Davis v. The State

• Decision Date: 08 June 2010
• Docket Number: No. A10A0633.,A10A0633.
• Citation: 696 S.E.2d 381,304 Ga.App. 355
• Parties: DAVISv.The STATE.
• Court: Georgia Court of Appeals

304 Ga.App. 355

696 S.E.2d 381

DAVISv.The STATE.

No. A10A0633.

Court of Appeals of Georgia.

June 8, 2010.

COPYRIGHT MATERIAL OMITTED

Gary W. Jones, Marietta, for Appellant.

Patrick H. Head, Dist. Atty., Dana J. Norman, Asst. Dist. Atty., for Appellee.

BERNES, Judge.

Steven Andrew Davis was arrested for firing a handgun at a street light at a hotel, and a deputy found cocaine in his pocket during the booking process at the county detention center. Davis was indicted and tried on several charges relating to the handgun incident and the cocaine. He represented himself at the pre-trial hearings and through most of his jury trial, but ultimately requested and was permitted by the trial court to have standby defense counsel represent him. Following the trial, the jury convicted Davis solely of possession of cocaine.¹ On appeal from his conviction, Davis contends that the trial court erred by denying his motion to suppress; by allowing Davis to represent himself at trial and initially stating that his decision to do so would be irrevocable; by requiring Davis to complete the cross-examination of a state's witness before allowing standby defense counsel to take over Davis's representation; by admitting the alleged hearsay testimony of a police officer to explain the officer's conduct; by limiting Davis's cross-examination of a police officer; and by failing to charge the jury on equal access. Davis also challenges the sufficiency of the evidence. For the following reasons, we affirm.

1. Davis argues that the trial court should have granted his motion to suppress because (a) there was no probable cause for his arrest and (b) the search of his hotel room exceeded the scope of the search warrant.

On appeal from a trial court's denial of a motion to suppress, the evidence is construed most favorably to uphold the court's findings and judgment. If there is any evidence to support the trial court's findings on disputed facts and credibility, they will not be disturbed unless clearly erroneous. When reviewing a trial court's ruling on a motion to suppress, we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.

(Citations and punctuation omitted.) Postell v. State, 279 Ga.App. 275, 276(1), 630 S.E.2d 867 (2006).

Construed in favor of the trial court's ruling, the evidence showed that after midnight on June 18, 2007, officers with the Cobb County Police Department were dispatched to a local hotel in response to a report that “three gentlemen had ... been drinking and then shot guns in the air at a street light.” One of the officers spoke to a female witness who confirmed that she had seen three men shooting at a street light at the hotel a short distance from her. The witness stated that one of the shooters, a white male, later ran into a hotel room carrying a handgun. According to the witness, the shooter had been “wearing a multicolored bandana, camouflage shorts, a ball cap, and also had a tattoo on [his] ankle that stated[,] ‘No Fear.’ ”

The officer communicated the description of the white male shooter to the other responding officers on the scene. Shortly thereafter, officers observed Davis, who matched the description given by the witness, exit from one of the hotel rooms. Davis was apprehended and placed under arrest for discharging a firearm on hotel property without first obtaining permission from the hotel owner or lessee in violation of OCGA § 16-11-104(a).²

Following his arrest, Davis was transported to the county detention center, where a sheriff's deputy searched him as part of the booking process. During the search, the deputy pulled suspected cocaine out of Davis's right front pocket. The deputy handed the suspected cocaine to an officer who had been involved in the arrest and had transported Davis to the detention center. The arresting officer took the suspected cocaine back to the police station, bagged and sealed it, and placed it in a locked evidence locker. The evidence subsequently was taken to the state crime lab, where chemical testing confirmed that it was cocaine.

Officers also applied for and obtained a warrant to search Davis's hotel room for the handgun described by the witness to the shooting incident. While conducting the search, officers found a .38 caliber firearm consistent with the witness's description and a candy tin containing suspected cocaine. The suspected cocaine in the tin was bagged as evidence but ultimately was not tested by the state crime lab or relied upon by the state to support the possession of cocaine charge against Davis.

(a) Davis maintains that his arrest was illegal because the officers lacked probable cause to believe that he had committed a crime and that, as a result, the cocaine seized from his person and the hotel room should have been suppressed as fruit of the poisonous tree. We disagree.

[A]n arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the

knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.

Durden v. State, 250 Ga. 325, 326(1), 297 S.E.2d 237 (1982). Probable cause can be based upon the collective knowledge of multiple police officers “when there is some degree of communication between them.” Harper v. State, 300 Ga.App. 757, 761(1)(a), n. 7, 686 S.E.2d 375 (2009).

Davis matched the unique description of one of the shooters provided by the eyewitness and communicated to the responding officers. Furthermore, he was encountered by the officers near the scene of the shooting incident shortly after its occurrence. These combined facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that Davis had committed the offense of discharging a firearm on the property of another without permission. See OCGA § 16-11-104(a). The trial court's finding that there was probable cause for Davis's arrest was not clearly erroneous. See Phillips v. State, 233 Ga. 800, 801-802, 213 S.E.2d 664 (1975) (detective who had investigated robbery and interviewed victim had probable cause to arrest four men who matched the victim's description of the robbers); Self v. State, 245 Ga.App. 270, 273-274(3)(b), 537 S.E.2d 723 (2000) (probable cause existed to arrest defendant and his two accomplices based upon descriptions of robbers and their vehicle given by victims and fact that police encountered the men near the scene of the crime). See also State v. McBride, 261 Ga. 60, 62(2)(a), 401 S.E.2d 484 (1991); Dixon v. State, 273 Ga.App. 740, 742(2), 615 S.E.2d 838 (2005); Hamilton v. State, 162 Ga.App. 116, 117(2), 290 S.E.2d 478 (1982).

(b) Davis also maintains that the candy tin and the suspected cocaine found therein should have been suppressed because the search of the tin fell outside the scope of the search warrant. But Davis affirmatively stated that he had no objection when the state tendered the candy tin and its contents into evidence at trial.³ He therefore waived his claim of illegal search. See Monroe v. State, 272 Ga. 201, 204(6), 528 S.E.2d 504 (2000); Carreno v. State, 272 Ga.App. 229, 230(1)(a), 612 S.E.2d 62 (2005); Dyer v. State, 233 Ga.App. 770, 771-772, 505 S.E.2d 71 (1998).

2. Davis argues that the trial court committed reversible error (a) by allowing him to represent himself at trial without first ensuring that he knowingly, voluntarily, and intelligently waived his right to counsel and (b) by initially stating that once he made the decision to represent himself, he could not change his mind mid-trial. We are unpersuaded.

(a) The trial court properly allowed Davis to waive his right to counsel and represent himself at trial.

Although a criminal defendant has a Sixth Amendment right to assistance of counsel at trial, the defendant also has the constitutional right to represent himself, as long as he voluntarily, knowingly, and intelligently elects to waive the right to counsel. To establish a valid waiver, the trial court must apprise the defendant of the dangers and disadvantages inherent in representing himself so that the record will show that he knows what he is doing and his choice is made with eyes open. In this regard, ... the record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.

(Punctuation and footnotes omitted.) Davis v. State, 301 Ga.App. 484, 488(4), 687 S.E.2d 854 (2009). See Faretta v. California, 422 U.S. 806, 807, 835(V), 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Evans, 285 Ga. 67, 68-69, 673 S.E.2d 243 (2009); Wayne v. State, 269 Ga. 36, 38(2), 495 S.E.2d 34 (1998).

During the course of proceedings in this case, Davis was appointed two different attorneys to assist in his defense. Davis's first attorney filed motions and appeared at a preliminary hearing on his behalf, but ultimately moved to withdraw from representing Davis due to “personality, strategy and ethical conflicts” between them and after Davis expressed his desire to terminate their attorney-client relationship. The trial court granted the motion to withdraw. Davis then filed a pro se motion in which he asserted that he was “familiar with Georgia Criminal Trial Practice,” requested that he be permitted to represent himself, and requested that the trial court appoint a new attorney to assist him. Davis thereafter was allowed to represent himself at several pre-trial suppression hearings with stand-by counsel appointed to assist him if necessary. Davis also filed multiple pro se motions and supporting briefs, including a successful motion to recuse the trial judge originally assigned to the case.

On the day of trial, Davis appeared with his appointed standby counsel and again requested that he be allowed to represent himself. After discussing the indictment and...