Effective assistance of counsel. Mitchell Superior Court. Before Judge Cato.
Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellant.
Harrell & Lewis, Jami L. Lewis, for appellee.
MILLER, Judge. Doyle, P. J., and Dillard, J., concur.
Following a jury trial, Fredrick Leon Shelton, Sr., was convicted of possession of cocaine (OCGA § 16-13-30 (a)), two counts of obstructing an officer (OCGA § 16-10-24 (a)), and a sound violation (OCGA § 40-6-14 (a)). The trial court granted Shelton's motion for new trial, finding that trial counsel was ineffective for failing to file a motion to suppress, properly investigate the case, interview and call witnesses on Shelton's behalf at trial, and object to the admission of evidence. The State appeals, contending that the trial court erred in finding that trial counsel was ineffective. For the reasons that follow, we reverse.
The first grant of a new trial on the general grounds will ordinarily not be disturbed by the appellate court absent an abuse of discretion in that the evidence demanded the verdict rendered. However, the first grant of a new trial on special grounds involving a question of law is reviewable in a proper appeal. We review such a question of law de novo and reverse if the trial court committed legal error.
[329 Ga.App. 583] (Citations and punctuation omitted.) O'Neal v. State, 285 Ga. 361, 363 (677 S.E.2d 90) (2009). In this case, the motion for new trial was granted on special grounds, namely that trial counsel's deficiencies were so serious that they deprived Shelton of his Sixth Amendment right to effective assistance of counsel. The determination of whether Shelton received effective assistance of counsel, however, involves a mixed question of law and fact, which requires this Court to employ two different standards of review. Accordingly, we review de novo the trial court's decision as to any questions of law, while applying the clearly erroneous standard of review to the trial court's factual findings and credibility determinations. Suggs v. State, 272 Ga. 85, 88 (4) (526 S.E.2d 347) (2000); State v. Wakefield, 324 Ga.App. 587, 587-588 (751 S.E.2d 199) (2013).
So viewed, the record shows that on March 16, 2012, around 7:00 p.m., Corporal Manning of the Camilla Police Department was sitting in his patrol car with the windows down at the intersection of North Butler and Marietta Street in Camilla, Georgia. Corporal Manning heard loud music coming from Shelton's blue Chevrolet Impala from at least 100 feet away. Corporal Manning noticed that the music got louder as the Impala approached the intersection.
Corporal Manning stopped the Impala based on the loud noise, and advised Shelton of the reason for the stop. Upon receiving Shelton's license and registration, Corporal Manning returned to his patrol car to conduct a status check on those items. Around the time that Corporal Manning finished running Shelton's driver's license and registration, Lieutenant Davis arrived to assist with the traffic stop. Corporal Manning then checked the tint on the Impala's dark windows. Corporal Manning determined that the windows were in compliance with Georgia law, noticed that Shelton's hands were a little shaky and then asked Shelton if he had any marijuana, crack cocaine or large sums of cash inside the vehicle. Shelton responded by pulling out his wallet and stating, " this is all I have."
Corporal Manning then asked Shelton for consent to search the vehicle, and Shelton verbally consented. Corporal Manning asked Shelton to exit and place his hands on the vehicle. Another backup officer, Captain Adkins, arrived just as Shelton was exiting the vehicle. Corporal Manning, who was standing behind Shelton, conducted a weapons pat-down of Shelton and felt a bulge in his right pocket. Corporal Manning asked Shelton what he had in his pocket and Shelton responded by taking his hand off of the car and trying to reach into his pocket. When Lieutenant Davis grabbed Shelton's wrist and put Shelton's hand back on top of the car, Shelton tried to snatch his hand away and reach for his pocket.
[329 Ga.App. 584] Corporal Manning brought Shelton's hand back up and tried to secure Shelton's hands to make sure that he was not going for a weapon. Shelton then reached back down, and Lieutenant Davis was able to grab one of Shelton's hands. When Lieutenant Davis attempted to ...