THIRD DIVISION MILLER, P. J., RAY and BRANCH, 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/
March 13, 2013
In the Court of Appeals of Georgia A12A1820. NORTON v. THE STATE.
B RANCH, Judge.
Frank Edwin Norton was tried by a Cherokee County jury and convicted of
trafficking in methamphetamine,1 possession of methamphetamine both on his person
and in his urine,2 and possession of a drug related object. 3 He now appeals from the
denial of his motion for a new trial, asserting that the trial court erred in admitting
similar transaction evidence obtained during an illegal search of his person and during
a police interview conducted in violation of his Miranda rights. Norton further
1 OCGA § 16-13-31 (e). 2 OCGA § 16-13-30 (a). 3 OCGA § 16-13-32.2. contends that he received ineffective assistance of trial counsel. We find no error and
affirm.
On appeal from a criminal conviction, the defendant is no longer entitled to a
presumption of innocence and we therefore construe the evidence in the light most
favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702
SE2d 747) (2010). So viewed, the record shows that in May 2009, Norton was
brought into the emergency room of a local hospital in a semi-conscious state.
Emergency room personnel followed the hospital’s standard procedure for cases such
as Norton’s, which included undressing the patient, searching his clothing for
property, and inventorying any property found.4 When hospital employees followed
this protocol with respect to Norton, they discovered a pipe used for smoking
methamphetamine, a small bag containing 1.03 grams of methamphetamine, and a
larger bag containing 47.6 grams of methamphetamine. Hospital personnel then
contacted law enforcement, and Michael Parker, a narcotics agent with the Cherokee
County Sheriff’s office, responded to the scene.
4 According to the emergency room nurse who testified at trial, patients such as Norton were undressed to facilitate both a physical exam and the performance of certain medical tests. A patient’s clothing was searched in an attempt to find information or items that could help to explain the patient’s condition, and also to prevent contraband from entering the hospital.
2 At the hospital, Parker interviewed Norton’s girlfriend, who stated that Norton
used methamphetamine and that he ingested the drug by smoking it in a pipe. Based
on this information, and given the items found on Norton’s person, Parker obtained
a search warrant for Norton’s blood and urine. Tests run on Norton’s urine were
positive for methamphetamine. Following his release from the hospital, Norton was
arrested and charged with the crimes at issue.
During trial, the State was allowed to introduce similar transaction evidence
involving charges against Norton resulting from an earlier, April 2009 execution of
a search warrant at his girlfriend’s home. When police went to the residence to
execute the warrant, they knocked on the front door and Norton answered. After the
lead officer, Agent Mayfield, identified himself as law enforcement and presented
Norton with the search warrant, Norton responded by attempting to close the door.
Mayfield stuck his foot in the door to prevent its closing and asked Norton, who
appeared to be deliberately concealing the left side of his body, to show his hands.
Norton refused, so Mayfield drew his weapon, ordered Norton to back away from the
door, and he and the other officers present forced their way into the home. Once the
officers entered the house, Deputy Pope “took control of” Norton. Pope testified that
she ordered Norton several times to show his hands, but that he ignored these orders
3 and kept moving his hands “like he was going for his pockets.” She therefore
handcuffed Norton and performed a pat down of his person because she believed he
was attempting either to access a weapon or to access and destroy evidence. As a
result of the pat down, Pope discovered a methamphetamine pipe in Norton’s back left
pocket. Norton was subsequently interviewed at the scene by Agent Mayfield. During
that interview, Norton admitted he used methamphetamine and agreed to provide
officers with a urine sample, which tested positive for methamphetamine.
Following his conviction on the charges arising from his May 2009 arrest,
Norton filed a motion for a new trial, which was denied. This appeal followed.
1. Norton contends that the trial court erred in denying his pre-trial motion to
exclude the similar transaction evidence. We disagree.
Norton’s motion to exclude this evidence was based on a defect in the search
warrant, which Norton alleges rendered the search of his girlfriend’s home, and the
resulting search and seizure of Norton, illegal. 5 At the hearing on his motion, Norton
5 The State argued that because Norton neither resided in nor had an ownership interest in his girlfriend’s residence, he lacked standing to challenge the validity of the search warrant. The trial court acknowledged this argument, but also found that Norton had standing to challenge the search and seizure of his person that resulted from the allegedly valid warrant. In addressing the validity of the warrant we assume, without deciding, that Norton has standing to challenge the same.
4 introduced evidence showing that the application for the warrant specified that law
enforcement was looking for, among other things, methamphetamine. The warrant
itself, however, authorized a search for marijuana, rather than methamphetamine.
Norton claims that this defect in the warrant rendered it invalid and the execution of
it illegal. We disagree.
Under Georgia law, “[n]o search warrant shall be quashed or evidence
suppressed because of a technical irregularity not affecting the substantial rights of the
accused.” OCGA § 17-5-31. The only evidence as to the discrepancy between the
warrant application and the warrant itself came from Agent Mayfield, who prepared
both documents. Mayfield explained that this discrepancy resulted from a
typographical error on his part. Mayfield also testified that he knew the purpose of the
warrant was to search for methamphetamine and related materials, as opposed to
marijuana, and that the officers executing the warrant went to the premises looking
specifically for methamphetamine.
The trial court obviously found this testimony credible and as a reviewing court
we must accept that determination, absent any showing that it was clearly erroneous.
Carlton v. State, 251 Ga. App. 339, 340 (1) (554 SE2d 318) (2001). No such showing
has been made, and the evidence of record supports the trial court’s conclusion that
5 the single-word discrepancy between the warrant application and the warrant itself
resulted from a typographical error and was “not so material as to destroy the integrity
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THIRD DIVISION MILLER, P. J., RAY and BRANCH, 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/
March 13, 2013
In the Court of Appeals of Georgia A12A1820. NORTON v. THE STATE.
B RANCH, Judge.
Frank Edwin Norton was tried by a Cherokee County jury and convicted of
trafficking in methamphetamine,1 possession of methamphetamine both on his person
and in his urine,2 and possession of a drug related object. 3 He now appeals from the
denial of his motion for a new trial, asserting that the trial court erred in admitting
similar transaction evidence obtained during an illegal search of his person and during
a police interview conducted in violation of his Miranda rights. Norton further
1 OCGA § 16-13-31 (e). 2 OCGA § 16-13-30 (a). 3 OCGA § 16-13-32.2. contends that he received ineffective assistance of trial counsel. We find no error and
affirm.
On appeal from a criminal conviction, the defendant is no longer entitled to a
presumption of innocence and we therefore construe the evidence in the light most
favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702
SE2d 747) (2010). So viewed, the record shows that in May 2009, Norton was
brought into the emergency room of a local hospital in a semi-conscious state.
Emergency room personnel followed the hospital’s standard procedure for cases such
as Norton’s, which included undressing the patient, searching his clothing for
property, and inventorying any property found.4 When hospital employees followed
this protocol with respect to Norton, they discovered a pipe used for smoking
methamphetamine, a small bag containing 1.03 grams of methamphetamine, and a
larger bag containing 47.6 grams of methamphetamine. Hospital personnel then
contacted law enforcement, and Michael Parker, a narcotics agent with the Cherokee
County Sheriff’s office, responded to the scene.
4 According to the emergency room nurse who testified at trial, patients such as Norton were undressed to facilitate both a physical exam and the performance of certain medical tests. A patient’s clothing was searched in an attempt to find information or items that could help to explain the patient’s condition, and also to prevent contraband from entering the hospital.
2 At the hospital, Parker interviewed Norton’s girlfriend, who stated that Norton
used methamphetamine and that he ingested the drug by smoking it in a pipe. Based
on this information, and given the items found on Norton’s person, Parker obtained
a search warrant for Norton’s blood and urine. Tests run on Norton’s urine were
positive for methamphetamine. Following his release from the hospital, Norton was
arrested and charged with the crimes at issue.
During trial, the State was allowed to introduce similar transaction evidence
involving charges against Norton resulting from an earlier, April 2009 execution of
a search warrant at his girlfriend’s home. When police went to the residence to
execute the warrant, they knocked on the front door and Norton answered. After the
lead officer, Agent Mayfield, identified himself as law enforcement and presented
Norton with the search warrant, Norton responded by attempting to close the door.
Mayfield stuck his foot in the door to prevent its closing and asked Norton, who
appeared to be deliberately concealing the left side of his body, to show his hands.
Norton refused, so Mayfield drew his weapon, ordered Norton to back away from the
door, and he and the other officers present forced their way into the home. Once the
officers entered the house, Deputy Pope “took control of” Norton. Pope testified that
she ordered Norton several times to show his hands, but that he ignored these orders
3 and kept moving his hands “like he was going for his pockets.” She therefore
handcuffed Norton and performed a pat down of his person because she believed he
was attempting either to access a weapon or to access and destroy evidence. As a
result of the pat down, Pope discovered a methamphetamine pipe in Norton’s back left
pocket. Norton was subsequently interviewed at the scene by Agent Mayfield. During
that interview, Norton admitted he used methamphetamine and agreed to provide
officers with a urine sample, which tested positive for methamphetamine.
Following his conviction on the charges arising from his May 2009 arrest,
Norton filed a motion for a new trial, which was denied. This appeal followed.
1. Norton contends that the trial court erred in denying his pre-trial motion to
exclude the similar transaction evidence. We disagree.
Norton’s motion to exclude this evidence was based on a defect in the search
warrant, which Norton alleges rendered the search of his girlfriend’s home, and the
resulting search and seizure of Norton, illegal. 5 At the hearing on his motion, Norton
5 The State argued that because Norton neither resided in nor had an ownership interest in his girlfriend’s residence, he lacked standing to challenge the validity of the search warrant. The trial court acknowledged this argument, but also found that Norton had standing to challenge the search and seizure of his person that resulted from the allegedly valid warrant. In addressing the validity of the warrant we assume, without deciding, that Norton has standing to challenge the same.
4 introduced evidence showing that the application for the warrant specified that law
enforcement was looking for, among other things, methamphetamine. The warrant
itself, however, authorized a search for marijuana, rather than methamphetamine.
Norton claims that this defect in the warrant rendered it invalid and the execution of
it illegal. We disagree.
Under Georgia law, “[n]o search warrant shall be quashed or evidence
suppressed because of a technical irregularity not affecting the substantial rights of the
accused.” OCGA § 17-5-31. The only evidence as to the discrepancy between the
warrant application and the warrant itself came from Agent Mayfield, who prepared
both documents. Mayfield explained that this discrepancy resulted from a
typographical error on his part. Mayfield also testified that he knew the purpose of the
warrant was to search for methamphetamine and related materials, as opposed to
marijuana, and that the officers executing the warrant went to the premises looking
specifically for methamphetamine.
The trial court obviously found this testimony credible and as a reviewing court
we must accept that determination, absent any showing that it was clearly erroneous.
Carlton v. State, 251 Ga. App. 339, 340 (1) (554 SE2d 318) (2001). No such showing
has been made, and the evidence of record supports the trial court’s conclusion that
5 the single-word discrepancy between the warrant application and the warrant itself
resulted from a typographical error and was “not so material as to destroy the integrity
of the [application] or the validity of the warrant.” (Punctuation and footnote omitted.)
Carson v. State, 314 Ga. App. 515, 516 (1) (a) (724 SE2d 821) (2012) (warrant not
invalid where affidavit in support thereof identified someone other than defendant as
the suspected shooter; the error was typographical, occurred only once in the six-page
affidavit, and the remainder of the affidavit correctly identified defendant as the
suspected shooter). See also Lester v. State, 278 Ga. App. 247, 250 (1) (628 SE2d
674) (2006) (typographical error in officer’s warrant affidavit which resulted in the
wrong address being given for the premises to be searched did not invalidate warrant;
“other elements of description [were] sufficiently particular to identify the premises
to be searched”) (citation omitted).
2. During trial, Norton again attempted to exclude evidence concerning the
statements he made to police following their search of his girlfriend’s house, arguing
that the interview at which he made these statements violated his Miranda rights. The
trial court held a Jackson-Denno hearing on this motion, at which time an audio
recording of Norton’s interview was played for the judge. The recording reflects that
at the beginning of the interview, Mayfield read Norton the waiver of rights form,
6 which included a recitation of each of Norton’s Miranda rights.6 After reading Norton
each of his rights, Mayfield paused and asked Norton if he understood that right, and
each time Norton responded affirmatively. The officer then asked Norton to read the
last paragraph of the form aloud, and Norton did so, stating:
I understand my rights. Having these rights in mind, I am willing now to talk about matters which I have knowledge of which relate to possible violations of Georgia law. I discuss these matters freely. I have not been threatened. I have not been promised anything. I have not been forced in any way to answer any questions or make any statements.
Mayfield then asked Norton if he understood the form, and Norton responded,
“Yes, I think it gives me the right not to say anything if I don’t want to.” The officer
indicated that Norton’s understanding was correct, and then asked Norton to sign the
waiver form. Before he signed, however, Norton stated, “the part [of the form] that
bothers me is it says ‘I am now willing to talk’ . . . that don’t [sic] disavow everything
else I said [does it]?” Mayfield responded that the sentence did not mean that Norton
6 This part of the form stated that Norton had been informed that he had the right to remain silent; that anything he said could be used against him in court; that he had a right to talk to a lawyer and have the lawyer present during questioning; that if he could not afford a lawyer but wanted one, an attorney could be appointed to represent him before police questioned him; and that he could decide at any time to exercise these rights and quit answering questions.
7 was refuting anything else he had said. The officer also told Norton that if he did not
feel comfortable discussing any of the agent’s questions, he should just refuse to
answer rather than lie to law enforcement. Norton executed the waiver form and the
interview proceeded.
Norton’s motion to suppress was based on his question to Agent Mayfield as
to whether the statement on the waiver of rights form, that he was “now willing” to
speak with law enforcement meant he was refuting anything he had “said before.”
Specifically, Norton contends that this question shows that he had previously spoken
with an officer and had indicated that he did not want to speak with police. By
questioning him a second time, therefore, police violated his Miranda rights and the
trial court erred in admitting the evidence obtained during that interview. We find no
such error.
The question as to whether a defendant’s custodial statement is admissible
requires the trial court to examine the totality of the circumstances and determine
whether the State has shown, by a preponderance of the evidence, that the statement
was voluntary. Clark v. State, 309 Ga. App. 749, 751 (3) (711 SE2d 339) (2011). In
other words, the statement will be admissible only if it was made following the
defendant’s knowing and voluntary waiver of his Miranda rights. Salinas-Gomez v.
8 State, 287 Ga. App. 384, 386 (1) (651 SE2d 501) (2007). Additionally, once a suspect
is in custody, if he indicates to the police “in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the interrogation must cease.”
(Punctuation and footnote omitted.) Screws v. State, 245 Ga. App. 664, 665 (2) (538
SE2d 547) (2000). Any assertion of the right to remain silent, however, must be clear
and unequivocal. “[I]f a defendant equivocates in asserting the right, a police officer
is under no obligation to clarify [the defendant’s wishes] or to stop questioning.”
(Citation omitted.) Ridley v. State, 290 Ga. 798, 802 (4) (725 SE2d 223) (2012). “The
obligation to cease [or refrain from] questioning a suspect arises only when the
suspect unambiguously invokes the right to remain silent.” (Citation omitted.) Perez
v. State, 283 Ga. 196, 201 (657 SE2d 846) (2008).
The record in this case shows that Norton understood his Miranda rights,
including his right to remain silent. Indeed, Norton himself stated to police that he
understood the waiver of rights form as giving him “the right not to say anything if
I don’t want to.” Moreover, the record contains no evidence that Norton ever asserted
his right to remain silent, either equivocally or otherwise. Deputy Pope testified at the
pre-trial evidentiary hearing that she neither interviewed nor attempted to interview
Norton after handcuffing and frisking him at the scene. The only witness who testified
9 at the Jackson-Denno hearing, Agent Mayfield, stated that he did not attempt to speak
with Norton before the recorded interview – i.e., before advising him of his rights and
obtaining a waiver of the same. And when asked if Norton could have told some other
officer at the scene that he did not wish to speak with law enforcement, Mayfield
stated that any such information would have been provided to him as a matter of
protocol, given that he was the case agent. Furthermore, Norton did not testify at
either the pre-trial hearing or the Jackson-Denno hearing and assert that he informed
any law enforcement officer present at the execution of the search warrant that he
intended to remain silent. See Perez, supra, 283 Ga. at 201. Nor did he call any other
officer present at the scene to testify that Norton had spoken with the officer and
indicated his wish not to speak with police.
The trial court’s ruling on this issue shows that it credited the testimony of the
officers, and reached the factual conclusion that Norton never informed anyone at the
scene that he wished to remain silent. “We are obligated to accept these factual and
credibility determinations unless they are clearly erroneous,” Huskins v. State, 294 Ga.
App. 653, 655 (2) (a) (669 SE2d 680) (2008) (citation omitted), and we can discern
no such error here. Accordingly, we affirm the trial court’s finding that Norton’s
custodial statement was made following a knowing and voluntary waiver of his rights.
10 3. Norton also contends that he received ineffective assistance of counsel. To
prevail on a claim of ineffective assistance, Norton bears the burden of proving both
that the performance of his lawyer was deficient and that he suffered prejudice as a
result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III)
(104 SC 2052, 80 LE2d 674) (1984). If Norton cannot meet his burden of proving
either prong of the Strickland test, then we need not examine the other prong. Battles
v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Here, we find that Norton failed
to establish that his lawyer’s performance was deficient.
In his brief, Norton raises several grounds for his ineffective assistance claim.
Only one of these grounds, however, was raised and argued below.7 Where specific
grounds for an ineffective assistance claim are not raised and ruled on in the trial
court, they are waived and cannot be considered on appeal. Bell v. State, 306 Ga. App.
853, 860 (3) (703 SE2d 680) (2010) (“Such claims unasserted at the trial level are
7 The transcript of the hearing on Norton’s new trial motion reflects that his current lawyer questioned Norton’s trial counsel about his defense strategy and what he did in investigating and preparing Norton’s defense. Following this testimony, when asked by the court below to identify the exact grounds on which he was basing his ineffective assistance claim, Norton’s current lawyer responded: “Your Honor, we’ll leave it for the court. I mean, we had a thorough and sifting examination [regarding] exactly what [trial counsel] did in his performance. . . . So we’ll submit it to the court, except we do think what’s glaring here is that three out of four charges were not being contested.”
11 procedurally barred, and once a claim is procedurally barred, there is nothing for this
Court to review.”) (citation, punctuation and footnote omitted).
The sole ground for his ineffective assistance claim argued by Norton below
was that trial counsel failed to defend the charges of possession of methamphetamine
and possession of a drug related object and instead focused on defending the
trafficking charge. As trial counsel explained at the motion for new trial hearing,
however, this decision was a strategic one, based on the fact that the evidence on the
possession charges was substantial. Thus, he decided that the best line of defense was
to argue that Norton was, at worst, a casual user of methamphetamine, and that he was
not a drug trafficker. And because the large bag of methamphetamine was found on
Norton while he was semi-conscious, trial counsel attempted to show that the drugs
had been planted on him by a third-party.
Given the strategic nature of this decision, it “can provide no grounds for
reversal unless it was so patently unreasonable that no competent attorney would have
chosen it.” (Citation, punctuation and footnote omitted.) Mantooth v. State, 303 Ga.
App. 330, 336 (1) (b) (693 SE2d 587) (2010). And it is Norton who bears the burden
of rebutting the strong presumption that this strategy was a reasonable one, made in
12 the exercise of reasonable professional judgment. Thornton v. State, 301 Ga. App.
784, 793 (4) (689 SE2d 361) (2009). Norton cannot carry this burden.
Notably, Norton fails to identify what evidence or arguments trial counsel
should have presented in defense of the possession charges. See Greene v. State, 295
Ga. App. 803, 806 (1) (673 SE2d 292) (2009) (“It is axiomatic that trial counsel
cannot be deemed ineffective for failing to introduce nonexistent evidence.”)
Moreover, Norton’s argument fails to acknowledge the significant physical evidence
against him with respect to the charge of possession of methamphetamine in his urine
– i.e., that his urine tested positive for the drug. Additionally, the evidence that Norton
was a regular user of methamphetamine, including the similar transaction evidence
and Norton’s admission to police, presented significant obstacles to mounting a
credible defense to the charges stemming from his possession of the small bag of
methamphetamine and the methamphetamine pipe. Under these circumstances,
therefore, trial counsel’s decision not to contest Norton’s guilt on the lesser crimes and
focus his defense on the trafficking charge was a reasonable one. See Mantooth, 303
Ga. App. at 336 (1) (b) (“trial counsel’s strategic decision to focus his defense on the
most serious offenses with which [defendant] was charged was eminently reasonable,”
given the significant evidence against his client) (citation and punctuation omitted);
13 Paul v. State, 257 Ga. App. 86 (570 SE2d 399) (2002) (“considering the
overwhelming evidence” that defendant had committed the crime at issue, trial
counsel acted reasonably in arguing “that the State could prove robbery, but not armed
robbery”). “That this strategy was ultimately unsuccessful in securing a defense
verdict on all charges does not show that trial counsel’s” performance was deficient.
Farris v. State, 293 Ga. App. 674, 678 (3) (667 SE2d 676) (2008).
Judgment affirmed. Miller, P. J., and Ray, J., concur.