                              FOURTH DIVISION
                                DOYLE, P. J.,
                           MILLER and DILLARD, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                 November 13, 2014




In the Court of Appeals of Georgia
 A14A1113. THE STATE v. SHELTON.

      MILLER, Judge.

      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.


(Citations and punctuation omitted.) O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 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

SE2d 347) (2000); State v. Wakefield, 324 Ga. App. 587, 587-588 (751 SE2d 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


                                           2
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

                                            3
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.

        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 handcuff Shelton, he began to fight and

physically resist all three officers.

       Shelton continued to resist when Lieutenant Davis and Captain Atkins tried to

take Shelton to the ground, so Corporal Manning deployed his taser to the center of

Shelton’s back. Shelton fell to the ground on his stomach, but he continued to

struggle with the officers and again tried to reach into his pocket, so Corporal

Manning tased him again. Shelton reached back and tried to grab the taser, so

Corporal Manning tased Shelton several more times, until Shelton stopped struggling

and the officers were able to handcuff him. Corporal Manning then secured Shelton

in his patrol car.

       Once Shelton was finally restrained, the officers removed a small cloth bag

containing air freshener from his pocket. The officers searched Shelton’s vehicle

                                          4
before turning the vehicle over to a towing service. In the vehicle, the officers found

a set of digital scales containing a white powdery substance under the driver’s seat

of the vehicle and an unopened box of sandwich bags in the vehicle’s trunk. While

searching the vehicle, the officers also found an open pack of rolling papers, a cigar

and a ziploc baggie containing a razor blade that had a white powdery substance on

it. Following Shelton’s arrest, $507 in cash in small denominations was found on his

person.

      Lieutenant Davis retrieved the set of digital scales from the vehicle, and

Corporal Manning placed it in an evidence bag and initialed the bag. Corporal

Manning subsequently placed the sealed bag in the evidence locker at the Camilla

Police Department.

      At trial, Investigator Connell testified as a drug investigations expert.

Investigator Connell stated that he retrieved the sealed bag containing the digital

scales from the evidence locker and took it to the Moultrie crime lab. Investigator

Connell further stated that the baggies, the rolling papers, the razor blade and the

digital scales were all items that are used in the sale of drugs. Investigator Connell

also opined that the small denominations of cash found on Shelton’s person indicated

street level drug dealing.

                                          5
      A forensic chemistry expert with the Georgia Bureau of Investigations (“GBI”),

Tara Weinreich, also testified at trial. Weinreich stated that she retrieved the sealed

bag containing the digital scales, which was delivered to the crime lab. Weinreich

testified that the white powder residue found on the digital scales tested positive for

cocaine.

      At the hearing on his motion for new trial, Shelton called a witness who

testified that in January of 2012, a man by the name of Freddie, who was wanted by

police for an outstanding warrant, installed a water pump and brake pads on Shelton’s

vehicle, and the witness stated that he washed and detailed the vehicle after it was

repaired. At some point the witness saw Freddie place a set of digital scales under the

passenger seat of Shelton’s vehicle. Freddie forgot to retrieve the scales when Shelton

picked up his vehicle. When Freddie learned that Shelton had been stopped by the

police, he was concerned that the police would find the scales.

      1. The State contends that the trial court erred in ruling that trial counsel was

deficient for failing to file a motion to suppress. We agree.

             To establish ineffective assistance of counsel under Strickland v.
      Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), a
      criminal defendant bears the burden of showing that counsel’s
      performance was deficient and that the deficient performance so

                                          6
      prejudiced defendant that there is a reasonable likelihood that, but for
      counsel’s errors, the outcome of the trial would have been different.


(Citations and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 742 (3)

(719 SE2d 601) (2011). As set forth above, “[i]n reviewing a trial court’s

determination regarding a claim of ineffective assistance of counsel, this [C]ourt

upholds the trial court’s factual findings unless they are clearly erroneous; we review

the trial court’s legal conclusions de novo.” (Footnote omitted.) State v. Wofford, 321

Ga. App. 249, 256 (1) (739 SE2d 110) (2013).

      (a) Trial counsel was not ineffective for failing to move to suppress the

evidence obtained during the search of Shelton’s vehicle.

      Here, trial counsel testified at the motion for new trial hearing that, after

viewing the videotape of the traffic stop, conducting some research, and speaking

with Shelton, she made a strategic decision not to file a motion to suppress. Trial

counsel further testified that her primary motivation was trying to get the most

reasonable deal for Shelton because he was a recidivist, and filing a motion to

suppress would have hampered her strategy in this respect. Trial counsel spoke with

the State several times with Shelton’s knowledge and, shortly before trial, the State

offered a plea deal of probation with five years to serve without recidivist sentencing.

                                           7
      “Trial tactics and strategy, no matter how mistaken in hindsight, are almost

never adequate grounds for finding trial counsel ineffective unless they are so

patently unreasonable that no competent attorney would have chosen them.”

(Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662

SE2d 339) (2008). Moreover, “the failure to file a motion to suppress does not

constitute per se ineffective assistance of counsel.” Stanley v. State, 283 Ga. 36, 39

(2) (a) (656 SE2d 806) (2008). Rather, Shelton had to make a strong showing that the

evidence would have been suppressed had a motion to suppress been filed. Roberts

v. State, 263 Ga. 807, 809-810 (2) (e) (439 SE2d 911) (1994). This he failed to do.

             The Fourth Amendment is not violated when, during the course
      of a valid traffic stop, an officer questions the driver or occupants of a
      vehicle and requests consent to conduct a search. The Supreme Court of
      the United States has held repeatedly that mere police questioning does
      not constitute a seizure. Even when officers have no basis for suspecting
      a particular individual, they may generally ask questions of that
      individual; ask to examine the individual’s identification; and request
      consent to search his [vehicle]. Unless the detention was prolonged by
      the questioning, there is no additional seizure within the meaning of the
      Fourth Amendment.


(Citations and punctuation omitted.) Salmeron v. State, 280 Ga. 735, 736 (1) (632

SE2d 645) (2006).

                                          8
      The evidence shows that after Corporal Manning stopped Shelton for a sound

violation, he checked Shelton’s license and registration, checked the window tint on

Shelton’s vehicle and immediately thereafter asked for consent to search the vehicle.

The videotape of the stop shows that Corporal Manning asked for consent to search

less than four minutes after the stop began. Corporal Manning did not unreasonably

prolong the stop by running a check of Shelton’s driver’s license and registration. See

Valentine v. State, 323 Ga. App. 761, 765 (2) (748 SE2d 122) (2013) (reasonable time

to conduct traffic stop includes time necessary for officer to check driver’s license

and registration). Likewise, Corporal Manning did not violate Shelton’s Fourth

Amendment rights by contemporaneously checking the window tint or asking Shelton

whether he had contraband in the vehicle and whether he would consent to a search

because Shelton was lawfully detained for the sound violation during this short period

of time. See Salmeron, supra, 280 Ga. at 736 (1) (no Fourth Amendment violation

where driver is questioned and gives consent to search during lawful detention).

      Since Shelton has not shown that his Fourth Amendment rights were violated,

he cannot establish that a motion to suppress would have been granted if one had

been filed. Roberts, supra, 263 Ga. at 809 (2) (e). Accordingly, Shelton has not shown



                                          9
that trial counsel was ineffective for failing to file a motion to suppress, and the trial

court erred in granting a new trial on this ground.1

      (b) Trial counsel was not ineffective for failing to file a motion to suppress with

regard to the pat-down search of Shelton’s person.

      Pretermitting whether Officer Manning had a reasonable suspicion that Shelton

was armed and dangerous to warrant a pat-down search,2 the very brief pat-down

before Shelton began resisting the officers did not unreasonably extend the duration

of the traffic stop, and the search yielded no contraband or weapons. Even if the pat-

down search was unjustified, it did not taint the subsequent search of Shelton’s

vehicle because authority to search the vehicle was based on Shelton’s valid consent.



      1
         In so holding, we note that, in granting Shelton’s motion for new trial, the
trial court found that Officer Manning “classified” the search as an inventory search.
Even assuming that the search was actually performed as an inventory search, Shelton
cannot show that a motion to suppress would have been successful. Police officers
may inventory the contents of a vehicle that has been lawfully impounded, and
Shelton does not argue, nor does the evidence show, that the impoundment of his
vehicle was unlawful. See Humphreys v. State, 287 Ga. 63, 77 (7) (694 SE2d 316)
(2010); see also Grizzle v. State, 310 Ga. App. 577, 581 (2) (713 SE2d 701) (2011)
(inventory search to document contents of impounded vehicle upheld where there was
no showing that police acted in bad faith or for investigative purposes).
      2
        See Arizona v. Johnson, 555 U. S. 323, 326 (129 SCt 781, 172 LEd2d 694)
(2009) (in order to proceed with pat-down search during lawful investigatory stop,
officer must reasonably suspect that person stopped is armed and dangerous).

                                           10
Therefore, Shelton cannot show that a motion to suppress based on the brief pat-down

search would have succeeded. See St. Fleur v. State, 296 Ga. App. 849, 853 (2) (676

SE2d 243) (2009) (brief pat-down search yielded no weapons or contraband, and

officer had independent authority to search defendant’s vehicle). Accordingly,

Shelton has not shown that trial counsel was ineffective in failing to file a motion to

suppress on this basis.

       2. The State contends that the trial court erred in finding that trial counsel was

ineffective for failing to properly investigate the case, talk to witnesses and call

witnesses on Shelton’s behalf at trial. Again, we agree.

       Generally, trial counsel has a duty to make a reasonable investigation. Horne

v. State, 298 Ga. App. 601, 605 (2) (680 SE2d 616) (2009). Nevertheless, “[t]he

decisions on which witnesses to call, . . . and all other strategies and tactical decisions

are the exclusive province of the lawyer after consultation with his client.”

(Punctuation and footnote omitted.) Wofford, supra, 321 Ga. App. at 257 (1).

       Shelton argued in his new trial motion that trial counsel was deficient for

failing to follow up on information that the digital scales were put in his vehicle by

someone else while his vehicle was being repaired and detailed prior to the stop.

Shelton did not testify at the new trial hearing, and he admittedly failed to give trial

                                            11
counsel the name or location of the place where his vehicle was repaired and detailed,

even though trial counsel met with and spoke to Shelton numerous times prior to his

trial. Moreover, Shelton specifically informed the trial court during his trial that he

did not wish to present any witnesses in his case; there were no witnesses whom he

wanted his trial counsel to call on his behalf; and trial counsel had done everything

he wanted her to do in connection with trial counsel’s representation of him. Under

these circumstances, Shelton failed to establish that trial counsel was deficient in

investigating or preparing the case. Accordingly, the trial court erred in granting

Shelton’s motion for new trial on this ground. See Wofford, supra, 321 Ga. App. at

258 (1).

      3. The State also contends that the trial court erred in finding that trial counsel

was deficient for failing to object to the admission of the digital scales with the

cocaine residue. We agree.

      Here, the State presented the complete chain of custody of the digital scales

from the time the officers retrieved the digital scales from Shelton’s vehicle and

sealed them in an evidence bag at the scene of the stop to the time when the forensic

chemist at the crime lab retrieved the sealed bag and tested the white powder residue

that she found on the digital scales. Moreover, the forensic chemist identified the set

                                          12
of digital scales at trial as the item of evidence that was submitted to the crime lab for

testing, and Shelton presented no evidence that the digital scales were tampered with.

      Shelton nevertheless argued in his motion for new trial that the chain of

custody was not fully established by the State because no witness testified that he

retrieved the digital scales from the crime lab and brought them to trial. Contrary to

Shelton’s contention, “there is no need to prove chain of custody for non-fungible

physical evidence [such as the digital scales] identified by a witness, since these items

can be recognized by observation.”(Citation and punctuation omitted.) Anderson v.

State, 295 Ga. App. 594, 595 (672 SE2d 541) (2009). Since any objection to

admission of the digital scales would have been futile, trial counsel was not deficient

in this regard, and the trial court erred in granting Shelton’s motion for new trial on

this ground.

      In sum, Shelton failed to establish that trial counsel’s representation was

ineffective or deficient, therefore, Shelton was not entitled to a new trial.

Accordingly, the trial court erred in granting the motion for new trial on this ground.

      Judgment reversed. Doyle, P. J., and Dillard, J., concur.




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