Bernard Williams v. State

• Court: Court of Appeals of Georgia
• Decided: June 25, 2012
• Docket: A12A0666
• Status: Published

Opinion

THIRD DIVISION MIKELL, P. J., MILLER and BLACKWELL, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

June 25, 2012

In the Court of Appeals of Georgia A12A0666. WILLIAMS v. THE STATE.

MILLER, Judge.

Following a jury trial, Bernard Carrode Williams was convicted of possession

with intent to distribute methamphetamine (OCGA § 16-13-30 (b)). Williams appeals

from the denial of his motion for new trial, contending that he received ineffective

assistance of counsel because his trial counsel failed to file a timely motion to

suppress. Finding no error, we affirm.

In reviewing a trial court’s ruling on an ineffective assistance of counsel claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. To prevail on a claim of ineffective assistance of trial counsel, a defendant bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. To demonstrate deficient representation, a convicted criminal defendant must show that counsel’s representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U. S. 668, 688 [104 SC 2052, 80 LE2d 674] (1984).

(Citations and punctuation omitted.) Thrasher v. State, 300 Ga. App. 154 (684 SE2d

318) (2009).

Viewed in the light most favorable to the jury’s verdict,1 the evidence showed

that upon receiving a tip from a confidential informant, police officers obtained and

executed a warrant to search the residence occupied by Williams and his co-

defendant. During their search, the officers found 11.01 grams of methamphetamine,

digital scales, and packaging material consistent with drug sales and distribution.

Williams was subsequently arrested and charged with possession of

methamphetamine with intent to distribute, in violation of OCGA § 16-13-30 (b).

On the day of Williams’s trial, he filed an untimely motion to suppress the

evidence, contending that the search warrant application, including the supporting

affidavit, was legally insufficient. The trial court refused to consider the motion to

suppress since it was untimely filed. Following the presentation of evidence, the jury

found Williams guilty of possession of methamphetamine with intent to distribute.

1 Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LEd2d 560) (1979).

2 Williams contends that his trial counsel was ineffective for failing to file a

motion to suppress the evidence found during the execution of the search warrant.

Williams asserts that the search warrant was not supported by probable cause because

it was issued based upon information provided by an informant who was not shown

to be reliable, who did not have a sufficient basis of knowledge, and whose

information was not sufficiently corroborated. We disagree.

“To establish ineffective assistance of counsel on the basis of counsel’s failure

to file a timely motion to suppress, [Williams] must make a strong showing that had

the motion been considered, the damaging evidence would have been suppressed.”

(Footnote omitted.) Brown v. State, 311 Ga. App. 405, 407 (2) (715 SE2d 802)

(2011).

[A] defendant may seek to suppress evidence seized during a warrant search if the warrant was not supported by probable cause. Where the State seeks to establish probable cause through information provided by unidentified informants, the informants’ veracity and basis of knowledge are major considerations in the probable cause analysis. An affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant. In determining whether an affidavit provided sufficient probable cause, the issuing magistrate or judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying

3 hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Punctuation omitted.) Land v. State, 259 Ga. App. 860, 861 (1) (578 SE2d 551)

(2003). Further,

[t]his Court’s review of the magistrate’s decision is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. Substantial deference is afforded to a magistrate’s decision to issue a search warrant based on a finding of probable cause. And a presumption of validity attaches to an affidavit supporting a search warrant. Further, doubtful cases should be resolved in favor of upholding search warrants.

(Punctuation omitted.) Williams v. State, 303 Ga. App. 222, 226 (3) (692 SE2d 820)

(2010).

Pretermitting whether trial counsel was deficient for failing to timely file a

motion to suppress, Williams has failed to establish that he was prejudiced by such

failure. Cf. Brown, supra, 311 Ga. App. at 407 (2). The record shows that the

informant personally observed the methamphetamine at Williams’s residence,

establishing the informant’s basis of knowledge. See Rocha v. State, 284 Ga. App.

852, 853 (644 SE2d 921) (2007) (basis of informant’s knowledge was strong where

here personally observed methamphetamine at the address to be searched). The

informant’s reliability was established by his personal observation, along with

4 evidence that the informant had provided the current tip within the past 72 hours and

had previously supplied accurate information to police officers that lead to more than

five arrests and the recovery of illegal narcotics. See Zorn v. State, 291 Ga. App. 613,

615-616 (1), (2) (662 SE2d 370) (2008) (informant considered reliable where he saw

methamphetamine at defendant’s house, furnished current tip within 72 hours, and

had previously supplied drug-related information that had been confirmed); Williams,

supra, 303 Ga. App. at 227-228 (3) (informant’s reliability established where

informant saw marijuana at defendant’s residence, had promptly reported the

information to police, and had previously provided information to officers that led to

arrests and convictions). Given that the methamphetamine was personally observed

by a reliable informant, the informant’s tip was sufficient to establish probable cause

without the need for independent corroboration. See, e.g., Rocha, supra, 284 Ga. App.

at 854; Zorn, supra, 291 Ga. App. at 615-616 (2). Since Williams has not shown that

the motion to suppress would have been granted had it been timely filed, he has failed

to make the necessary showing to establish ineffective assistance of counsel. See, e.g.,

Brown, supra, 311 Ga. App. at 408 (2); Davis v. State, 267 Ga. App. 245, 246 (2)

(599 SE2d 237) (2004).

Judgment affirmed. Mikell, P. J., and Blackwell, J., concur.

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