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