Allen v. State

348 Ga.App. 595

824 S.E.2d 50

ALLEN

v.The STATE.

A18A1892

Court of Appeals of Georgia.

February 11, 2019

Christina Michelle Kempter, Marietta, for Appellant.

Benjamin David Coker, Elizabeth Morgan Kendrick, for Appellee.

Barnes, Presiding Judge.

Following a jury trial, Dante Allen was found guilty of possession of marijuana with the intent to distribute, driving with an expired license, and improper brake lights. He was sentenced to eight years, to serve two, with the remainder on probation for the possession conviction, and concurrent twelve months of probation sentences for the expired license and improper brake lights convictions. He appeals from the denial of his motion for new trial, as amended, and asserts several claims of ineffective assistance of counsel and that the trial court erred in denying him his Sixth Amendment right to represent himself at trial. Following our review, we affirm.

On appeal from a criminal conviction, we construe the evidence in the light most favorable to the jury's verdict. See Coates v. State , 342 Ga. App. 148, 802 S.E.2d 65 (2017), reversed on other grounds, Coates v. State , 304 Ga. 329, 818 S.E.2d 622 (2018). So viewed, the evidence demonstrates that on July 20, 2014 at approximately 3:15 a.m. a uniform patrol watch commander with the Fayette County Police Department stopped the car Allen was driving because the right brake light was not functioning. When asked for his driver's license, Allen instead produced a Georgia identification card, and when the officer inquired whether Allen had a driver's license, he gave the officer an expired Georgia driver's license. The license had expired two days before the stop, and after going to his patrol car to look at the report, the officer again approached Allen, who was still sitting in the car, and requested that Allen exit and step to the rear of the vehicle. The officer talked with Allen about his expired license and asked whether the passenger, who remained seated in the car, had a valid license, and Allen responded that the passenger did not. During this period, a backup officer arrived, and while Allen remained at the rear of the vehicle, the first officer talked with the passenger and confirmed that he also did not have a valid driver's license. As the officer talked with Allen he "started smelling marijuana. But ... couldn't tell if it was coming from the vehicle or if it was coming from Mr. Allen himself." The backup officer also testified that he smelled the odor of "raw marijuana." The officer asked Allen for consent to search, and when Allen denied the request, the officer called a nearby K-9 officer to the scene for a free air search of Allen's vehicle. The K-9 alerted to Allen's vehicle, and a search of the vehicle revealed a bag of marijuana in the backseat armrest. The bag contained ten individual bags of marijuana weighing a total of 36.4 grams. Both Allen and the passenger denied ownership or knowledge of the marijuana.

1. Allen first contends that trial counsel was ineffective for failing to file a motion to suppress, failing to object to statements made by the prosecutor regarding inadmissible evidence, and failing to request a Faretta hearing when Allen requested to represent himself. To succeed on an ineffective assistance claim,

[Allen] 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. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong.

(Citations and punctuation omitted.) Towry v. State , 304 Ga. App. 139, 143 (2), 695 S.E.2d 683 (2010). To demonstrate deficient performance of trial counsel, Allen must show that "counsel's representation fell below an objective standard of reasonableness." (Punctuation omitted.) Brown v. State , 288 Ga. 902, 907 (5), 708 S.E.2d 294 (2011). In doing so, "every effort must be made to eliminate the distorting effects of hindsight," and the trial court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Citation and punctuation omitted). White v. State , 265 Ga. 22, 22-23 (2), 453 S.E.2d 6 (1995). As to prejudice, Allen must show "a reasonable probability of a different outcome" due to trial counsel's deficient performance. Cobb v. State , 283 Ga. 388, 391 (2), 658 S.E.2d 750 (2008). "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." Coney v. State , 316 Ga. App. 303, 306 (3), 728 S.E.2d 899 (2012).

(a) Allen argues that his trial counsel was ineffective for failing to file a motion to suppress "an illegal traffic stop." He contends that police illegally extended the scope of the stop for the broken brake light without any particular suspicion of contraband, and thus the evidence seized as a result of the stop should have been suppressed rather than admitted at trial. At the motion for new trial hearing, trial counsel testified that his trial strategy in attacking the stop was "nothing. That stop, in my opinion, was valid.... It was a valid stop, it wasn't a prolonged stop."

"When trial counsel's failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion." Richardson v. State , 276 Ga. 548, 553 (3), 580 S.E.2d 224 (2003). This, Allen has not done.

On a motion to suppress contraband discovered during a traffic stop the 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 [Allen] until the time the drug dog indicated the presence of drugs. As our Supreme Court has recently explained, claims that an officer illegally prolonged a detention resulting from a traffic stop generally fall into two categories. The first category involves those cases [as here] where the officer allegedly extended the stop beyond the conclusion of the investigation that warranted the detention in the first place, i.e., whether the officer prolonged the stop after concluding his investigation of the traffic violation. In such cases, courts have generally concluded that even a short prolongation is unreasonable unless good cause has appeared in the meantime to justify a continuation of the detention to pursue a different investigation.

(Citations and punctuation omitted) Bodiford v. State , 328 Ga. App. 258, 261 (1), 761 S.E.2d 818 (2014).

Allen does not dispute that the stop of his vehicle based on the brake light violation was authorized. However, contrary to Allen's assertion that he was detained beyond the scope of the original stop, during his investigation of Allen's suspended license, the officer obtained reasonable suspicion of criminal conduct when he detected the odor of marijuana. Based on his suspicion, the officer requested consent to search the vehicle, and when Allen declined, the officer called the K-9 Unit for assistance. There is no evidence that, prior to detecting the odor of marijuana, the officer unreasonably delayed the detention beyond the time necessary to effect the purpose the traffic stop. "[A] reasonable time to conduct a traffic stop includes the time necessary for the officer to run a computer check on the validity of the driver's license and registration, and to check for outstanding warrants and/or criminal histories on the driver and other occupants."(Footnotes omitted.) Young v. State , 310 Ga. App. 270, 272, 712 S.E.2d 652 (2011). See St. Fleur v. State , 296 Ga. App. 849, 851-852 (1), 676 S.E.2d 243 (2009) ("[i]t does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver's license, insurance, and vehicle registration") (punctuation and footnote omitted). Moreover, here, once the officer detected the odor of marijuana coming from either Allen's person or the car, he was permitted to continue the detention even though the investigation of the reason for the initial traffic stop may have been completed. See Valentine v. State , 323 Ga. App. 761, 765 (2), 748 S.E.2d 122 (2013) (an officer may continue to detain a driver after the investigation of the traffic violation is complete if the officer has "a reasonable, articulable suspicion that [the driver] was engaged in other illegal activity") (citation omitted).

Thus, as Allen has not demonstrated that the evidence at issue would have been suppressed had counsel made the motion, trial counsel was not deficient for failing to do so. See Richardson v. State , 276 Ga. at 553 (3), 580 S.E.2d 224.

(b) Allen also contends that trial counsel was ineffective for failing to object to statements made by the prosecutor about evidence of an internal affairs investigation. Allen argues that the testimony was inadmissible hearsay and was prejudicial in that it tended to support the State's contention that Allen was guilty of the charged offenses. We do not agree.

During the opening, the prosecutor stated that Allen had

accused [the responding officer] of planting the drugs in the car. You will also hear that Mr. Allen accused [the arresting officer] of drinking beer at the scene and having alcohol on his breath. And you'll hear the officer's comments about how that exchange went and what happened as a result of that. You're going to hear that there was an internal affairs investigation, that they all gave statements, that they received a statement as well from Mr. Allen. And

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