author: Doyle, Judge.

text:
    A17A1028.
    MACKEY v. THE STATE.
    (805 SE2d 596)
   Doyle, Judge.

Following a jury trial, Charles Mackey appeals from his conviction of pimping a person under the age of 18, contributing to the delinquency of a minor, and trafficking a person for sexual servitude. He challenges the denial of his motion for new trial on the grounds that the trial court erred by (1) admitting a copy of the victim’s birth certificate and Social Security card, (2) finding the evidence of the victim’s age sufficient, and (3) failing to properly rebuke the prosecutor and instruct the jury after the prosecutor referred to matters not in evidence during closing argument. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that an undercover officer with the Criminal Investigation Division of the Chamblee Police Department was sent in plain clothes and an unmarked vehicle to investigate suspected prostitution activity at a particular location. Once at the suspected location, the plain clothes officer soon encountered 16-year-old B. W., and, while sitting in his vehicle, asked her if she was “working.” Before she could respond, Mackey approached the officer’s vehicle window and interrupted. The officer asked Mackey if B. W. was “his girl,” and Mackey said yes. The officer apologized, and Mackey replied, “no, that’s cool, she’s working.”

Mackey then asked the officer how much money he had, and the officer answered that he had between $30-35. Mackey said that was not enough, and the officer needed $40. The officer agreed to $40, and Mackey agreed that the officer could have intercourse with B. W. at that price. The officer invited B. W. into his vehicle, but Mackey said, “[W]e don’t do it like that. We do it in rooms only.” Realizing that leaving his vehicle might compromise his safety, the officer declined the encounter, drove away, and called in a nearby police team to arrest Mackey and B. W.

Mackey and B. W. were taken to the police department, where police found in B. W.’s purse a birth certificate and Social Security card showing her name and age. Mackey was charged with pimping a person under the age of 18, contributing to the delinquency of a minor, and trafficking a person for sexual servitude. B. W. was not charged. Mackey was tried before a jury and found guilty as to each count. Mackey moved for a new trial, which motion was denied after a hearing, giving rise to this appeal.

1. Mackey contends that the trial court erred by admitting copies of the birth certificate and Social Security card found in B. W.’s purse when she was arrested. Mackey argues that they were not authenticated and that admitting the copies violated the best evidence rule. “[A]dmission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent . . . [an] abuse.”

The best evidence rule, codified at OCGA § 24-10-1002, provides: “To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.” The trial court admitted the documents under a corollary to the best evidence rule, OCGA § 24-10-1003, which provides: “A duplicate shall be admissible to the same extent as an original unless: (1) A genuine question is raised as to the authenticity of the original; or (2) A circumstance exists where it would be unfair to admit the duplicate in lieu of the original.” This has been interpreted to mean that

[a] duplicate maybe admitted into evidence unless opposing counsel meets the burden of showing that there is a genuine issue as to the authenticity of the unintroduced original, or as to the trustworthiness of the duplicate, or as to the fairness of substituting the duplicate for the original.

Mackey argues that because B. W. denied that she was the person identified in the documents she carried, a genuine question was raised as to the authenticity of the copies tendered by the State. Nevertheless, there was never any issue raised that the copies entered into evidence were not accurate duplicates of the documents found in B. W.’s purse. That B. W. at one time denied being the person identified in the documents does not bear on the admissibility of the copies as an accurate representation of what was found in her purse.

To properly authenticate a document prior to its admission, a proponent must present sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be. After meeting the prima facie burden, the evidence may be admitted, and the ultimate question of authenticity is then decided by the jury.

The documents introduced by the State were tendered as copies of the documents in the possession of B. W., and they were authenticated as such by the officer who found them. Based on these circumstances, we discern no abuse of discretion in the trial court’s admission of copies of the documents found in B. W.’s possession.

Furthermore, an employee of the youth residence from which B. W. had recently run away verified B. W.’s identity and age according to a photographic “face sheet” maintained by the residential program that formerly housed her. That witness, who was personally familiar with B. W, also verified that B. W.’s name and booking photograph matched that of the 16-year-old juvenile runaway from her residential program. Accordingly, any error in admitting copies of the documents found in B. W.’s purse was harmless, and this enumeration presents no basis for reversal.

2. Mackey argues that there was insufficient evidence to show that B. W. was under the age of 18. For the reasons discussed in Division 1, this enumeration is without merit.

3. Finally, Mackey argues that the trial court erred by not properly rebuking the prosecutor and instructing the jury when the State made the following statement during closing argument, referring to part of Mackey’s closing argument and his request for a lesser included charge on pimping for an adult: “To be clear, the defendant had the presumption of innocence. As he stands here today, at the very basis [sic], he has by his own admission through his attorney said, ‘I’m a pimp.’ ” At that point, Mackey objected on the grounds that the State was mischaracterizing the evidence and commenting on his right to remain silent. After an unrecorded bench conference, the trial court instructed the jury “that, once again,. . . anything counsel says is not evidence, but merely argument, and you should base your decision on the evidence.” At that point, the State resumed its argument without comment or objection by Mackey.

Decided September 13, 2017.

Kevin A. Anderson, for appellant.

Sherry Boston, District Attorney, E. Dalia Racine, Deborah D. Wellborn, Destiny S. Harris, Assistant District Attorneys, for appellee.

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

Based on this Code section, Mackey argues that the trial court had a duty to interpose and prevent the State from referring to his request for a lesser included charge on pimping for an adult as an admission of guilt to pimping. But as outlined above, Mackey did not renew his request for admonishment or otherwise challenge the curative instruction given by the court as inadequate. “[I]t is well established that if the trial court’s curative instructions are not sufficient, defendant should seek additional relief.” “As a result, any issue concerning the propriety of the prosecutor’s comments has been waived. If [defense counsel believed that] the trial court’s curative action in sustaining the objection was insufficient, defense counsel should have sought additional relief.” Accordingly, this enumeration presents no basis for reversal.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       OCGA § 16-6-11 (1); 16-6-13 (b) (1).

       OCGA § 16-12-1 (b) (1).

       OCGA § 16-5-46 (c).

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

       See OCGA § 16-3-6 (b) (1) (“A person shall not be guilty of a sexual crime if the conduct upon which the alleged criminal liability is based was committed by an accused who was . . . [ljessthan 18 years of age at the time of the conduct such person was being trafficked for sexual servitude. . . .”).

       (Punctuation omitted.) Dimauro v. State, 341 Ga.App. 710, 717 (2) (801 SE2d 558) (2017).

       Mackey’s trial was after the January 1, 2013 effective date of Georgia’s new Evidence Code. See Olds v. State, 299 Ga. 65, 69 (2), n. 5 (786 SE2d 633) (2016).

       See United States v. Georgalis, 631 F2d 1199, 1205 (IV) (5th Cir. 1980) (addressing Federal Rule of Evidence 1003). See generally Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015) (“[WJhere the new Georgia [evidence] rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.”).

        Georgalis, 631 F2d at 1205 (IV).

       (Citations and punctuation omitted.) MKT Reps S.A. DE C.V. v. Standard Chartered Bank Intl. (Americas) Ltd., 520 Fed. Appx. 951, 953 (II) (11th Cir. 2013).

       See Lester v. Groves, 162 Ga. App. 590, 593 (6) (291 SE2d 785) (1982) (decided under former Evidence Code) (“Generally, over a best evidence objection, a photocopy may not be admitted in evidence without accounting for the original, except where there is proof that the copy is identical to the original.”) (citation omitted; emphasis supplied).

       See generally Worth v. State, 183 Ga. App. 68, 72-73 (6) (358 SE2d 251) (1987) (“[T]he best evidence rule ... does not apply where the existence of a fact is in question rather than the contents of a writing. Although a witness’[s] testimony as to his age may be predicated on what he has been told, he is nevertheless competent to give such evidence which is primary proof.”) (citation omitted).

       (Punctuation omitted.) Samuels v. State, 335 Ga. App. 819, 825 (2) (783 SE2d 344) (2016).

       (Punctuation omitted.) Walley v. State, 298 Ga. App. 483, 485 (2) (680 SE2d 550) (2009). Compare Jones v. State, 292 Ga. 656, 661 (2) (740 SE2d 590) (2013) (finding error because defense counsel “responded that [the generic] instruction [given by the trial court] was insufficient and specifically requested an instruction that the jury disregard the” improper statement made by the prosecutor).


source: Caselaw Access Project

author: Reese, Judge.

license: Public Domain

text:
    A17A0940.
    WHATLEY v. THE STATE.
    (805 SE2d 599)
   Reese, Judge.

A Fulton County jury found Fernandez Whatley guilty beyond a reasonable doubt of kidnapping, aggravated assault, two counts of robbery (as lesser included offenses of armed robbery charges), and two counts of false imprisonment. He appeals from the denial of his motion for new trial, contending that the trial court violated his right to a public trial, that he received ineffective assistance of counsel, and that the evidence was insufficient to support his convictions. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reveals the following facts. On November 27, 2010, Hannibal Heredia was doing yard work at his Atlanta home while his wife, Angela Fox, and his nine-year-old daughter, A. H., were inside. Two men drove up, approached Heredia, assaulted him, and forced him inside his home. The assailants, who were both carrying guns, tied up Heredia, his wife, and his daughter and stole Heredia’s and Fox’s jewelry and wedding rings. In addition, the assailants stole several flat screen televisions, Heredia’s and Fox’s cell phones, and their Audi vehicle. The Audi, televisions, and cell phones were later recovered by law enforcement officers after they tracked Heredia’s phone to an address associated with the Appellant. A friend of the Appellant subsequently testified that he saw the Appellant and an unidentified man arrive at a nearby apartment complex in an Audi shortly after the crimes in this case had been committed.

Detective Vincent Velasquez, who worked with the homicide division of the Atlanta Police Department, responded to a 911 call about the crimes at issue (hereinafter, the “home invasion”). The detective believed that the home invasion may have been related to a gang-related crime spree that he was investigating; those crimes included a homicide, a rape, armed robberies, and other felonies. After conducting further investigation, Detective Velasquez identified the Appellant and another man, Tamario Wise, as suspects in the home invasion. The detective arrested the Appellant and transported him to the police station, where the detective conducted a custodial interview. According to Detective Velasquez, the Appellant admitted that he went to the home of Heredia and Fox with the intention of committing a robbery and that he tied up Heredia with a scarf, backed Heredia’s Audi out of the garage, loaded the televisions into the car, and left the scene in the Audi. Those facts were consistent with Heredia’s statements to the detective about the home invasion, as well as Heredia’s testimony at the joint trial of the Appellant, Wise, and Robert Veal, a third suspect in the gang-related crime spree.

In a 90-count indictment charging the Appellant, Wise, Veal, and three other individuals with an assortment of violent felonies, the State jointly indicted the Appellant and Wise for participation in criminal street gang activity (based upon the armed robbery of Heredia); the kidnapping of Heredia; the aggravated assault of Heredia; the armed robbery of Heredia and Fox; the false imprisonment of Fox and A. H.; and cruelty to children in the first degree. The jury acquitted the Appellant on the gang-related activity and child cruelty charges, found him guilty on two counts of robbery as lesser included offenses of the armed robbery counts, and found him guilty on the remaining charges. The court denied the Appellant’s motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

The standard of Jackson v. Virginia, supra, is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes charged. With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

1. The Appellant contends that the trial court violated his constitutional right to a public trial by closing the courtroom to the defendants’ family members and other observers during voir dire. Although the attorney for the Appellant’s co-defendant, Wise, unsuccessfully objected to the alleged closure and moved for a mistrial, the Appellant’s attorney did not object, nor did she join Wise’s objection or motion. Consequently, any error by the trial court related to the alleged closure is waived, and the issue of closure may only be raised in the context of an ineffective assistance of counsel claim.

2. The Appellant claims that the State failed to present sufficient evidence to support his convictions on Counts 85 and 86 of the indictment. Count 85 charged the Appellant with committing an armed robbery of “Angela Fox” by taking her wedding ring from her person and immediate presence, while Count 86 charged him with the false imprisonment of “Angela Fox.” The Appellant argues that the State failed to present evidence that a woman named “Angela Fox” was present during the home invasion or that he stole a wedding ring from her, because Heredia only referred to her as his “wife” and never stated her name during his testimony. This argument lacks merit.

First, the Supreme Court of Georgia rejected the same argument in its opinion affirming the conviction of the Appellant’s co-defendant, Wise. The Appellant has offered no authority or argument that would support a different ruling by this Court.

Second, Heredia testified that his “wife” was present during the home invasion, that one of the assailants tied her up, and that one of them removed his and his wife’s jewelry, including their wedding rings. Although Heredia did not mention his wife’s name during his testimony, and Fox, herself, did not testify at trial, Detective Velasquez testified that he had interviewed Heredia shortly after the home invasion was committed, that he had conducted further investigation of the home invasion, and that the victims were Heredia; his wife, Angela Fox; and their daughter, A. H.

Thus, we conclude that the evidence, when viewed in favor of the jury’s verdict, was sufficient for the jury to find the Appellant guilty beyond a reasonable doubt of the crimes at issue.

3. Citing several alleged oversights by his trial counsel before and during trial, the Appellant asserts that he received ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

“An appellate court evaluates counsel’s performance from counsel’s perspective at the time of trial. As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” Further, the burden of demonstrating prejudice that resulted from counsel’s deficient performance, “although not impossible to carry, is a heavy one.” Thus,

a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the [Appellant] as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

(a) The Appellant claims that he was prejudiced by his counsel’s failure to file a motion to sever his trial from that of his co-defendants.

As an initial matter, the Appellant’s assertion is not supported by the record, which shows that his counsel filed a comprehensive motion to sever the Appellant’s trial from that of his co-defendants as part of a consolidated motion packet in February 2011, almost 20 months before the October 2012 trial. However, there is no order by the trial court on this motion in the record. Therefore, for the sake of this appeal, we will address this issue as if counsel had not filed a motion to sever.

[T]he decision not to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. A defendant must do more than raise the possibility that separate trials upon the charges against him would have provided him a better chance of acquittal. Such a defendant must make a clear showing of prejudice proximately causing a denial of due process.

In its order denying the Appellant’s motion for new trial, the court made the following observations regarding severance in this case:

While there may have been some theoretical risk that [the Appellant] would be tainted by the charges and actions of his co-defendants, it was equally possible that he would appear less culpable in comparison^]... In fact, based on the Court’s observation of the demeanor of the co-defendants versus [the Appellant], the Court concludes that this is exactly what happened.

We find that the record supports the court’s conclusion that the joint trial likely benefitted the Appellant by making him appear less culpable than his co-defendants, Wise and Veal. The record shows that Wise and Veal were involved in a violent, gang-related crime spree in the days leading up to the instant crimes. As a result of Wise’s participation in those crimes, as well as the home invasion, he was convicted of malice murder, rape, multiple counts of armed robbery and aggravated assault, kidnapping, and several other felonies. Similarly, Veal (who did not participate in the home invasion) was convicted of malice murder, rape, aggravated sodomy, multiple counts of armed robbery and aggravated assault, kidnapping, and multiple other felonies. In contrast, the jury acquitted the Appellant on the charge of participating in gang-related activities and on the child cruelty charge, and the jury convicted him of robbing Heredia and F ox instead of finding him guilty on the more serious armed robberies that were charged in the indictment.

We find that the Appellant has failed to meet his burden of demonstrating that the failure to pursue a severance constituted deficient performance. We also find, based on the record, there is no reasonable probability that the outcome of his trial would have been different if there had been a severance. Thus, he cannot prevail on this ineffective assistance claim.

(b) The Appellant argues that he received ineffective assistance when his counsel failed to object to the closure of the courtroom to the public, including the defendants’ family members.

The trial transcript shows the following, undisputed facts. At 11:05 a.m. on October 1, 2012, the trial court brought 75 prospective jurors into the courtroom; administered the oath to them; gave them preliminary instructions; read the entire 90-count indictment to them; and questioned them en banc to ensure that they all met the minimum legal qualifications to serve as a juror in the case. Then, after noting that it was “just past noon,” the court dismissed the prospective jurors for lunch.

Moments later, a court bailiff appears to have admonished the three defendants and their attorneys on the record, as follows:

Just [to] be clear, I thought instructions were given that no family members would be allowed today because there is no room [in the courtroom]. Please don’t take it to the family and tell them to ask me because the answer is still no. We don’t have any room. It will not be allowed today No room will be allowed for family members until the jury selection is over.

The prosecutor responded that this announcement was the first time he had heard of the bailiff’s actions in excluding people from the courtroom. He noted, however, that there was “absolutely no space for anyone to sit” in the courtroom, that each bench was completely filled with prospective jurors sitting “shoulder-to-shoulder,” that the jury box was filled, and that there were no empty chairs. The prosecutor also stated that the case involved gang-related crimes and several witnesses had been attacked in jail, so there were extreme security issues to be considered, as well as the possibility of creating a fire hazard by admitting more people into the courtroom.

Although the Appellant’s counsel did not object to the exclusion of the public from the courtroom, Wise’s attorney objected and moved for a mistrial based on the violation of Wise’s right to an open, public trial. The trial court denied the motion for mistrial after considering the following, undisputed facts: neither the trial court judge nor the prosecutor was aware that the bailiff was excluding people from the courtroom; the State had not filed a motion to close the courtroom; the judge had not ordered the courtroom to be closed or ordered the bailiff to exclude anyone; the bailiff was either acting on his own initiative or on the instructions of his superior officer, not the judge; the doors to the courtroom were not locked during the approximately one-hour period at issue; the courtroom had no available seating for additional individuals during that time; and no one was asked to leave once they were in the courtroom.

In addition, as soon as the judge found out about the situation, he ordered a recess and then reconvened the trial in a different, larger courtroom that accommodated the family members and other observers. The judge explained the reasons for the room change to the prospective jurors when voir dire was recommenced. The judge also provided copies of the indictment to the three co-defendants’ family members, as they had not been present when he read the indictment to the prospective jurors. The Appellant’s counsel did not object to the actions taken by the judge to remedy the situation.

Although the Appellant argues that his counsel should have objected to the closure, he cannot show that there is a reasonable probability that the trial court would have sustained the objection. As shown above, Wise’s counsel did, in fact, object to the closure and move for a mistrial, and the court overruled the objection and denied the motion. The Appellant has not articulated any reason to support a finding that the court would have sustained the same objection if it had been raised by his counsel.

Further, “where, as here, the issue of a courtroom closure is raised in the context of an ineffective assistance of counsel claim, prejudice will not be presumed.” As the trial court found, the Appellant failed to articulate any prejudicial impact from counsel’s failure to object. The transcript shows that the actual process of selecting a jury had not started; the court had asked the statutory questions to determine if anyone was unqualified to serve, but the attorneys had not questioned the panels or individual potential jurors. Further, there is no evidence that the closure affected the jury selection process or tainted the ultimate jury chosen, nor is there any evidence of misconduct or a miscarriage of justice that occurred during that one-hour period that would have demonstrated reversible error.

Thus, the Appellant has failed to carry his burden of showing that, if trial counsel had objected to the closure of the courtroom during voir dire, there is a reasonable probability that the outcome of the trial would have been different,.

(c) The Appellant contends that his counsel was ineffective for failing to object to the court’s decision to allow the State to present the testimony of Detective Velasquez to rebut his (the Appellant’s) trial testimony after the State had rested its case-in-chief.

As shown in the facts outlined above, as part of the State’s case-in-chief, Detective Velasquez testified at length about the Appellant’s custodial interview, during which the Appellant admitted that he had participated in the home invasion and had left the scene with the victims’ televisions and Audi. After the State rested, the Appellant testified in his own defense and repeatedly denied that he was present during, or had participated in, the home invasion. When questioned about how he had known the details of the home invasion during the custodial interview if he had not been present when it was committed, the Appellant testified that Detective Velasquez had told him specific details about the crimes while driving him to the police station following his arrest. The Appellant also claimed that, before the custodial interview, Detective Velasquez threatened to charge him with the murder, rape, and other crimes his co-defendants had committed unless he confessed to participating in the home invasion.

The State then re-called Detective Velasquez as a witness to rebut the Appellant’s testimony that the detective had secretly and intentionally given him all the information in an effort to get him to confess to the home invasion. The detective denied that he had told the Appellant any details about the home invasion, or the murder and other crimes under investigation, while transporting him to the police station or at any time other than during the custodial interview.

The Appellant contends that his trial counsel should have objected when the State called the detective as a rebuttal witness because the State used the opportunity to present new evidence to the jury, i.e., the recording and transcript of the entire custodial interview. Pretermitting whether that objection had merit, the trial transcript shows that the Appellant’s trial counsel did, in fact, object to the rebuttal evidence on that basis. The court overruled the objection, ruling that the State could recall Detective Velasquez for the limited purpose of addressing the Appellant’s assertions about what the detective said to him before the custodial interview and his claim that the detective had coerced him into confessing to the home invasion. Further, the court ruled that the Appellant had been questioned and cross-examined extensively about his statements during the interview and, because the Appellant had made his coercion claim a central issue of the trial, the jury was entitled to consider the entire interview.

We find that the court did not abuse its discretion in admitting the rebuttal evidence. It follows that, because an objection to the evidence would have been futile, the Appellant has failed to meet his burden of demonstrating ineffective assistance of counsel.

(d) The Appellant contends that his trial counsel failed to move to suppress his custodial statements to Detective Velasquez on the basis that his Miranda rights had been violated. He bases this argument on his claim that, before Detective Velasquez advised him of his Miranda rights and interviewed him at the police station, the detective told him the details of the home invasion and tried to coerce him into confessing to the crimes. According to the Appellant, this constituted an impermissible “two-stage” questioning tactic in which “police first question a suspect without administering Miran da warnings, gain a statement from the suspect, then administer Miranda warnings, and have the suspect repeat that which the suspect has already related, often with little interruption in time.” The Appellant argues that, if counsel had objected to the admission of his custodial statements on that basis, the trial court would have excluded them.

Even assuming, without deciding, that the Appellant preserved this issue below, we find that the record does not support the Appellant’s argument. It shows that counsel filed a motion to suppress the statements as part of a pretrial consolidated motions packet. The motion specifically asserted that the statements were inadmissible because the Appellant’s Miranda rights had been violated, and it requested a Jackson-Denno hearing to determine the voluntariness of the statements. The court conducted the hearing, during which Detective Velasquez testified that he gave the Appellant a Miranda warning before the Appellant made any statements about the home invasion, he did not threaten the Appellant or promise him anything in exchange for the admissions, and the Appellant never requested an attorney during the interview. The detective also specifically denied that, prior to the interview, he asked the Appellant any questions or had any conversation with him, other than telling him that he was being detained and that they were going to the police station because the detective wanted to talk to him about a robbery. The Appellant did not testify during the hearing, but his trial counsel argued that the Appellant’s confession was involuntary and coerced because he believed that the detective would charge him with the murder, rape, and other crimes committed by his co- defendants if he did not confess to the home invasion. After hearing the evidence and argument, the court denied the motion to suppress.

We conclude that the evidence presented does not support a finding that Detective Velasquez conducted an impermissible “two-stage” interrogation of the Appellant. It follows that trial counsel’s performance cannot be deemed deficient based upon her failure to raise a meritless objection to the admission of the Appellant’s custodial statements. Further, trial counsel adequately raised and argued that the Appellant’s statements had been coerced and should be suppressed, and the Appellant has failed to show that the trial court erred in rejecting that argument and finding that the statements were admissible. Consequently, the Appellant cannot prevail on this ineffective assistance claim.

(e) The Appellant claims that his counsel improperly encouraged him to testify at trial. This claim lacks merit.

During the motion for new trial hearing, trial counsel testified that the Appellant had consistently told her that he was innocent of the charges, that he was not present during the crimes at issue, and that Detective Velasquez had told him the details of the crimes before coercing his confession. She testified that, because the trial court had denied the motion to suppress, she believed that the Appellant’s custodial statement was going to be presented to the jury regardless of whether the Appellant testified. As a result, she believed the jury needed to hear the Appellant’s explanation for why he admitted to the crimes, i.e., how he knew about the home invasion and how the detective had coerced him into confessing. According to counsel, she spoke with the Appellant several times before trial and, after discussing the “pros and cons” of him testifying, believed that it was in his best interest to testify because “he had a story to tell. . . . [The Appellant] was believable to me. And I didn’t have an issue . . . with the way he presented himself to me [or how] he would present himself to the jury” The Appellant did not testify during the motion for new trial hearing and, thus, did not present any evidence to contradict his counsel’s explanation for how and why they reached this strategic decision. In addition, the trial transcript shows that the trial court questioned the Appellant about whether he was going to testify and thoroughly advised him of his rights before he testified.

In denying the Appellant’s motion for new trial, the court concluded that trial counsel made a reasonable strategic decision to encourage the Appellant to testify about the coercion that occurred before the custodial interview, and that it was the Appellant who made the final decision to testify and he did so voluntarily. Because the record supports these conclusions, we find that the trial court properly rejected this ineffective assistance claim.

(f) The Appellant claims his trial counsel provided ineffective assistance by failing to object to a comment on the evidence by the trial court judge. We disagree.

The trial transcript shows that, during the State’s cross-examination of the Appellant, the prosecutor repeatedly questioned him about his claim that he did not participate in the home invasion and only knew specific details about it because Detective Velasquez had told him all about the crimes prior to the custodial interview. In the midst of the cross-examination, the Appellant’s trial counsel interjected with a request to approach the bench. The judge responded, “No, no. I don’t need to hear anything more. He’s got him on cross, and he’s impeaching him with his statements, so ..Trial counsel did not object to the judge’s comment, but he did object to the prosecutor’s attempted impeachment, arguing that the Appellant’s testimony about what the detective said to him before and during the interview constituted inadmissible hearsay. The court overruled the objection, and the prosecutor’s cross-examination of the Appellant continued.

OCGA § 17-8-57 (a) (l) provides that “[i]t is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.” The defendant’s trial counsel must timely object to a suspected violation of the statute and must “inform the court of the specific objection and the grounds for such objection, outside of the jury’s hearing and presence.” Otherwise, appellate review will be limited to whether the judge’s comments violated the statute and, if so, whether the violation constituted plain error that affected the substantive rights of the parties.

Given the marked similarity between the language of subsection (a) (1) of the current statute and the first sentence of former OCGA § 17-8-57, as well as the relevant lack of precedent construing the current statute, the opinions of the Supreme Court of Georgia construing the former version provide essential guidance for our determination as to whether the judge’s comment in this case violated the statute. As the Supreme Court has repeatedly explained, “former OCGA § 17-8-57 does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence, because remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.”

The comment at issue in this case was made by the judge “in the context of a colloquy concerning an evidentiary objection and the ruling of the court on that objection. Accordingly, the statement did not amount to an expression of an opinion of the proof or the guilt of the accused.” Moreover, at the close of the trial, the court specifically instructed the jurors as follows: “By no ruling or comment that the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence or upon the guilt or innocence of the defendants.” The court also instructed the jurors that they, alone, must determine the credibility or believability of the witnesses, resolve conflicts in the evidence, and determine whether a witness had been successfully impeached.

Under these circumstances, we conclude that the judge’s comment did not violate either the current or former version of OCGA § 17-8-57. It necessarily follows that counsel cannot be deemed ineffective for failing to object to the statement.

(g) In a related enumeration of error, the Appellant complains that his trial counsel improperly delayed his appeal. Specifically, he contends that counsel improperly filed a notice of appeal from his conviction, which removed the trial court’s jurisdiction over the motion for new trial that counsel had simultaneously filed with the notice of appeal. This Court dismissed the direct appeal for failure to file a brief, however, and the Appellant’s newly-appointed appellate counsel amended the previously filed motion for new trial to assert claims of ineffective assistance of counsel. By the time the trial court ruled on the motion for new trial and the instant appeal was filed in November 2016, the current version of OCGA § 17-8-57 was in effect.

Because, unlike the former version of OCGA § 17-8-57, the current version of the statute requires an objection to an improper comment by the trial court judge in order to preserve it as error, and because trial counsel failed to object, the Appellant contends that trial counsel’s error in prematurely filing a notice of appeal delayed the filing of the instant appeal until after the current statute took effect, thereby constituting ineffective assistance.

In Division 3 (f), supra, however, we concluded that the trial judge’s comment did not violate either the current or former version ofOCGA § 17-8-57, andthat, as a result, counsel’s failure to object did not constitute ineffective assistance under either version of the statute. It necessarily follows that the Appellant cannot demonstrate any prejudice resulting from the delay in pursuing the instant appeal.

(h) The trial transcript shows that, after jury deliberations had begun, the jury sent a request to the court asking for permission to watch the video-recording of the Appellant’s custodial interview. The court granted the request without objection, and the court gave the jurors transcripts of the interview so they could follow along, because some of the Appellant’s statements were incomprehensible. After the jurors watched the video-recording, the court collected the transcripts from the jurors.

The Appellant contends that his counsel’s failure to object to allowing the jury to watch the video-recording with the transcripts after they had begun deliberating constituted ineffective assistance. Pretermitting whether there was a legal basis for an objection under these circumstances, the Appellant is unable to demonstrate any resulting prejudice. The trial transcript shows that the Appellant’s trial counsel, the prosecutor, and Wise’s counsel questioned the Appellant extensively about what he and the detective said during the interview, often going line-by-line through the interview transcript. In addition, Detective Velasquez testified at length about the interview and was thoroughly cross-examined.

Decided September 14, 2017.

Genevieve A. Holmes, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, for appellee.

We conclude that the trial court did not err in finding that the evidence at issue was relevant and admissible and that the Appellant failed to demonstrate any prejudice that resulted from counsel’s failure to object. Thus, the Appellant cannot prevail on this ineffective assistance claim.

(i) Although the Appellant argues that his counsel was deficient for failing to move for directed verdict on Counts 85 and 86, this argument lacks merit for the reasons given in Division 2, supra.

(j) The Appellant contends that his counsel’s alleged failure to consult with his co-defendants’ attorneys constituted ineffective assistance, claiming that “[n]o reasonable defense counsel would have made the same decision under the same circumstances.” He has failed, however, to cite to any facts or authority to support this contention, nor has he articulated how he was prejudiced by such alleged oversight. It follows that this argument lacks merit.

(k) According to the Appellant, he was prejudiced by the cumulative effect of his counsel’s errors. We conclude that this argument lacks merit for the reasons given in subdivisions (a) through (j) of this division.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       OCGA §§ 16-5-40 (a); 16-5-21 (b) (2) (2016); 16-8-40 (a) (1), (2); 16-5-41 (a).

       See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       443 U. S. at 319 (III) (B).

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).

        Clark v. State, 275 Ga. 220, 221 (1) (564 SE2d 191) (2002).

       See Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a) (“In criminal cases, the defendant shall have a public and speedy trial by an impartial jury [.] ”); see also Presley v. Georgia, 558 U. S. 209, 211-212 (130 SCt 721, 175 LE2d 675) (2010) (The right to a public trial rests upon the First and Sixth Amendments to the United States Constitution, both of which are applicable to the individual states via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ,” and this right belongs solely to the accused. Further, the right to a public trial extends to voir dire.) (citation omitted); Waller v. Georgia, 467 U. S. 39, 46 (104 SCt 2210, 81 LE2d 31) (1984) (The First Amendment right to a public trial belongs to the press and the public.).

       The facts surrounding the alleged closure are discussed in Division 3 (b), infra, wherein we address the related claim of ineffective assistance of counsel.

       See Tolbert v. State, 321 Ga.App. 637, 638 (1) (742 SE2d 152) (2013) (Even if the trial court improperly excluded the public from the courtroom, the defendant waived appellate review of such exclusion by not objecting to it at trial.); see also Reid v. State, 286 Ga. 484, 487-488 (3) (c) (690 SE2d 177) (2010) (The improper closing of a courtroom is a structural error requiring automatic reversal of a conviction only if the defendant objected contemporaneously at trial and then raised the issue on direct appeal. “Indeed, to hold otherwise would encourage defense counsel to manipulate the justice system by intentionally failing to object in order to ensure an automatic reversal on appeal.”) (citation omitted).

        See Benson v. State, 294 Ga. 618, 621 (2) (754 SE2d 23) (2014); Reid, 286 Ga. at 487 (3) (c).

       On Count 85, the jury found the Appellant guilty of robbery as a lesser included offense of armed robbery.

       See Wise v. State, 300 Ga. 593, 595-596 (1) (797 SE2d 447) (2017).

        See Rankin, 278 Ga. at 705.

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

        Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (citations and punctuation omitted).

        Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001) (citations and punctuation omitted).

        Benson, 294 Ga. at 622 (3) (citation and punctuation omitted).

        Strickland, 466 U. S. at 697 (IV).

       See generally Harris v. State, 190 Ga. App. 343, 348 (4) (b) (378 SE2d 912) (1989) (“It is the duty of counsel to obtain a ruling on his [or her] motions or objections, and the failure to do so will ordinarily result in a waiver [of appellate review].”) (citations and punctuation omitted).

        Dye v. State, 266 Ga. App. 825, 827 (2) (a) (598 SE2d 95) (2004) (citation and punctuation omitted).

       See Wise, 300 Ga. at 594, n. 1.

       See Veal v. State, 298 Ga. 691, 692, n. 1 (784 SE2d 403) (2016).

       See Dye, 266 Ga. App. at 827 (2) (a).

       See generally Jordan v. State, 247 Ga. 328, 338 (6) (276 SE2d 224) (1981) (“There are two types of challenges to an individual juror for cause: (1) for principal cause, and (2) for favor. Challenges for principal cause are based on facts which, if proved, automatically disqualify the juror from serving. Challenges for favor are based on admissions of the juror or facts and circumstances raising a suspicion that the juror is actually biased for or against one of the parties.”) (citations omitted); OCGA §§ 15-12-163 (challenges for cause); 15-12-164 (disqualification based upon bias).

       Although the record shows that, at approximately 4:00 p.m. on the first day of voir dire, a deputy told Wise’s mother to leave the courtroom, the transcript shows that her ejection was the result of a verbal altercation she had with the deputy and not a closure of the courtroom. Other family members of Wise were allowed to remain in the courtroom, and his mother was allowed to return the next day. The Appellant’s attorney did not object to the ejection of Wise’s mother from the courtroom, and there is no evidence that any of the Appellant’s family members were ever excluded from the courtroom.

       Cf. Presley, 558 U. S. at 210-216 (The trial court excluded the public from the courtroom during voir dire because the courtroom was full. The defendant’s counsel objected to the closure and asked the court to make necessary accommodations, but the court overruled the objection and refused to make any changes in its procedures that would have allowed the public to observe jury selection. Although Georgia’s appellate courts found that the court’s decision did not constitute reversible error, the Supreme Court of the United States disagreed, ruling that the trial court violated the defendant’s Sixth Amendment right to a public trial by excluding the public without considering all reasonable alternatives to closure.); Purvis v. State, 288 Ga. 865, 868-869 (1) (708 SE2d 283) (2011) (Although the trial court did not specifically order the exclusion of the public from the courtroom during the defendant’s trial, the court deliberately decided to hold the trial in a county jail courtroom, thereby relinquishing to jail officials control of the public’s access to the courtroom. Thus, the trial court violated the defendant’s Sixth Amendment right to a public trial by failing to take reasonable measures to accommodate the public’s presence during the trial.).

       Further, Wise’s attorney did not renew his motion for mistrial after the court remedied the situation. Consequently, even if the Appellant’s counsel had joined Wise’s motion for mistrial, appellate review of the denial of that motion was waived. See generally McCoy v. State, 273 Ga. 568, 572 (8) (544 SE2d 709) (2001) (Where the court gave a curative instruction following a motion for mistrial, and the defendant neither objected to the curative instruction nor renewed his motion for mistrial, the alleged error was not preserved for appellate review.).

        See Dye, 266 Ga. App. at 829 (2) (b); see also Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014) (“[T] he failure to make a meritless motion or objection does not provide a basis upon which to find ineffective assistance of counsel.”) (citation omitted).

        Reid, 286 Ga. at 488 (3) (c) (citations omitted).

        See Benson, 294 Ga. at 622 (3) (a); Reid, 286 Ga. at 488 (3) (c).

        See Benson, 294 Ga. at 622 (3) (a).

       See Smith v. State, 292 Ga. 620, 625 (7) (740 SE2d 158) (2013) (“Trial courts have broad discretion in deciding whether to permit the State to introduce testimony after the defendant has closed his evidence. Absent an abuse of that discretion, we will not reverse a decision to allow such testimony, even if it was not strictly in rebuttal.”) (citation omitted).

        See Burke v. State, 316 Ga. App. 386, 389 (1) (a) (729 SE2d 531) (2012) (“Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.”) (punctuation and footnote omitted).

       See Miranda v. Arizona, 384 U. S. 436, 478-479 (III) (86 SCt 1602, 16 LE2d 694) (1966).

       See Division 3 (c), supra.

        State v. Pye, 282 Ga. 796, 799 (653 SE2d 450) (2007) (footnote omitted).

        See McGlocklin v. State, 292 Ga. App. 162, 163 (664 SE2d 552) (2008) (“Adefendant must raise all allegations of ineffective assistance of counsel as soon as practicable [and when] new counsel raises the issue of trial counsel’s ineffectiveness on motion for new trial, any ineffective assistance of trial counsel claims not raised at that time are waived.”) (footnotes omitted).

       See Jackson v. Denno, 378 U. S. 368, 394-395 (IV) (84 SCt 1774, 12 LE2d 908) (1964).

       See Pye, 282 Ga. at 799.

       See Hampton, 295 Ga. at 670 (2).

       See Whittle v. State, 282 Ga. App. 64, 66 (637 SE2d 800) (2006) (“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.”) (citation and punctuation omitted).

       See Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003) (“The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his [or her] client.”) (citation and punctuation omitted); see also Grier, 273 Ga. at 365 (4).

        See Potter v. State, 273 Ga. 325, 327-328 (540 SE2d 184) (2001) (“Whether or not to testify in one’s own defense is considered a tactical decision to be made by the defendant himself after consultation with his trial counsel.”) (citation and punctuation omitted).

       See id. at 328 (affirming the trial court’s determination that the Appellant’s allegation of ineffective assistance was without merit, because there was evidence to support the finding).

       In 2015, the Georgia General Assembly amended OCGA § 17-8-57, and that provision became effective on July 1, 2015. See Ga. L. 2015, p. 1050, § 1. Although the trial in this case took place in October 2012, the instant appeal was not docketed in this case until January 9, 2017. Because OCGA § 17-8-57 is a procedural law and it does not provide otherwise, the appellate courts will apply the law as it exists at the time the appeal is decided. See Quiller v. State, 338 Ga. App. 206, 208-209 (789 SE2d 391) (2016). Thus, the current version of OCGA § 17-8-57 applies in this case.

       OCGA § 17-8-57 (a) (2). We note that, under former OCGA § 17-8-57, counsel was not required to object to an allegedly improper comment by the trial judge in order to preserve the error for appellate review.

       OCGA § 17-8-57 (b); but see OCGA § 17-8-57 (c) (“Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.”).

       The first sentence of former OCGA § 17-8-57 provided that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” “Both the former and current versions of OCGA § 17-8-57 provide that it is error for the trial court to express or intimate his opinion about what has or has not been proved.” Quiller, 338 Ga. App. at 208.

        Burney v. State, 299 Ga. 813, 823 (4) (792 SE2d 354) (2016) (citation and punctuation omitted). Accord Ellis v. State, 292 Ga. 276, 282 (3) (736 SE2d 412) (2013); Butler v. State, 290 Ga. 412, 416 (4) (721 SE2d 876) (2012); Linson v. State, 287 Ga. 881, 884 (2) (700 SE2d 394) (2010); Boyd v. State, 286 Ga. 166, 168 (3) (686 SE2d 109) (2009).

        Ellis, 292 Ga. at 282 (3) (citation omitted).

       See Burney, 299 Ga. at 822-823 (4) (The trial court commented, in the jury’s presence, that “I think we’ve heard from the witnesses, the eyewitnesses themselves where people were. I haven’t heard any conflicting testimony about that.” The Supreme Court ruled that the comment, made in the course of sustaining a co-defendant’s objection to the prosecutor’s questioning of a police detective, did not constitute a violation of former OCGA § 17-8-57.); see also Ellis, 292 Ga. at 282 (3); Butler, 290 Ga. at 416 (4).

       See Hampton, 295 Ga. at 670 (2).

       See footnote 44, supra.

       See footnote 45, supra.

       See Division 3 (f), supra.

       See Hampton, 295 Ga. at 670 (2).

       The trial transcript shows that Wise’s attorney moved for a directed verdict on Count 85, which was denied by the court. The transcript also shows that the Appellant’s trial counsel moved for a directed verdict on Counts 80 (participation in gang-related activity) and 87 (cruelty to children). Although the court denied those motions, the jury ultimately acquitted the Appellant on both of those crimes.


author: Ellington, Presiding Judge.

text:
    A17A0948.
    McDOWELL v. BOWERS et al.
    (805 SE2d 136)
   Ellington, Presiding Judge.

Pursuant to a granted application for an interlocutory appeal, Richard Chad McDowell contends that the Superior Court of Bryan County erred in permitting Judith and Jeffrey Bowers, the paternal grandparents of J. N. S., a minor child, to intervene in his petition to adopt the child. Because Georgia law does not permit the grandparents to intervene under the circumstances presented in this case, we must reverse the superior court’s order allowing the intervention.

The relevant, undisputed facts of this case are as follows. J. N. S., the biological child of S. S. and E. S., was born in 2009. The child’s parents divorced in 2012. The divorce decree, which established the parents’ visitation rights, contained no provision concerning grandparent visitation. E. S. died in an accident in 2014. In September 2014, S. S. agreed to allow McDowell to adopt J. N. S., and the probate court granted McDowell letters of guardianship. McDowell is not a blood relative of J. N. S. Rather, McDowell was previously married to S. S. They had a son in 2005; they divorced in 2008. J. N. S. has regularly visited McDowell and his half-brother and has reportedly formed a bond with them. McDowell filed a petition to adopt J. N. S. on September 23, 2015. Shortly thereafter, the grandparents filed their motion to intervene, which the superior court granted. According to their supporting brief, the grandparents are seeking custody of the child pursuant to OCGA §§ 19-7-3 and 19-8-15.

“In matters of adoption, the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse.” (Citation and punctuation omitted.) Smith v. Hutcheson, 283 Ga. App. 117, 118 (640 SE2d 690) (2006). However, where, as here, an appeal involves a question of law, we owe no deference to the trial court and our review is de novo. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

Although it is clear from the record that the grandparents believe they can provide the best possible life for their grandchild, Georgia law does not authorize them to intervene in this third-party adoption proceeding to obtain custody under the circumstances presented. Contrary to their contention, “OCGA § 19-7-3 only authorizes grandparents to intervene to obtain visitation rights in the proceedings specified in the Code section.” (Citation omitted; emphasis supplied.) Murphy v. McCarthy, 201 Ga. App. 101, 101 (410 SE2d 198) (1991). This Code section does not authorize intervention for the purpose asserted by the grandparents, that is, to object to the adoption and to obtain custody themselves. Further, the only adoption proceedings listed in this Code section are those in which the child is being adopted by a blood relative or a stepparent, and McDowell is neither. OCGA § 19-7-3 (b) (1) (B). See Murphy v. McCarthy, 201 Ga. App. at 102. Finally, because “an adoption is not the equivalent to a proceeding to terminate parental rights within the meaning of OCGA § 19-7-3,” id., OCGA § 19-7-3 (b) (1) (B) provides no basis for permitting the grandparents to intervene.

Rather, OCGA § 19-8-15 governs when objections by grandparents are allowed in adoption proceedings. Murphy v. McCarthy, 201 Ga. App. at 102. It provides that the blood relatives of a minor child may object to an adoption in limited circumstances. OCGA § 19-8-15 (b) provides, in relevant part:

If the child sought to be adopted has no legal father or legal mother living, it shall be the privilege of any person related by blood to the child to file objections to the petition for adoption. A family member with visitation rights to a child granted pursuant to Code Section 19-7-3 shall have the privilege to file objections to the petition of adoption if neither parent has any further rights to the child and if the petition for adoption has been filed by a blood relative of the child. . . .

Under the circumstances of this case, this Code section does not give the grandparents standing to object to the adoption. J. N. S.’s legal mother is alive, and she has consented to the adoption. Further, by its plain terms, OCGA § 19-8-15 (b) only provides that objections may be made when a blood relative files for adoption of the minor child, and McDowell is a nonrelative third party Finally, the grandparents have not established any visitation rights to J. N. S. pursuant to OCGA § 19-7-3. Because the grandparents have failed to show that they have a legal right to object to the adoption, they are not authorized to intervene in this adoption proceeding, and the order granting intervention must be reversed. See Murphy v. McCarthy, 201 Ga. App. at 102.

Decided September 14, 2017.

Lloyd D. Murray, Sr., for appellant.

Karen D. Barr, for appellees.

Judgment reversed.

Andrews and Rickman, JJ., concur.

       OCGA § 19-7-3 (b) (1) (B) provides:
      Any family member shall have the right to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, a divorce of the parents or a parent of such minor child, a termination of the parental rights of either parent of such minor child, or visitation rights concerning such minor child or whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19.

       S. S.’s surrender of her parental rights to McDowell is conditional; if J.N. S. is not adopted by McDowell, the child is to be returned to her custody. Moreover, although parental power may be lost by consenting to the adoption of a child by a third person, the act of consenting does not immediately result in the termination of parental rights, thereby creating a right to object and standing to intervene. See Baum v. Moore, 230 Ga. App. 255, 257 (496 SE2d 307) (1998) (“[OCGA § 19-7-1 (b.l), concerning when parental power may be lost,] does not create a new right to intervene in an adoption proceeding, but merely states that when custody is an issue between parents or between a parent and certain third parties, parental power may be lost if the court determines that an award of custody to a third party is in the best interest of the child.”) (emphasis supplied).

       In 2013, the grandparents sought an ex parte order in South Carolina to obtain joint custody of J. N. S. with his father. The court granted the grandparents’ emergency motion for temporary custody but later dismissed the action for lack of subject matter jurisdiction and returned custody to S. S. The court concluded that the grandparents had wilfully failed to inform the court that issue s of custody and support had alre ady been adjudicated in Georgia and that the mother had already been awarded custody. On that ground, the court awarded attorney fees to S. S. Thus, the trial court’s reliance on Evans v. Sangster, 330 Ga. App. 533 (768 SE2d 278) (2015) is misplaced. The grandparents in .Ewans were allowed to intervene in a stepparent adoption to protect visitation rights that they had already obtained. Id. at 538 (4) (b).


author: Bethel, Judge. McFADDEN, Presiding Judge,

text:
    A17A1043.
    TAYLOR v. THE STATE.
    (805 SE2d 131)
   Bethel, Judge.

Derwin Miles Taylor appeals from the denial of his motion for a new trial following his conviction on a single count of trafficking in marijuana, for which he was sentenced to 30 years imprisonment. On appeal, as in his motion for a new trial, he contends that the trial court erred in pretrial proceedings by denying his motion to suppress evidence obtained from a search of his vehicle during a traffic stop. Because we agree with the trial court that the law enforcement officer who stopped Taylor articulated a reasonable suspicion of criminal activity sufficient to allow him to detain Taylor for further investigation, we affirm the trial court’s denial of Taylor’s motion to suppress and his motion for a new trial.

On appeal from a denial of a motion to suppress, “this Court must construe the evidence most favorably to uphold the ruling of the trial court.” Jones v. State, 253 Ga. App. 870, 870 (560 SE2d 749) (2002) (citation omitted). The “trial court’s application of law to facts which are undisputed is subject to de novo review.” Id. (citation omitted).

Here, the relevant evidence consisted entirely of testimony at a hearing on Taylor’s motion to suppress by the deputy who performed the search on Taylor’s vehicle. The deputy was a canine handler with the county’s uniform patrol division. He testified that he stopped Taylor while driving on Interstate 75 for failure to maintain lane and for having window tint that was too dark. As Taylor was providing the deputy with his license and registration, the deputy observed in Taylor’s car numerous air fresheners and packages that were releasing an “overwhelming” odor of air freshener. The deputy also noticed Taylor’s hands shaking as he provided his license and registration, a reaction the deputy took as a sign of nervousness on Taylor’s part.

Taylor exited his vehicle at the deputy’s request, and he stood outside the vehicle as the deputy wrote two traffic warnings for Taylor. The two had a prolonged discussion outside the vehicle in which Taylor answered a number of the deputy’s questions, including where he was coming from at the time of the traffic stop. Taylor told the deputy he had been in Atlanta visiting his uncle in the hospital but struggled to identify where he was hospitalized or why he was sick. The deputy also testified that, in the course of their discussion, Taylor gave conflicting statements about where he had stayed the night before, first telling him that he stayed in an apartment and later saying that he had stayed in a hotel.

During a break in this conversation, the deputy stepped away for a moment to call for backup and then returned to speak to Taylor again. The deputy completed the forms for the two warnings and then placed a call to the dispatcher with Taylor’s driver’s license and tag number. The deputy then asked Taylor for consent to search his vehicle, telling Taylor that he was aware of “a lot of criminal activity going up and down this interstate.” Taylor refused the deputy’s request for consent to search. At that time, the deputy was still holding Taylor’s license and registration along with a written warning for the traffic offenses, and the dispatcher had not yet confirmed Taylor’s license and registration information.

After Taylor refused to allow the deputy to search the vehicle, the deputy indicated to Taylor that he was going to bring over a K-9 dog with specialized narcotics training to sniff Taylor’s vehicle. As the deputy was walking to his patrol car to retrieve the dog, the dispatcher replied to the deputy confirming Taylor’s license and registration information. After collecting the dog from his patrol car, the deputy brought the dog to Taylor’s car to conduct a sniff of the vehicle. The dog provided a positive response to the sniff, and the deputy proceeded to search Taylor’s vehicle, whereupon he found a large suitcase in the trunk containing a significant quantity of marijuana.

Taylor was arrested and charged with trafficking in marijuana. Before trial, Taylor moved to suppress all evidence seized from his vehicle by the deputy. The trial court denied the motion through a series of orders. A bench trial followed at which evidence from the search of the vehicle was admitted. Taylor was convicted, and he filed a motion for a new trial. The trial court denied that motion, and this appeal followed.

Taylor argues that the deputy lacked a reasonable articulable suspicion of criminal activity sufficient to detain Taylor for a drug sniff of the vehicle after the purpose of the traffic stop had concluded. Absent such reasonable suspicion, the extension of an otherwise completed traffic stop in order to conduct a free-air search of a vehicle using a drug dog violates the Fourth Amendment’s protection against unreasonable searches and seizures. Rodriguez v. United States, _ U. S._ (135 SCt 1609, 1614, 191 LE2d 492) (2015). An officer who initiates a lawful traffic stop, however, can shift into a criminal investigation so long as the officer can articulate reasonable suspicion that criminal activity is occurring. See Rodriguez v. State, 295 Ga. 362, 369 (761 SE2d 19) (2014).

To satisfy this “reasonable suspicion” standard, the officer’s investigation must be justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Although this suspicion need not meet the higher standard of probable cause, it must be more than a mere caprice or a hunch.

State v. Whitt, 277 Ga. App. 49, 50 (625 SE2d 418) (2005) (citation and emphasis omitted).

To determine whether a reasonable articulable suspicion exists, courts must look to the totality of the circumstances. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

State v. Thompson, 256 Ga.App. 188, 189-190 (569 SE2d 254) (2002) (citations and punctuation omitted). Ultimately, “[t]he State bears the burden of proving that the search of the car was lawful, and to carry this burden, the State must show that it was lawful to detain [the defendant] until the time the drug dog indicated the presence of drugs.” Dominguez v. State, 310 Ga. App. 370, 372 (714 SE2d 25) (2011) (citation omitted).

Here, we agree with the trial court that the State has carried this burden, as the totality of circumstances encountered by the deputy at the scene allowed him to form the requisite level of suspicion necessary to convert the traffic stop into a broader criminal investigation. The trial court found that Taylor’s supposed nervousness was not a factor, on its own, that the deputy could consider in forming a reasonable suspicion of criminal activity, and we agree with that determination. See Barraco v. State, 244 Ga. App. 849, 852 (2) (b) (537 SE2d 114) (2000) (“[e]ven when other factors are present, nervous behavior of a person who has been stopped by an armed law enforcement officer is not an unusual response and is not necessarily strong evidence to support either reasonable suspicion or probable cause”). However, the trial court determined, and we agree, that the strong smell of air fresheners in the vehicle, Taylor’s vague and conflicting statements about his uncle’s illness and his own whereabouts the night before, and the location of the traffic stop along a stretch of Interstate 75 that was known by the deputy to be a drug trafficking corridor were factors that allowed the deputy to form and articulate a reasonable suspicion of drug activity.

Taylor suggests that this Court’s decision in State v. Thompson demonstrates that the trial court’s determination was in error, arguing that Thompson indicates that the occurrence of a stop along an interstate highway known to be a trafficking corridor is not a sufficient basis of suspicion. In Thompson, when the stop was initiated, the officer noted that the defendant was nervous and that there was a strong smell of detergent and air fresheners coming from the car. 256 Ga. App. at 188. These were the only bases of suspicion articulated by the officer who initiated the stop, even though the opinion in Thompson reflects that the stop occurred along Interstate 20. This Court again discounted the view that nervousness alone could form a sufficient basis of suspicion, and ruled that “[although laundry detergent and dryer sheets can be used to mask the odor of an illegal substance, they are themselves legal substances that can be used for a legal purpose and thus do not justify the officer’s further detention of [the defendant] under the facts of this case.” Id. at 190 (emphasis supplied). Taylor thus suggests that because his interactions with the officer, the presence of air fresheners, and his location on Interstate 75 were the only factors the deputy could consider in forming a suspicion, Thompson controls our analysis. We disagree.

In this case, Taylor argues that it is “common knowledge” that Interstate 20 is “just as much a drug corridor” as Interstate 75 and that the outcome of this case should be identical to that in Thompson . However, in Thompson , even though the facts set forth in this Court’s opinion show that the stop occurred on Interstate 20, it does not appear that the officers in that case articulated the location of the stop as a basis for their suspicion or that the court considered evidence that the area was a known trafficking corridor. Thus, in Thompson , the officers were relying solely on their observation of the defendant’s nervousness and the smell of detergent and air freshener in forming their suspicion. See id. at 190.

In this case, however, the trial court determined that the overwhelming smell of air fresheners, the location of the stop along the interstate, and, Taylor’s inconsistent statements to the deputy were all factors that, in totality, could allow the deputy to form the required suspicion. As this Court’s decisions in Wilson v. State and Richbow v. State indicate, the strong odor of air freshener along with other seemingly innocuous activities may allow an officer to form a reasonable suspicion that criminal activity is taking place. Additionally, an officer may consider conflicting or vague stories presented by a person in the vehicle and the “modes or patterns of operation of certain kinds of lawbreakers” in forming reasonable suspicion of criminal activity. Thompson, 256 Ga. at 189-190 (citations and punctuation omitted). Though we acknowledge that Interstate 75, like any other public thoroughfare, may be traveled for legitimate purposes, we are not blind to the considerable experience of law enforcement agencies in dealing with those who use major interstate highways to transport illegal substances. We are also cognizant that an experienced and properly trained law enforcement officer may conclude that otherwise lawful activity which takes place on a “known drug route” is actually evidence of ongoing criminal activity. See Giles v. State, 284 Ga. App. 1, 1-3 (1) (642 SE2d 921) (2007). Thus, because the facts of this case show that factors in addition to those considered in Thompson formed part of the deputy’s suspicion, Thompson is inap-posite to our analysis.

We thus conclude that although Taylor’s conduct observed by the officer at the time of the stop in this case may have been “susceptible to an innocent explanation, ... it is also consistent with illegal activity” Giles, 284 Ga. App. at 4 (citations and punctuation omitted). Accordingly, we agree with the trial court that the totality of the circumstances encountered by the deputy — namely, the smell of air fresheners, the location of the stop along what the officer knew to be a trafficking corridor, and the vague and conflicting stories offered by Taylor — allowed him to form the reasonable suspicion necessary to commence a criminal investigation. We therefore affirm the trial court’s denial of Taylor’s motion to suppress, and, in turn, its denial of his motion for a new trial.

Judgment affirmed.

Branch, J., concurs. McFadden, P. J., concurs specially.

McFADDEN, Presiding Judge,

concurring specially

The 20 to 25 air fresheners that were in use in Taylor’s car are strong evidence, for which there is no likely innocent explanation. Cf. State v. Thompson, 256 Ga. App. 188, 190 (569 SE2d 254) (2002) (“Although laundry detergent and dryer sheets can be used to mask the odor of an illegal substance, they are themselves legal substances that can be used for a legal purpose and thus do not justify the officer’s further detention of Thompson under the facts of this case.”). That evidence is bolstered by the evidence that the stop took place on a known drug route and by the trial court’s written finding, which the evidence supports, that Taylor’s hands were shaking when the deputy stopped him, even though the trial court characterized that evidence as “relatively insignificant” when he announced his ruling at the end of the suppression hearing. Those items are sufficient on the facts of this case to sustain a finding of reasonable suspicion.

Decided September 14, 2017

D. Lynn Bearden, for appellant.

Rosemary M. Greene, District Attorney, ErleJ. Newton III, Assistant District Attorney, for appellee.

So I would not reach the question whether Taylor’s vague and conflicting statements about his uncle’s illness and his own whereabouts the night before constitute meaningful inconsistencies. See Nash v. State, 323 Ga. App. 438, 443 (746 SE2d 918) (2013); Migliore v. State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999).

And I would avoid any suggestion that we defer to officers’ training and experience when we perform the analysis required of us by the Fourth Amendment. In the first place, the case would not be here if drugs had not been found. I do not doubt that such training and experience enable officers to make determinations that other persons, including judges, could not make — such as determinations about “drug smuggling patterns, combined with . . . objective observations indicating criminal activity in accordance with those patterns!)]” Giles v. State, 284 Ga. App. 1, 4 (1) (642 SE2d 921) (2007). And I do not doubt that those determinations, even about matters difficult or impossible to explain to a layperson, such as the difference between guilty and innocent nervousness, are often sound. But in order to protect what the Fourth Amendment calls upon us to protect, we must limit our analysis to what can be explained in words.

       The deputy testified that he called for backup at this point in his encounter with Taylor because he noted so many “red flags” and believed that “more than just a normal routine traffic stop” was unfolding. The deputy further explained that he called for backup before seeking Taylor’s consent to search the vehicle out of concern for safety.

       After reconsideration and a second hearing, the trial court again denied the motion to suppress. The trial judge filed a certificate of immediate review, but this Court denied Taylor’s petition for leave to file an interlocutory appeal. See Case No. A16I0019.

       256 Ga. App. at 189.

       306 Ga. App. 286, 287-289 (2) (a), (b) (702 SE2d 2) (2010).

       293 Ga. App. 556, 559 (667 SE2d 418) (2008).

       See also Vega v. State, 321 Ga. App. 682, 684 (742 SE2d 499) (2013) (recognizing that, faced with other suspicious behaviors, officers may permissibly infer that drivers who use strong air fresheners are doing so to hide the smell of drugs or confuse drug-sniffing dogs).

        Wilson, 306 Ga. App. at 289 (noting conflicts in statements made by vehicle’s occupants and defendant’s inability to identify the location he had just visited as factors the officer could consider in forming suspicion).

       This case aptly illustrates this point. The video of the traffic stop captured by the dashboard camera on the deputy’s patrol car shows that, upon discovering a large package containing marijuana in Taylor’s car, the deputy gleefully exclaimed to Taylor, “this ain’t my first rodeo!” While an officer’s training and experience alone do not provide an officer carte blanche to initiate drug investigations, our cases do credit an officer’s training and experience as factors to be considered when evaluating otherwise lawful actions that an officer may interpret as “red flags” during a traffic stop. See, e.g., Wilson, 306 Ga. App. at 289 (officer’s “knowledge of drug trafficking in the area” was factor in upholding determination of reasonable suspicion); Giles v. State, 284 Ga. App. 1, 4 (642 SE2d 921) (2007) (noting arresting officer’s “extensive interdiction training and knowledge of drug smuggling patterns”); State v. Causey, 246 Ga. App. 829, 833 (1) (b) (540 SE2d 696) (2000) (noting that officers’ “first-hand experience” with similar offenses informs reasonable conclusions that criminal activity is taking place).


author: McMillian, Judge. Mercier, Judge,

text:
    A17A1079.
    HILL et al. v. ILES.
    (805 SE2d 278)
   McMillian, Judge.

Willie and Yvonne Hill, the maternal grandparents of K. L., a minor child, appeal the trial court’s award of sole legal custody of K. L. to her father, Gerren lies (“Father”). The Hills assert that the trial court erred in awarding Father sole legal custody of K. L. because (1) the only issue before the trial court was Father’s motion to vacate the Hills’ guardianship of K. L. and (2) K. L.’s mother (“Mother”) was not given notice of the pending action or hearing date. For the reasons that follow, we vacate and remand.

We review a trial court’s order regarding a change in custody or visitation for an abuse of discretion. Jackson v. Sanders, 333 Ga. App. 544, 558 (5) (773 SE2d 835) (2015). However, whether a trial court is authorized to modify custody is a question of law, and we owe no deference to the trial court’s ruling. See Hammonds v. Parks, 319 Ga. App. 792, 794 (3) (735 SE2d 801) (2012).

The limited record shows that K. L. was born in 2007. Father was not listed on the birth certificate. Father and Mother later married in 2008 and moved to Texas to live with Father’s parents. In 2009, Mother took K. L. to Georgia, and in 2010, Mother sent K. L. to live with the Hills. In July 2012, with Mother’s consent, the Hills filed a petition for temporary letters of guardianship of K. L. in the Probate Court of Walton County. Because the Hills alleged that Father’s address was unknown, he was served by publication. The probate court then granted the Hills’ petition.

Just over two years later, in August 2014, Father filed a motion to vacate the order granting the temporary letters of guardianship. Father also attempted to introduce the results of a DNA test indicating he was the biological father of K. L. The Hills objected to Father’s motion, and Father later moved for a judgment on the pleadings. On May 12, 2015, the probate court denied Father’s motion, finding that, although the marriage of the mother and biological father of a child born out of wedlock and recognition of the child by the father shall render the child legitimate, the father must still prove he is the biological father. The probate court further found that the DNA report was insufficient to establish that Father was K. L.’s biological father because the report did not include a client identification form or chain of custody.

Father timely appealed to the Superior Court of Walton County. In June 2016, the trial court held a hearing and found the chain of evidence for Father’s initial DNA test was inadequate and ordered that a new test be completed. During a later hearing in October 2016, Father’s paternity was confirmed. The trial court then issued an order terminating the Hills’ temporary letters of guardianship, granting Father full legal custody of K. L., and providing for Father’s visitation with K. L. until she finished the remainder of the school semester in Georgia. This appeal followed.

1. In their first enumeration of error, the Hills assert that the trial court was not authorized to award custody to Father because the only issue before the trial court was Father’s appeal of the denial of his motion to vacate the temporary letters of guardianship. Georgia law is clear that any complaint seeking to obtain legal custody of a child “shall be brought as a separate action.” OCGA § 19-9-23 (a). See also Hammonds, 319 Ga. App. at 794 (3) (mother’s oral motion for change in custody failed to meet requirements of OCGA § 19-9-23 where it was brought in response to a contempt petition and not in the county where father resides); Whitlock v. Barrett, 158 Ga. App. 100, 102-03 (279 SE2d 244) (1981) (“we know of no authority for a superior court to, sua sponte, change the nature of a case from one involving an application for letters of guardianship to one involving a parent’s right to custody over her child”). Accordingly, it was error for the trial court to grant a change in custody, and we therefore vacate that portion of the trial court’s order. See Hammonds, 319 Ga. App. at 795 (3).

2. Based on our holding in Division 1, we need not reach the Hills’ second enumeration of error.

Judgment vacated and case remanded.

Barnes, P. J., concurs. Mercier, J., concurs specially.

Mercier, Judge,

concurring specially

While I concur fully with the majority opinion, I write separately to further explain my analysis of this case.

Relying on the facts as outlined in the majority, it is undisputed that the mother and father are still legally married and, other than the temporary guardianship at issue in this case, it does not appear from the record that there has been any other proceeding that, as of yet, ascertained and declared that either parent had lost or given up any custodial rights to the child or, in the alternative, that one parent has a superior custody right over the other parent or a specified third party Therefore, it necessarily follows that once the trial court determined that the temporary guardianship should be terminated, custody would be returned to the parents as both are still the natural guardians of the child. See Whitlock v. Barrett, 158 Ga. App. 100, 103 (279 SE2d 244) (1981). Therefore, the most the trial court could have done would have been to return full custody to both parents. Any delineation of custody and/or visitation between the parents or to a third party would have exceeded the trial court’s authority. See id. (finding that “neither the probate court of that county nor the superior court hearing an appeal from the probate court had the jurisdiction to appoint a guardian over the person of the child so long as appellant’s [i.e., the natural mother’s] right to custody . .. and her status as natural guardian were beyond question. The loss of that right and that status must have been ascertained and declared in an authorized proceeding under law.”).

Decided September 15, 2017.

Foster, Hanks & Ballard, Marcy A. Hanks, for appellants.

Markeith D. Wilson, for appellee.

Significantly, the maternal grandparents did not appeal the trial court’s decision to terminate the guardianship and, based on the record, they did not clearly object when the trial court announced its intention to terminate the guardianship. Rather, when the court made that announcement, the grandparents responded that their only request was that if the court was “entering an order” designating the child’s placement that day, that the child would stay “where she is, where she’s been.” The grandparents stated that “there’s no reason today’s not set for a temporary hearing on the custody issue.” The grandparents then asked the court to appoint a guardian ad litem “to make sure the child should be with [the father] but if so[,] then the transition,” adding that the appointment would ensure “that this child ... is not uprooted from the only home she remembers and moved.” The court replied that it would appoint a guardian ad litem, but not necessarily to help with a “transition.” The court thereafter discussed with the parties various custody and visitation matters, which discussion the grandparents participated in without voicing any objection.

In short, the grandparents tacitly asked the trial court to address the custody issue of which they complain on appeal, with the end result being that they got exactly what they requested — the blurring of the instant guardianship case with a separate custody action. See Graybill v. Attaway Constr. & Assocs., 341 Ga. App. 805, 808-809 (1) (802 SE2d 91) (2017) (a party cannot participate and acquiesce in a trial court’s procedure and then complain of it); Oglethorpe Power Corp. v. Estate of Forrister, 332 Ga. App. 693, 699 (2) (b) (774 SE2d 755) (2015) (a party cannot be heard to complain on appeal of error induced by his own conduct, nor to complain of errors expressly invited by him at trial).

       Father has not filed a response brief on appeal.

       There appears to have been uncertainty for some time as to whether Father was K. L.’s biological father.

       The trial court also confirmed that, although Mother and Father had lived in separate states since 2009, they were still legally married.

       On appeal, the Hills contest only that portion of the trial court’s order granting full legal custody to Father and do not challenge the termination of the letters of guardianship.