Cayruth v. State , 273 Ga. App. 166 ( 2005 )

614 S.E.2d 809 (2005) 273 Ga. App. 166

CAYRUTH
v.
The STATE.

No. A05A0080.

Court of Appeals of Georgia.

May 5, 2005.

Franklin N. Biggins, Atlanta, for Appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for Appellee.

BERNES, Judge.

A Clayton County jury found Michael L. Cayruth guilty of trafficking in both cocaine and marijuana. Cayruth appeals alleging only that the trial court erred by failing to hold a hearing on his motion to suppress; by failing to grant his motion in limine; and by failing to find his trial counsel ineffective. We find Cayruth's allegation of errors to be without merit and affirm his convictions.

1. Cayruth contends the trial court erred in failing to conduct a hearing on his motion to suppress even though Cayruth failed to appear for the hearing. The record does not reflect any reason for Cayruth's failure to appear or that his trial counsel attempted to waive his presence. "Without a waiver or acquiescence by defendant, it is prejudicial error to conduct an evidentiary suppression hearing in defendant's absence. [Cits.]" Hill v. State, 222 Ga.App. 839(1), 476 S.E.2d 634 (1996). "Not even defendant's counsel has the authority to waive his presence during his absence, except by express authority[.]" (Citation and punctuation omitted.) Riley v. State, 180 Ga.App. 409(1), 349 S.E.2d 274 (1986) (physical precedent only). Clearly, an affirmative waiver cannot be presumed simply from Cayruth's failure to appear.

Further, we find inapplicable those cases, cited by Cayruth, in which the trial court proceeded with a suppression hearing without the defendant. See, e.g., Keen v. State, 164 Ga.App. 81, 85-86(3), 296 S.E.2d 91 (1982); Dobbs v. State, 245 Ga. 208(2), 264 S.E.2d 18 (1980); Reid v. State, 119 Ga.App. 368(1), 166 S.E.2d 900 (1969). While we have found that, in certain instances, proceeding without a defendant absent his waiver may be "harmless error," it does not follow that refusing to proceed without a defendant absent his waiver is "reversible error." Accordingly, without evidence of waiver, we find no error in the trial court's refusal to go forward with the suppression hearing in Cayruth's absence.

2. Likewise, we find no error in the trial court's refusal to consider the suppression issue through a subsequent motion in limine filed by Cayruth. "[A defendant] may not circumvent the requirement of a timely, written motion to suppress by couching his motion ... as a motion in limine." (Citation and punctuation omitted.) Jackson v. State, 252 Ga.App. 268, 270(2), 555 S.E.2d 908 (2001). "Motions in limine do not replace motions to suppress or other specific kinds of pre-trial hearings in criminal cases." Copeland v. State, 272 Ga. 816, 818(2), 537 S.E.2d 78 (2000). Further, we note that, prior to the admission of the evidence about which he now complains, Cayruth's trial counsel expressly stated, "No objection." Thus, Cayruth waived and failed to preserve his right to contest the admission of this evidence on appeal. Mew v. State, 267 Ga.App. 454, 455(2), 600 S.E.2d 397 (2004).

3. In his last claim of error, Cayruth contends his trial counsel was ineffective for failing to move for mistrial based on the continued service of a juror who approached a State's witness during trial.

[I]n order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985). The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. Mobley v. State, 271 Ga. 577, 523 S.E.2d 9 (1999).

Robinson v. State, 278 Ga. 31, 34(3), 597 S.E.2d 386 (2004), citing Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

Cayruth failed to meet his burden in the instant case. The record reveals that on the third day of trial, the prosecutor relayed a report that at about 5:30 on the previous day after court had adjourned, a female juror approached Agent Smith in the parking lot and attempted to speak with him about her son's interest in becoming a police officer. The agent told the juror he was not allowed to speak with her. After the prosecutor disclosed the exchange on the record, Cayruth's trial counsel stated, "Our position is that we don't see a problem with it. The— we feel like the officer acted appropriately by not talking with the juror at all and so we don't have any problems with it."

Cayruth failed to call his trial counsel as a witness at the hearing on his motion for new trial. Thus, Cayruth has "made no affirmative showing that the purported deficiency in his trial counsel's representation was indicative of ineffectiveness and was not an example of a conscious and deliberate trial strategy." Baker v. State, 251 Ga.App. 377, 379(2), 554 S.E.2d 324 (2001). Further, the decision whether to make certain objections falls within the area of trial strategy and usually provides no basis for a finding of ineffective assistance of counsel. Smith v. State, 261 Ga.App. 871, 876(5), 583 S.E.2d 914 (2003). Accordingly, Cayruth has not shown clear error in the trial court's conclusion that he received effective assistance of counsel at trial. Rutledge v. State, 237 Ga.App. 390, 392(2), 515 S.E.2d 1 (1999).

Judgment affirmed.

BLACKBURN, P.J., and MILLER, J., concur.