Quinn v. State, A96A0219

• Decision Date: 14 May 1996
• Docket Number: No. A96A0219,A96A0219
• Citation: 221 Ga.App. 399,471 S.E.2d 337
• Parties: QUINN v. The STATE.
• Court: Georgia Court of Appeals

Page 337

471 S.E.2d 337

221 Ga.App. 399

QUINN v. The STATE.

No. A96A0219.

Court of Appeals of Georgia.

May 14, 1996.

Certiorari Granted Oct. 7, 1996.

Timothy P. Healy, Toccoa, for appellant.

David McDade, Dist. Atty., William H. McClain, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant Quinn appeals his conviction of the offenses of trafficking in cocaine, trafficking in methamphetamine, possession of a firearm during commission of a crime, giving false name to a law enforcement officer, forgery in the second degree, and possession of a firearm by a convicted felon. Held:

1. Defendant was initially indicted under a false name he had given law enforcement officers and a timely motion to suppress evidence was filed in that case. After defendant's correct name became known, he was indicted once more, and it is the charges presented in this second indictment for which defendant has been convicted. An amended, or second, motion to suppress evidence was also filed under the case number assigned the second indictment, that is the case on appeal, but not until several weeks after arraignment.

A motion to suppress evidence was also filed on defendant's behalf in an in rem civil condemnation action against certain personal property seized at the time of defendant's arrest. In the civil case, a hearing on the motion to suppress was conducted at which defendant was a party, present, and represented by counsel, the same attorney who later represented him in this criminal case. The motion to suppress evidence in the civil case was denied.

No hearing on a motion to suppress evidence was conducted in the present criminal case. At a pretrial motions hearing, the question of whether there was a proper pending motion to suppress evidence was reached by the trial court. The trial court concluded that the motion to suppress evidence filed in the case begun by the first or false name indictment had not been transferred to the present case begun by the second indictment using defendant's correct name. The amended or second motion to suppress evidence which was filed under the caption of the second indictment was determined to have not been timely filed. The trial court also determined that even if there had been a properly filed motion to suppress, any issue raised therein had been resolved by the ruling on the motion to suppress evidence in the civil condemnation case. The trial court in effect took judicial notice of the evidence at the motion to suppress hearing in the civil proceeding and incorporated that evidence into the record of the case sub judice.

Defendant enumerates as error the failure to hold a hearing on his motion to suppress evidence as amended. In the alternative, defendant maintains that trial counsel was ineffective due to his failure to file a motion to suppress evidence at or before arraignment in the case sub judice.

First, the trial court was correct in concluding that the second or amended motion to suppress evidence was not timely because it was filed after arraignment. Both Uniform Superior Court Rule 31.1 and case law predating this rule, construing OCGA § 17-5-30, require this conclusion. Baseler v. State, 213 Ga.App. 822, 446 S.E.2d 250; Davis v. State, 203 Ga.App. 315, 316(3), 416 S.E.2d 789.

We also agree that the first motion to suppress evidence was not sufficient to require an evidentiary hearing, albeit our reasons for reaching this conclusion are different than those stated by the trial court. OCGA § 17-5-30(b) requires that a motion to suppress evidence "state facts showing that the search and seizure were unlawful." Unless defendant has satisfied this requirement the State is under no duty to present evidence in rebuttal. Brown v. State, 218 Ga.App. 469, 470(1), 462 S.E.2d 420; Wilson v. State, 197 Ga.App. 181, 183, 397 S.E.2d 744. Since mere conclusions unsupported by facts, such as contained in defendant's first motion to suppress evidence, do not satisfy this requirement, no evidentiary hearing was required due to that motion. Martin v. State, 195 Ga.App. 548, 549(3), 550, 394 S.E.2d 551.

2. It is not customary to acknowledge issues not reached or necessary to a decision, but exceptional circumstances require that we do so here. In an apparent response to the trial court's recognition and reliance upon the "motion to suppress evidence hearing" in the civil forfeiture case, the parties have argued a number of questions concerning whether that hearing may have any res judicata or collateral estoppel effect in this subsequent criminal case. We are unable to reach the questions addressed by the parties because the record on appeal fails to show a final judgment in the civil condemnation case because no ruling has been entered with regard to at least some of the property claimed by defendant. A final judgment is required before any possibility of application of the doctrines of res judicata or collateral estoppel may arise. Helton v. State, 217 Ga.App. 691, 692(1)(c), 693, 458 S.E.2d 872; Adcock v. State, 194 Ga.App. 627, 629(4), 391 S.E.2d 438; Clark v. State, 194 Ga.App. 280(1), 281, 390 S.E.2d 425; Hunter v. State, 191 Ga.App. 769, 771, 382 S.E.2d 679.

Defendant relies upon Harvill v. State, 190 Ga.App. 353, 378 S.E.2d 917, in which this Court remanded that case to the trial court to conduct a motion to suppress hearing even though an evidentiary hearing on the validity of that search had been afforded during the proceedings leading to a revocation of probation. Yet, in Talley v. State, 200 Ga.App. 442(3)(a), 408 S.E.2d 463, which the State would have us follow, this Court approved of a trial court's denial of a motion to suppress evidence on the basis that collateral estoppel barred a re-litigation of the same issues raised regarding the legality of the search during a probation revocation proceeding. Since resolution of this matter is not necessary to the decision of the case sub judice, we address this topic solely to alert the bench and bar. See also Pitts v. State of Ga., 207 Ga.App. 606(1), 428 S.E.2d 650 and State v. Jones, 196 Ga.App. 896, 397 S.E.2d 209.

3. Now we reach the question of whether, in failing to file a proper and timely motion to suppress evidence, defendant's trial counsel was ineffective. The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel's deficiency. Here, it is uncontroverted that trial counsel's performance was deficient in failing to file a timely motion to suppress evidence, and argument is directed exclusively to the issue of whether this deficiency prejudiced the defense. Defendant's burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed. Ruffin v. State, 201 Ga.App. 792(2), 793(2)(a), 412 S.E.2d 850. In this regard, defendant relied upon the trial evidence and presented no additional evidence at the hearing on his motion for new trial. Based upon that evidence, a conclusion by the trial court that a motion to suppress evidence would not have been successful, that is, that defendant had been afforded effective counsel was not clearly erroneous and must be upheld.

The incident at issue involves a deputy sheriff on a specialized patrol regimen known as armed robbery stakeout. This rather inarticulately named patrol regimen was used in an extremely high crime area and apparently was intended to aggressively utilize the lowest or least intrusive level of police citizen encounter, the voluntary conversation. The deputy was to check on people walking about or sitting in cars in parking lots.

The encounter at issue in the case sub judice occurred between the hours of 8:00 p.m. and 8:45 p.m. in a shopping center parking lot. It was dark, but the parking lot was lighted. There were two vehicles parked next to one another. A Jaguar was backed into a parking space, and a Trans Am was parked next to it. There was someone seated on the driver's side of the Jaguar leaning over towards the passenger's side. The passenger side door of the Jaguar was open, and defendant was on the ground kneeling and leaning over into the Jaguar. The deputy pulled up and parked in front of the cars. As he exited his car and walked over, the deputy saw defendant put something under the seat of the Jaguar and stand up. The driver of the Jaguar sat upright. The deputy asked the men what they were doing, and defendant stated he was looking to buy the Jaguar. The driver of the Jaguar gave a consistent answer. The deputy then asked the men for identification, and they presented driver's licenses. The driver's license presented by defendant showed a name other than defendant's correct name, but appeared to be a genuine driver's license. After noticing a bag on the front seat of the Jaguar, the deputy asked what was in it, and neither of the men knew. After getting permission of both men, the deputy looked in the bag and found a large sum of money. The deputy called for...