) (1998) (identifying cones as one of several factors of a well identified roadblock).

        Harwood v. State, 262 Ga. App. 818, 821 (1) (b) (586 SE2d 722) (2003); see also Clark, 318 Ga. App. at 876 (same).

        See Cater v. State, 280 Ga. App. 891, 892 (1) (635 SE2d 246) (2006) (holding roadblock was lawful when “officers wore either strike force uniforms or patrolman uniforms, some with yellow and black luminescent vests with police written on them, [and] five or six marked police cars were present with lights flashing”); Harwood, 262 Ga. App. at 820-21 (1) (b) (holding roadblock was lawful when police cars were parked on either side of the street with flashing blue lights, and police officers present were in uniform, some with reflective vests); Hodges v. State, 248 Ga. App. 295, 296 (1) (546 SE2d 54) (2001) (holding roadblock was lawful when “[t]he area was well lit, and police cars were placed so that their flashing rear lights could be seen by cars approaching in both directions” and the “roadblock was visible at least 500 to 700 feet before reaching the roadblock to vehicles approaching in both directions”).

       This is not to say that a driver’s objective observations of a police presence are unimportant. To the contrary, a driver’s testimony about the presence of cones, signs, police cars with flashing lights, etc., may certainly be taken into account when a trial court considers whether the police checkpoint in question is well identified. Cf. Clark, 318 Ga. App. at 876 (noting that there was “no evidence that any driver ... misunderstood the nature of the stop” - i.e., nothing in the record to “contest the trial court’s factual conclusion that the roadblock was sufficiently identifiable as a police checkpoint.”) (emphasis supplied).

        See supra note 15. Cf. Sommese v. State, 299 Ga. App. 664, 668 (1) (683 SE2d 642) (2009) (“The touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” (punctuation omitted)).

        Cf. United States v. Cortez, 449 U. S. 411, 417 (101 SCt 690, 66 LE2d 621) (1981) (holding an investigatory stop valid when totality of circumstances gives officers “particularized and objective basis” for suspicion of criminal activity); Darden v. State, 293 Ga. App. 127, 130 (666 SE2d 559) (2008) (describing the totality-of-eircumstances test as being one that takes “the whole picture . .. into account” and “proceeds with various objective observations.”).

       We recognize that in Baker, 252 Ga. App. at 701-02 (1), we overruled a line of cases that employed a totality-of-the-circumstances test to determine whether a roadblock still complied with LaFontaine despite the lack of evidence of supervisory oversight. However, we did so not because we found that it was incorrect to use a totality-of-the-circumstances analysis for any one of the LaFontaine factors, but rather because it was improper to employ such an analysis generally as a means of justifying the marginalization of any one factor. Id. Indeed, it is for that reason we specifically noted in Baker that the LaFontaine factors “are not general guidelines but are minimum constitutional prerequisites.” Id. at 701 (1). Accordingly, we do not agree with Conner’s argument that Baker precludes this Court from employing a totality-of-the-circumstances analysis to determine whether, as a matter of law, a roadblock was well identified as a police checkpoint. To the contrary, our Fourth Amendment jurisprudence countenances such analysis. See supra notes 17-18.

        See Clark, 318 Ga. App. at 876 (evaluating “circumstances of daylight search” and rejecting argument that “the Fourth Amendment requires that roadblocks be identified with orange cones and that officers working there wear reflective hats.”) (citation and punctuation omitted).

        Sitz, 496 U. S. at 453 (citation and punctuation omitted); see also United States v. Ortiz, 422 U. S. 891, 895 (95 SCt 2585, 45 LE2d 623) (1975) (holding that the constitutionality of a checkpoint stems, in part, from the fact that “[a]t traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion,” thus offering greater protection to drivers’ “liberty and privacy from arbitrary and oppressive interference by government officials.”); Phillips v. State, 287 Ga. 560, 563 (697 SE2d 818) (2010) (holding that “the roadblock was properly identified,” in part, because the driver “admitted at trial that he could see the roadblock in the distance where cars had been stopped.”); LaFontaine, 269 Ga. at 253 (3) (“Roadblock stops have appreciably less intrusion on the part of travelers and do not create the fear and surprise engendered in motorists by roving patrol stops because the motorist is not singled out; the traveler is reassured when all vehicles are stopped.”) (citation omitted).

       This is, of course, consistent with the plain meaning of the adverb “well,” which means “[i]n a legally sufficient manner; unobjectionable.” Black’s Law Dictionary 1588 (7th ed. 1999).