Hayward-El v. State, A07A0468.

• Decision Date: 16 February 2007
• Docket Number: No. A07A0468.,A07A0468.
• Citation: 284 Ga. App. 125,643 S.E.2d 242
• Parties: HAYWARD-EL v. The STATE.
• Court: Georgia Court of Appeals

284 Ga. App. 125

643 S.E.2d 242

HAYWARD-EL v. The STATE.

No. A07A0468.

Court of Appeals of Georgia.

February 16, 2007.

Reconsideration Denied March 12, 2007.

Louis C. Hayward-El, pro se.

Kelly R. Burke, District Attorney, Duncan M. Munn, Timothy M. Marlow, Assistant District Attorneys, for appellee.

BLACKBURN, Presiding Judge.

Louis Hayward-El was convicted, following a jury trial, of two counts of criminal reproduction of recorded material.¹ He appeals his conviction, arguing that the trial court erred in (1) denying him a speedy trial; (2) subjecting him to double jeopardy; (3) denying his motion to suppress unlawfully obtained evidence; (4) denying him an opportunity to conduct meaningful voir dire; and (5) admitting similar transaction evidence. For the following reasons, we affirm.

Viewing the evidence in a light most favorable to the verdict, Davis v. State,² the record shows that on May 22, 2004, a patrolling police officer passed a vehicle driven by Hayward-El and heard rather loud music coming from the vehicle's stereo. Believing that Hayward-El's loud music was violating a city noise ordinance, the officer turned his own vehicle around and initiated a traffic stop. As the officer approached Hayward-El's vehicle, he noticed several cardboard boxes in plain view on the back seat containing numerous digital video recording discs (DVDs) of films. Based on the low quality of the DVDs' packaging, the fact that some of the DVDs were of films still in theatrical release, and the fact that there were duplicate copies of the same films, the officer suspected that the materials had been illegally reproduced (pirated), and consequently placed Hayward-El under arrest. A search of his vehicle following his arrest yielded more DVDs, as well as music compact discs (CDs), which also appeared to have been pirated.

Later that day, after taking Hayward-El into custody, officers contacted his wife and received her consent to search their residence for more pirated materials. Although none were found within the couple's residence, the officers noticed numerous DVDs and CDs in plain view inside Hayward-El's other vehicle, which was parked in the driveway. A search of the second vehicle uncovered even more pirated DVDs and CDs.

On October 12, 2004, Hayward-El was indicted on one count of violating OCGA § 16-8-60(a)(1).³ Based on the State's fear that subsection (a) of this statute might ultimately be found to be preempted by federal law, on February 7, 2006, Hayward-El was re-indicted on two counts of violating OCGA § 16-8-60(b). On March 3, 2006, the trial court entered an order of nolle prosequi as to the 2004 indictment due to the fact that it had now been superseded by the 2006 indictment. At trial, the officers recounted the circumstances surrounding Hayward-El's arrest. In addition, two experts from the Recording Industry Association of America and the Motion Picture Association of America, respectively, confirmed that the CDs and DVDs in Hayward-El's possession were pirated. At the trial's conclusion, the jury found Hayward-El guilty on both counts, and this appeal followed.

1. Hayward-El contends that the trial court erred in denying him a speedy trial. This contention is without merit, however, as no demand for speedy trial, pursuant to OCGA § 17-7-170, appears in the record of this case. See Bennett v. State.⁴ "[N]either the trial court nor this court can consider a purported motion that was never filed or made a part of the record in this case." Owens v. State.⁵

Furthermore, a review of the record also indicates that Hayward-El never made a demand for speedy trial pursuant to his right under the Sixth Amendment of the U.S. Constitution. Accordingly, his claim on appeal that he was denied this right is without merit. Causey v. State.⁶

Moreover, Hayward-El's claim that his conviction was barred by the applicable statute of limitation is also without merit. OCGA § 17-3-1(c) provides in part that "[p]rosecution for felonies other than those specified in subsections (a), (b), and (c.1) of this Code section ⁷ must be commenced within four years after the commission of the crime." "[I]n criminal cases, the statute of limitation runs from the time of the crime to the time of the indictment." Dandy v. State.⁸ Here, Hayward-El was observed committing this crime on May 22, 2004, and the second indictment was issued on February 7, 2006. Thus, the applicable statute of limitation did not bar his conviction.

2. Hayward-El contends that the use of the superseding indictment in this case subjected him to double jeopardy. We disagree.

"An indictment obtained without the dismissal of a prior indictment is a superseding indictment." (Punctuation omitted.) Larochelle v. State.⁹ "A grand jury is not prevented from returning another indictment against an accused, even though an indictment is pending, where there has been no jeopardy upon the first indictment." Montgomery v. State.¹⁰ Importantly, "[a] defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn." (Punctuation omitted.) Armstrong v. State.¹¹

Here, Hayward-El was first indicted on October 12, 2004 and was later re-indicted on slightly different charges on February 7, 2006. He was not placed in jeopardy, however, until July 12, 2006, which was well after the superseding indictment was returned. Furthermore, the trial court entered an order of nolle prosequi as to the 2004 indictment on March 3, 2006, which was well before he was placed in jeopardy. Because no jeopardy ever attached to the first indictment, the State was not even required to dismiss it before proceeding to trial on the second indictment, but could have nolle prossed the first indictment at any time. See Montgomery, supra, 259 Ga.App. at 156(1), 575 S.E.2d 917. Thus, the superseding indictment in this matter did not subject Hayward-El to double jeopardy.

Hayward-El further contends that he was not provided with a copy of the indictment, police reports, or medical reports. However, this claim is belied by the record and therefore without merit.

3. Hayward-El contends that the trial court erred in denying his motion to suppress unlawfully obtained evidence, arguing that both of his vehicles were unlawfully searched. We disagree. "In considering an appeal from denial of a motion to suppress, this Court construes the evidence in favor of the trial court's ruling, and we review de novo the trial court's application of the law to undisputed facts." (Punctuation omitted.) Chapman v. State.¹² "Absent an abuse of discretion, the trial court's order on a motion to suppress will not be disturbed." Smith v. State.¹³

"An officer may conduct a brief investigative stop of a vehicle if such a stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct." (Citation and punctuation omitted.) Freeman v. State.¹⁴ See Terry v. Ohio.¹⁵ It is thus evident "that the stop of a vehicle is authorized if an officer observes the commission of a traffic offense." Hines v. State.¹⁶ See Whren v. United States.¹⁷ Here, the officer's traffic stop of Hayward-El's vehicle was justified because he perceived that Hayward-El was violating a local noise ordinance. See Hines, supra, 214 Ga. App. at 477-478, 448 S.E.2d 226; Freeman, supra, 195 Ga.App. at 358(1), 393 S.E.2d 496. Contrary to Hayward-El's argument, it is of no consequence to this inquiry whether he was ultimately cited for the noise ordinance violation. See Hines, supra, 214 Ga.App. at 478, 448 S.E.2d 226.

Having established that the officer was justified in stopping Hayward-El's vehicle, we next consider whether the officer's subsequent search of the vehicle was proper based on the officer seeing, in plain view, the pirated materials inside. The plain view doctrine applies when the police officer had a prior justification for an intrusion, in the course of which he came inadvertently across a piece of evidence incriminating the accused. Coolidge v. New Hampshire.¹⁸ "In Georgia, this principle extends to the observation of evidence in plain view inside automobiles when the officer was lawfully at the place where he observed the incriminating evidence." (Punctuation omitted.) Crosby v. State.¹⁹ Furthermore, "[t]he viewing need not be motivated by any articulable suspicion. On the contrary, law enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be." Id.

At both the hearing on Hayward-El's motion to suppress and at trial, the officer testified that upon approaching Hayward-El's vehicle, he saw in plain view, boxes containing numerous copies of DVDs. Based on the low quality of the DVDs' packaging, the fact that some of the DVDs were of films still in theatrical release, and the fact that there were duplicate copies of the same films, the officer had not only a reasonable belief that a crime had been committed but had probable cause to arrest Hayward-El for illegally reproducing recorded materials, to seize the viewed contraband, and to search the vehicle for contraband. See Mauge v. State;²⁰ Chapman, supra, 279 Ga.App. at 203(1), 630 S.E.2d 810; Crosby, supra, 266 Ga.App. at 858, 598 S.E.2d 507. Incident to the arrest, the officer was also authorized to search the entire vehicle, including the trunk. See Richardson v. State.²¹

The search of Hayward-El's other vehicle, which was parked in the driveway of his home, was also valid. After Hayward-El was arrested, his wife gave the police her consent to search their home. Although no pirated materials were found inside the home, the officers noticed that the vehicle parked in the driveway contained, in plain view, numerous DVDs and music CDs similar in nature to those found in the vehicle Hayward-El was driving at...