ALLEN v. the STATE.
ALLEN v. the STATE.
Opinion
*595 Following a jury trial, Dante Allen was found guilty of possession of marijuana with the intent to distribute, driving with an expired license, and improper brake lights. He was sentenced to eight years, to serve two, with the remainder on probation for the possession conviction, and concurrent twelve months of probation sentences for the expired license and improper brake lights convictions. He appeals from the denial of his motion for new trial, as amended, and asserts *596 several claims of ineffective assistance of counsel and that the trial court erred in denying him his Sixth Amendment right to represent himself at trial. Following our review, we affirm.
On appeal from a criminal conviction, we construe the evidence in the light most favorable to the jury's verdict. See
Coates v. State
,
1. Allen first contends that trial counsel was ineffective for failing to file a motion to suppress, failing to object to statements made by the prosecutor regarding inadmissible evidence, and failing to request a Faretta hearing when Allen requested to represent himself. To succeed on an ineffective assistance claim,
[Allen] 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. We need not address both the deficient performance and *597 prejudice prongs of the test if the defendant has made an insufficient showing on either prong.
(Citations and punctuation omitted.)
Towry v. State
,
(a) Allen argues that his trial counsel was ineffective for failing to file a motion to suppress "an illegal traffic stop." He contends that police illegally extended the scope of the stop for the broken brake light without any particular suspicion of contraband, and thus the evidence seized as a result of the stop should have been suppressed rather than admitted at trial. At the motion for new trial hearing, trial counsel testified that his trial strategy in attacking the stop was "nothing. That stop, in my opinion, was valid.... It was a valid stop, it wasn't a prolonged stop."
"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."
Richardson v. State
,
On a motion to suppress contraband discovered during a traffic stop the State bears the burden of proving that the *54 search of the car was lawful, and to carry this burden, the State must show that it was lawful to detain [Allen] until the time the drug dog indicated the presence of drugs. As our Supreme Court has recently explained, claims that an officer illegally prolonged a detention resulting from a traffic stop generally fall into two categories. The first category *598 involves those cases [as here] where the officer allegedly extended the stop beyond the conclusion of the investigation that warranted the detention in the first place, i.e., whether the officer prolonged the stop after concluding his investigation of the traffic violation. In such cases, courts have generally concluded that even a short prolongation is unreasonable unless good cause has appeared in the meantime to justify a continuation of the detention to pursue a different investigation.
(Citations and punctuation omitted)
Bodiford v. State
,
Allen does not dispute that the stop of his vehicle based on the brake light violation was authorized. However, contrary to Allen's assertion that he was detained beyond the scope of the original stop, during his investigation of Allen's suspended license, the officer obtained reasonable suspicion of criminal conduct when he detected the odor of marijuana. Based on his suspicion, the officer requested consent to search the vehicle, and when Allen declined, the officer called the K-9 Unit for assistance. There is no evidence that, prior to detecting the odor of marijuana, the officer unreasonably delayed the detention beyond the time necessary to effect the purpose the traffic stop. "[A] reasonable time to conduct a traffic stop includes the time necessary for the officer to run a computer check on the validity of the driver's license and registration, and to check for outstanding warrants and/or criminal histories on the driver and other occupants."(Footnotes omitted.)
Young v. State
,
Thus, as Allen has not demonstrated that the evidence at issue would have been suppressed had counsel made the motion, trial
*599
counsel was not deficient for failing to do so. See
Richardson v. State
,
(b) Allen also contends that trial counsel was ineffective for failing to object to statements made by the prosecutor about evidence of an internal affairs investigation. Allen argues that the testimony was inadmissible hearsay and was prejudicial in that it tended to support the State's contention that Allen was guilty of the charged offenses. We do not agree.
During the opening, the prosecutor stated that Allen had
accused [the responding officer] of planting the drugs in the car. You will also hear that Mr. Allen accused [the arresting officer] of drinking beer at the scene and having alcohol on his breath. And you'll hear the officer's comments about how that exchange went and what happened as a result of that. You're going to hear that there was an internal affairs investigation, that they all gave statements, that they received a statement as well from Mr. Allen. And that the allegations were unfounded.
And later the arresting officer testified that during his arrest, Allen had accused the responding officer of planting marijuana in the car and the arresting officer of drinking alcohol *55 during the stop. He testified that Allen had filed an internal affairs complaint and that, as a result, he was interviewed by internal affairs and provided them with a statement.
At the hearing on the motion for new trial, Allen's trial attorney testified that he did not find the statements objectionable and further testified that he did not believe that the information was harmful to Allen's defense. Specifically, as to the statements made during the opening, trial counsel testified that he did not need to object to the statements made about the internal affairs investigation because, Allen "was going to take the stand at that point and I was going to use him to rebut all of that." "Whether to object to the content of an opening statement is a tactical decision," and trial counsel's "reasonable tactical decision" not to object during opening statements does not generally qualify as deficient performance.
Phillips v. State
,
As to Allen's assertion that the arresting officer's testimony about the internal affairs investigation was inadmissible hearsay, trial counsel testified that he "found no error" in the testimony, did not find the line of questioning improper, and did not believe evidence of an unsubstantiated internal complaint made by Allen against the officers would negatively impact his defense. Again, "decisions of when and how to raise objections are generally matters of trial strategy...." (Footnote omitted.)
Holmes v. State
,
(c) Allen also contend that trial counsel was ineffective for failing to request a
Faretta
hearing when Allen requested to represent himself. See
Faretta v. California
,
The record shows that prior to trial, the trial court inquired as to whether there were any pretrial issues to address and the State responded that "I think Mr. Allen wants to fire the Public Defender's Office." The trial court asked if there were any motions from the defense, and Allen's trial counsel responded that there was "[n]othing. Other than Mr. Allen wants to make a statement." In a lengthy statement Allen requested a continuance, acknowledged that he "had four Public Defenders since the case has been open," complained that he was unhappy with his present representation and that a previously agreed-upon plea deal had been withdrawn, and expressed that he was in the process of retaining his own attorney. At the conclusion of Allen's statement, the State responded that, for the record, it would like the trial court to know the details of the last plea offer "if, in fact, you were going to allow him to not have a lawyer and proceed without a lawyer." The following exchange then occurred:
Trial court: What are you talking about? There is no discussion about proceeding without a lawyer.
State: Well, initially, he came in today and told you about wanting to go-
Trial Court: I haven't heard any of that.
The State: Ok.
Trial Court: I just heard a long elocution. I didn't hear any of that. Is there anything else you want to say?
Allen responded that he did not feel that his current attorney had his best interest in mind, that he did not think the attorney wanted to represent him, and that he did not feel "comfortable with him representing me." Allen then concluded with a lengthy statement about his work history, praise for the public defender who had preceded current counsel, and additional complaints about his *602 current representation. The trial court then called the case for trial and when Allen inquired whether he would be able to present certain documents toward his defense, the trial court answered, "Through your attorney please. Thank you very much." Allen then asked, "Am I able to proceed by myself, Your honor? I don't mind doing that by myself. I think I have a better chance representing myself because I know the truth and I want to make sure about all the things that I heard. And I'm not sure if my attorney is going to allow me to speak up and do that for myself." The trial court responded, "Okay. Thank you very much. Let's start." Thereafter, there was no other discussion from Allen about representing himself during trial.
In its order denying Allen's motion for new trial, the trial court found that Allen had not made an unequivocal assertion of the right to represent himself. We agree that Allen's statements regarding self-representation are not unequivocal, but appear to equivocate between dismissing his current public defender, retaining new counsel, or representing himself.
If the request to represent oneself is equivocal, there is no reversible error in requiring the defendant to proceed with counsel. McClarity v. State [,234 Ga. App. 348 (1),506 S.E.2d 392 (1998).] Thus, statements that amount to nothing more than expressions of dissatisfaction with current counsel do not trigger any requirement that the court hold a hearing under Faretta or that the defendant be allowed to proceed pro se. Thaxton [ v. State ,260 Ga. 141 , 142 (2),390 S.E.2d 841 (1990) ]. See Howard v. State [,251 Ga. App. 243 , 244-245 (6),553 S.E.2d 862 (2001) ] (refusing to proceed to trial with retained counsel did not amount to a request to proceed pro se); Lynott v. State [,198 Ga. App. 688 , 689 (2),402 S.E.2d 747 (1991) ] (appellant's statements that he was being forced to represent himself, and that he wished to discharge *57 counsel and select another or to act as co-counsel with present counsel, did not amount to an unequivocal request to proceed pro se).
Crutchfield v. State
,
Thus, absent an unequivocal request to represent himself, the trial court did not err in failing to conduct a
Faretta
hearing, and thus
*603
trial counsel was not deficient for failing to request such.
1
See
McCoy v. State
,
2. Allen contends that the trial court erred in refusing his request to represent himself at trial. As we found in the prior division, Allen did not make an unequivocal assertion of his right to represent himself. His remarks expressed dissatisfaction with his attorney, the possibility of retaining his own counsel, and possibly representing himself. They cannot be construed as an unequivocal assertion of his right to represent himself. See
Danenberg v. State
,
Accordingly, the trial court did not err in denying Allen's motion for new trial.
Judgment affirmed.
McMillian and Reese, JJ., concur.
Trial counsel testified at the hearing on the new trial motion that Allen had "never expressed ... the wish to represent himself."
Reference
- Full Case Name
- Dante Allen v. State
- Cited By
- 6 cases
- Status
- Published