State v. Walker

• Decision Date: 17 May 2019
• Docket Number: A19A0198
• Citation: 828 S.E.2d 402,350 Ga.App. 168
• Parties: The STATE v. WALKER.
• Court: Georgia Court of Appeals

350 Ga.App. 168

828 S.E.2d 402

The STATE

v.WALKER.

A19A0198

Court of Appeals of Georgia.

May 17, 2019

Lenny I. Krick, Sherry Boston, Decatur, for Appellant.

Genevieve Holmes, Rachel Dawn Ackley, for Appellee.

Reese, Judge.

The State of Georgia appeals from the trial court’s grant of the motion for new trial¹ filed by Christopher Walker, who had been convicted of burglary, criminal trespass, and two counts of armed robbery following a jury trial.² The court granted a new trial based on its conclusion that Walker received ineffective assistance of counsel due to his counsel’s failure to file a particularized motion to suppress. The State contends that Walker’s trial counsel made a strategic decision not to file a motion to suppress and that, even if counsel had provided deficient representation, Walker failed to show that he was prejudiced by the failure to file a motion to suppress. For the reasons set forth infra, we reverse the grant of a new trial to Walker.

Viewed in the light most favorable to the trial court’s ruling on the ineffective assistance claim,³ the trial transcript shows the following facts. At about 1:10 p.m. on November 13, 2014, a DeKalb County police officer, D. A. Drummond, was driving down Fairington Parkway on patrol when he saw a green Honda parked in the grassy area along the street, facing the opposite direction. The Honda’s trunk was open, and a man, later identified as Walker, was trying to load a large flat-screen television into the trunk. Officer Drummond turned his patrol car around and drove up the street in order to park behind the Honda and check out the situation. Before the officer parked, however, the Honda’s driver suddenly sped away with the car’s trunk still open, leaving Walker behind.⁴ In addition to the television Walker was holding, there was a black duffel bag sitting on the grass near Walker.

Officer Drummond parked so that Walker was in front of the patrol car, then approached Walker and asked him why the Honda had sped off.⁵ Walker told the officer that he did not know why, nor did he know who was driving the Honda, even though he had been putting the television in its trunk moments before. Officer Drummond also asked Walker about the television and duffel bag. Walker responded that the items belonged to his cousin, that his cousin had asked for his help, and that his cousin had picked him up at his (Walker’s) home.

Officer Drummond decided to place Walker in the back seat of his patrol car while he (Drummond) tried to figure out what was going on.⁶ Officer Drummond did not handcuff Walker before having him sit in the patrol car, nor did he place Walker under arrest. Officer Drummond testified, however, that, every time he had someone sit in his patrol car for any reason, whether or not the person was a crime suspect, he searched them for safety purposes. Therefore, after getting Walker’s consent, the officer conducted a pat-down search of Walker before having him sit in the patrol car. During the pat-down, Officer Drummond found a "Halloween mask" in the front pocket of Walker’s pants.

Immediately after Officer Drummond placed Walker in the patrol car, another man suddenly walked up and approached the officer. The man identified himself as "Jabari Nibbs," and Nibbs spontaneously told Officer Drummond that he knew Walker and that the television and the PlayStation that was in the duffel bag⁷ belonged to him (Nibbs). An officer who was assisting Officer Drummond checked Nibbs’s criminal history and learned that there was an outstanding warrant for Nibbs’s arrest.

Then, as soon as the officers placed Nibbs under arrest pursuant to the warrant, the officers heard a police dispatch alert about an armed robbery that had just occurred at a nearby residence. The residence was approximately 30 feet from where Officer Drummond had parked his patrol car on Fairington Parkway, and there was a path that crossed an area of bushes and trees separating the house from where the patrol car was parked. According to Officer Drummond, the house was visible from his patrol car, and he testified that it would take "5 seconds, if that[ ]" to walk from his patrol car to the residence using the path.

After hearing the armed robbery dispatch alert, Officer Drummond realized that Walker matched the description of one of the armed robbery suspects, and he placed Walker under arrest. According to Officer Drummond, less than ten minutes had passed from the time he initially saw Walker holding the television along Fairington Parkway until he heard the armed robbery dispatch alert.

At trial,⁸ one of the victims of the armed robbery testified that at least three men held her and her husband at gunpoint while the men "ransack[ed]" the house. According to the victim, the gunman and a second assailant were upstairs in the house, and she could hear them talking to a third person who was downstairs. Both victims testified that the assailant with the gun wore a mask like the one featured in the movie, "Scream," while the other man who was upstairs wore a gray Halloween-type mask with "big teeth." The assailants stole two flat-screen televisions, two PlayStation 3 consoles, several video games, their cell phones, and other items from the house. After the assailants left the house, the victims drove to a nearby Walmart to use a phone there to call 911.⁹ At trial, one of the victims identified the mask found in Walker’s pocket as the mask worn by one of the assailants. The other victim identified the items that Walker possessed when Officer Drummond approached him, i.e., the 55-inch flat-screen television, two PlayStation 3 consoles, and numerous video games, as items that had been stolen from their home during the armed robbery. In addition, during the investigation, officers found a second television, a black hoodie, and a "Scream" mask in the wooded area between the victims’ residence and Fairington Parkway.

The jury found Walker guilty of burglary, criminal trespass, and two counts of armed robbery, but found him not guilty of false imprisonment and three counts of aggravated assault. Walker filed a motion for new trial based on ineffective assistance of counsel. Following a hearing, the trial court found that Walker’s trial counsel was ineffective for failing to file a particularized motion to suppress.¹⁰ The trial court ruled that Walker’s detention was illegal because Officer Drummond had failed to articulate at trial the specific reason why he placed Walker in the patrol car. The trial court’s order also stated that, if counsel had filed a particularized motion to suppress prior to trial, it "most likely" would have been granted. Based on this conclusion, the trial court granted Walker a new trial, and this appeal followed.

In evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington ,^{[11 ]} which requires a defendant to show that his trial counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Additionally, there is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. Particularly relevant to this case, when trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion. Lastly, unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel; however, a trial court’s legal conclusions in this regard are reviewed de novo.¹²

With these guiding principles in mind, we turn now to the State’s specific claims of error.

1. The State contends that the trial court erred in finding that Walker’s trial counsel’s failure to file a particularized motion to suppress¹³ constituted deficient performance, arguing that trial counsel made a reasonable strategic decision not to file a motion after investigating the facts surrounding the seizure of the evidence.

"An appellate court evaluates counsel’s performance from counsel’s perspective at the time of trial."¹⁴ "As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel."¹⁵ "The decision of whether to file a motion to suppress is a matter of professional judgment, and we will not judge counsel’s trial strategy in hindsight."¹⁶ Stated differently, "hindsight has no place in an assessment of the performance of trial counsel, and a lawyer second-guessing his [or her] own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim."¹⁷ Ultimately, a trial counsel’s tactics and strategic decisions "are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them."¹⁸

During the hearing on the motion for new trial in this case, Walker’s trial counsel testified that, after reading the police reports, reviewing discovery, speaking with witnesses, consulting with her co-counsel, and speaking with the attorney for Jabari Nibbs (Walker’s co-defendant), counsel did not believe that there was a basis for filing a motion to suppress, nor did she believe that she would have prevailed on the motion if she had filed it. Trial counsel testified that, in her opinion, the facts surrounding Officer Drummond’s initial encounter with Walker, including the fact that the Honda sped away when the officer approached, were "suspicious enough" to justify a first-tier police-citizen encounter.¹⁹ In addition, counsel believed that at least some of the evidence at issue (i.e., the television, mask,...