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Darden v. State

Court of Appeals of Georgia, Third Division

May 10, 2017

DARDEN
v.
THE STATE.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Andrews, Judge.

         The State charged Tamichael Darden with sale of cocaine and possession of cocaine with intent to distribute. Following a trial, the jury found him guilty of the lesser included offense of possession, resulting in his conviction on that offense. Darden appeals, and for reasons that follow, we affirm.

         Viewed favorably to the jury's verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that on December 12, 2013, undercover narcotics officers with the Athens-Clarke County Police Department saw Darden enter a local billiards hall. One of the officers, William Parker, was familiar with Darden and his vehicle from past encounters and prior surveillance activity. Parker and his partner continued to observe the area from their unmarked SUV, noting the arrival of a disheveled individual that Parker thought was "somebody, at that point, to watch." The individual, who was later identified as William Watson, went into the billiards hall, then exited a few minutes later, followed closely by Darden.

         The two men got into Darden's vehicle, and Parker could see Darden maneuvering "objects in [his] lap." Believing that they were witnessing a drug transaction, the officers approached Darden's vehicle in their unmarked SUV, "pull[ing] at an angle to the rear of Mr. Darden's vehicle." Watson got out of the car, and Parker walked towards him, identifying himself as a police officer and asking whether they could speak. Watson immediately "slump[ed] his body, " and Parker inquired whether he had just purchased drugs. Indicating that he had bought $40 worth of crack cocaine from Darden, Watson handed Parker a piece of cocaine.

         Parker detained Watson and signaled to his partner that he should detain Darden. The officers subsequently searched Darden's car, discovering additional cocaine, $40 in cash, a digital scale, and razor blades. The officers also recovered $822 in cash from Darden's person.

         At trial, Watson testified for the defense, asserting that he had met with Darden to repay a debt, not to purchase cocaine. According to Watson, he only stated that Darden had sold him cocaine because the officers told him they would let him go if he implicated Darden.

         Based on the evidence presented, the jury found Darden not guilty of selling or intending to distribute cocaine, but guilty of possessing the cocaine found in the car. Darden now challenges his possession conviction, asserting that he received ineffective assistance of counsel at trial. To prevail on this claim, Darden must show "both that his counsel's performance was deficient and that his defense was prejudiced to the extent that, but for that deficient performance, a reasonable probability exists that the outcome of the trial would have been different." Ross v. State, 313 Ga.App. 695, 696 (1) (722 S.E.2d 411) (2012). As discussed below, Darden has not met his burden of proof.

         1. Darden argues that defense counsel deficiently failed to move to suppress the evidence seized by the officers after they improperly detained him without reasonable suspicion. We disagree.

         Our case law establishes three tiers of police-citizen encounters: (1) communications involving no coercion or detention, which fall outside of the Fourth Amendment; (2) brief seizures that must be supported by reasonable suspicion of criminal activity; and (3) full-scale arrests that require probable cause. See Minor v. State, 298 Ga.App. 391, 394 (1) (a) (680 S.E.2d 459) (2009). During a first-tier encounter, police officers

may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.

Id. (punctuation omitted).

         Darden claims that the officers' initial approach of his vehicle was a second-tier encounter requiring reasonable suspicion of criminal activity. To support this claim, Darden testified at the hearing on his motion for new trial that the officers parked their unmarked SUV "[d]irectly behind" his car, blocking him in and preventing him from leaving the parking lot. A photograph admitted at trial that "accurately depict[ed] the way [Darden's] car looked" when the officers approached, however, does not show an SUV directly behind it. And when the officers pulled into the parking lot, Darden was sitting in his parked vehicle; there is no evidence that the vehicle was running or that he was attempting to leave the area.

         "It is well established that an officer's approach to a stopped vehicle and inquiry as to what is going on do not constitute a 'stop' or 'seizure' and clearly falls within the realm of the first type of police-citizen encounter." In the Interest of A. A., 265 Ga.App. 369, 371 (1) (593 S.E.2d 891) (2004). The officers in this case approached an already-stopped vehicle in their unmarked SUV and encountered the occupants. Although Darden asserted at the new trial hearing that the officers prevented him from leaving the parking lot, the trial court was authorized to disbelieve this testimony in denying his motion for new ...


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