English v. State

• Decision Date: 27 March 2003
• Docket Number: No. A02A1793.,A02A1793.
• Citation: 260 Ga. App. 620,580 S.E.2d 351
• Court: Georgia Court of Appeals
• Parties: ENGLISH v. The STATE.

580 S.E.2d 351

260 Ga. App. 620

ENGLISH v. The STATE.

No. A02A1793.

Court of Appeals of Georgia.

March 27, 2003.

H. Bradford Morris, Jr., Gainesville, for appellant.

Jason J. Deal, Dist. Atty., Jennifer C. Bagwell, Asst. Dist. Atty., for appellee. BARNES, Judge.

Antonio Ellis English appeals his convictions for possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within 1,000 feet of public housing, abandonment of a controlled substance, and obstruction of an officer. He contends the trial court erred by allowing the prosecutor to refer to the war on drugs in her opening statement, allowing in evidence a statement he gave without proper Miranda warnings, limiting his testimony about his companion's criminal history, and denying his motion for a new trial based on the ineffectiveness of his trial defense counsel. For the reasons stated below, we affirm.

Considered in the light most favorable to the jury's verdict, the evidence shows that English and a man named Rucker were walking down a street when the Multi-Agency Narcotics Squad passed in their van. Believing that English and Rucker had recognized them, the agents watched them and saw English walk over on the grass and appear to drop something. After the van stopped, an agent ran to the spot and retrieved what turned out to be 2.4 grams of crack cocaine. While this was going on, English continued to walk away. When the agents identified themselves as police officers, he attempted to run away, but he was apprehended in a nearby public housing complex. Over $500 in cash was found on his person. An agent, who was qualified as an expert, testified that the amount of cocaine that English discarded was more than that which would be used for personal consumption.

After he was found guilty and sentenced, English filed a motion for new trial and amended motions that asserted, among other grounds, that his defense counsel was ineffective. When these motions were denied, English filed this appeal.

1. English alleges that the prosecutor's comments about the war on drugs exceeded the proper bounds of an opening statement. Because English did not object to these comments below, however, we cannot consider this issue on appeal. Strong v. State, 263 Ga. 587, 589(3), 436 S.E.2d 213 (1993). We will examine this issue further while considering English's allegation that his trial defense counsel was ineffective because he failed to object to this argument.

2. English alleges the trial court erred by allowing in evidence statements he made to the arresting officers at the scene of his apprehension because he had not waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the State acknowledges that English was not warned of his rights before he responded to the agents questioning by saying that he was unemployed and had over $500 in his possession, the State contends that the absence of such warnings was unimportant because the trial court found that these questions fell under the "routine booking questions" exception to Miranda. See Franks v. State, 268 Ga. 238, 239, 486 S.E.2d 594 (1997).

When a defendant objects to admission of his statements to the police, the State must prove, by a preponderance of the evidence, that the statement was voluntary, and, if it was the product of a police custodial interrogation, that the statement was preceded by the defendant's knowing and voluntary waiver of his Miranda rights. Brooks v. State, 244 Ga. 574, 581(2), 261 S.E.2d 379 (1979), vacated and remanded on other grounds, 446 U.S. 961, 100 S.Ct. 2937, 64 L.Ed.2d 821 (1980). A "trial court's determination of whether an `interrogation' occurred will be upheld on appeal unless clearly erroneous." Franks v. State, supra, 268 Ga. at 242, 486 S.E.2d 594.

The transcript of the Jackson-Denno hearing shows that after English was placed under arrest, he was not read his rights because, in the officer's opinion, he was not going to ask him any questions pertaining to the case. Then, while filling out "administrative paperwork" that the officer fills out on everyone he arrests or comes into contact with during an official investigation, the officer asked English "his name, date of birth, address, the relatives, occupation, education level, things of that nature." According to the officer, the information is not sought to gather incriminating responses, but to "be able to track that person, find them later, be able to keep up with them." In response to a question about his occupation, English replied that he did construction work, but had not worked in a month or a month and a half. Further, the officer also asked English where he got the $565 that was found on his person. English said that he got the money from work.

At the conclusion of the Jackson-Denno hearing, the trial court ruled that the State could not "go into how did you get the money," but allowed the officer to testify about English's response to the question about his occupation.

In Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the U.S. Supreme Court defined the "interrogation" which must be preceded by Miranda warnings as the express questioning of a person in custody or its functional equivalent[,] that is, any words or actions on the part of the police other than those normally attendant to arrest and custody that the police should know are reasonably likely to elicit an incriminating response from the suspect.

(Punctuation omitted.) Walton v. State, 267 Ga. 713, 717(4), 482 S.E.2d 330 (1997); Hibbert v. State, 195 Ga.App. 235, 236, 393 S.E.2d 96 (1990).

The rationale for this rule is that these administrative "questions asked during booking... are generally unrelated to the crime and are therefore unlikely to elicit an incriminating response." Franks v. State, supra, 268 Ga. at 240, 486 S.E.2d 594. Therefore, even though the questions in this case were not asked during English's booking, the questions were asked during administrative processing, and nothing in the questions indicate that the officer was seeking an incriminating response.

Thus, considering the context of the questioning, the officer's intent, and the relationship of the question to the crime, Franks v. State, supra, 268 Ga. at 240, 486 S.E.2d 594 we do not find clearly erroneous the trial court's conclusion that English's statement was not a response to custodial interrogation within the meaning of Miranda. Brooks v. State, 237 Ga.App. 546, 547(1), 515 S.E.2d 851 (1999).

3. English also contends the trial court erred by limiting his testimony about Rucker's prior criminal conduct and criminal history. The transcript shows that when English attempted to testify about Rucker's theft and drug use and also sought to introduce certified copies of Rucker's earlier convictions for drug offenses, the State objected because the matters English wanted to introduce were not relevant. Specifically, English sought to testify that he saw Rucker use cocaine "about twice" and that on one occasion Rucker told him that he stole some shoes. He asserted that the purpose of the testimony was to explain the circumstances of English's arrest and describe the person who was also present. The trial court, however, ruled that this information was not relevant.

As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga.App. 742, 743(1), 344 S.E.2d 536 (1986). Here, the evidence English sought to introduce was not relevant to any issue before the court. Therefore, it was not error to exclude this evidence that was unrelated to any issue at trial. Sleeth v. State, 197 Ga.App. 349, 350(3), 398 S.E.2d 298 (1990).

4. English contends the trial court erred by denying his motion for new trial because his trial defense counsel was ineffective. Although his motions for a new trial raised other grounds in the trial court, on appeal, he contends his counsel was ineffective because he (a) did not ask for a continuance, (b) did not object to the prosecutor's comments about the war on drugs, (c) failed to object to the officer's qualifications as an expert in narcotics investigations, to the officer's testimony about his training and experience, and to the State's cross-examination about English's failure to appear in court, and (d) failed to object to the court adding "alone" to the charge on circumstantial evidence or reserve his rights to object to the charge.

To prevail on this claim, English has the burden of establishing that his trial defense counsel's performance was deficient and the deficient performance prejudiced his defense. Brown v. State, 257 Ga. 277, 278(2), 357 S.E.2d 590 (1987). In doing so, he had to show a reasonable probability existed that the result of his trial would have been different, but for his defense counsel's unprofessional deficiencies, Baggett v. State, 257 Ga. 735(1), 363 S.E.2d 257 (1988), and he also must overcome the strong presumption that the representation was effective. Clarington v. State, 178 Ga.App. 663, 667(5), 344 S.E.2d 485 (1986). We reject English's contention that because his counsel was inexperienced, there is no presumption of effectiveness. See Stephens v. State, 265 Ga. 120, 121(2), 453 S.E.2d 443 (1995).¹ Additionally, we measure the trial defense counsel's performance under the circumstances existing at trial and not with the benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985).

At the hearing on the motion for new trial, the trial defense counsel testified that he passed the bar in July 1999, and at the time of trial he had been practicing for about one year and two months. He had second-chaired two criminal cases and was lead counsel on one other case before this...