John Coney v. State

• Court: Court of Appeals of Georgia
• Decided: June 20, 2012
• Docket: A12A0667
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, 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 20, 2012

In the Court of Appeals of Georgia A12A0667. CONEY v. THE STATE.

ANDREWS, Judge.

On this out-of-time appeal from his conviction for cocaine trafficking, John

Edward Coney argues that the trial court erred when it denied his motion for new trial

because he was arraigned without counsel, with the harmful result that he lost a

hearing on his motion to suppress the evidence that formed the basis of his

conviction. In the alternative, Coney argues that trial counsel was ineffective for

failing to file a timely motion to suppress and for other reasons. We find no error and

affirm.

“On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only

whether, after viewing the evidence in the light most favorable to the prosecution, a

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61

LE2d 560) (1979).

So viewed, the record shows that on February 28, 2007, a Cordele police

officer received a call to be on the lookout for a black male in the area of 24th

Avenue and 13th Street. The officer soon saw Coney enter the passenger side of a

vehicle, which drove down an unpaved alley, kicking up dirt as it did so. The officer

followed, but did not pull the vehicle over because, as he testified, he did not have

probable cause to arrest or detain Coney.

When the vehicle turned into a school parking lot with a construction site

where Coney was working, the officer activated his blue lights and called out to

Coney, who was walking toward the construction site office, that he wanted to speak

to him. Although the officer testified that this encounter was voluntary, he called for

backup. The female driver of the car got out and gave the officer Coney’s driver’s

license, which information the officer called in to his dispatcher. After a substantial

2 delay, the dispatcher reported that Coney was not the person the officers were looking

for. The first officer then told Coney that he was free to go.

As the officers were leaving, however, a dispatcher reported that Coney was

the subject of an outstanding arrest warrant from Henry County. Both officers

immediately returned to the construction site and detained Coney. When asked about

the outstanding arrest warrant, Coney replied that the matter “had been taken care of.”

The officers told Coney that they needed to detain him pending verification that the

warrant had been satisfied. As the first officer conducted a weapons check, he felt

something “bulky” in Coney’s right front pocket. The officer testified that he put his

hand into the pocket because “[he] could not say that [the bulky object] was not a

weapon.” Coney immediately resisted and was arrested for obstruction. The bulky

object turned out to be a roll of currency amounting to $615. A further search of

Coney’s pockets recovered a bag containing more than 31 grams of 78% pure

cocaine. Shortly after Coney’s arrest, the dispatcher confirmed that the Henry County

arrest warrant was no longer outstanding.

On April 4, 2007, trial counsel made his first appearance in the case and filed

a motion for discovery. Coney was indicted on May 14 on charges of cocaine

trafficking, possession of cocaine with intent to distribute within 1000 feet of a

3 school, and obstruction. On June 4, Coney appeared at arraignment and signed a form

indicating a plea of not guilty. Although the prosecutor was present and signed the

form, Coney’s counsel was not present and did not learn of the event until he received

a calendar call for August 9. The State filed discovery responses on June 27.

On the morning of trial, August 23, 2007, counsel filed motions including one

to suppress the cocaine. The motion to suppress was denied as untimely because it

violated the circuit’s standing order to file such motions within ten days of receiving

discovery responses. A jury found Coney guilty of cocaine trafficking but not guilty

of the two other charges against him. Coney was convicted and sentenced to 30 years.

His motion for new trial was denied.

1. The evidence outlined above was sufficient to sustain Coney’s conviction

for cocaine trafficking. See OCGA § 16-13-31 (a) (1) (defining trafficking in cocaine

as being in knowing possession of 28 grams or more of 10% or more cocaine);

Jackson.

2. Coney argues that he was deprived of his right to counsel at arraignment

with the harmful result that the trial court refused to hear his motion to suppress the

cocaine that formed the basis of his conviction. We disagree.

4 The trial court denied the motion to suppress filed on the morning of trial not

because of any deadline triggered by Coney’s arraignment, but rather because the

motion was filed in violation of the circuit’s standing order to file such motions

within ten days of the return of discovery. Reserving the question whether this failure

amounted to ineffective assistance (the subject of Division 3 below), Coney has not

asserted or shown that he suffered any specific harm as a result of a lack of counsel

at the June 4 arraignment.

Under Uniform Superior Court Rule 30.2, a trial judge faced with a defendant

lacking counsel at arraignment “shall inquire whether the accused is represented by

counsel and, if not, inquire into the defendant’s desires and financial circumstances.”

USCR 33.2 (A) further provides:

A defendant shall not be called upon to plead before having an opportunity to retain counsel, or if defendant is eligible for appointment of counsel, until counsel has been appointed or right to counsel waived. A defendant with counsel shall not be required to enter a plea if counsel makes a reasonable request for additional time to represent the defendant’s interest, or if the defendant has not had a reasonable time to consult with counsel.

The Supreme Court of Georgia has held that the provisions of USCR 33 are

“mandatory in this state,” State v. Evans, 265 Ga. 332, 334 (1) (454 SE2d 468)

5 (1995). Coney has consistently asserted that his substantive constitutional right to

counsel was violated at the June 4 arraignment, and he refused subsequent

arraignment as well. Compare Cox v. State, 279 Ga. 223, 228-229 (9) (610 SE2d 521)

(2005) (when a defendant does not argue any denial of substantive protections at an

arraignment held while he was a fugitive, when he was later arraigned with the

benefit of counsel, and when his pretrial motions were mooted by developments in

the case, any error resulting from an absence of counsel at arraignment was harmless).

Nonetheless, as our Supreme Court has also held, a reversal for lack of counsel

at any “critical stage of a criminal proceeding,” including an arraignment, “is by no

means automatic. . . . The harmfulness of counsel’s absence must appear.” Dixon v.

Hopper, 237 Ga. 811, 812 (1) (229 SE2d 656) (1976). “[W]here the record does not

show whether or not the defendant was prejudiced by the absence of counsel” at a

pretrial appearance, a trial court “should determine whether the lack of counsel was

harmless error.” State v. Hightower, 236 Ga. 58, 60 (222 SE2d 333) (1976). “A

federal constitutional error can be held harmless only if the state shows beyond a

reasonable doubt that the error did not contribute to the verdict obtained.” Id. Thus

in Bache v. State, 208 Ga. App. 591 (431 SE2d 412) (1993), this Court held that a

defendant who lacked counsel at arraignment, but who could not show how any

6 specific motion not made “would have enhanced his defense,” could not show harm

arising from the absence of counsel at that stage of the proceedings. Id. at 592 (1).

Because the record shows that Coney did not lose the right to a hearing on his

motion to suppress as a result of a lack of counsel at arraignment, because he has not

alleged any other specific harm resulting from that event, and because he was

afforded the assistance of counsel at trial, we conclude that the State has carried its

burden of showing that any error arising from the absence of counsel at arraignment

was harmless. See Dixon, 237 Ga. at 812-813 (State carried its burden of showing no

harm arising from lack of counsel at arraignment when defendant failed to allege any

specific harm arising therefrom and when he was represented by counsel at trial);

Bache, 208 Ga. App. at 592 (1); compare Ledford v. State, 247 Ga. App. 885 (545

SE2d 396) (2001) (reversing defendant’s conviction because she lost the right to file

a motion to suppress when she appeared without counsel at arraignment).

3. Coney argues that counsel was ineffective when he failed (a) to appear at

arraignment; (b) to file a timely motion to suppress; (c) to file other, unspecified

pretrial motions; (d) to review discovery prior to trial; (e) to conduct an adequate

investigation and preparation of the case; (f) to obtain a ruling on the issue whether

7 Coney was properly arraigned; and (g) to advise him of the status of the case. We

disagree with these contentions.

To show ineffective assistance of counsel, a defendant must show that

counsel’s performance was deficient and that the deficient performance prejudiced

the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing

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

question of ineffectiveness is a mixed one of law and fact: “we accept the trial court’s

factual findings and credibility determinations unless clearly erroneous, but we

independently apply the legal principles to the facts.” Suggs, 272 Ga. at 88 (4).

(a), (b) As we have noted above, Coney has not asserted any harm arising from

counsel’s failure to appear at arraignment other than the loss of his right to a hearing

on his motion to suppress. “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 SE2d 224) (2003).

Further,

“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a

8 result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”

Davenport v. State, 172 Ga. App. 848, 852 (324 SE2d 201) (1984), quoting

Strickland, 466 U. S. at 697. Pretermitting whether counsel’s failure to file a motion

to suppress within ten days of the State’s filing of its discovery responses was

deficient performance, Coney cannot show that the motion to suppress had any

likelihood of success, with the result that he cannot show prejudice as a result of

counsel’s omissions.

According to the Supreme Court of Georgia, the “material inquiry” in any case

involving probable cause to arrest is “whether the facts within the officer’s

knowledge at the time of the arrest constituted reasonably trustworthy information

which was sufficient to authorize a prudent person to believe that [the suspect] had

committed an offense.” Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996)

(validating an arrest based on an officer’s reasonable reliance on information

concerning an outstanding but incorrect warrant). This Court has thus held not only

that “‘a radio transmission that confirms an outstanding warrant establishes the

necessary probable cause to arrest,’” Howard v. State, 273 Ga. App. 667, 668 (1) (615

9 SE2d 806) (2005), quoting Buchanan v. State, 259 Ga. App. 272, 274-275 (576 SE2d

556) (2002), but also that a search made pursuant to such an arrest is legal:

[I]f an officer stops an individual outside his home, requests a computer check on the individual, and is told that there is an outstanding arrest warrant for the individual, the officer may lawfully arrest the individual and search him or her pursuant to the arrest, and any seized contraband will be admissible to support additional criminal charges against the individual, even if it is later discovered that no valid warrant existed at the time of the arrest.

(Emphasis supplied.) State v. Edwards, 307 Ga. App. 267, 271-272 (704 SE2d 816)

(2010). The existence of probable cause authorizes a search incident to arrest,

moreover, even if an officer believes that he is, at the moment the search is

undertaken, detaining rather than arresting the person searched. See Sibron v. New

York, 392 U. S. 40, 67 (88 SC 1889, 20 LE2d 917) (1968); see also id. at 77 (Harlan,

J., concurring) (“If the prosecution shows probable cause to arrest prior to a search

of a man’s person, it has met its total burden. . . . [T]he prosecution must be able to

date the arrest as early as it chooses following the development of probable cause”);

LaFave, Search and Seizure (3d ed., 1996), Vol. 4, § 9.2 (e), pp. 46-47.

Coney does not dispute that he was detained and searched as a result of a

dispatcher’s report that there was an outstanding warrant for his arrest. And Coney

10 has not argued or shown that any evidence not obtained or reviewed before trial

would have created a question of fact on this subject. Even assuming that the police

officer did not himself interpret Coney’s detention as an arrest, then, and even if the

information on which that detention was based was later proven to be incorrect, there

is no evidence in this record to dispute the conclusion that police obtained probable

cause to arrest Coney “once the officer learned of the warrant.” Howard, 273 Ga.

App. at 668 (1). Because probable cause to arrest Coney and to search him incident

to that arrest has been shown on undisputed facts, he cannot make the requisite

“strong showing” that a motion to suppress the evidence found during that search

would have been meritorious. Richardson, 276 Ga. at 553 (3). As a result, no further

proceedings are necessary on an ineffectiveness claim arising from any failure to file

such a motion. See Quinn v. State, 268 Ga. 70, 72 (485 SE2d 483) (1997) (the totality

of circumstances, including the discovery of a large sum of money, the presence of

a pistol on the seat of defendant’s car, and alerting by narcotics dog, provided

probable cause to search; because a motion to suppress “would not have been

meritorious,” no further proceedings were required on the motion or an

ineffectiveness claim concerning it); compare Suluki v. State, 302 Ga. App. 735, 738

(1) (691 SE2d 626) (2010) (reversing conviction where defendant showed a

11 “reasonable probability . . . that the outcome [of his trial] would have been different”

if counsel had filed a motion to suppress).

(c) As we have noted above, Coney has not asserted how any motion other than

a motion to suppress would have assisted his defense. A generalized assertion that a

defendant was unable to file an unspecified pretrial motion as a result of counsel’s

absence at arraignment is insufficient to make out a claim for ineffective assistance.

Bache, 208 Ga. App. at 592 (1).

(d), (e) Coney asserts that counsel failed to interview a number of witnesses,

including the driver of the vehicle in which Coney traveled to the construction site,

the radio dispatcher, and other officers at the scene. Coney also points out that

counsel did not review the police video of the incident until the morning of trial. But

Coney did not proffer any specific evidence at the hearing on the motion for new trial

tending to show that he suffered prejudice as a result of these omissions.

In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a petitioner is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. The failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of

12 a showing that such evidence would have been relevant and favorable to the defendant.

(Emphasis supplied; citation and punctuation omitted.) Goodwin v. Cruz-Padillo, 265

Ga. 614, 615 (458 SE2d 623) (1995). Even on appeal, Coney fails to assert or show

how, apart from the legal issues arising from his search and arraignment, any of this

potential evidence would have affected his conviction for cocaine trafficking, the

elements of which are possession of the drug in a certain amount and of a certain

purity. It follows that the trial court did not clearly err when it denied Coney’s motion

for new trial on this ground. See Lenderman v. State, 271 Ga. App. 883, 886-887 (611

SE2d 135) (2005) (under the evidence proffered at the hearing on defendant’s motion

for new trial, it was “impossible to conclude” that any additional evidence “would

have changed the outcome of his trial”).

(f) As we have held in Division 2 above, Coney has not shown harm as a result

of the absence of counsel at arraignment. It follows that any failure to obtain a ruling

on this matter could not amount to ineffective assistance. See Morgan v. Mitchell, 272

Ga. 134, 138 (1) (527 SE2d 556) (2000).

(g) Coney has not argued, let alone shown, how any failure to keep him advised

of the status of his case would have affected the outcome of his trial. As it is

13 unsupported by either citation to the record or legal argument, we deem this assertion

of error abandoned. Smith v. State, 214 Ga. App. 631, 633 (7) (448 SE2d 906) (1994).

Judgment affirmed. Doyle, P. J., and Boggs, J., concur.