Smith v. State

• Decision Date: 11 March 1988
• Docket Number: No. 75086,75086
• Citation: 367 S.E.2d 573,186 Ga.App. 303
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 573

367 S.E.2d 573

186 Ga.App. 303

SMITH v. The STATE.

No. 75086.

Court of Appeals of Georgia.

March 11, 1988.

Franklin D. Smith, pro se.

Carl Greenberg, Atlanta, for appellant.

Robert E. Wilson, Dist. Atty., Barbara Conroy, Nelly Withers, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Smith was convicted as follows: Count 1--violation of Georgia Controlled Substances Act (possession of more than an ounce of marijuana), OCGA § 16-13-30(j)(1); Count 2--terroristic threats (against Shirley Barkah), OCGA § 16-11-37; Count 3--pointing a gun at another (Abdelhamid M. Barkah), OCGA § 16-11-102; Count 4--criminal damage to property in the second degree (the car of Hamid Barkah), OCGA § 16-7-23; and Count 5--simple battery (against his wife Donna M. Smith), OCGA § 16-5-23. He appeals pro se, with the assistance of the public defender.

Viewing the evidence favorable to the verdict, it establishes that on August 18, 1986, Smith moved to a Days Inn due to marital difficulties partly related to his marijuana dealings. He registered under the name J.R. Ross and was given room 101, then moved to room 103. He asked his wife to bring their daughter to visit late that evening, but she did not do so. She was staying with the Barkahs, having known Mrs. Barkah since childhood. Defendant called her again the next morning, and she visited him in room 103. He told her to get a divorce, that he did not care, and that all he could do for her financially was to give her marijuana, which he did. He put two--suitcases full in her car trunk.

Mrs. Smith returned to the Barkahs, where defendant visited her twice that day. The first time he slapped her; the second time he threw her against a wall and injured her arm and back. Defendant's older son intervened, and Mrs. Smith took the child and left in her car, which still contained the suitcases. She left the car in a motel parking lot because she feared defendant would follow her and be able to spot the car. She called Mrs. Barkah, who came and took her and the child to a motel near the DeKalb police station. The police took her to the battered women's shelter.

Defendant began calling Mr. Barkah, demanding his money and his property back and to know his wife's whereabouts. Mrs. Barkah had sold marijuana in the past for defendant. She retrieved the two suitcases from Mrs. Smith's car, put them in defendant's car at her apartment, and took defendant's keys to her husband, who delivered them to defendant. At some point that day, defendant retrieved these suitcases.

Later that evening, defendant called the Barkahs and threatened them, telling Mr. Barkah that he was going to cut Mrs. Barkah into little pieces, that he was coming to prove what he was saying, and that if he was arrested for any reason he would take the Barkahs and his wife with him. Portions of these calls were recorded, including a demand that they get "... his s--- back for [him] or get [his wife] to get it back...." They believed this reference was to the marijuana.

Defendant then went to the apartment where he kicked and hit Mr. Barkah's car with his fists and rammed it with his Blazer truck. (Mr. Barkah, who worked as a car salesman, testified it cost $2,200 to repair.) Defendant pulled a pistol and pointed it at Mr. Barkah during this exchange. The Barkahs called the police.

An officer on patrol found and arrested defendant in the early hours of August 20. He seized a .380 Colt which was on the console between the seats with a chambered bullet. Defendant was placed and remained in the DeKalb jail.

Mrs. Barkah called an Alabama officer after defendant was arrested to report that defendant had a quantity of marijuana at the Days Inn. She told him it would be in room 103 under the name of J.R. Ross.

He called Sgt. Edenfield in DeKalb on August 21 to verify that defendant had been arrested and to place a hold on him for an Alabama charge arising from a June incident and to convey the information about the marijuana. The sergeant talked to Mrs. Barkah, who told him she thought the marijuana was in room 103, which was registered to "J.R. Potts." He called the manager at the Days Inn to see if any luggage had been found in room 103 and was told it had not.

In addition to defendant's registering in room 103 under the name of Ross, he had also registered in room 437, using the name "A.T. Hunn." Both rooms were paid for in cash for one night, August 19. It was the policy of the motel to place a "cuff" on the door of any room if after check-out time the guest had not checked out and had not paid for the next day, so the guest would have to pay the bill before re-entering the room.

Room 437 was cuffed and on August 22, no one having returned and paid for it, the manager and the housekeeper followed normal procedure and went in. Upon entering, the manager saw on the dresser a large plastic grocery bag and its contents, marijuana. He opened two suitcases which were lying on the bed and found both full of marijuana.

He called Sgt. Edenfield, who he knew to be a narcotics officer. It did not occur to him that there was any connection with the subject of the earlier inquiry. Edenfield and a detective came to the motel room, were shown the marijuana, and seized it. The detective with Edenfield opened the suitcases. They both said they had been told by the manager that the suitcases contained marijuana and that they could see marijuana in the grocery bag in plain view. A motion to suppress all of this evidence was made and denied.

1. Defendant's Enumeration 7 alleges ineffective assistance of counsel in numerous respects.

Counsel assisting defendant with his appeal was not his trial counsel. Trial counsel was retained and continued to represent defendant through his sentencing at the conclusion of the trial in March. Thereafter, defendant filed several pro se motions with the trial court. He filed no motion for new trial but rather filed a notice of appeal directly. He has vigorously pursued his appeal. While he has been assisted by the public defender on appeal, that attorney has not been appointed to represent him and appears at most only as co-counsel, although he has not filed a notice of appearance. See Ga. Const. 1983, Art. I, Sec. I, Par. XII.

Defendant argues that although there is no ruling by the trial court on the issue of effectiveness of counsel, we should nonetheless review it because the record already shows it as a matter of law.

In Smith v. State, 255 Ga. 654, 341 S.E.2d 5 (1986), the Georgia Supreme Court reiterated the rule that the issue of effectiveness of counsel is not to be addressed for the first time on appeal. Smith's counsel had been retained after trial and the filing of the motion for new trial. He filed an amendment to the motion but did not raise this issue. The Supreme Court remanded the case for a finding on the issue, stating that "[i]t is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right of counsel should be made at the earliest practicable moment. Thus we remand the case to the trial court for a hearing and appropriate findings concerning the issue of ineffective assistance of counsel." Smith at 656, 341 S.E.2d 5.

Since the publication of Thompson v. State, 257 Ga. 386, 359 S.E.2d 664 (1987) last November 5, any claim of ineffective assistance of counsel which is not raised in a motion for new trial filed by new counsel is deemed waived.

We are unable to tell when the public defender began assisting defendant. What is clear, however, is that defendant, either alone or with the public defender's assistance, has consciously chosen not to raise the issue of effectiveness of counsel below so that the trial judge could entertain evidence and make a ruling.

"Appellate courts review enumerations for correction of errors of law committed by the trial court--where motions or objections are properly presented for a ruling by the trial court. [Cit.] Enumerated errors which raise issues for the first time ... on appeal present nothing for review. [Cit.]" Fowler v. State, 155 Ga.App. 76(2), 270 S.E.2d 297 (1980); see Pulliam v. State, 236 Ga. 460, 465, 224 S.E.2d 8 (1976) cert. denied, 428 U.S. 911, 96 S.Ct. 3225, 49 L.Ed.2d 1219 reh. denied, 429 U.S. 874, 97 S.Ct. 196, 50 L.Ed.2d 158.

Because defendant acting as his own counsel opted not to present this question to the trial court, saying it was not necessary, he has presented no ruling by it for us to review. He asks us to review errors of trial counsel, but our function is to review alleged legal errors of the trial court. True, trial counsel errors may be material to our consideration of a court ruling in regard to their showing ineffectiveness, but we do not originally decide their legality.

Had this case come to us after the publication of Thompson, the issue would be regarded as waived. However, since this case was filed and briefed before that opinion, we are constrained to remand this case for the trial court to determine the issue. Lloyd v. State, 257 Ga. 108(3), 355 S.E.2d 423 (1987); Hambrick v. State, 256 Ga. 148, 151(5), 344 S.E.2d 639 (1986); Smith v. State, 255 Ga. 654, 341 S.E.2d 5 (1986); Midura v. State, 183 Ga.App. 523, 524(3), 359 S.E.2d 416 (1987).

2. Enumeration 1 claims error in the trial court's denial of defendant's motion to sever the marijuana charge from the others, contending that the former did not arise from the same transaction or occurrence and was not connected with the latter.

OCGA § 16-1-7 provides in sections (b) and (c) that all crimes arising from the same conduct, known to the prosecutor and within the jurisdiction of a single court, must be prosecuted in a single prosecution. If they are properly joined, the court in the interest of justice may order one or more of the charges tried separately.

Since the crimes joined here were not of a similar...