Daniels v. State

• Decision Date: 20 March 2009
• Docket Number: No. A08A2091.,A08A2091.
• Parties: DANIELS v. The STATE.
• Court: Georgia Court of Appeals

676 S.E.2d 13

296 Ga. App. 795

DANIELS v. The STATE.

No. A08A2091.

Court of Appeals of Georgia.

March 20, 2009.

Randall K. Strozier III, Atlanta, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

BERNES, Judge.

Following a jury trial, Freeman Daniels was convicted of aggravated assault, false imprisonment, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. On appeal, Daniels contends that the trial court erred (1) in failing to appoint him counsel prior to the date of trial, (2) in denying his motions for continuance and for withdrawal of his demand for a speedy trial, (3) in sentencing him as a recidivist when the state allegedly served untimely notice of its intent to seek recidivist punishment, and (4) in denying his motion to suppress the pretrial identification evidence. Daniels further contends that his trial counsel provided ineffective assistance.¹ We discern no error and affirm.

Viewed in the light most favorable to the verdict,² the evidence shows that the victim had been visiting a local park and was walking toward her car when she was confronted by Daniels, who asked her for a cigarette and also to use her cell phone. The victim complied with Daniels's requests and continued walking toward her car. When the victim opened her car door, Daniels held a gun to her back and demanded that she get inside. The victim immediately got into the car after which Daniels grabbed her keys, started the car, and began to drive away from the park. The victim screamed and tried to get out of the car, but the doors were locked. Daniels pointed the gun at the victim's head and threatened to kill her if she did not "shut up and be quiet." Daniels also forcibly restrained the victim from getting out of the car.

Daniels asked the victim for money, but after the victim showed Daniels that she did not have any money in her possession, he let her out of the car and drove away.

The victim reported the crimes to the police. When the responding officer arrived at the scene, the victim gave him a description of Daniels and her car. The officer sent out a "be on the lookout" call, describing the stolen car to other law enforcement officers. An investigating detective also placed a report of the stolen car in the National Crime Information Center system.

Approximately one and one-half months later, Paulding County police officers saw Daniels driving the car and attempted to stop him. Daniels led the officers on a high-speed chase, then exited the car and fled on foot. Daniels was apprehended during the chase, and the victim's car was recovered.

A DeKalb County detective subsequently created a six-person photographic lineup, which included Daniels's photograph. When the lineup was shown to the victim, she immediately identified Daniels as the perpetrator. The victim also positively identified Daniels as the perpetrator at trial.

Daniels testified in his own defense at trial. He admitted that he had stolen the victim's car, but claimed that the victim was not present when he stole the car and that he did not use a weapon or harm the victim. According to Daniels, he took the car for a joyride after finding the car unlocked with its keys in the ignition.

Following the presentation of the trial evidence, the jury found Daniels guilty of the charged crimes.

1. Daniels contends that the trial court erred by denying him his right to counsel until the day of trial. Daniels's claim is not supported by the record.

The record shows that Daniels was represented at trial by a public defender and that his office had established contact with Daniels regarding the case as early as April 19, 2005.³ Another public defender represented Daniels at the preliminary hearing held on June 2, 2005. After the hearing, the office lost contact with Daniels and had difficulty locating him because of Daniels's use of several aliases. Nevertheless, at least two weeks prior to trial, Daniels's trial counsel re-established contact with Daniels and twice met with him to discuss the case and prepare the defense. Thus, Daniels's claim that he was denied counsel until the day of trial is simply not true.

And, to the extent that Daniels complains about a lack of further contact with trial counsel, he has shown no harm. His claim therefore affords no basis for reversal. See Defrancisco v. State, 289 Ga.App. 115, 118(1)(c), 656 S.E.2d 238 (2008); Kervin v. State, 178 Ga.App. 601, 606(3), 344 S.E.2d 441 (1986) ("[H]arm as well as error must appear in order to warrant a new trial.").

2. Daniels also contends that the trial court erred in denying trial counsel's motions for continuance and to withdraw Daniels's pro se speedy trial demand. When trial counsel argued these motions in the trial court, Daniels insisted upon the trial going forward in accordance with his speedy trial demand and opposed trial counsel's requests for a continuance. Thus, any error in the denial of these motions was induced by Daniels's own conduct and he cannot now complain of it on appeal. "[O]ne cannot complain of a result he procured or aided in causing, and induced error is not an appropriate basis for claiming prejudice." (Citation and punctuation omitted.) Borders v. State, 285 Ga. App. 337, 340-341(2), 646 S.E.2d 319 (2007). See, e.g., Jefferson v. State, 209 Ga. App. 859, 861(1), 434 S.E.2d 814 (1993) ("A defendant may not refuse to cooperate with appointed counsel and then claim he was not effectively represented.").

Moreover, while trial counsel asserted he needed additional time to prepare for trial, "[m]otions for continuance based on [this] ground[] are addressed to the sound discretion of the trial court." Bearden v. State, 159 Ga.App. 892(2), 285 S.E.2d 606 (1981). "Mere shortness of time does not by itself show a denial of the rights of the accused, and mere shortness of time will not reflect an abuse of the trial court's discretion in denying a continuance, where the case is not convoluted and is without a large number of intricate defenses." (Citations and punctuation omitted.) In the Interest of S. U., 232 Ga.App. 798, 800(1), 503 S.E.2d 66 (1998). Here, the state's case was straightforward and was not convoluted. Daniels's trial counsel was familiar with the case, had discussed the case and the defense with Daniels, had reviewed the state's entire file, and had prepared a pretrial motion to suppress, an opening statement, and examination questions for trial. Daniels had not informed his trial counsel of any other witnesses or defenses that could have been presented on his behalf. Under these circumstances, the trial court did not abuse its discretion in denying the motion for a continuance. See In the Interest of S.U., 232 Ga.App. at 800(1), 503 S.E.2d 66; Bragg v. State, 172 Ga.App. 133, 134, 322 S.E.2d 337 (1984); Bearden, 159 Ga.App. at 892-893(2), 285 S.E.2d 606.

3. Daniels further argues that the trial court erred in sentencing him as a recidivist because the state did not serve notice of its intent to seek recidivist punishment until the morning that the case was called for trial. Daniels claims that the notice, which was served prior to the jury being sworn, was untimely.

"If the [s]tate intends to introduce evidence that defendant is a recidivist for sentencing purposes, it must notify defendant of any conviction it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2(a)." (Citation and punctuation omitted.) Hatcher v. State, 224 Ga.App. 747, 750(2)(a), 482 S.E.2d 443 (1997). "This [c]ourt has previously held that notice received prior to the jury's being sworn is sufficient to satisfy the requirement of the statute." Jenkins v. State, 235 Ga.App. 547, 549(3)(a), 510 S.E.2d 87 (1998). Because Daniels received timely notice of the state's intention to seek recidivist punishment, no error has been shown. Id.; Williams v. State, 162 Ga.App. 120, 120-121(2), 290 S.E.2d 341 (1982).

4. Next, Daniels contends that the trial court erred in denying his motion to suppress evidence of the victim's identification of him in a pretrial photographic lineup. He argues that the identification procedure was impermissibly suggestive.

The photographic lineup consisted of photographs of six males of the same race and of similar complexion, age, facial hair, and hairstyle. Daniels nonetheless complains that he was the only person depicted wearing a light-colored shirt. But, "photo lineups [are] not impermissibly suggestive when the defendant's clothing differed from the others' in some respect, [when] the witnesses had not described the perpetrator as wearing the clothing the defendant wore when he was identified." (Citations and punctuation omitted.) Cooper v. State, 281 Ga. 760, 761(2), 642 S.E.2d 817 (2007). The color of Daniels's shirt in the lineup did not match the victim's prior description of his clothing worn at the time of the incident. As such, the difference in Daniels's shirt in the lineup was not significant and did not render the lineup impermissibly suggestive. Id.

Furthermore, the detective and victim both testified that the detective did not make any suggestions as to whether the suspect was depicted in the lineup or which individual to pick in the lineup. The detective read the victim instructions prior to her view of the lineup to ensure that her identification was solely based upon her independent recollection. The victim immediately identified Daniels as the perpetrator in the lineup, and identified him again at trial, stating that she would "never forget a face that traumatize[d][her] like that."

There also is no merit to Daniels's speculation that the victim may have seen him when he was in custody in Paulding County. The victim testified that she was not shown any photos or suspects to identify when she went to Paulding County to retrieve her car. She further confirmed that the only lineup...