author: MCMlLLIAN, Judge.

text:
    A12A2524.
    GLENN v. STATE OF GEORGIA.
    (739 SE2d 692)
   MCMlLLIAN, Judge.

On February 8, 2012, the State filed a verified in rem Complaint for Forfeiture pursuant to OCGA § 16-13-49 against, inter alia, $17,900 and a Grey “First Alert” Fire & Security Safe with Key labeled #755. Frederick Cortez Glenn (“Glenn”) filed a verified Answer and Counterclaim on March 7, 2012, in which he asserted the safe contained $44,700 in settlement funds to which he was entitled. On March 28, 2012, the State filed a Motion to Strike Appellant’s Answer and Counterclaim, which was granted by the trial court without a hearing on May 25, 2012, because Glenn “failed to fully comply with the requirements of OCGA § 16-13-49 (o) (3),” in that his answer failed to “provide all of the essential facts supporting the assertions surrounding the acquisition and accounting of the funds seized.” On May 30, 2012, the trial court entered a Judgment and Order of Forfeiture and Disposition of Property.

Glenn alleges two enumerations of error by the trial court: (1) the trial court erred in granting the State’s Motion to Strike Appellant’s Answer and Counterclaim as insufficient under OCGA § 16-13-49 (o) (3) (F); and (2) the trial court erred by finding the State’s Complaint for Forfeiture established a prima facie case for forfeiture.

The record shows that on December 20, 2011, Charlotte D. Scott (“Ms. Scott”) obtained a Temporary Protective Order (“TPO”) against Glenn, and on December 21, 2011, Clayton County deputy sheriffs served Glenn with a copy of the TPO. Glenn was asked by the deputies to surrender any firearms that he owned, and he told the deputies he did not own any firearms. Ms. Scott, however, alerted the deputies in the TPO information sheet that appellant owned two firearms.

On December 21, 2011, the deputies contacted Ms. Scott to confirm that Glenn owned two firearms, and she verified that the two firearms he owned were in a safety box in her home. According to the deputies, Ms. Scott stated she did not want Glenn’s safe in her home because she feared he would come to retrieve his safe and use the firearms to kill her children and her. When deputies arrived at Ms. Scott’s residence later that day, she led them upstairs to a closet where she said Glenn’s safe was located with his belongings. The deputies removed Glenn’s safe from the residence and placed it into evidence for safekeeping at Ms. Scott’s request because she was scared for her life. Ms. Scott, however, disputed telling the deputies that Glenn had firearms in the safe, although she admitted telling them that Glenn owned two firearms and that she was afraid of him if he came to retrieve his items and found his safe missing.

On December 28, 2011, Glenn and his attorney appeared at the Clayton County Sheriff’s Office to surrender his firearms, which Glenn admitted were in the safe. Glenn gave his key to the safe to the deputies. When the safe was opened, the deputies located 16.3 grams of marijuana, which was packaged in three small bags in a manner commonly used for distribution. The safe also contained firearms, ammunition, cell phones, $17,900, and other miscellaneous items and documents. Glenn indicated that the marijuana in the safe belonged to him and later stated in his answer in this case that the marijuana was for his personal use. He was arrested and placed into custody.

In his Answer and Counterclaim, Glenn explained the circumstances surrounding the acquisition of the money as follows:

The forty-four thousand, seven hundred dollars ($44,700.00) in U.S. Currency is part of the proceeds of two checks in the amount of twenty-nine thousand dollars ($29,000.00) each, that were both issued payable to Claimant on September 16, 2011, and October 19, 2011, by the Law Offices of Don Cary Collins, Esq., 126 West Main Street, Belleville, Illinois, 62220, (618) 234-2001. The checks were issued as part of settlement proceeds from a legal matter as regards a damages claim set forth in a suit filed in the Circuit Court for the 20th Judicial Circuit, St. Clair County, IL, Cause No. 07-L-562, entitled Frederick Glenn and Patrillo Quarles as Co-Administrators of the Estate of Sonya Sanchez Glenn deceased, and Frederick Glenn, individually, vs. Kenneth Hall Regional Hospital, Jaafar Bermani, M.D., andMohammad Hashemi, M.D. Claimant placed the cash proceeds of each check into his safe for safe-keeping. He withdrew a portion of the cash for automobile improvements, leaving forty-four thousand, seven hundred dollars ($44,700.00) in the safe at the time it was seized by officers of CCSO.

1. We turn first to Glenn’s second enumeration of error asserting that the trial court erred by finding the State’s complaint established a prima facie case for forfeiture. Glenn asserts that the complaint fails to establish that the money was connected to the marijuana, citing OCGA § 16-13-49 (e) (2), which provides that, “[a] property interest shall not be subject to forfeiture under this Code section for a violation involving ... four ounces or less of marijuana unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.”

In Rabern v. State of Ga., 221 Ga. App. 874, 876 (473 SE2d 547) (1996), this Court held that “OCGA § 16-13-49 (e) does not require evidence of an actual sale or purchase of marijuana ... to support forfeiture.” (Emphasis omitted.) This Court concluded, however, that “[w]hile the State does need to show a strong nexus between the property and the alleged violation if the amount of marijuana seized totals four ounces or less, the State can show this nexus in cases where an actual sale does not occur.” Id. at 877.

The fact that money . . . was found in proximity to contraband or to an instrumentality of conduct giving rise to forfeiture authorizes the trier of the fact to infer that the money . . . was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate such conduct.

OCGA § 16-13-49 (s) (2).

We find that the trial court in this case properly concluded that the State set out a prima facie case for forfeiture. Here, the State alleged that Glenn, along with his attorney, went to the Clayton County Sheriff’s Office seeking the return of his safe and its contents. Glenn provided a key to open the safe at which time the deputies discovered 16.3 grams of marijuana packaged for sale along with $17,900 in United States currency, handguns, ammunition, and other personal property. The presence of such a large amount of currency in close proximity with firearms, ammunition, and 16.3 grams of marijuana packaged in three small bags, a manner commonly used for distribution, sets out a prima facie case that the marijuana was used to facilitate a transaction in or purchase of or sale of marijuana. See Howard v. State of Ga., 223 Ga. App. 323 (477 SE2d 605) (1996); Arreola-Soto v. State of Ga., 314 Ga. App. 165 (723 SE2d 482) (2012); and OCGA § 16-13-49 (s) (2).

2. With regard to appellant’s first enumeration of error, Glenn asserts that the trial court erred in striking Glenn’s answer because he failed to fully comply with the requirements of OCGA § 16-13-49 (o) (3). We agree.

The trial court found that Glenn’s answer failed to “provide all of the essential facts supporting the assertions surrounding the acquisition and accounting of the funds seized on December 28, 2011.” Specifically, the trial court found that Glenn’s answer failed to provide the circumstances showing the conversion of the settlement checks to cash and the placement of the cash in the safe. The trial court also found that since a discrepancy existed in the amount of currency seized from the safe, Glenn needed to specifically account for the $44,700 he claimed was in the safe. Instead, the trial court found that Glenn’s answer contained “vague and unsubstantiated assertions concerning the partial withdrawal for nonspecific automobile improvements.”

“Once the State presents a prima facie case for forfeiture in its pleadings, the burden then shifts to the claimant to establish both his standing to contest the forfeiture and his entitlement to a statutory exception.” (Citation and punctuation omitted.) Edwards v. State of Ga., 290 Ga. App. 467, 469 (659 SE2d 852) (2008) citing Howard, 223 Ga. App. 323. Pursuant to OCGA § 16-13-49 (o) (3) (F), “all essential facts supporting each assertion” must be provided in appellant’s answer. While the pleading requirements in a forfeiture action are strict, they are not meant to be impossible. Arreola-Soto, 314 Ga. App. at 167.

In this case, the seized property was currency, which is highly fungible, making the bills hard to trace to a particular source or transaction. Baker v. State of Ga., 269 Ga. App. 722 (605 SE2d 126) (2004). We find that Glenn’s answer is sufficient to plead an interest in the property and comply with the requirements of OCGA § 16-13-49 (o) (3) (D) for a hearing to be conducted as to whether the property should be forfeited. See Arreola-Soto, 314 Ga. App. at 168; and Howard, 223 Ga. App. at 323. Specifically, Glenn provided the dates he received the two checks for $29,000 each as September 16, 2011 and October 19, 2011. He provided the identity of the transferor (Don Cary Collins, Esq.) and the circumstances of his acquisition of the interest in the property (He was a plaintiff in a lawsuit, cashed the settlement checks totaling $58,000, put the money in his safe, withdrew cash for automobile improvements, and had $44,700 in the safe at the time it was seized by deputies.). While Glenn could have provided more details as to the partial withdrawal of funds for automobile improvements and a more precise accounting for the remaining funds, his failure to do so does not render his claim “insufficient” as a matter of law. See Harris v. State of Ga., 222 Ga. App. 267 (474 SE2d 201) (1996).

Decided March 8, 2013.

James S. Lewis, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and McFadden, J, concur.

       In the complaint for forfeiture, the State also sought
      a Smith & Wesson “Bodyguard” .38 Special Caliber Revolver, black in color with broken trigger guard, SN: CPW9546; Grendel Inc, Model P12, .380acp caliber, Semi-Automatic Handgun, black in color with tape on the grips, SN: 09542; Black .380acp caliber magazine; 43 rounds of .380 acp ammunition; 24 rounds of .38 special ammunition; [and] Four (4) Black Cell Phones.
      Glenn makes no claim as to this property in his Answer and Counterclaim.

       Glenn did not file a response to the State’s Motion to Strike Appellant’s Answer and Counterclaim.

       The trial court initially set a hearing date for May 9, 2012, which was re-set for May 4, 2012, and then continued for good cause to June 6, 2012. After the trial court issued its Judgment and Order of Forfeiture and Disposition of Property, the hearing for June 6,2012, was cancelled.

       Glenn maintains the currency in the safe was not counted in his or his attorney’s presence and asserts that the safe contained $44,700 in currency, not $17,900 as asserted by the State. We note that this in rem forfeiture only concerns the $17,900 in currency sought by the State. We do not address any separate claim Glenn may have for the alleged balance.

       While we find Glenn’s answer met the pleading requirements entitling him to a hearing as to whether the property should be forfeited, we do not address the merits of either the State’s forfeiture case or Glenn’s ultimate claims to the property. See Arreola-Soto, 314 Ga. App. at 168.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A2556.
    DURDEN v. THE STATE.
    (739 SE2d 676)
   BARNES, Presiding Judge.

A police officer found several grams of crack cocaine and a large amount of cash on Steven Durden, resulting in his indictment on the charge of possession of cocaine with intent to distribute. Following the denial of Durden’s motion to suppress the drugs and cash, we granted his application for interlocutory appeal. Discerning no error by the trial court, we affirm.

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 the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. However, when evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Punctuation and footnotes omitted.) Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).

Viewed in the light most favorable to the trial court’s ruling, the evidence showed that an officer with the City of Atlanta Police Department was on patrol one morning in an area known for drug activity. As the officer drove by in his patrol car, an unidentified woman, described by the officer as a “concerned citizen,” flagged the officer down and stated that she had just seen a man standing on the corner selling drugs. She told the officer that the man was African-American and was wearing a blue hoodie jacket, black pants, and a blue hat, and she described exactly where he had been standing.

“At that point,” the officer drove over to the corner. Although the officer did not observe any illegal activity, he saw a man standing there who matched the description provided by the woman. The man was later identified as Durden. When the officer got out of his patrol car, Durden turned and started to walk away. The officer asked Durden to stop so that he could speak with him. Durden complied. The officer then asked Durden for identification, which he was unable to produce. According to the officer, Durden appeared nervous and “was fidgeting around with his hands in his pocket [s].” When the officer instructed Durden to remove his hands from his pockets, he did so. The officer then asked Durden if he was selling drugs, and he responded, “I don’t sell no drugs, . . . , but go ahead, I don’t have anything.” The officer searched Durden’s pockets and found 3.3 grams of crack cocaine and approximately $600 in cash.

Durden moved to suppress the drugs and money on the grounds that his initial encounter with the officer was a second-tier investigatory stop, that the officer lacked reasonable suspicion to justify the stop, and that he had not voluntarily consented to the search of his pockets. After conducting an evidentiary hearing in which the officer was the sole witness, the trial court denied the motion to suppress. The trial court agreed with Durden that his initial encounter with the officer was a second-tier investigatory stop, but the court found that the stop was justified because the officer had a reasonable suspicion that Durden was involved in criminal activity based on the information provided to him by the concerned citizen. The trial court further found that Durden had voluntarily consented to having the officer search him.

1. Durden contends that the trial court erred in finding that the officer had a reasonable suspicion of criminal activity to justify a second-tier investigatory stop. According to Durden, the unidentified woman who flagged down the officer was not a “concerned citizen” as that term is understood in our precedent, but rather an “anonymous tipster.” Consequently, Durden maintains that the woman’s reliability could not be presumed and that the information she supplied to the officer was insufficiently detailed to justify the stop.

At the outset, we note that the trial court did not err in finding that the initial encounter between the officer and Durden rose to the second tier. “There are at least three tiers of police-citizen encounters: (1) consensual encounters; (2) brief investigatory stops that require reasonable suspicion; and (3) arrests that must be supported by probable cause.” (Citation and footnote omitted.) O’Neal v. State, 273 Ga. App. 688, 690 (616 SE2d 479) (2005). “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” (Citation and punctuation omitted.) Jones v. State, 291 Ga. 35, 37 (1) (727 SE2d 456) (2012). But a police-citizen encounter rises to the level of a second-tier investigatory stop “if the officer restrains the citizen’s movement by physical force, command, or show of authority.” (Citation and punctuation omitted.) Smith v. State, 288 Ga. App. 87, 88 (653 SE2d 510) (2007).

Here, there was evidence that the officer called out to Durden as he was walking away and told him to stop so that he could speak with him. Faced with this situation, a reasonable person would believe that he was not free to disregard the officer’s command and go about his business. Durden’s initial encounter with the officer thus constituted a second-tier investigatory stop. See, e.g., Walker v. State, 299 Ga. App. 788, 790 (1) (683 SE2d 867) (2009) (encounter was second-tier where the officer told the defendant to “hold on[,] come here,” and sit on the pavement, and then questioned him pursuant to a “field investigation”); Peters v. State, 242 Ga. App. 816, 817 (1) (531 SE2d 386) (2000) (encounter was second-tier where officers “verbally commanded [the defendant] to stop and prevented him from entering his automobile”). Moreover, even if the officer’s initial interaction with Durden could be characterized as a first-tier encounter, it escalated into a second-tier stop when the officer ordered Durden to remove his hands from his pockets. See Brown v. State, 301 Ga. App. 82, 84 (686 SE2d 793) (2009) (“What began as a first-tier encounter escalated into a second-tier stop when the officer told [the defendant] to remove his hands from his pockets.”). Accordingly, the trial court committed no error in concluding that the encounter was a second-tier investigatory stop, and thus in requiring the State to prove that the officer had a reasonable suspicion that Durden was involved in criminal activity to justify the stop. See Dominguez v. State, 310 Ga. App. 370, 373-374 (714 SE2d 25) (2011) (State carries burden of proving that officers had reasonable suspicion to justify investigatory stop).

To meet the reasonable suspicion standard, police must point, under the totality of the circumstances, to specific and articulable facts which, taken together with rational inferences from those facts, provide a particularized and objective basis for suspecting the particular person stopped of criminal activity. Accordingly, a general suspicion or a mere hunch is not sufficient to support an investigative stop. Although the primary means by which officers acquire reasonable suspicion is personal observation, information acquired from an informant that exhibits a sufficient indicia of reliability can also be the basis for reasonable suspicion.

(Citations and punctuation omitted.) Slocum v. State, 267 Ga. App. 337, 337-338 (599 SE2d 299) (2004).

If the informant is a “concerned citizen” as that term is used in our precedents, the information provided to the police is presumed to be reliable. See Dominguez, 310 Ga. App. at 374, n. 11 (noting that if record had contained evidence that informant was a “concerned citizen,” then “the trial court might properly have concluded that the information provided to the deputies was presumptively reliable”); Penny v. State, 248 Ga. App. 772, 775 (2) (b) (547 SE2d 367) (2001) (“[A] law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.”) (citation omitted). In contrast, if the informant is an “anonymous tipster,” the information provided to the police must be “detailed enough to provide some basis for predicting the future behavior of the suspect,” and the details must be corroborated by the police for the tipster’s reliability to be established. Register v. State, 315 Ga. App. 776, 778 (728 SE2d 292) (2012). See also Slocum, 267 Ga. App. at 338 (information provided by anonymous tipster “may exhibit sufficient indicia of reliability if it provides details correctly predicting a subject’s not easily predicted future behavior, or if it provides other details which police corroborate as showing similar inside information about the subject’s affairs”) (citations and punctuation omitted). Whether an informant is a concerned citizen or an anonymous tipster turns on the facts and circumstances of the case, not the label applied to the informant by the State or the testifying officers. See Fair v. State, 284 Ga. 165, 172 (3) (b) (664 SE2d 227) (2008).

We conclude that there was evidence to support the trial court’s finding that the unidentified woman who flagged down the officer fell into the category of a concerned citizen rather than an anonymous tipster. Generally, as the terminology itself implies, we have distinguished a concerned citizen from an anonymous tipster by the fact that the identity of the citizen is known to the police. See Register, 315 Ga. App. at 778, n. 1 (“It is true that when hearsay information is supplied by an identified interested citizen, the citizen’s credibility is not as suspect and the analysis is not as stringent as when information is given by an anonymous tipster.”) (citation and punctuation omitted; emphasis in original); Slocum, 267 Ga. App. at 338 (“Where the information is provided to police by an informant who is either an identified interested citizen or an identified victim of a crime, there is a presumption of reliability.”).

Significantly, however, we have held that a citizen who witnesses criminal activity and then immediately reports it in person directly to a police officer also can be deemed a concerned citizen, even if her identity is not known to the police. See Riding v. State, 269 Ga. App. 289 (603 SE2d 776) (2004); State v. Noble, 179 Ga. App. 785 (347 SE2d 722) (1986). See also Register, 315 Ga. App. at 778, n. 1 (distinguishing anonymous tip from one “where [the] individual reported to [the] police in person”); State v. Williams, 225 Ga. App. 736, 738 (2) (484 SE2d 775) (1997) (distinguishing anonymous tip from one where “the citizen spoke directly to the investigating officer”). As we have explained, face-to-face communication is “inherently more reliable than an anonymous telephone tip because the officer receiving the information had the opportunity to observe the informant’s demeanor and perceived credibility.” Cole v. State, 282 Ga. App. 211, 213 (638 SE2d 363) (2006).

In the present case, there was evidence that the woman in question spoke directly to the officer while he was out on patrol, describing the suspect involved in the illegal drug activity that she had just witnessed and his location. Under these circumstances, the trial court was authorized to deem the woman a concerned citizen whose reliability could be presumed. See Riding, 269 Ga. App. at 290-291; Noble, 179 Ga. App. at 785-786. After speaking with the concerned citizen, the officer immediately corroborated the basic facts that she had supplied to him. The in-person report of the concerned citizen, along with the officer’s immediate identification of Durden as matching the description reported by the concerned citizen, “must certainly be considered a reasonable and articulable basis for a suspicion by [the officer] that [Durden was selling drugs].” Riding, 269 Ga. App. at 291, quoting Noble, 179 Ga. App. at 785. See Goodman v. State, 210 Ga. App. 369, 370 (436 SE2d 85) (1993) (upholding investigatory stop where unidentified woman, an “apparent concerned citizen,” approached two police officers and described individuals and car involved in illegal drug activity in a nearby area, and the officers immediately proceeded to that area and corroborated the basic facts provided by the woman). Thus, contrary to Durden’s assertion, the trial court was authorized to find that the officer could briefly detain him for the limited purpose of investigating whether he was in fact selling illegal drugs. See Riding, 269 Ga. App. at 290.

2. Durden also argues that the trial court erred in finding that he voluntarily consented to having the officer search him. Specifically, Durden maintains that his statement to the officer to “go ahead” was too ambiguous to authorize a search of his person, and that, at best, he merely acquiesced to the officer’s authority rather than freely consented to a search.

The State has the burden of proving the validity of a consensual search and must show the consent is given “voluntarily.” Consent which is the product of coercion or deceit on the part of the police is invalid. Consent is not voluntary when it is the result of duress or coercion, express or implied.

(Footnote omitted.) State v. Hamby, 317 Ga. App. 480, 483 (731 SE2d 374) (2012).

The evidence showed that when the officer asked Durden if he was selling drugs on the corner, Durden responded, “I don’t sell no drugs,..., but go ahead, I don’t have anything.” Construing Durden’s response as consent to search, the officer then reached into Durden’s pockets and found the drugs and cash. The officer testified that when speaking with Durden, he did not have his gun drawn and did not physically restrain or threaten Durden in any manner.

In light of this record, the trial court was authorized to find that Durden consented to having the officer search him. Durden’s statement telling the officer to “go ahead, I don’t have anything,” when viewed in context, could reasonably be construed as authorizing a search of his person. Furthermore, the trial court was authorized to find that Durden’s consent was freely and voluntarily given. There is simply no evidence in the record of coercion, duress, or deceit. And Durden’s consent was not merely acquiescence to a claim of lawful authority by the officer, given that Durden spontaneously gave his consent without the officer ever having asked to conduct a search. See Liles v. State, 311 Ga. App. 355, 359 (2) (716 SE2d 228) (2011) (defendant’s consent to search was not mere acquiescence to a claim of lawful authority, where there was testimony that the officer never asked for his consent and that the defendant had volunteered to allow the search). For these reasons, the trial court did not err in concluding that the consensual search was valid and in denying the motion to suppress. See Gray v. State, 296 Ga. App. 878, 883 (676 SE2d 36) (2009) (concluding that consent was valid where defendant “sua sponte gave her consent to the search”); Noland v. State, 178 Ga. App. 486, 488-489 (2) (343 SE2d 763) (1986) (concluding that consent was valid where “the idea to search . . . appears to have originated with [the defendant] himself”) (physical precedent only).

Decided March 8, 2013.

Rodney A. Williams, for appellant.

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

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       This case is distinguishable from those involving an anonymous telephone tip rather than a face-to-face communication. See Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992); Swanson v. State, 201 Ga. App. 896 (412 SE2d 630) (1991); Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990). Furthermore, this case is distinguishable from Rucker v. State, 276 Ga. App. 683 (624 SE2d 259) (2005), relied upon by Durden. In Rucker, we concluded that the tipster, who was known to the officer receiving the tip, did not fit the definition of a concerned citizen whose reliability could be presumed because “the officer testified that he had arrested the tipster in the past.” Id. at 684 (1). In that context, we concluded that the tipster was best described as “a known informant of unknown reliability.” Id. Similarly, in Tiller v. State, 261 Ga. App. 363, 365 (582 SE2d 536) (2003), we concluded that the tipster was an “informant of unknown reliability” rather than a concerned citizen of presumed reliability, because the evidence showed that the tipster had been present at a gang-related fight and supplied the tip only after an officer had arrived on the scene and intervened to stop the fight.


text:
    A12A1762.
    GOODWIN v. THE STATE.
    (739 SE2d 712)
   BARNES, Presiding Judge.

A jury convicted Larry Gerald Goodwin of two counts of child molestation and one count of misdemeanor marijuana possession, and sentenced him to serve twenty years in confinement followed by twenty years on probation. The trial court denied Goodwin’s motion for new trial, finding that his trial counsel had not been ineffective. On appeal, Goodwin contends that the trial court erred in not allowing him to present hearsay evidence about the victim’s first interview with authorities, and that his trial counsel was ineffective in several respects relating to that interview. He also contends that his trial counsel was ineffective for failing to put him on the stand to testify, and that the trial court erred in limiting his ability to question the State’s trial counsel under oath during the hearing on his motion for new trial. For the reasons that follow, we find no error and affirm.

Goodwin was indicted for two counts of child molestation. The indictment charged him with committing the offenses between January 1, 2009 and April 27, 2010 against the same victim who was younger than 16. In Count 1 he was accused of having the victim place her hands on his penis and rub, with the intent to arouse and satisfy his sexual desires, and in Count 2 he was accused of placing his hands on the child’s vagina, with the same intent. The State called three witnesses to prosecute the molestation charges: an investigator with the Spalding County Sheriff’s Department, the victim, who was eight years old at the time of trial, and the victim’s mother as a rebuttal witness.

Viewing the evidence presented at trial in the light most favorable to the prosecution, the Spalding County investigator testified that after she received a referral about the case from a Cobb County detective, she set up a forensic interview with the seven-year-old victim and her mother. During the interview, the child said that Goodwin, who was married to the victim’s grandmother, “had done some things to her that. . . she described as being nasty.” The child said Goodwin “would make her rub his wee-wee, referring to his penis, with lotion and .. . she would have to hold on to it. And at the time she said she got tired, and she couldn’t let go until he tells her to let go.” The child also said he had “touched her private. He also had her to suck it. And there was an occasion where he placed his penis on her backside.” The child was “very descriptive” in her statement and in drawings she made.

A week later, the investigator conducted a follow-up interview, during which the child said the last time she had been to the defendant’s house she stayed for a week during spring break, which was a month before the interview. When asked if anything happened while she was there with her grandparents, she said it did, that Goodwin “made her rub his wee-wee with lotion.” The victim specified that Goodwin “would put the lotion in her hands and would tell her to rub it,” and that when she rubbed it, “it would spit ... a white substance with bad germs.” She said these events took place in Goodwin’s bedroom and near a large tool box in the barn, and that the lotion had no smell, was white, and was in a brown bottle he kept in drawers in the barn and the bedroom.

The investigator obtained and helped execute a search warrant for Goodwin’s house, where searchers found a brown bottle on the bedroom floor, a container of lotion on the floor beside the night stand in Goodwin’s bedroom, and another container of lotion in a desk drawer inside the barn, which also contained a large tool box. Multiple bottles of lotion were found inside the closet in another bedroom.

Throughout the trial, Goodwin attempted to introduce evidence about interviews with the victim and her mother by a Cobb County detective a few weeks before the case was transferred to Spalding County, but the trial court sustained the State’s hearsay objections because the detective was not present at trial.

The excluded evidence included recorded interviews with the victim and her mother after the victim told a counselor at school that her legs were bruised because her brother left them when he “kissed her private.” In the interview, the victim said most of her bruises were caused by her older brother punching and kicking her. The victim’s body had no suspicious marks, and the only reference to sexual abuse during this interview was her disclosure that several years before her brother’s friend asked her to “suck his wee wee.” In an interview without the child present, her mother said the victim had previously said her brother punches her, but the brother denied it, and the mother was not sure if the victim was telling the truth or not as she “has been known to lie.” The detective concluded that there was no evidence of child molestation and turned the matter over to DFCS.

Eleven days later, the mother called the detective to report that during a discussion about making good choices, the victim began crying and revealed that Goodwin “makes her rub lotion on his ‘wee wee’ and told her to keep it a secret.” The detective then referred the case to Spalding County for further action because that is where the victim said the incidents with Goodwin had taken place.

Trial counsel testified at the motion for new trial hearing that he wanted the jury to hear evidence that the victim initially alleged that her brother had been punching her in her private area, but the “key part” he wanted from the recorded interviews was that the mother said the victim lied all the time and did not know whether to believe her or not. Counsel described his unsuccessful efforts to serve the Cobb County detective with a subpoena to appear at trial, but he ultimately announced ready for trial because he thought the State had subpoenaed the detective as it had when the case was previously called for trial.

1. Goodwin contends first that the trial court erred in not allowing into evidence hearsay testimony related to the interviews, arguing that the evidence was admissible as an exception to hearsay because the Cobb County detective was “unavailable.” In Goodwin’s statement of facts in his brief, he discusses some of his unsuccessful attempts throughout trial to introduce evidence regarding the Cobb County detective’s interviews and report. In his argument on this first enumeration, however, he does not describe the specific rulings he contends are error. Instead, he argues that, despite Goodwin’s proffers to support his claim that the detective was unavailable and therefore the evidence was admissible as an exception to hearsay, “the court sustained numerous objections to trial counsel’s use of [the] Cobb County Detective[’s] report and opinions.” Then Goodwin avers that the trial court “finally recognized the strength of those arguments and then apparently relied upon the state’s statement that [the detective] would be available.”

Goodwin’s general summary of the “numerous” rulings related to this issue establishes no error. Goodwin seems to be relying on the general necessity exception under former OCGA § 24-3-1, which has an “unavailability component,” rather than on former OCGA § 24-3-10, because under the latter statute, testimony given by an “inaccessible” witness must have been made under oath in a former proceeding on the same issue between the same parties to be admissible, and the testimony Goodwin sought to admit was not given under oath in a former proceeding.

Under former OCGA § 24-3-1 (b), hearsay evidence was admissible in “specified cases from necessity” if the declarant was “inaccessible” and other requirements were met, but establishing that a witness was inaccessible required “proof of sustained efforts by parties to locate the witness in question before allowing the admission of such testimony.” Hill v. State, 291 Ga. 160, 163 (3) (728 SE2d 225) (2012). We review a trial court’s decision about whether a witness was inaccessible or not for abuse of discretion, but in this case, Goodwin failed to obtain a ruling on the witness’s inaccessibility. Accordingly, we find no error.

2. Goodwin argues his trial counsel was ineffective in several respects: in announcing ready for trial when he had not perfected service of his subpoena on the Cobb County detective; in failing to move for a mistrial when the State did not call the detective as a witness despite the State’s assurance he would be available to testify; in failing to pursue and proffer taped evidence of the victim’s prior inconsistent statements to the Cobb County detective; in failing to move for a continuance or mistrial after the trial court’s adverse rulings about the admissibility of the Cobb County detective’s report; in failing to put Goodwin on the stand to testify, and in failing to call “each and every defense witness.”

To prevail on a claim of ineffective assistance of counsel, Goodwin must show both that trial counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Aaron v. State, 275 Ga. App. 269, 271 (4) (620 SE2d 499) (2005).

The performance of counsel test requires counsel to perform reasonably under prevailing professional norms. We do not evaluate this prong of the test because the issue turns on the second prong. If there was no prejudice to the defense, it does not matter whether the performance of counsel was adequate. Therefore, we turn to the second prong of the test.

Wadley v. State, 258 Ga. 465, 466-467 (3) (369 SE2d 734) (1988). To establish prejudice, “the defendant must show that, but for inadequate performance of counsel, there is a reasonable probability the result would have been different.” Id. at 467 (4).

(a) As Goodwin himself notes, objections and discussions and rulings about the admissibility of the Cobb County detective’s report and interview permeated the trial, and his first four claims of ineffective assistance are related to counsel’s failure to place that evidence before the jury. But trial counsel testified in the motion for new trial hearing that the critical part of that evidence was that the victim initially blamed her brother for her bruises and that her mother said that the victim was a liar. Trial counsel successfully introduced evidence about those issues, and therefore Goodwin cannot show that he was prejudiced by his trial counsel’s performance.

For example, during his cross-examination of the Spalding County detective, Goodwin attempted to ask about the Cobb County detective’s report, and the State objected to it as inadmissible hearsay. The trial court sustained the State’s objection, but the detective subsequently testified that the victim had told the Cobb County detective that “her brother had tried to touch her pee-pee,” and that the Cobb County detective terminated that investigation because he concluded that the evidence did not support the molestation allegation in that county. Further, the victim testified that she and her brother “play rough” and she “always [got] bruises on [her] legs,” that some of her bruises came from her brother and some from herself, and that when she told her mother that some of the bruises came from her brother, her mother told him not to be so rough with her.

The victim’s mother testified that the Cobb County detective asked if she had questioned the brother about causing the bruises, and she told the detective that she had spoken to the brother about the matter. While the State objected when Goodwin asked the mother if she told the Cobb County detective she was not sure whether the victim was telling the truth or not, and that “half the time she’s been known to lie,” the trial court overruled the objection and the mother responded, “Yes.”

Assuming for the sake of argument that trial counsel’s failure to serve the Cobb County detective with a subpoena and subsequent inability to admit evidence of the detective’s report and interviews fell below “prevailing professional norms,” no reasonable probability exists that the jury would have returned a verdict of not guilty if that evidence had been admitted. Based on our review of the trial, and considering the admission of evidence that the victim had previously accused her brother of bruising her and touching her private area and that her mother had previously questioned the victim’s truthfulness, the trial court did not err in finding that Goodwin’s trial counsel was not ineffective based on this issue.

(b) Goodwin claims his trial counsel was ineffective for failing to call him to the stand to testify on his own behalf, because presenting only two witnesses — Goodwin’s wife and a paid expert — was “weak by definition.” He continues, “Trial counsel should have urged the Defendant to testify even if he was a convicted felon, armed robbery being a crime entirely different in nature from child molestation,” because the victim’s testimony “was far too damning to have been permitted to stand unrefuted” by the defendant.

“The decision whether or not to testify is a tactical one made by the defendant himself after consultation with counsel. The choice of whether to testify is ultimately a defendant’s.” (Footnotes omitted.) Chambers v. State, 266 Ga. 39, 42 (3) (463 SE2d 887) (1995). Here, the trial court specifically reminded Goodwin at trial of his absolute right to testify or not, and that the decision was his and not his lawyer’s. Goodwin confirmed that the decision not to testify was his personal decision, and the trial court found that Goodwin made his decision not to testify with a complete understanding of his rights. Trial counsel testified at the motion for new trial hearing that, while Goodwin initially wanted to testify, as their trial strategy developed, the “game plan” did not include having him testify, particularly in light of Goodwin’s prior convictions. Goodwin has not shown that his trial counsel failed to perform up to prevailing professional norms by not calling him to testify.

(c) Finally, Goodwin enumerates as ineffective his trial counsel’s failure “to have available and to be able to call each and every defense witness,” including witnesses to the initial investigation in Cobb County. His argument, however, does not describe the testimony of any particular missing witnesses or explain why their testimony would have been important. His argument is instead a general discussion of defense counsel’s duty to investigate and intervene with the prosecution early in the criminal process. Goodwin has thus not established any deficiency on his trial counsel’s part related to calling witnesses, much less that a deficiency caused him prejudice.

3. Goodwin’s last argument is that the trial court erred in the new trial hearing by sustaining the State’s objection to questioning under oath the assistant district attorney who tried the case. At the hearing, after the ADA was sworn, Goodwin asked her whether she had had the Cobb County detective under subpoena for the trial. Counsel for the State objected and sought a proffer as to the relevance of the questions, absent an accusation of prosecutorial misconduct, because the clerk’s file would provide evidence as to whether the detective had been subpoenaed, as could the detective himself. The trial court noted that the question was “somewhat offensive” because defense counsel was implying that the State hid the witness from the court. The court was also concerned about the ramifications of asking the prosecutor questions related to issues of trial tactics, in the event that the case were to be tried again. The trial court concluded that Goodwin could obtain the information he sought by calling the Cobb County detective as a witness, and he continued the hearing until the detective could testify under oath whether he was present during the trial or not.

The motion for new trial hearing was reconvened with the Cobb County detective present. The detective testified that he was subpoenaed by the State when the case was first placed on a trial calendar, and was present at the courthouse then, but the case was continued. The State told him that he would be called if he was needed as a witness, and he was never called, although he remained under subpoena until the case was resolved. He also testified that he had not avoided service of the subpoena previously, and that when Goodwin’s counsel called about coming to the hearing, he agreed to do so.

The trial court did not err in sustaining the State’s objection to Goodwin calling the trial prosecutor as a witness at the motion for new trial hearing.

Decided March 11, 2013.

Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

“The practice of trial attorneys testifying is not approved by the courts except where made necessary by the circumstances of the case.” Timberlake v. State, 246 Ga. 488, 500 (7) (271 SE2d 792) (1980). “[T]he advocate as a witness poses innumerable threats to the integrity and reliability of the judicial process.” Castell v. Kemp, 254 Ga. 556, 557 (331 SE2d 528) (1985). “[C]ourts have properly refused to permit a prosecutor to be called as a defense witness unless there is a compelling need.” (Citations and punctuation omitted.) United States v. Roberson, 897 F2d 1092, 1098 (IV) (F) (11th Cir. 1990). “Trial courts are generally held to have discretion on whether to allow a party to call opposing counsel as a witness, on the view that attempting to call opposing counsel to establish some fact that can be readily proved in a different manner should be discouraged.” Louisiana v. Tuesno, 408 S2d 1269, 1272 (La. 1982), quoting Pirsig & Kirwin, Professional Responsibility, pp. 378-379 (3rd ed. 1976).

Here, the circumstances of the case did not make it necessary for the prosecuting attorney to testify on the defendant’s behalf during the hearing on the motion for new trial. The evidence sought was available through other means and eventually obtained by Goodwin. Accordingly, we find no error.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       Goodwin was also indicted for and convicted of misdemeanor marijuana possession, but raises no arguments on appeal related to that conviction.

       Three witnesses also testified about finding, storing, and testing marijuana found in Goodwin’s residence upon execution of a search warrant.

       Goodwin’s trial commenced before January 1,2013, so Georgia’s new Evidence Code does not apply. See Ga. L. 2011, pp. 99, 214, § 101.


author: McFadden, Judge.

text:
    A12A1785.
    JOHNSON v. THE STATE.
    (739 SE2d 718)
   McFadden, Judge.

Joseph Johnson was charged with driving under the influence of alcohol. He filed a motion to suppress evidence, which the trial court denied. Johnson then opted for a stipulated bench trial at which the trial court found him guilty of the charged offense and, because it was Johnson’s second DUI offense, imposed a twelve-month sentence that included service of ten days in jail. Johnson appeals from the judgment of conviction, challenging the denial of his motion to suppress. But contrary to Johnson’s claims, the record shows that the decision to implement the roadblock at which he was stopped had been properly made by a supervisor, a search warrant affidavit did establish probable cause and the seizure of his blood pursuant to the warrant was lawful. Accordingly, we affirm.

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 the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.

(Citation omitted.) Lewis v. State, 317 Ga. App. 391, 392 (730 SE2d 757) (2012).

So construed, the evidence shows that at approximately 2:15 a.m., on April 30,2011, Johnson was driving a Ford Explorer when he was stopped at a roadblock in Douglas County where officers were checking driver’s licenses and sobriety. Officers noticed that Johnson had a strong odor of alcohol about him. A deputy sheriff then asked Johnson to perform field sobriety tests, and Johnson agreed to be evaluated. During the evaluations, the deputy observed several signs of intoxication, and Johnson admitted that he had consumed at least two alcoholic beverages. The deputy placed Johnson under arrest and read him the implied consent law, but Johnson refused to submit to a state-administered chemical test. Approximately two hours later, the deputy applied for and obtained a search warrant for a sample of Johnson’s blood. Shortly after that, at approximately 4:52 a.m., the deputy, with the assistance of a state-qualified phlebotomist, executed the warrant and obtained two vials of Johnson’s blood. The blood was subsequently tested by the Georgia Bureau of Investigation and those test results showed a blood-alcohol concentration of 0.125.

1. The roadblock.

Johnson claims that the roadblock at which he was stopped was unconstitutional because it was conducted by field officers with unfettered discretion. We disagree.

For a police roadblock to satisfy the Fourth Amendment, the State must show that (1) the decision to implement the roadblock was made by supervisory personnel at the programmatic level, rather than officers in the field, for a legitimate primary purpose; (2) all vehicles, rather than random vehicles, are stopped; (3) the delay to motorists is minimal; (4) the roadblock is well identified as a police checkpoint; and (5) the screening officer has adequate training to make an initial determination as to which motorists should be given field sobriety tests.

(Citation and punctuation omitted.) Gonzalez v. State, 289 Ga. App. 549, 550 (657 SE2d 617) (2008). See also LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998).

Here, only the first factor is contested, but contrary to Johnson’s claim, the evidence shows that the decision to implement the roadblock was properly made by a supervisor. Sergeant David Martin gave unrefuted testimony that he is a unit supervisor, that he has been authorized by the sheriff and department policy to establish roadblocks, that he made the decision to implement this particular roadblock, and that he was the supervisor on the scene who set up the checkpoint and ordered all the other officers where to be and what to do. In addition, a deputy who participated in the roadblock testified that Sergeant Martin is a supervisor, that Sergeant Martin initiated the roadblock and that Sergeant Martin told him and others what to do during the roadblock. This “uncontradicted testimony that [Sergeant Martin] was a supervising officer authorized to order roadblocks was sufficient to establish that fact.” (Citation and punctuation omitted.) Gonzalez, supra. See also Giacini v. State, 281 Ga. App. 426, 428 (1) (636 SE2d 145) (2006) (uncontradicted testimony of supervisor that he was authorized to implement roadblocks sufficient).

Nevertheless, citing Thomas v. State, 277 Ga. App. 88 (625 SE2d 455) (2005), Johnson argues that Sergeant Martin’s hands-on participation in the roadblock rendered him a mere field officer. His reliance on Thomas is misplaced.

In Thomas, a field patrol officer met with other police officers in a parking lot during the middle of a shift and then decided to implement a police checkpoint. Given the lack of evidence that the officer had authority to implement a roadblock, this Court found it impermissible. Here, unlike in Thomas, the evidence shows that [Sergeant Martin’s] decision to implement the roadblock was not a spur of the moment decision and that [he] had authority to order such checkpoint.

(Citations omitted.) Bennett v. State, 283 Ga. App. 581, 583 (642 SE2d 212) (2007). Moreover, Sergeant Martin testified that he started help ing out with the screening of drivers only when his deputies got too busy. Under these circumstances, “[t]he mere fact that [Sergeant Martin] participated in the roadblock ... is insufficient to transform him from a supervisor into a field officer.” (Citation omitted.) Gonzalez, supra at 551. Accordingly, we find that the roadblock was legal. See Owens v. State, 308 Ga. App. 374, 377 (1) (707 SE2d 584) (2011).

2. Affidavit for the search warrant.

In two enumerations, Johnson challenges the sufficiency of the affidavit submitted for the search warrant, claiming it did not establish probable cause. We disagree.

In determining the sufficiency of a search warrant affidavit, the issuing magistrate or judge must make a practical, common sense decision whether,- given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty as a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In reviewing the lower court’s decision, we give great deference to the magistrate’s determination of probable cause; a presumption of validity attaches to an affidavit supporting a search warrant, and doubtful cases are resolved in favor of upholding the search warrant. The contents of the affidavit are reviewed in the light most favorable to upholding the trial court’s determination.

(Citation omitted.) Sutton v. State, 319 Ga. App. 597, 598 (737 SE2d 706) (2013).

In this case, there is no question about the basis of knowledge of the person supplying the information since the affidavit was submitted by the deputy sheriff who had participated in the roadblock and arrested Johnson. The deputy’s affidavit provided that Johnson had been stopped at the roadblock that morning, that he had a very strong odor of alcohol about him, that his eyes were bloodshot, that he admitted having drunk alcohol at two different bars, and that he failed two field sobriety evaluations. Based on these circumstances, the judge who issued the search warrant had a substantial basis for concluding that probable cause existed to suspect Johnson of driving under the influence of alcohol and that evidence of such crime would be found in a sample of his blood. See Blankenship v. State, 301 Ga. App. 602, 604-605 (2) (b) (688 SE2d 395) (2009) (probable cause to suspect DUI where defendant had strong odor of alcohol, bloodshot eyes, admitted drinking beer and failed field sobriety tests).

Decided March 11, 2013

Scott P. Semrau, for appellant.

Matthew C. Krull, Solicitor-General, for appellee.

3. Seizure pursuant to the warrant.

Johnson contends that the seizure of his blood was unlawful because the search warrant did not sufficiently limit the discretion of the executing officer and was overly broad in that it would have authorized the taking of any amount of his blood by any method and for any purpose over a ten-day period. However, even if the warrant could be so construed as authorizing an overly broad seizure, Johnson has “failed to show that any such broader seizure occurred and thus has failed to show any harm.” Jones v. State, 313 Ga. App. 590, 594 (2) (722 SE2d 202) (2012). Rather, the record establishes that the same deputy sheriff who had arrested Johnson and obtained the search warrant then executed the warrant within three hours of the arrest, that pursuant to the warrant the deputy obtained two vials of Johnson’s blood, and that those samples were tested by the GBI only for blood-alcohol concentration. Indeed, Johnson acknowledges in his brief that “we know that the officer wanted a medical blood sample from Mr. Johnson so that he could determine Johnson’s blood-alcohol level.” Where, as here,

a search as it was actually conducted is lawful, it is not rendered invalid merely because the warrant pursuant to which it was made was overbroad. Accordingly, the trial court did not err in denying [Johnson’s] motion to suppress the results of [his] blood-alcohol-content test obtained via the seizure of [his] blood samples and pursuant to the search warrant.

(Citations and punctuation omitted.) Jones, supra.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.


author: Ray, Judge.

text:
    A12A1995.
    HUTTO v. THE STATE.
    (739 SE2d 722)
   Ray, Judge.

Timothy Hutto was indicted on one count each of murder, aggravated assault, and felony murder. Following a jury trial,

Hutto was convicted of the lesser offense of voluntary manslaughter. Hutto appeals the denial of his motion for new trial, contending that the trial court erred (1) by charging the jury on mutual combat absent a request and (2) in excluding evidence of the deceased’s level of intoxication. Hutto also contends that he had ineffective assistance of counsel and that the evidence was insufficient to prove his guilt beyond a reasonable doubt. For the reasons that follow, we affirm.

1. Hutto contends that the evidence was insufficient to support his conviction for voluntary manslaughter. Hutto argues that the evidence shows that he acted in self-defense and that there was no evidence of provocation or passion. We disagree.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Hutto and James “Doodle” Smith had a long history of violence between them stemming from their involvement with Stacy Mashburn, a woman they both had dated. This history includes various fights between Hutto and Smith; Hutto slashing Smith’s tires; and Hutto attempting to hit Smith with a car.

On November 13, 1999, Hutto and Smith got into an altercation in a bar, and Hutto was kicked out. The following night, Hutto, Mashburn, Mike Edenfield and three others went to the home of Pamela Crocker to look for Edenfield’s wife. Smith and several friends were at Crocker’s house playing cards at the time. When they arrived, Edenfield and Mashburn entered the house while Hutto stood outside. Edenfield was arguing with his wife as Mashburn stood at the front door. From outside, Hutto began yelling “[c]ome get you some ..., come get you some” at Smith. After being advised not to go outside, Smith stated “[i]f he wants to play, I’ll play,” and he removed his sweatshirt and went out the front door. As Hutto was coming up the steps of the house, he was met by Smith, and the two “went to the ground and started fighting.” Smith was on top of Hutto, beating him and not letting him get up, when Hutto pulled out a pocketknife and began stabbing Smith, resulting in Smith’s death.

A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.

We have held that “heated arguments, physical beatings, and fear of some danger” present sufficient provocation for a voluntary manslaughter conviction. Here, Hutto and Smith’s history of conflict leading up to the incident, together with Smith’s final conduct in engaging Hutto in a fight and continuing to beat Hutto and not letting him move or get up supplied sufficient provocation to excite the passion necessary for voluntary manslaughter.

Based on the evidence presented, the jury was authorized to reject Hutto’s theory of self-defense and conclude that Hutto “was so influenced and excited that he reacted passionately rather than simply to defend himself” when he stabbed an unarmed Smith.

2. In related enumerations of error, Hutto contends that the trial court erred in charging the jury on mutual combat and that his trial counsel was ineffective for failing to object to the charge.

(a) Citing Nelms v. State, Hutto argues that the trial court erred in charging the jury on mutual combat because such a charge is warranted only when there is evidence that both combatants are armed with deadly weapons. However, the Supreme Court of Georgia has recognized a conflict in the case law as to whether there must be evidence that the combatants are armed with deadly weapons in order to authorize a charge on mutual combat. In White v. State, the Court notes that some cases hold that “there must be evidence that mutual combatants have deadly weapons in order for the jury to be charged on the law of mutual combat,” while others hold that “mutual combat generally involves deadly weapons” and that “[a] mutual combat charge is proper when there is evidence of a mutual intention or agreement to fight.” As in White, we need not resolve that conflict in this case because the instruction given to the jury made no mention about the use of deadly weapons and informed the jury that mutual combat is “a combat between two persons as the result of a sudden quarrel, or such circumstances as indicate a purpose, willingness, and intent on the part of both to engage mutually in a fight.”

Furthermore, the evidence shows that Hutto had a knife and that Smith was unarmed during the fight. Because “a charge on mutual combat enables a jury to find a criminal defendant guilty of voluntary manslaughter in lieu of murder . . . the mutual combat charge could only have benefitted [Hutto].” Accordingly, Hutto’s complaint that it was improper to give the charge is without merit. Although Hutto argues that the charge on mutual combat was not warranted because he was not the aggressor and that he acted only in self-defense when he stabbed Smith, witnesses testified that when Hutto invited Smith to come outside and fight, Smith accepted, and the two came toward each other to mutually engage in the fight. “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge.” Here, we find that there was sufficient evidence of a willingness or intention on the part of Hutto and Smith to mutually engage in the fight, such that the charge on mutual combat was warranted. Since the charge given was adjusted to the evidence, we discern no error.

(b) Hutto contends that his trial counsel was ineffective for failing to object to the mutual combat charge. We disagree.

To prevail on a claim of ineffective assistance, [Hutto] must show that counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if [Hutto] has made an insufficient showing on either prong.

Because the mutual combat charge was not erroneous, Hutto cannot show that trial counsel’s performance was deficient for failing to object to it. Consequently, the trial court did not err in denying Hutto’s motion for a new trial on this asserted ground of ineffective assistance of counsel.

3. In related enumerations of error, Hutto contends that the trial court erred in “sua sponte keeping out evidence” of Smith’s level of intoxication, and that his trial counsel was ineffective for failing to object to this alleged error. In support of this assertion, Hutto refers to the trial judge’s comments to the audience in the courtroom during sentencing as he was pointing out the correlation between alcohol abuse and violent crime. Specifically, the trial judge stated “[w]hat the jury didn’t see, because it wasn’t relevant, is that the victim in this case was .08.” However, there is nothing in the record to indicate that Hutto sought to introduce evidence of Smith’s level of intoxication at trial or that the trial court took any action or made any ruling to exclude such evidence during the trial. It is well settled that “this [C]ourt may not address issues on appeal which were not addressed by the trial court, because this [C]ourt is a court for the correction of errors and it does not consider matters which were not raised and ruled on by the trial court.” Without a ruling by the trial court on this particular issue, there is nothing for this Court to review on appeal.

Further, as the trial court’s comments regarding Smith’s intoxication were made after the return of the verdicts and the dismissal of the jury, and the trial court did not take any action to exclude such evidence during the trial, any objection to the comments or the perceived exclusion of evidence would have been futile. It is well settled that “[t]he failure to make a meritless objection is not evidence of ineffective assistance.”

Hutto also contends that his counsel was ineffective for failing to present evidence that a causal connection existed between Smith’s intoxication and his behavior at the time of the incident. Hutto concedes that his trial counsel did not testify at the motion for new trial. When considering an ineffective assistance claim,

there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Where trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.

Further, trial counsel’s decisions about “what evidence to present or to forego in defending a client charged with a crime is a matter of strategy and tactics.” Because counsel did not testify at the new trial hearing, “we have no insight into counsel’s decision-making on this matter, and [Hutto] has not overcome the presumption that counsel’s decision fell within a wide range of reasonable, professional conduct.” Under these circumstances, we decline to find that trial counsel’s failure to introduce evidence of Smith’s intoxication constituted ineffective assistance of counsel.

4. Hutto next contends that his trial counsel was ineffective for failing to object to the jury charge on voluntary manslaughter. In this case, the charge on voluntary manslaughter was given in connection with the charge on mutual combat, which set out in part:

If you find that there was a mutual intention on both the part of the deceased and the defendant to enter into a fight or mutual combat, and that under these circumstances the defendant killed the deceased, then ordinarily such killing would voluntarily manslaughter [sic], and this would be true regardless of which of them struck the first blow.

Decided March 11, 2013.

John R. Mobley II, for appellant.

C. Paul Bowden, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

As the charge on voluntary manslaughter was authorized by the evidence and given in connection with the charge on mutual combat, Hutto cannot show that trial counsel’s performance was deficient for failing to object to it. Consequently, the trial court did not err in denying Hutto’s motion for a new trial on this asserted ground of ineffective assistance of counsel.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-5-1 (a).

       OCGA § 16-5-21 (a).

       OCGA § 16-5-1 (c).

       OCGA § 16-5-2 (a). Hutto was found not guilty of aggravated assault and felony murder.

       (Citations and punctuation omitted; emphasis in original.) Williamson v. State, 315 Ga. App. 421, 422 (1) (727 SE2d 211) (2012).

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

       OCGA § 16-5-2 (a). Accord Mullins v. State, 270 Ga. App. 271, 276 (4) (605 SE2d 913) (2004).

       (Footnotes omitted.) Williams v. State, 245 Ga. App. 670, 671-672 (1) (538 SE2d 544) (2000).

        Thomas v. State, 296 Ga. App. 231, 234 (1) (674 SE2d 96) (2009) (evidence of hostile encounters between defendant and the victim authorized the jury to conclude that defendant shot the victim as a result of sudden passion, rather than out of necessity to protect himself).

       (Citations and punctuation omitted.) Crane v. State, 300 Ga. App. 450, 452 (1) (685 SE2d 314) (2009); Williams, supra at 671 (1).

       285 Ga. 718, 722-723 (4) (b) (681 SE2d 141) (2009) (“A charge on mutual combat is warranted only when the combatants are armed with deadly weapons and mutually agree to fight”) (citation and punctuation omitted.). Accord Hudson v. State, 280 Ga. 123, 124 (2) (623 SE2d 497) (2005).

       (Citations omitted.) White v. State, 287 Ga. 713, 723 (4) (c) (699 SE2d 291) (2010).

       See id. at 724 (4) (c).

        Sinkfield v. State, 266 Ga. 726, 727 (2) (470 SE2d 649) (1996).

       Id. Accord Hall v. State, 273 Ga. App. 203, 205 (3) (614 SE2d 844) (2005).

       (Citation omitted.) Jones v. State, 287 Ga. 770, 771 (2) (700 SE2d 350) (2010).

       See White, supra at 724 (4) (c).

       (Citation and punctuation omitted.) Anthony i>. State, 317 Ga. App. 807, 813 (4) (732 SE2d 845) (2012). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See Crawford v. State, 314 Ga. App. 796, 799 (7) (b) (726 SE2d 58) (2012).

       Id.

       (Citation and punctuation omitted.) Mormon-Johnson v. Hathaway, 312 Ga. App. 300, 301 (1) (718 SE2d 132) (2011).

       (Citations omitted.) Scott v. State, 290 Ga. 883, 889 (7) (a) (725 SE2d 305) (2012).

       (Citation and punctuation omitted.) Wilson v. State, 2T1 Ga. 195, 200 (586 SE2d 669) (2003).

       (Citation and punctuation omitted.) Smith v. State, 316 Ga. App. 175,179 (2) (728 SE2d 808) (2012).

       (Citations omitted.) Fields v. State, 311 Ga. App. 528, 531 (1) (716 SE2d 587) (2011).

       Id.

        Crawford, supra at 799 (7) (b).

       Id.


text:
    A12A2065.
    LUCADO v. COHERD.
    (739 SE2d 749)
   McFadden, Judge.

This appeal is from a trial court order transferring a child custody case to a court in another state. Because the trial court did not make specific statutorily-required findings on the record, we vacate the transfer order and remand the case to the trial court.

The record shows that Krystal Lucado and Hugh Coherd were divorced in 2000 in the State of Georgia, with the final divorce decree awarding physical custody of their minor children to Lucado and granting liberal visitation to Coherd. In 2004, the Fulton County Superior Court modified the divorce decree by entering a final order on custody and visitation. In 2011, Lucado filed the instant petition for modification of visitation in Fulton County Superior Court. Coherd moved to dismiss the action, claiming that Georgia no longer had jurisdiction because the parties resided in Maryland. Lucado filed a motion for a hearing on the matter. But the trial court, after a brief telephone conversation with a judge in Maryland, entered an order denying Lucado’s motion for a hearing and transferring the action to a circuit court in Maryland. Lucado appeals.

The parties agree that the instant modification action is governed by OCGA § 19-9-67. Pursuant to OCGA § 19-9-67 (a), a court with jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (OCGA § 19-9-40 et seq.) “may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” However, OCGA § 19-9-67 (b) further provides:

Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including: (1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) The length of time the child has resided outside this state; (3) The distance between the court in this state and the court in the state that would assume jurisdiction; (4) The relative financial circumstances of the parties; (5) Any agreement of the parties as to which state should assume jurisdiction; (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) The familiarity of the court of each state with the facts and issues in the pending litigation.

(Emphasis supplied.)

Lucado asserts that the trial court erred in failing to make specific findings on the record regarding these eight statutory factors. Coherd concedes that the trial court’s order did not specifically discuss the eight factors, but he contends that the court was not required to do so because no party requested that the court make findings of facts and conclusions of law. However, in Murillo v. Murillo, 300 Ga. App. 61, 63-64 (684 SE2d 126) (2009), this court held that the language of OCGA § 19-9-67 is mandatory and requires a trial court to consider and weigh the eight factors listed therein; that it is an abuse of discretion for the trial court not to address each of those factors; and that in order to ensure that the court’s decision-making process was guided by the statutory requirements, the court must make specific findings either in writing or orally on the record demonstrating that the court has considered all eight of the factors.

Decided March 11, 2013.

M. Katherine Durant, for appellant.

Altman & Schneider, Jessie R. Altman, James S. Altman, Anna D. Schneider, for appellee.

Accordingly, the trial court erred by failing to make specific findings on the record demonstrating that it considered all eight of the relevant factors in accordance with the statute. “We [therefore] vacate the [c]ourt’s order and remand the case for the [c]ourt to consider ... all the factors listed in OCGA § 19-9-67 (b), and for the [c]ourt to make specific findings on the record, either in writing or orally, demonstrating consideration of these factors.” Murillo, supra at 64.

Judgment vacated and case remanded with direction.

Barnes, P. J., and McMillian, J., concur.


text:
    A12A2160.
    WILLIAMS v. THE STATE.
    (739 SE2d 727)
   Ray, Judge.

Tommy L. Williams pled guilty to three counts of an indictment that charged him with various crimes related to the sale, possession, and possession with intent to distribute controlled substances. About one month after sentencing, Williams moved to withdraw his guilty plea. He appeals the trial court’s denial of his motion, contending that his plea was not freely, knowingly, and voluntarily entered. He also argues that his sentence was illegal in that it exceeded the maximum allowed by law. For the reasons that follow, we affirm in part, vacate in part, and remand.

As a threshold matter, we note that the evidence at the plea hearing presented the trial court with a sufficient factual basis for the entry of a guilty plea. Viewed appropriately, the evidence shows that, while out on bond after pleading guilty to selling controlled substances in Berrien County, Williams was arrested in Tift County on the charges at issue here after selling controlled substances to an undercover officer with the Tift County Sheriff’s Department Narcotics Interdiction Unit. After his arrest, Williams was found to be in possession of Oxycontin, Lortab, and Lorcet. With the assistance of counsel, Williams entered a nonnegotiated guilty plea to Counts 7, 9, and 10 of the indictment. Count 7 charged him with possession of Oxycontin with intent to distribute; Count 9 charged him with the sale of Lorcet; and Count 10 charged him with the sale of Lortab. The trial court sentenced Williams on each count to 30 years, with 20 years to serve and the remainder on probation. All sentences were to run concurrently.

1. Williams assigns error to the trial court’s denial of his motion to withdraw his guilty plea, contending that the plea was not freely, voluntarily, and knowingly entered.

A defendant has an absolute right to withdraw his guilty plea prior to the pronouncement of a sentence, but after sentencing, a guilty plea may be withdrawn only to correct a manifest injustice. Although the test for manifest injustice will necessarily vary from case to case, our appellate courts have determined, for example, that a manifest injustice may result where the plea was entered involuntarily or without an understanding of the charges. Absent an abuse of discretion, we will not disturb the trial court’s ruling on a motion to withdraw a guilty plea. When a defendant challenges his guilty plea, the State bears the burden of showing that the defendant freely and voluntarily entered the plea with an understanding of the nature of the charges against him and an understanding of the consequences of the plea. “The State may meet its burden through use of the transcript of the guilty plea hearing or through use of extrinsic evidence.”

Here, the State has met its burden. The plea hearing transcript shows that in response to detailed questions from the trial court, Williams voiced his understanding of the nature of the charges against him and with the trial court’s recitation of the mandatory maximum and minimum sentences on those charges. Specifically, Williams testified that he was not under the influence of drugs or alcohol; that he wanted to plead guilty; and that he understood that he was giving up various rights, including his right to a jury trial, his right to remain silent, and his right to the presumption of innocence. He also testified that he had spoken to his attorney about the charges and possible defenses. Although there was some initial confusion about whether Williams was pleading guilty to the charges in Count 6 versus Count 7, when asked by the trial court if he had unlawfully possessed Oxycontin with the intent to distribute, as charged in Count 7, Williams responded, “Yes, sir.” He also told the trial court as to Count 9 that he sold Lorcet to an undercover agent and as to Count 10 that he also sold Lortab. He stated that both drugs are “brand names” for hydrocodone. He testified that he understood that the applicable sentencing range for each of Counts 7, 9, and 10 was ten to forty years. He further stated that he had no questions about his rights, that he was not coerced into pleading, and that he was “guilty.” Immediately prior to sentencing, the trial court told Williams that he could change his mind, “back out” of the guilty plea, and go to trial, but that once he had been sentenced, he could not back out. Williams stated that he understood.

On appeal, Williams contends that at the hearing on his motion to withdraw his guilty plea, he testified that he did not have enough time to talk with his attorney prior to entering the plea, that he was on medication at the plea hearing, and that he did not fully understand what he was doing when he was answering the trial court’s questions. However, because Williams has not provided a copy of the hearing transcript, we must assume that the trial court’s findings are correct.

In an analogous case, Trapp v. State, also involving credibility determinations, we affirmed the trial court’s denial of a motion to withdraw a guilty plea. In Trapp, the defendant at his plea hearing testified that he was not intoxicated, and that he understood his rights, the charges, and the accompanying sentences; at his later motion to withdraw, however, he stated that he “panicked” and was “not in his right mind,” and that he could not remember entering his plea. Because the trial court is the final arbiter of witness credibility and of any factual disputes, if the evidence supports the trial court’s ruling, we must affirm. Here, the evidence supports the trial court’s ruling, and we find no error.

2. Williams contends that his sentences as to Counts 9 and 10 were illegal because they exceeded the maximum allowable for the charges against him. Specifically, he argues that although the indictment charges him with selling Schedule III controlled substances, which pursuant to OCGA § 16-13-30 (h) carries a sentencing range of one to ten years, he was sentenced to thirty years on each count. The State counters that the indictment contains a “typographical error” as to the schedule number and argues that the substances at issue in Counts 9 and 10, Lorcet and Lortab, contain hydrocodone and are Schedule II drugs carrying a ten- to forty-year sentence.

OCGA § 16-13-30 (b) provides: “Except as authorized ..., it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” Any person convicted, as was Williams, of violating subsection (b), may be imprisoned, as a recidivist, for not less than ten years nor more than forty years for a Schedule II substance; or may be imprisoned for not less than one year nor more than ten years for a Schedule III substance.

Although the State argues that Lorcet and Lortab are Schedule II substances because they contain hydrocodone, various forms of hydrocodone appear on both Schedule II and Schedule III. Here, it is unclear which schedule, which Code section, and which sentencing range would apply to the substances Williams pled guilty to selling. Under these circumstances, we are compelled to vacate Williams’ sentences as to Counts 9 and 10 and to remand the case sub judice to the trial court for a hearing to determine on which schedule the controlled substances at issue belong, and to impose a lawful and appropriate sentence.

Decided March 11, 2013.

Bennett & Connell, Matthew B. Bennett, for appellant.

C. Paul Bowden, District Attorney, Erika S. Johnson, Assistant District Attorney, for appellee.

Judgment affirmed in part, sentence vacated in part, and case remanded with direction for resentencing.

Miller, P. J., and Branch, J., concur.

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

        Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005).

       Id.

        Trapp v. State, 309 Ga. App. 436, 436 (710 SE2d 637) (2011).

        Jackson v. State, 299 Ga. App. 662, 663 (683 SE2d 623) (2009).

       (Footnote omitted.) Miller v. State, 241 Ga. App. 397, 398 (1) (527 SE2d 571) (1999).

       Uniform Superior Court Rule 33.8.

       See Lopez v. State, 207 Ga. App. 554, 555 (2) (428 SE2d 448) (1993) (where defendant did not provide transcript of hearing on motion to withdraw guilty plea, she did not meet burden of showing error affirmatively by the record; thus, appellate court must assume trial court is correct).

       Supra.

        Trapp, supra at 438 (1).

       Id. at 436-437.

       OCGA § 16-13-30 (d). See generally Serna v. State, 308 Ga. App. 518, 520-521 (1) (707 SE2d 904) (2011) (upholding conviction where indictment charged defendant with possessing a “dangerous drug” known as “amyl nitrate,” which was not included on applicable statute’s list of dangerous drugs, where defendant admitted to possessing “alkyl nitrite,” which was listed in the statute); Wright v. State, 232 Ga. App. 104, 106 (2) (501 SE2d 543) (1998) (upholding conviction where indictment alleged defendant sold “Cocaine, a Schedule II Controlled Substance” and parties stipulated that defendant sold crack cocaine, hut State failed to prove that cocaine was a Schedule II substance).

       OCGA § 16-13-30 was amended by Ga. L. 2012, p. 899, § 3-7A, which did not go into effect until July 1,2012, after the offenses occurred in this case. While the amendments did not alter the portions of the statute at issue here, we nonetheless, as is appropriate, consider this case under the prior version of the statute. See Ga. L. 1997, p. 1311, § 4.

       OCGA § 16-13-30 (d).

       OCGA § 16-13-30 (h).

       OCGA § 16-13-26 (1) (A) (ix).

       OCGA § 16-13-27 (4) (C), (D).

       See generally Christenson v. State, 261 Ga. 80, 92 (12) (402 SE2d 41) (1991) (conviction affirmed as to guilt, but sentence remanded to trial court for further factual and evidentiary determinations and potentially a new sentencing hearing); Ramage v. State, 259 Ga. App. 616, 617 (578 SE2d 245) (2003) (sentence vacated and case remanded for trial court to consider defendant’s request for first offender status, and to resentence accordingly); Brown v. State, 244 Ga. App. 544, 545 (536 SE2d 253) (2000) (case remanded to allow defendant to provide evidence of the voluntariness of his prior guilty pleas for purposes of resentencing).