Watts v. State

477 S.E.2d 852, 223 Ga. App. 412, 96 Fulton County D. Rep. 3825, 1996 Ga. App. LEXIS 1135
CourtCourt of Appeals of Georgia
DecidedOctober 21, 1996
DocketA96A2307
StatusPublished
Cited by3 cases

This text of 477 S.E.2d 852 (Watts v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Watts v. State, 477 S.E.2d 852, 223 Ga. App. 412, 96 Fulton County D. Rep. 3825, 1996 Ga. App. LEXIS 1135 (Ga. Ct. App. 1996).

Opinion

Eldridge, Judge.

A confidential informant identified, for the narcotics agents of the Atlanta Bureau of Police Services, 51 Montgomery Street N.E., Atlanta, DeKalb County, as a crack house. Narcotics officer S. J. Chambers had the informant make a controlled buy from the house with city funds. The sale was made by Bennie, a dark complected, medium sized, African-American male on March 8, 1994. Chambers had the informant identify appellant, Bennie Watts, from a group of photographs and then showed the photograph of appellant to officers surveilling or taking part in the later search of the house at 51 Montgomery Street. Between March 8 and March 23, Chambers and her partner kept the house under surveillance and observed a high volume of different people enter the house and leave after two to five minutes, which conduct was consistent with their experience with crack houses. On March 23, Chambers and the informant went to 51 Montgomery Street to make another drug buy; a different African-American male, Walt (later identified as Walter Stephens), sold them the crack cocaine. Chambers obtained a “no knock” search warrant on March 24, which was served on March 25. Chambers briefed the officers with the photograph of appellant and told them to watch for him during the search.

The police found Ira Charles Dotsun on the front porch of 51 Montgomery Street and took him into custody. He gave an address elsewhere as his residence.

[413]*413After breaking the lock, Chambers and the other officers stormed into the house. Chambers observed Donnell Stephens and Keith Williams run from the direction of the right rear bedroom, across the hall to the left rear bedroom, where they were arrested. Keith Williams gave a residence address elsewhere. Donnell Stephens gave as his address 4243 Scottie Drive.

Walter Stephens and Darnell Watts, appellant’s nephew, were found in the right front bedroom. Both men gave 51 Montgomery Street as their residence.

After entry, Chambers rushed down the hall to the closed door of the right rear bedroom and kicked in the door. She found appellant in a crouched position, as if rising from a kneeling position, next to the window and over an open vent in the floor; the vent cover had been removed, and she found a large quantity of crack cocaine hidden in the hole in the floor. Appellant was the only person in the room, and she had not seen the door open or close when she saw Stephens and Watts run from that direction. When searched, appellant had $390 on'his person. No one else in the crack house had any money, and no money was found stashed in the crack house except on appellant.

Pistols and shotguns were found in almost every room in the house. A Beretta was found in a chest of drawers next to the door inside the right rear bedroom, and an Ithaca Excel 900 shotgun was also found in the room, as well as several beepers and a Topper 158 shotgun. A Remington 16 gauge shotgun was found in the left front bedroom along with a Rossi .38. An Arimus .38, an S & W .38, and a .357 magnum were found in the right front bedroom.

After arrest, appellant told the officers that he lived at 51 Montgomery Street and had a Georgia driver’s license, which had as his address 51 Montgomery Street, Atlanta, Georgia.

The 51 Montgomery Street house was in a very run down condition, and the water had been turned off since October 1992.

Appellant was indicted on May 23, 1995 for trafficking in cocaine, possession of cocaine with the intent to distribute, and possession of firearms by a convicted felon.

The public defender’s office was appointed to defend appellant at trial and during pretrial proceedings. Upon motion of the defense, the drug charges were bifurcated from the weapons charges. The jury returned a verdict of guilty on both drug charges on November 14, 1995. Appellant was found not guilty on the weapons charges on the same date. On November 29, 1995, appellant was sentenced to 15 years to serve on the trafficking charge, with the other drug charge merging. On December 20, 1995, a general motion for new trial was filed, and on February 7, 1996, the motion for new trial was amended to raise the issue of ineffective assistance of counsel.

An evidentiary hearing on the issue of ineffective assistance of [414]*414counsel was held on May 8, 1996.

Appellant testified that he was seen at the jail by Ms. Levy only once and by Ms. Peterson twice prior to trial for 15 to 30 minutes each time. Ms. Levy contradicted this testimony by stating that she had seen appellant at the jail twice and that she and Ms. Peterson had seen appellant numerous times in court when he had been brought over for calendar calls before his case reached trial. Appellant contended that counsel failed to call the defense witnesses that he gave them to show that his residence was not 51 Montgomery Street. Ms. Levy testified that they talked to the defense witnesses and that one witness did not know where appellant lived and that Donnell Stephens told their investigator that appellant was a drug dealer that used 51 Montgomery Street as a drug house for sales. Their investigation showed that the house was run down and had no water since October 1992.

The defense strategy had been not to focus on the place of residence of appellant, because 51 Montgomery Street was obviously a drug house, but to defend on equal access to the drugs. This strategy was premised upon there having been five men arrested inside the house and one on the front porch; two occupants were observed running from the room with the drugs; “Walt” had sold the drugs on March 23 to Chambers; the confidential informant did not testify at trial as to the sale by “Bennie” on March 8 and did not identify appellant at trial as the seller; and there was nothing to tie appellant to the drugs except presence at the scene of the crime. The defense team did not attempt to interview Chambers; however, they interviewed all possible defense witnesses as to equal access. Ms. Levy testified that they had prepared to cross-examine the prosecution’s Witnesses; they had made a thorough investigation; and they had talked to all witnesses named by appellant. Defense counsel explained the defense and the case to appellant, advised appellant in regard to a plea bargain made by the district attorney, and advised appellant regarding his right to testify, as well as to the risk of his being placed under oath. Beginning August 31, 1995, defense counsel served motions for discovery, Brady material, and a list of witnesses, as well as motions to reveal the identity of the confidential informant and to bifurcate the trial. The prosecution gave the defense an open file discovery. The defense submitted 19 requests to charge and did a vigorous cross-examination of the prosecution witnesses to show equal access to the drugs as well as presented two witnesses as to where appellant lived. The record demonstrates that the jury selection, opening statement, and closing argument were professionally done.

On May 8, 1996, after the evidentiary hearing, the trial court denied appellant’s motion for new trial. Appellant filed a timely appeal on June 6, 1996.

[415]*4151. The first enumeration of error is that the trial court erred in denying the motion for new trial on the grounds of ineffective assistance of counsel.

After a careful examination of the record, we find that appellant has failed to carry the burden of proof as to the issue of ineffective assistance of counsel in the case sub judice.

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Related

Smith v. State
544 S.E.2d 208 (Court of Appeals of Georgia, 2001)
Baker v. State
518 S.E.2d 455 (Court of Appeals of Georgia, 1999)
Knuckles v. State
512 S.E.2d 333 (Court of Appeals of Georgia, 1999)

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Bluebook (online)
477 S.E.2d 852, 223 Ga. App. 412, 96 Fulton County D. Rep. 3825, 1996 Ga. App. LEXIS 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watts-v-state-gactapp-1996.