Dade v. State
| Decision Date | 29 May 2008 |
| Docket Number | No. A08A0471.,No. A08A0469.,No. A08A0470.,A08A0469.,A08A0470.,A08A0471. |
| Parties | DADE v. The STATE. Dumas v. The State. Harris v. The State. |
| Court | Georgia Court of Appeals |
Gerard Bradley Kleinrock, for appellant (case nos. A08A0469 and A08A0470).
Zell & Zell, Rodney S. Zell, for appellant (case no. A08A0471).
Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.
After a joint trial, a jury convicted Ferlando Dade of possession of marijuana with the intent to distribute, Emarcus Dumas of trafficking in and possession of marijuana, and John Harris of armed robbery, kidnapping, and possession of a firearm during the commission of a crime. In their appeals, Dade and Dumas assert that they are entitled to a new trial because their trial counsel provided ineffective assistance of counsel by failing to properly file a motion to suppress. Harris asserts that he is entitled to a new trial because his counsel was ineffective by failing to object to bad character evidence and testimony about the ultimate issue in the case. For the reasons set forth below, we affirm.
The two-prong test for evaluating the validity of a claim of ineffectiveness of counsel "asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's deficiency." (Citations, punctuation and footnote omitted.) Bruce v. State, 252 Ga.App. 494, 498(2), 555 S.E.2d 819 (2001). "A trial court's finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous." (Citations and punctuation omitted.) Scapin v. State, 204 Ga.App. 725, 420 S.E.2d 385 (1992).
Viewed in this light, the record shows that a DeKalb County police officer responded to a dispatch call of a "burglary in progress" at 1046 Main Street Lake Drive around 1:00 p.m. When the officer arrived six minutes later, he saw signs of forced entry. The victim could not provide a description of the person trying to enter her home or of any vehicle that may have been involved.
When a helicopter arrived as backup, its pilot informed the officer that he had observed "a van" or a "maroon van" driving down the street away from 1046 Main Street Lake Drive. The record contains the following descriptions of the maroon van's suspicious nature: It moved very slowly; it moved slowly, stopped, and then sped away down a dirt road; and it was "traveling at a high rate of speed in the vicinity of the address of the burglary complaint."
The officer responding to the attempted burglary call decided to attempt to locate the van and investigate. The helicopter followed the maroon van and reported to the officer that it had driven into a garage located at 1025 Main Street Lake Drive, a few houses away from where the attempted burglary occurred. The helicopter also reported that two men exited the van and went into the home and that someone closed the garage door from the inside "in a very quick fashion."
Believing that the van may have been involved in the attempted burglary, the officer went to the door of the residence to investigate. At this time, the officer also knew from another radio report that either "a white van" or "a van" of an unidentified color had been recently involved in an armed robbery within the same police precinct.
When the officer knocked several times on the front door and no one answered, he went around the back of the house to determine if there were any other doors to the house because he "couldn't understand why they weren't coming to the door." After knocking on one set of back doors and still receiving no response, the officer began checking the doors to determine if the house was secure. The record shows that the officer then discovered that one of the doors was either unlocked, open, or ajar. At this point, the officer suspected that another burglary might be in progress because the helicopter confirmed that people had entered the residence and had not left before the officer's arrival.
The officer either opened an unlocked door or swung open a door that was ajar and announced, "DeKalb Police ... Show yourselves." The officer did not enter the house. Although the officer heard "commotion" inside the house, no one came to the door. Because the officer did not know who was in the house, whether they might be armed, and whether he might be in danger, he drew his weapon and again commanded the occupants to come out.
When Dumas, Dade, and Taron Smith showed themselves to the officer, he ordered them to lie down. The officer asked them to step outside one at a time, where they were checked for weapons and then asked to sit down. Although the men were not under formal arrest or placed in handcuffs, they were not free to leave because the officer was investigating who owned the house and the van to ensure that he had not interrupted a burglary in progress.
The officer started asking the men questions, and Dumas admitted that he owned the van. Taron Smith rented the house from Dade, who owned it. The men did not provide a reasonable explanation as to why they had not answered the door. When the officer asked Dumas if he could "take a look at the van," Dumas "seemed hesitant" and did not immediately consent, but instead described the van. The officer explained to Dumas that there had been another crime involving a van and asked again for consent to look at it. After this second request, Dumas consented. At the time, the officer was not sure what color van had been involved in the armed robbery because there "was a lot of confusion going on at that point." He "was trying ... to deal with that situation at hand with the occupants at the house, information I was getting from Air 90 and several other officers that kept keying up on the radio at that time."
After obtaining consent, the officer followed Dumas into the house and the entry to the garage. Dumas tried to turn around and walk back outside, which gave the officer the impression that Dumas did not want to be present when the officer looked at the van. The officer told Dumas "hold up a second and ... stand right there." The officer "wanted to keep him in sight" as a safety precaution because he did not know if anyone else was in the house. Dumas's actions led the officer to believe that Dumas did not want the officer to go in the garage and that "something was going on." The officer did not interpret Dumas's conduct as a withdrawal of consent and the officer denied that he forced Dumas to do anything. At no time did Dumas tell the officer that he could not look at his van.
When the officer walked into the garage and looked at the maroon van, he saw what appeared to be a bale of marijuana inside it in plain view. The officer then arrested all three men and searched the house,1 where they found a fourth man, Harris, shirtless and hiding under some clothes in a closet. After obtaining a search warrant, police searched the van and found over 63 pounds of marijuana, duct tape, two handguns, two black ski masks with Dumas's DNA on them, a white T-shirt with the blood of the armed robbery victim on it, and the armed robbery victim's identification, wallet, and checks.
When a detective searched Harris, he found a check made payable to Chem-Dry in the amount of $400 in his pocket. Harris told the detective that he worked for Chem-Dry and claimed that it was his check. After conducting more interviews and getting conflicting statements, the detective believed "something wasn't right" and went back to Harris about 15 minutes later to retrieve the check. At that time, Harris no longer had the check.
On the same day and less than two hours before Dade, Dumas, Harris, and Smith were arrested, Calvin White was robbed by two men after being called to perform carpet cleaning at a home that was for sale. After determining that he could not perform the carpet cleaning because the power was not turned on, the man he met at the home pulled out a gun and screamed at White "to get down." Another man wearing a ski mask over his face came down the stairs, and the two men wrapped duct tape around his body from "head to toe." They then hit White on the head twice and dragged him down a series of stairs to the basement, where they left him. The men took his wallet, checks for work he had performed, and his keys before driving away in his white work van. One of the checks was in the amount of $400 and payable to Chem-Dry. Less than ten minutes later, White escaped and reported the robbery to the police.
Two days after the robbery, White identified Harris in a photographic lineup as the person who met him at the house and robbed him. A detective also showed White a second photographic lineup that included Dade, but White could not identify anyone in that lineup as being involved in his armed robbery. Police lifted a fingerprint from the interior side of the front storm door of the house where White was robbed that matched Dumas's fingerprint. A crime scene investigator testified that she could not differentiate between duct tape found in Dumas's maroon van and that which was wrapped around White during the armed robbery.
Dumas and Dade, through separate counsel, filed general motions to suppress all evidence illegally seized by police, but failed to provide a factual basis for their motions before trial. When the case was called for trial, Dumas's trial counsel asked the trial court to rule on his pending motion to suppress and Dade's counsel joined in Dumas's motion to suppress. The State objected on the grounds that Dade and Dumas failed to specify the grounds of their motions before trial, and the trial court dismissed the motions to suppress because the...
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