Shears v. the State , 332 Ga. App. 514 ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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.
http://www.gaappeals.us/rules/
June 16, 2015
In the Court of Appeals of Georgia
A15A0076. SHEARS v. THE STATE.
MCFADDEN, Judge.
A jury found Jessen Brett Shears guilty of trafficking in methamphetamine in
violation of OCGA § 16-13-31 (e) and possessing a controlled substance in violation
of OCGA § 16-13-30 (a). On appeal, Shears argues that he received ineffective
assistance of trial counsel, but he has not shown both that his trial counsel performed
deficiently and that he was prejudiced. He also argues that the trial court erred in
denying his motion to suppress evidence found during a search of his house pursuant
to a warrant, but he did not preserve this issue for appellate review. Accordingly, we
affirm.
1. Facts.
The evidence, viewed most favorably to the verdict, shows that on October 8,
2008, police officers arrested Zachary Barrett and Dionne Malinasky on outstanding
warrants for drug-related offenses. In ensuing interviews, Barrett and Malinasky
informed the police that earlier in the day they had been at a house occupied by
Jessen Shears and Lisa Petronski (Shears’s co-defendant in this case). Barrett and
Malinasky described drug activity, including sales of methamphetamine, at the house.
Later that day, the police obtained and executed a search warrant at Shears’s
house. In Shears’s bedroom they found, among other things, a firearm, marijuana, and
an unlocked safe containing 39.86 grams of methamphetamine. They also observed
cameras outside the house that provided a live video feed to monitors in Shears’s
bedroom. As they were executing the search warrant, Shears arrived at the house and
the police arrested him. In a patdown search they found two bundles of cash, totaling
over $2,400, in Shears’s pockets, and in a search of Shears’s vehicle they found
another firearm and a ledger. A police officer admitted as an expert in general
narcotics investigation testified at trial that the ledger depicted methamphetamine
transactions.
At trial, Malinasky testified that she witnessed Shears sell methamphetamine
at the house on several occasions, including a day or two before the October 8, 2008
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arrest. And Barrett testified that he had purchased methamphetamine at the house on
one or two occasions from a person introduced to him by Shears.
2. Ineffective assistance of counsel.
Shears argues that he received ineffective assistance of trial counsel. To prevail
on this claim, he must show “that [his] trial lawyer[‘s] performance was
professionally deficient and that, but for the deficiency, there is a reasonable
probability that the outcome of the trial would have been more favorable to [him]. See
Strickland v.Washington, 466 U. S. 688, 687, 694 (104 SCt 2052, 80 LEd2d 674)
(1984).” Bighams v. State, 296 Ga. 267, 270 (3) (765 SE2d 917 (2014). Shears has
not met this burden.
(a) Asking a question that led to harmful testimony.
Shears argues that his trial counsel was ineffective because, while cross-
examining a police officer, counsel asked a question that led the state to elicit harmful
testimony from a subsequent witness. Counsel asked the officer: “No person told you
they . . . saw [Shears] sell meth; is that correct?” The truthful answer to this question
would have been disagreement with the statement, because Malinasky had told this
officer that she had seen Shears selling methamphetamine. Instead, the officer
answered, “That is correct.” Outside the jury’s presence he explained that he had
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answered this way because he did not want to testify to hearsay that might result in
a mistrial. To rectify the misperception created by the officer’s testimony, the state
called Malinasky and elicited from her testimony that she had seen Shears selling
methamphetamine from the house numerous times over the several months before his
arrest.
Both at trial and at the hearing on Shears’s motion for new trial, trial counsel
stated that he erred in the question he asked the police officer. Even if that question
constituted deficient performance, however, Shears did not show prejudice. “He
failed to prove that if his attorney had [not asked the question of the police officer],
the [s]tate could not have introduced the [damaging testimony of Malinasky].”
Mayberry v. State, 301 Ga. App. 503, 509 (4) (c) (687 SE2d 893) (2009). Both the
state and Shears’s co-defendant had subpoenaed Malinasky and were entitled to call
her as a trial witness. Moreover, Malinasky’s testimony that Shears sold
methamphetamine “was relevant to the drug trafficking charge to establish that he
was involved in dealing drugs and possessed the drugs with the intent to distribute
them.” Evans v. State, 288 Ga. App. 103, 108 (3) (a) (653 SE2d 520) (2007) (citations
omitted). Contrary to Shears’s contention, this relevant evidence was “not rendered
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inadmissible merely because it incidentally place[d Shears’s] character in issue.” Id.(citation and punctuation omitted).
(b) Failing to move to suppress evidence.
Shears argues that his trial counsel was ineffective by not moving to suppress
evidence found in the searches of his person and vehicle, which he contends were
incident to an illegal arrest. At the hearing on Shears’s motion for new trial, his trial
counsel testified that he did not make such a motion because, after consideration, he
felt a challenge on that ground had no merit. We agree.
“Probable cause to arrest exists where, based on objective facts and
circumstances, a man of reasonable caution would believe that a crime has been or
is being committed.” Minor v. State, 298 Ga. App. 391, 396 (1) (b) (60 SE2d 459)
(2009) (citation and punctuation omitted). Probable cause existed here – the police
officers arrested Shears during a search of his residence, pursuant to a warrant, in
which they found illegal drugs in his bedroom. Although Shears argues that the
officers did not know who he was when they arrested him, the trial evidence did not
support that argument and Shears offered no evidence on the point at the hearing on
his motion for new trial.
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Because Shears did not “make a strong showing that the evidence would have
been suppressed had a motion to suppress been filed,” Stanley v. State, 283 Ga. 36,
39 (2) (a) (656 SE2d 806) (2008) (citation and punctuation omitted), he has not met
his burden of showing that he received ineffective assistance of counsel.
(c) Failing to object to evidence admitted after denial of motion to suppress.
Shears argues that his trial counsel was deficient in waiving appellate review
of the trial court’s denial of a motion to suppress evidence obtained in a search of his
house pursuant to a warrant. Throughout the trial, Shears’s counsel (possibly under
the mistaken impression that he had been granted a continuing objection)
affirmatively stated that he had no objection to the admission of evidence found in the
search, thereby “waiv[ing] and fail[ing] to preserve his right to contest the admission
of the evidence on appeal on the grounds raised in the motion to suppress.” Dyer v.
State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998) (citation and punctuation
omitted). Nevertheless, Shears has not shown this constituted ineffective assistance
because the trial court did not err in denying the motion to suppress, and the failure
to raise a meritless objection was not ineffective assistance of counsel. Moore v.
State, 293 Ga. 676, 679 (5) (a) (748 SE2d 419) (2013). Shears’s motion to suppress
was due to be denied because, in considering such a motion, the trial court is required
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to accord substantial deference to the magistrate’s decision to issue a search warrant
based on a finding of probable cause, State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237)
(2009), and the evidence here is sufficient to support the magistrate’s decision.
Although Shears challenged the reliability of hearsay statements that were included
in the police officer’s warrant affidavit, the contents of the affidavit permitted the trial
court to find that the magistrate had probable cause to issue the warrant because the
statements were made by named informants against their penal interest.
Our Supreme Court has explained that such statements can support the issuance
of a warrant.
[W]hen a named informant makes a declaration against penal interest
and based on personal observation, that in itself provides a substantial
basis for the magistrate to credit that statement. Accordingly, . . .
although a third party’s exculpatory hearsay admissions against penal
interest are inadmissible at a criminal trial, inculpatory statements that
are made by a known or identified informant can establish probable
cause for issuance of a search warrant.
Graddy v. State, 277 Ga. 765, 766 (1) (596 SE2d 109) (2004) (citation, punctuation
and emphasis omitted).
In this case the affidavit identified by name the informants, Zachary Barrett and
Dionne Malinasky. It indicated that they gave the statements after being arrested
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pursuant to open warrants, and it specified that Barrett’s warrant involved possession
of methamphetamine. The informants’ statements placed them at Shears’s house
while marijuana and methamphetamine were being used and sold. To be against penal
interest, a statement “does not have to be a formal confession that [declarant] is guilty
of the crime in connection with which his statement constitutes probable cause for a
search,” but merely must be a statement that the declarant would perceive to be
“highly incriminating.” Graddy, 277 Ga. at 766 (2) (citations and punctuation
omitted). Given the circumstances in this case, the trial court “correctly characterized
the statement[s] as against [the informants’] penal interest and, thus, reliable so as to
authorize issuance of the warrant to search [Shears’s] house[.]” Id. at 767 (citation
omitted). Consequently, Shears has not shown that he received ineffective assistance
of trial counsel due to his trial counsel’s failure to preserve for appeal the trial court’s
denial of his motion to suppress evidence found during that search.
3. Motion to suppress.
Shears argues that the trial court erred in denying his motion to suppress
evidence obtained in the search of his house pursuant to warrant. Because he waived
his right to contest the admission of evidence on this ground by affirmatively stating
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that he had no objection when the evidence was admitted at trial, see Division 2 (c),
supra, this claim of error presents nothing for us to review.
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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