Brown v. State

• Decision Date: 18 August 1999
• Docket Number: No. A99A1447.,A99A1447.
• Citation: 522 S.E.2d 41,239 Ga. App. 674
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

522 S.E.2d 41

239 Ga. App. 674

BROWN v. The STATE.

No. A99A1447.

Court of Appeals of Georgia.

August 18, 1999.

Virgil L. Brown & Associates, Russell B. Mabrey, Jr., Macon, Larkin M. Lee, Jackson, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

RUFFIN, Judge.

Jimmy Lee Brown was convicted of possession of cocaine with intent to distribute. He appeals, contending that he received ineffective assistance of trial counsel and that the trial court erred in allowing the jury to view a videotape of Brown's traffic stop on two occasions during deliberations. We affirm.

1. Brown contends that trial counsel was ineffective for failing to pursue a motion to suppress evidence. As our Supreme Court has held,

[t]o prevail on a claim of ineffective assistance of counsel, a defendant has the burden to prove that his counsel's actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different.

(Punctuation omitted.) Columbus v. State, 270 Ga. 658, 660(2)(a), 513 S.E.2d 498 (1999). The defendant has the burden of proof under both prongs of this test. Zant v. Moon, 264 Ga. 93, 97(2), 440 S.E.2d 657 (1994); Haynes v. State, 234 Ga.App. 272, 274-275(4), 507 S.E.2d 151 (1998).

The evidence at trial showed that Special Agent Mark Mansfield of the Georgia Bureau of Investigation received a tip from an informant that Brown would be involved in illegal activity while traveling on Old Highway 41. The informant gave Mansfield a description of Brown's vehicle and his direction of travel. Mansfield relayed this information by radio to Chief Deputy Mike Womack of the Lamar County Sheriff's Office. Subsequently, Mansfield and Womack located Brown's vehicle and began chasing it, with Womack activating his lights and siren. After Womack activated his lights, Brown accelerated and attempted to flee. During the chase, Brown threw two plastic bags out the passenger door. These were later recovered by Mansfield and another officer and were found to contain several smaller bags of cocaine. After about two miles, Brown stopped his car and was taken into custody.¹

Brown contends that trial counsel was ineffective in failing to pursue a motion to suppress evidence resulting from the stop.² He contends that the stop of his vehicle was improper because the officers did not have an articulable suspicion that he was engaged in a specific criminal act.

It is undisputed in this case that the cocaine was thrown from Brown's vehicle while he was fleeing from the police. In Hunt v. State, 205 Ga.App. 490, 423 S.E.2d 24 (1992), a defendant threw cocaine from his vehicle while being chased by the police. Relying on California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), we held that

defendant was not "seized" when the cocaine was abandoned. He had not been touched by the officers; he did not submit to the officers' "show of authority"—the flashing blue lights. Simply put, defendant was in a state of flight when the cocaine was discarded and it cannot be said that it was the fruit of an illegal arrest.

Hunt, supra at 491, 423 S.E.2d 24. Similarly, in Smith v. State, 217 Ga.App. 680(2), 458 S.E.2d 704 (1995), we held that

[i]t is undisputed that Smith was in a state of flight when he discarded the cocaine he now seeks to suppress, and contrary to Smith's arguments, being chased is not tantamount to being "seized" in violation of the Fourth Amendment. See California v. Hodari D., [supra]. Under such circumstances, even if we assume that Smith ultimately was illegally seized and detained after being chased, that would not serve as a basis to suppress the cocaine at issue, since the contraband was discarded before the seizure effectively occurred.

(Citation omitted.) See also Milton v. State, 232 Ga.App. 672, 677(4), 503 S.E.2d 566 (1998).

"Where a defendant is in a state of flight when he discards or abandons property which he now seeks to suppress, his being pursued does not result in the `seizure' of property he abandoned." Walker v. State, 228 Ga.App. 509, 510(1), 493 S.E.2d 193 (1997). Because Brown was in a state of flight when he discarded the cocaine in question, and had not submitted to any show of authority by the police, the cocaine was not discovered as a result of an illegal search or seizure, regardless of whether the police had probable cause to stop Brown's vehicle. Accordingly, "a motion to suppress would have been meritless, and [Brown's] ... counsel was therefore not ineffective for failing to [pursue] such motion." Crews v. State, 226 Ga.App. 232, 233(1), 486 S.E.2d 61 (1997).

2. During deliberations, in response to requests from the jury, the trial...