GONZALEZ v. THE STATE
A15A0833
Georgia Court of Appeals
November 18, 2015
780 SE2d 383
McMillian, Judge
Kitchens Kelly Gaines, Mitchell S. Rosen, for appellee.
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 thе 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 leаving 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 cоntaining 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 а 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
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, whiсh 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.
In support of said Motion, the Defendаnt 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 waivеd 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
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
Under
Although Gonzalez’s original motion was timely, actually predating the waiver of arraignment, it failed to provide any factual stаtement, 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, wаs 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 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. at 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 tеstify 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. Acсordingly, we find no abuse of discretion by the trial
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 reasonаble 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 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 tеst 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 arguеd 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
“For a traffic stop to be valid, an officer must identify specific and articulable facts that prоvide 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 who observed facts raising a reasonable suspiсion 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 Residenсe 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
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 abоut 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 driveway and radioed that “the vehicle (is) pulling out of the driveway.” Id. Another responding officer was in the neighborhood аnd 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 casе 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 evidencе 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 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.