Gonzalez v. the State

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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
November 19, 2015
In the Court of Appeals of Georgia
A15A0833. GONZALEZ v. THE STATE.
MCMILLIAN, Judge.
Edgar Yuri Gonzalez appeals the trial court’s denial of his motion for new trial
following his conviction on one count each of trafficking methamphetamine,
possession of cocaine, possession of less than one ounce of marijuana, and driving
on a suspended license. On appeal, Gonzalez argues that the trial court erred in
refusing to hear his motion to suppress, which the court found to be untimely.
Alternatively, if his motion was untimely, Gonzalez asserts that his trial counsel was
ineffective in failing to file it in a timely manner. Finding no merit to either of these
arguments, we affirm.
Viewed in the light most favorable to the verdict, the evidence at trial showed
that on May 7, 2010, Detective Samuel Eaton of the Dalton Police Department was
attempting to serve a search warrant at the house located at 1420 Classic Chase Drive
in Whitfield County (the “Residence”), when he noticed a woman at the curb and
children, who were visibly upset, approaching her. He observed one of these children
leaving the Residence as she approached the woman. After Detective Eaton learned
that the woman had called police to report a domestic disturbance, he saw a man leave
the Residence and drive away at a high rate of speed in a blue Dodge pickup truck,
which was towing a utility trailer containing lawn equipment. Detective Eaton
attempted to follow the truck and also sent a description of the vehicle to dispatch.
Meanwhile, Sergeant Chris Brunson of the Whitfield County Sheriff’s Office
had received a call on the domestic disturbance at the Residence. As he was en route
to the scene, he received a report that the “subject” had left the Residence in a blue
truck and detectives were following him. When Deputy Brunson spotted the truck,
which Gonzalez was driving, he initiated a traffic stop to verify Gonzalez’s
involvement in the domestic report. Deputy Brunson asked Gonzalez enough
questions to verify that he was at the Residence and was involved in the domestic
disturbance. During the stop, Deputy Brunson also ran Gonzalez’s license and
discovered that it had been suspended. He then asked Gonzalez to step out of the car
and placed him into custody.
2
Detective Eaton, who had arrived on the scene, read Gonzalez his rights. When
the detective asked Gonzalez whether there was anything illegal in his truck,
Gonzalez began to cry and told him that there were “six ounces” in a bag in his truck.
A search of the truck resulted in the discovery of 115.46 grams of methamphetamine,
3.23 grams of cocaine, and less than one ounce of marijuana, resulting in the charges
in this case.
On August 27, 2010, Gonzalez’s counsel filed a motion to suppress, which
stated in its entirety:
MOTION TO SUPPRESS
COMES NOW the Defendant in the above-styled case, by and
through the undersigned counsel, and moves this Honorable Court to
suppress the following:
1. Any and all evidence illegally obtained and/or seized by the
State.
2. Any and all evidence of pre-trial and in-court identification of
the Defendant.
3. Any and all statements made by the Defendant.
3
In support of said Motion, the Defendant asserts that the above-
referenced evidence was obtained in violation of the laws of the United
States and the State of Georgia.
Defendant expressly reserves the right to amend and supplement
this motion as new facts and information become available through the
State’s responses to the Defendant’s discovery requests, or otherwise.
WHEREFORE, the Defendant respectfully requests that this
Honorable Court conduct a full and complete hearing regarding this
Motion to Suppress and order the suppression of any evidence seized,
obtained, or acquired in violation of the laws of the United States and
the State of Georgia.
Gonzalez waived formal arraignment and pled not guilty to the charges on September
3, 2010.
Subsequently, at a calendar call on October 22, 2010, ten days prior to
Gonzalez’s trial, his counsel filed a motion to continue and tendered a more
particularized motion to suppress. The State opposed the motion as untimely, noting
that all the facts in the case had been developed through testimony presented at a July
23, 2010 probation revocation hearing for Gonzalez. Defense counsel explained,
however, that she was waiting to determine whether a tape of the traffic stop existed
4
before amending Gonzalez’s preliminary motion to suppress,1 and she had just
learned the day before that there was no tape. The trial court found that Gonzalez’s
preliminary motion was “pure boilerplate,” with “no factual allegations in it
whatsoever,” and thus provided no “basis for rightful amendment.” And the trial court
determined that any question regarding the existence of a tape of the traffic stop was
“a matter for the determination of the defense about whether it [wanted] to file” an
amended motion, but it “[did] not provide a basis for allowing an untimely motion.”
Therefore, the trial court ruled that the amended motion to suppress would not be
heard.
1. Gonzalez first contends that the trial court erred in refusing to hear his
motion to suppress on the ground it was untimely. In its order denying Gonzalez’s
motion for new trial on this ground, the trial court reiterated its reasons for refusing
to hear Gonzalez’s motion to suppress, stating that the preliminary motion “was
infirm for lack of specificity under OCGA § 17-5-30,” and the proposed amended
motion was untimely under OCGA § 17-7-110.
1
The State asserted that Detective Eaton had testified at the revocation hearing
that he had no tape, and he did not know if Deputy Brunson had a tape.
5
Under OCGA § 17-7-1102 and USCR 31.1, a motion to suppress must be filed
within ten days of the date of arraignment unless the trial court extends the time for
filing the motion. “The purpose of [this] time requirement . . . is fundamental fairness
to all parties and those who must attend trial. Failing to file a timely motion to
suppress amounts to a waiver of even constitutional challenges.” (Citations omitted.)
Hatcher v. State, 224 Ga. App. 747, 748-49 (1) (482 SE2d 443) (1997). Thus,
“[w]hether the motion [to suppress] has merit is not an issue; the rule does not apply
only to non-meritorious motions.” Id. at 749 (1). And where, as here, the defendant
waives arraignment, “the ten-day period in which [the defendant] must file pretrial
motions begins on the date that the waiver of arraignment is filed.” Bighams v. State,
296 Ga. 267, 270 (2), n.4 (765 SE2d 917) (2014). Accordingly, because Gonzalez
failed to move for and obtain an extension of time, the pretrial motions in this case
should have been filed by September 13, 2010.
2
OCGA § 17-7-110 provides, in pertinent part, that “[a]ll pretrial motions,
including demurrers and special pleas, shall be filed within ten days after the date of
arraignment, unless the time for filing is extended by the court.” And under USCR
31.1, “[a]ll motions, demurrers, and special pleas shall be made and filed at or before
the time set by law unless time therefor is extended by the judge in writing prior to
trial.” See also Davis v. State, 272 Ga. 818, 819 (1) (537 SE2d 327) (2000) (“USCR
31.1 does not allow exceptions; its flexibility is provided by when and how an
extension of time for filing may be granted.”).
6
Moreover, OCGA § 17-5-30 (b) outlines the requirements for a motion to
suppress. “The statutory provision mandates that a motion to suppress ‘be in writing
and state facts showing that the search and seizure were unlawful.’ . . . Compliance
with OCGA § 17-5-30 (b) is required because evidence exclusion is an extreme
sanction and one not favored in the law.” (Citations and punctuation omitted;
emphasis supplied.) Young v. State, 282 Ga. 735, 735-36 (653 SE2d 725) (2007).
Thus, “[a]ll motions to suppress, whether based on statutory or non-statutory grounds
must state facts and not merely conclusions.” (Citation and punctuation omitted.)
Davis v. State, 203 Ga. App. 315, 316 (2) (416 SE2d 789) (1992).
Although Gonzalez’s original motion was timely, actually pre-dating the
waiver of arraignment, it failed to provide any factual statement, much less any
factual support for the arguments he raised in his amended motion to suppress.
Because the original motion did not meet the statutory requirements, it was subject
to dismissal. See Davis, 203 Ga. App. at 316 (2).
Gonzalez’s proffered amendment of the motion to suppress, which was
tendered more than one month after he waived arraignment, was untimely. “When a
defendant files an untimely pre-trial motion, the trial court may dismiss the motion
or entertain a request by the defendant to accept the late filing.” Taylor v. State, 326
7
Ga. App. 27, 30 (2) (755 SE2d 839) (2014). Therefore, the trial court had the
discretion to determine whether Gonzalez was to be afforded an opportunity to file
an untimely amendment to his legally defective preliminary motion, and we will not
disturb the trial court’s ruling on appeal in the absence of an abuse of that discretion.
State v. Mojica, 316 Ga. App. 619, 622-23 (2) (730 SE2d 94) (2012); Davis, 203 Ga.
App. 316-17 (3).
Here, the record indicates that Gonzalez had the benefit of testimony from the
State’s witnesses regarding the issues in the case at the probation revocation hearing
in July 2010. Even though Deputy Brunson apparently did not testify at the hearing,
Gonzalez could have alleged the facts as he knew them in his preliminary motion to
suppress. He also could have moved for an extension of time to file a more
particularized motion at the time he filed the preliminary motion. If he later obtained
a videotape that added new facts or contradicted the other evidence, he could have
moved for leave to amend his motion based on any newly acquired evidence.
Therefore, Gonzalez was not denied a meaningful opportunity to challenge the traffic
stop; rather, he failed to take timely advantage of the opportunity to do so.
Accordingly, we find no abuse of discretion by the trial court in refusing to hear the
8
motion to suppress.3 See Hatcher, 224 Ga. App. at 749 (1); Davis, 203 Ga. App. at
317 (3).
2. Gonzalez alternatively asserts that his trial counsel was ineffective in failing
to file his amended motion to suppress in a timely manner. He argues that the timely
filing of the motion would have resulted in the suppression of the evidence because
he asserts that Deputy Brunson lacked reasonable articulable suspicion to stop his
truck.
To prevail on his claim of ineffective assistance of counsel, Gonzalez
must show counsel’s performance was deficient and that the deficient
performance prejudiced him to the point that a reasonable probability
exists that, but for counsel’s errors, the outcome of the trial would have
been different. A strong presumption exists that counsel’s conduct falls
within the broad range of professional conduct.
(Citations and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d
837) (2007). See also Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).
Because we find that a motion to suppress based on the validity of the traffic stop
3
We note that the practice in many jurisdictions is to allow late amendments
to a motion to suppress and thus the trial court would have acted well within its
discretion to have allowed the particularized motion. But this Court sits to correct
error, and we find no legal error in the denial of the motion to suppress as untimely.
9
would have been meritless, we conclude that Gonzalez has failed to carry his burden
of demonstrating that his trial counsel was ineffective. See Lockheart v. State, 284
Ga. 78, 80 (3) (663 SE2d 213) (2008) (where motion to suppress evidence would
have been meritless, counsel’s failure to file such a motion did not amount to
ineffective assistance); Quinn v. State, 268 Ga. 70, 72 (485 SE2d 483) (1997) (where
suppression motion would not have been meritorious, defendant was not prejudiced
under the second prong of test for ineffectiveness of counsel).
“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.”
(Citation and punctuation omitted.) Mastrogiovanni v. State, 324 Ga. App. 739, 742
(2) (751 SE2d 536) (2013). Gonzalez argued in support of his motion for new trial
that the drug evidence in this case was subject to suppression because Deputy
Brunson lacked reasonable articulable suspicion to initiate the traffic stop. However,
in its order denying that motion, the trial court concluded that under the totality of the
circumstances, Deputy Brunson, who already was en route to the scene of the
disturbance, could rely on the dispatch report that police were pursuing a “suspect”
in that disturbance to stop Gonzalez’s truck, which matched the description provided.
10
“For a traffic stop to be valid, an officer must identify specific and articulable
facts that provide a reasonable suspicion that the individual being stopped is engaged
in criminal activity.” Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). “This
suspicion need not meet the standard of probable cause, but must be more than mere
caprice or a hunch or an inclination. A founded suspicion is all that is necessary,
some basis from which the court can determine that the detention was not arbitrary
or harassing.” (Citation omitted.) State v. Melanson, 291 Ga. App. 853, 854 (663
SE2d 280) (2008). Therefore, we review the evidence to determine whether,
considering the totality of the circumstances, specific and articulable facts exist to
support such a suspicion. See Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474)
(1994).
“It is well settled that police officers are authorized to use information received
by radio dispatch as part of their basis for articulable suspicion to conduct a stop.”
(Citation and punctuation omitted.) Melanson, 291 Ga. App. at 854. Therefore,
[r]easonable suspicion need not be based on a responding officer’s
knowledge alone, but may exist based on the “collective knowledge” of
the police when there is reliable communication between an officer
supplying the information and an officer acting on that information. In
this regard, police are authorized to stop an individual based on a “be on
the lookout” dispatch or even a radio transmission from another officer
11
who observed facts raising a reasonable suspicion of criminal activity
or a traffic violation.
(Citation and punctuation omitted.) McBurrows v. State, 325 Ga. App. 303, 306 (1)
(a) (750 SE2d 436) (2013).
Construed most favorably to uphold the trial court’s ruling, the evidence here
demonstrates that Detective Eaton determined that the woman outside the Residence
had reported a domestic disturbance to police, and he observed visibly upset children
leaving the Residence to speak with the woman. He also observed Gonzalez leave the
residence at a high rate of speed, proceeded to follow him, and identified him on the
radio as the “suspect” in the domestic disturbance. Meanwhile, Deputy Brunson who
had been dispatched to the report of the domestic disturbance observed a vehicle
matching the description provided by Detective Eaton on the radio and initiated the
stop to determine if the driver were involved in the reported incident.
As the trial court found, this case presents very similar facts to this Court’s
prior decision in Jones v. State, 314 Ga. App. 107 (722 SE2d 918) (2012). In that
case, police received a call from a neighbor about a domestic disturbance. While the
officers were on the way to the scene, the neighbor called back to report that shots
had been fired. Upon their arrival, the officers observed a truck pulling out of a
12
driveway and radioed that “the ‘vehicle is pulling out of the driveway.’” Id. Another
responding officer was in the neighborhood and saw a truck pulling out of a driveway
from about 500 to 600 feet away. Although he did not verify that the truck was
pulling out of the driveway at issue, he saw no other vehicles pulling out of driveways
in the vicinity. Id. That officer initiated a stop of the truck, and after conducting field
sobriety tests, arrested the driver for driving under the influence. Id. This Court held
that based on the totality of the circumstances, “the stop was neither arbitrary nor
harassing, but was based on a founded suspicion of criminal activity.” Id. at 110.
As in Jones, we find that the totality of circumstances in this case were
sufficient to have created a reasonable suspicion that Gonzalez may have been
involved in criminal activity. Although the present case did not involve any evidence
of gunshots as Jones did, the nature of the domestic disturbance was serious enough
that the children on the scene were crying and the woman involved felt compelled to
call for police intervention. Thus, the officers had a founded suspicion of possible
criminal activity. Accordingly, we find no evidence that the stop was based on mere
hunch or caprice or was in any way arbitrary or harassing. See, e.g., Harvey v. State,
328 Ga. App. 94, 96 (761 SE2d 507) (2014) (reasonable articulable suspicion existed
to support an investigatory stop, where officer was dispatched to investigate
13
suspicious activity at a particular gas station and on a road near the gas station, she
saw a group of men that included a man she believed matched the description given
in the suspicious activity call); Brown v. State, 253 Ga. App. 741, 742-43 (1) (560
SE2d 316) (2002) (information received from dispatch of a citizen’s report of a
suspected drunk driver provided sufficient articulable suspicion for officer to stop
defendant’s vehicle where report contained specific information to identify the
vehicle).
Accordingly, the trial court properly denied Gonzalez’s motion for new trial.
Judgment affirmed. Barnes, P. J., and Ray, J., concur.
14