Wise v. State

740 S.E.2d 850, 321 Ga. App. 39, 2013 Fulton County D. Rep. 1153, 2013 WL 1245353, 2013 Ga. App. LEXIS 303
CourtCourt of Appeals of Georgia
DecidedMarch 28, 2013
DocketA12A2509
StatusPublished
Cited by5 cases

This text of 740 S.E.2d 850 (Wise 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
Wise v. State, 740 S.E.2d 850, 321 Ga. App. 39, 2013 Fulton County D. Rep. 1153, 2013 WL 1245353, 2013 Ga. App. LEXIS 303 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

Following his conviction for possession of cocaine with the intent to distribute, Derrick Wise appeals from the denial of his motion for new trial. On appeal, Wise enumerates multiple claims of errors, including that the trial court erred in denying his motion to suppress, that similar transaction evidence was improperly admitted, and that the trial court erred in denying his motion to enforce a plea agreement. Following our review, and for the reasons that follow, we affirm.

“On appeal, we must view the evidence ‘in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.’ ” Peters v. State, 281 Ga. App. 385 (1) (636 SE2d 97) (2006).

So viewed, the evidence shows that on February 8, 2002, an Atlanta city police plainclothes detective was on patrol when he noticed a man standing in bushes near an apartment complex. The detective asked him if he lived there, and the man responded that he did, pointed “toward the front of the complex,” and walked away. The detective drove off, then circled back around and saw the same man reaching into the bush he was standing near earlier. He saw the detective, and “whatever he had in his hand, he put it back [in the bush] and walked on out, ran out.” After the man left, the detective retrieved a bag containing 191 hits of crack cocaine from the bush. He was able to identify the man as possibly being nicknamed “Shaq.” Later, after another officer recognized the street name and physical description and showed the detective a picture of the suspect, the detective positively identified Wise as the man he saw reach into the bush.

Police obtained an arrest warrant for Wise. On February 18, 2002, an officer was in the area of the apartments and saw Wise come out of an apartment door. The officer called for an arrest team to assist [40]*40with executing the warrant. Several officers surrounded the apartment while the officer knocked on the door. He knocked for approximately 35 minutes, and when he did not get an answer, the officer got a key to the apartment from the manager. The key did not work, so he notified his supervisor that Wise was refusing to answer the door, and then used a sledgehammer to break in the door. Wise was found in a rear bedroom and “pretended to be asleep.” There were two young children with him. Wise was indicted for and later convicted of possession of cocaine with intent to distribute.

1. Wise first contends that the trial court erred when it denied his motion to “suppress his arrest.” He maintains that the arrest warrant was not valid, that the warrant did not authorize police to arrest Wise in his home, and that the officers did not adhere to constitutional procedure in executing the arrest. On appeal from the denial of a motion to suppress in which the evidence is uncontroverted, we review the trial court’s application of the law to the undisputed facts de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

None of the arguments Wise makes on appeal, however, were presented in his written motion, argued before the trial court, or ruled on below. Shortly before the trial, Wise filed a “motion to suppress identification” in which he argued that the pretrial identification procedure used was constitutionally flawed in that the evidence did not establish how police had identified Wise as being the suspect named “Shaq.” He also filed a general motion to suppress evidence of the cocaine found in the bushes, in which he argued in general terms that the evidence was inadmissible because it was incident to an illegal detention. On the first day of the trial, the trial court held a hearing on the motion to suppress. Wise argued that his pre-trial identification should be suppressed because the police report did not establish “how Shaq was identified as Derrick Wise,” and also that he had never received a copy of the arrest warrant. The trial court asked Wise if he wanted to keep the arrest warrant out, and Wise responded that he did not know because he had not looked at the warrant, and did not know what information it contained. The State interjected that because of the seven-year lapse it also did not know how Wise was identified, and thus had met with the officers involved and tracked down the arrest warrant.

The trial court ruled that it would not suppress evidence of Wise’s pre-trial identification, upon verifying that the warrant was referenced in the police report, and ruled that “the warrant [could] come in as well.” The trial court directed the State to provide Wise with a copy of the arrest warrant.

At the opening of the second day of trial, Wise renewed his motion to suppress, and the trial court held another hearing on the motion. [41]*41Wise called the detective who saw Wise put the drugs in the bushes and who had initiated the investigation that led to the issuance of the arrest warrant. He questioned the detective about the facts leading up to the identification of Wise as the person known as “Shaq,” and the circumstances leading up to acquiring the arrest warrant. Afterward, Wise again argued that his identification should be suppressed because the officers had identified him by merely “a canvassing of the street, getting the name ‘Shaq,’ going to the police department, kicking it around with [another] officer . . . and submitting to this officer that that was the individual.” He further complained that he did not have the picture that the officer used to identify him. The trial court again denied the motion to suppress Wise’s pre-trial identification.

On appeal, however, Wise does not argue that the trial court erred in denying his motion to suppress evidence regarding his pre-trial identification. Instead, he argues issues related to the issuance and execution of the arrest warrant.

“[I]ssues not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court.” (Citations and punctuation omitted.) Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757) (1989). Moreover, a motion to suppress must be made “in writing and state facts showing that the search and seizure were unlawful,” OCGA § 17-5-30 (b), to properly place the State on notice of the legal issues to be resolved. State v. Gomez, 266 Ga. App. 423, 425 (2) (597 SE2d 509) (2004). “Neither in his motion nor at the hearing did [Wise] challenge the validity of the arrest warrant.” Seaman v. State, 214 Ga. App. 878, 879 (1) (449 SE2d 526) (1994). For these reasons, we do not consider Wise’s challenge to the denial of his motion to suppress. See Young v. State, 282 Ga. 735, 737 (653 SE2d 725) (2007).

2. Wise next contends that the trial court erred by allowing the State to present evidence to the jury that the reason for the seven-year delay in his trial was because of his bond forfeiture. We do not agree.

The record demonstrates that the State indicated that it planned to introduce evidence of Wise’s bond forfeiture status and the fact that he was picked up on a bench warrant to explain why it had taken seven years for the case to come to trial.

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Bluebook (online)
740 S.E.2d 850, 321 Ga. App. 39, 2013 Fulton County D. Rep. 1153, 2013 WL 1245353, 2013 Ga. App. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-state-gactapp-2013.