Sellers v. State

• Decision Date: 26 March 2015
• Docket Number: No. A14A2197.,A14A2197.
• Citation: 332 Ga.App. 14,770 S.E.2d 31
• Parties: SELLERS v. The STATE.
• Court: Georgia Court of Appeals

332 Ga.App. 14

770 S.E.2d 31

SELLERS

v.The STATE.

No. A14A2197.

Court of Appeals of Georgia.

March 26, 2015.

Reconsideration Denied April 13, 2015.

Certiorari Denied Sept. 8, 2015.

Robert L. Crowe, Brunswick, Atlanta, for Appellant.

Andrew J. Ekonomou, Asst. Dist. Atty., Atlanta, Jacquelyn Lee Johnson, Dist. Atty., for Appellee.

Opinion

BARNES, Presiding Judge.

Charles Dewey Sellers allegedly fled from the scene of a traffic stop, leading the police on a high speed car chase in which he struck another vehicle, discarded cocaine from his car window, and attempted to bribe a police officer following his apprehension. After pleading guilty in state court to the traffic offense of following too closely, Sellers was indicted in superior court on charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, bribery, and fleeing or attempting to elude a police officer. Sellers filed a motion in autrefois convict and plea of former jeopardy (the “procedural double jeopardy motion”), contending that all counts of the indictment returned in superior court should be dismissed as a result of his guilty plea in state court. Sellers also filed a motion to suppress the cocaine, contending, among other things, that the traffic stop had been unreasonably prolonged and that the cocaine allegedly discarded from his vehicle was the tainted fruit of his unlawful detention.

The superior court denied Sellers's procedural double jeopardy motion, with the exception of the charge for fleeing or attempting to elude a police officer, which the court found was barred as a result of Sellers's prior guilty plea in state court. The superior court also denied Sellers's motion to suppress. Sellers now appeals these rulings.¹ We affirm the superior court's partial denial of the procedural double jeopardy motion because Sellers failed to establish that the solicitor-general who handled his guilty plea in state court actually knew of the other crimes arising out of the same conduct as the traffic offense to which he pled guilty. We affirm the superior court's denial of the motion to suppress because the discarded cocaine was not tainted by any alleged illegality in Sellers's detention.

Construed in favor of the trial court's rulings, the record shows that after receiving information from a confidential informant that Sellers possessed a large amount of cocaine, an investigator with the City of Brunswick Police Department and other members of his narcotics enforcement team conducted surveillance of Sellers over the course of several days on Jekyll Island. On June 6, 2013, the investigator received additional information that Sellers might be involved in a large drug transaction and might be leaving town that day. After observing Sellers driving away from Jekyll Island around noon, the investigator radioed the make, model, and tag number of Sellers's vehicle to a trooper with the Georgia State Patrol who was involved in the surveillance operation.

The state trooper identified and began to follow Sellers's vehicle as it left Jekyll Island and proceeded down a highway in Glynn County. Believing that the tint on the windows of Sellers's vehicle was darker than was legally permissible, the trooper initiated a traffic stop. The trooper approached the stopped vehicle, asked to see Sellers's driver's license, and tested the tint on the car windows using a tint meter. Although the meter showed that the window tint was within the legal limit, the trooper told Sellers that he would issue him a written warning for purposes of “documentation.” The trooper also asked Sellers if he could search his vehicle, and Sellers consented. The trooper then returned to his patrol car and radioed for assistance from another officer in conducting the search.

Before the other officer arrived at the scene or the search had been conducted, Sellers, who had not yet received his driver's license back or the written warning, drove off at a high rate of speed into heavy traffic. A police chase ensued in which Sellers “followed really close to two or three ... [other] cars” on the highway as he attempted to evade the police. Sellers sideswiped another car but continued fleeing from the responding officers. Ultimately, Sellers pulled off the road and surrendered to the police.

After Sellers was taken into custody, officers searched his vehicle but did not discover any illegal drugs inside of it. However, officers also searched the side of the road along the route where the chase occurred and found a package containing approximately 2.5 pounds of powder cocaine. The package was damaged, consistent with having been thrown from a vehicle.

Sellers was transported to the Glynn County Police Department and advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sellers agreed to speak with the police and allegedly offered to compensate one of the officers if the charges against him were dropped.

Sellers was charged in the State Court of Glynn County with the misdemeanor traffic offense of following too closely. On September 17, 2013, Sellers appeared in state court with his public defender and a state solicitor-general and pled guilty to that offense. He was sentenced to three days with credit for time served.

On October 31, 2013, Sellers was indicted in the Superior Court of Glynn County on charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, bribery, and fleeing or attempting to elude a police officer. Sellers filed a procedural double jeopardy motion pursuant to OCGA §§ 16–1–7(b) and 16–1–8(b)(1), contending that all counts of the indictment should be dismissed as a result of his guilty plea in state court to the misdemeanor traffic offense. Sellers also filed a motion to suppress the cocaine discarded on the side of the road, contending, among other things, that the state trooper unreasonably prolonged the duration of the traffic stop after learning that the car window tint was within legal limits, and that the cocaine was inadmissible as fruit of the unlawful detention.

The superior court conducted evidentiary hearings on both of Sellers's motions. Following the hearings, the superior court denied Sellers's procedural double jeopardy motion, with the exception of the count of fleeing or attempting to elude a police officer, which the court found was barred. The superior court also denied Sellers's motion to suppress. This appeal followed in which Sellers challenges those rulings.²

1. Sellers contends that the superior court erred by denying his procedural double jeopardy motion as to the felony charges of trafficking in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in a public place, and bribery. He contends that pursuant to OCGA §§ 16–1–7(b) and 16–1–8(b)(1), his plea of guilty to the misdemeanor traffic offense of following too closely in state court barred any subsequent prosecution for the four felony offenses in superior court. We disagree.

The procedural aspect of double jeopardy under Georgia law is set forth in OCGA § 16–1–7(b), which “requires the State to prosecute crimes in a single prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper prosecuting officer at the time of commencing the prosecution, and (3) are within the jurisdiction of a single court.” Weaver v. State, 224 Ga.App. 243, 480 S.E.2d 286 (1997). “A second prosecution is barred under OCGA § 16–1–8(b)(1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16–1–7(b).” Nicely v. State, 305 Ga.App. 387, 388(1), 699 S.E.2d 774 (2010). All three prongs of OCGA § 16–1–7(b) must be satisfied for procedural double jeopardy to bar a second prosecution. Id.

Our focus here is on the second prong of OCGA § 16–1–7(b), the knowledge of the proper prosecuting officer. In determining what is known to the proper prosecuting officer, our Supreme Court has rejected a constructive knowledge standard and instead has adopted an actual knowledge test. See Baker v. State, 257 Ga. 567, 568–569, 361 S.E.2d 808 (1987). Under the actual knowledge test, the defendant bears the burden of affirmatively showing that the proper prosecuting officer actually knew that there were other crimes arising out of the same conduct as the crime that the officer was prosecuting. See id. See Powe v. State, 257 Ga. 563, 563–565, 361 S.E.2d 811 (1987) ; Turner v. State, 238 Ga.App. 438, 438–440, 518 S.E.2d 923 (1999) ; Honea v. State, 238 Ga.App. 135, 135–137, 517 S.E.2d 841 (1999) ; Hill v. State, 234 Ga.App. 173, 175 –177(1), 507 S.E.2d 3 (1998).

In this case, the proper prosecuting officer was the solicitor-general who handled Sellers's guilty plea in state court.

The prosecuting officer in the state court is the person whose knowledge matters ..., because [Sellers's] plea in state court is the proceeding that he claims bars his superior court prosecution. Where a criminal defendant first pleads guilty to a misdemeanor in state court and is later prosecuted in superior court for felony charges allegedly arising out of the same conduct, we look to the knowledge of the state court solicitor to determine if the state court proceedings bar the subsequent superior court proceedings.

Barlowe v. State, 286 Ga.App. 133, 134, 648 S.E.2d 471 (2007). See Dean v. State, 309 Ga.App. 459, 461, 711 S.E.2d 42 (2011) ; Etienne v. State, 298 Ga.App. 149, 150–151, 679 S.E.2d 375 (2009). Moreover, “ [w]hile it may be reasonable to impute the knowledge of one prosecuting officer to others working in the same office, it is not reasonable to do so where two entirely separate prosecuting offices are involved [.]” Powe v. State, 181 Ga.App. 429, 431, 352 S.E.2d 783 (1986), aff'd, Powe, 257 Ga. 563, 361 S.E.2d 811. Hence, the knowledge of the assistant district attorney handling the prosecution of Sellers in superior court...