324 Ga. App. 694 751 S.E.2d 497

A13A1000.

A13A1001.

A13A1002.

DELEON-ALVAREZ v. THE STATE. PALACIOS-BARAS v. THE STATE. HERNANDEZ v. THE STATE.

(751 SE2d 497)

Phipps, Chief Judge.

At a joint trial in Gwinnett County Superior Court, Jonathan Deleon-Alvarez, Francisco Palacios-Baras, Tito Hernandez and a fourth co-defendant (who is not an appellant in the instant cases) were found guilty by the jury of kidnapping for ransom1 Jose Wilson Tejada on October 11, 2009. The trial court entered judgments of conviction upon the verdicts. Deleon-Alvarez’s, Palacios-Baras’s, and Hernandez’s respective motions for new trial were denied. Discerning no reversible error, we affirm their convictions.

Evidence adduced at trial showed that in early 2009, the Atlanta High Intensity Drug Trafficking Area (HIDTA) task force began a drug trafficking investigation. As part of that investigation, the *695Gwinnett County district attorney obtained warrants from the Gwinnett County Superior Court to authorize the interception of calls to and from three targeted cell phone numbers being used by Palacios-Baras. While thereafter monitoring those conversations, officers discerned from statements overheard on October 11,2009 that someone (later determined to be Tejada) had been kidnapped due to an $84,000 drug debt. Based on ping data relating to one of the monitored cell phones, officers concluded that the abducted individual was being held at a particular Floyd County residence.2

That evening, several law enforcement officers set up surveillance of the Floyd County residence, which by then had been determined by police to be that of Palacios-Baras. Starting at about 10:45 p.m., officers observed individuals exiting the house and leaving in several vehicles — a white Ford Expedition, a tan Toyota Camry, and a white GMC Yukon Denali — that had been parked at the residence. Concerned that one of the vehicles was carrying a hostage, officers pursued the departing vehicles and quickly effected traffic stops upon two of them.

Having stopped the Expedition, police extracted its three occupants: (i) Tejada, who was seated in the back seat and who immediately exclaimed that his life had been threatened; (ii) Deleon-Alvarez, who was seated in the back seat beside Tejada; and (iii) the driver, the fourth co-defendant (who is not an appellant). When the Camry was stopped, Hernandez, the driver, was the vehicle’s lone occupant.

That night, officers lost sight of the Denali, and also were unable to locate Palacios-Baras. Based on ping data obtained in connection with one of the targeted cell phones that Palacios-Baras was still carrying, however, officers located him the next day. He was a passenger in a vehicle traveling in tandem with the Denali observed at his residence the night before. During a traffic stop of both vehicles, Palacios-Baras was arrested.

The state presented numerous witnesses who testified about Tejada’s abduction, confinement, and rescue, as well as the arrests of the three appellants.3 The proprietor of a business located in the strip mall where Tejada operated a clothing store testified that, on the afternoon of October 11, 2009, two men approached Tejada in the parking lot. Each man grabbed one of Tejada’s arms “like he was being arrested.” This witness had no further recollection, other than: “They took him.”

*696Tejada took the stand and gave these details. Between 2:00 and 4:00 p.m. on October 11, two men, with handguns drawn, confronted him as he was exiting his clothing store located in Gwinnett County. They told him to get into a black SUV parked in the parking lot, and he complied. Blindfolded, he was driven for about ten minutes to a house, later determined to be located also in Gwinnett County. The blindfold was removed.

Four or five men were already at that house, including the four co-defendants. Deleon-Alvarez and Hernandez used duct tape to bind Tejada’s hands and legs, and told Tejada that they needed to solve something. Palacios-Baras and the fourth co-defendant were “leaning around, waiting until [Tejada] got bonded with the tape.” About a half-hour after Tejada was brought to that house, he was lifted and placed in a tan Toyota Camry that was parked in the garage. Hernandez and Deleon-Alvarez also got into the Camry, and Tejada was again blindfolded. While Hernandez drove the Camry away, Deleon-Alvarez pressed what felt to Tejada like the tip of a handgun against Tejada’s back. After leaving that house, Tejada did not see again the two men who had nabbed him from the parking lot.

After about two hours of riding, they arrived at another residence, determined later to be located in Floyd County. Tejada was pulled out of the Camry and taken into the house. When the blindfold was removed, Tejada was in a room with all four co-defendants, each of whom held a firearm. Tejada testified that Palacios-Baras “came up to me, telling me that the drugs were stolen and that he was there to clean up the mess.” As Tejada summarized at trial, “They told me that a [drug deal] had gone wrong and that that was the reason why they had kidnapped me.”

Tejada elaborated at trial that, a few days before he was abducted, he had set up a drug deal between two of his store patrons, as a seller and a buyer. The deal involved three kilograms of cocaine. For brokering that deal, Tejada was to be paid $500. But, as Tejada testified, “[T]he drugs had been ripped off.”

Thus, Tejada recalled at trial that when he was in that room with the four armed co-defendants and Palacios-Baras said to him that he (Palacios-Baras) was there to “clean up,” Tejada discerned that they would “basically make sure that either I pay up, or they were going to kill me.” According to Tejada, “They thought I stole the drugs,” and they demanded from him $84,000, which Tejada explained at trial “was the total amount that was owed for the drugs that was stolen.” Tejada recalled that it was Palacios-Baras who “approached me, telling me that I needed to pay up over some drugs that got knocked off from them. And that they didn’t care who knocked them up, they just wanted the money.” Because Palacios-Baras continually pressed *697him about what he planned to do about “the situation,” Tejada used a phone he was handed to call his wife and then his father-in-law, seeking help to procure the demanded sum.

Shortly thereafter, Tejada testified, one of numerous cell phones at the house rang and, when answered, he overheard the caller warning them to leave the house. Palacios-Baras and Hernandez left the residence first. Deleon-Alvarez and the fourth co-defendant stayed in the house with Tejada and removed the duct tape from Tejada’s hands and legs to enable him to move more quickly. The two threatened to kill Tejada if he made any suspicious movement. They forced Tejada into the back seat of a white Ford Expedition; Deleon-Alvarez sat beside him, aiming a gun at him; and the fourth co-defendant drove the Expedition away.

Soon remarking that cops were following them, the driver increased his speed to outrun the police and tossed a handgun out the window. The patrol car activated its blue lights and siren, pursued the speeding Expedition, then engaged in a maneuver that forced the Expedition to stop. Deleon-Alvarez stashed his gun in the back seat. Additional law enforcement officers converged upon the scene, and the three occupants were extracted from the Expedition and handcuffed. Tejada testified that he told police at the scene that he had been kidnapped from Gwinnett County earlier that day.

According to one of the arresting officers, Tejada also “uttered out something like, they were going to kill me.” The officer saw “grayishwhiteish” glue around Tejada’s wrists. During a search of the Expedition, police found a gun in the glove box and a gun secreted in the back seat. Police found also a gun alongside the road traveled during their pursuit of the Expedition.

Meanwhile, other law enforcement officers effected a stop of the Camry. Hernandez was the driver and only occupant. Officers confiscated $7,100 in cash from his person. A search of the vehicle yielded a loaded “magazine from a handgun,” found near the front passenger seat.

At about 11:20 that same night, other law enforcement officers executed a warrant that had been obtained to search the Floyd County residence. Inside the house, they found, inter alia, “bunched up” duct tape in a trash can, digital scales of a type often used to measure drugs, a pistol, gun holsters, and a bulletproof vest. The next day, police located and arrested Palacios-Baras.

The state also presented the jury with a series of transcripts of (recorded) phone conversations conducted with Palacios-Baras’s targeted cell phones; many of the calls were made on the day in question, *698October 11, 2009. In one such call, at about 6:00 p.m., Tejada was heard in the background, pleading, “[D]on’t kill me.” And in a subsequent call, Tejada asked his wife to call her father and ask him for $84,000.

Case No. A13A1000 Appeal of Deleon-Alvarez

1. “The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.”4 “It is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.”5 In this criminal case, Deleon-Alvarez’s

motion for new trial was filed before the judgment was entered, making it void. However, the effect of the subsequent entry of a judgment on the jury’s verdict is to render the otherwise void motion one which was only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. Consequently, the order denying the motion, as amended, . . . was timely appealed.6

2. Deleon-Alvarez challenges his conviction on general grounds, arguing that certain evidence was incompetent.

(a) Citing the Supreme Court of Georgia’s recent decision in Luangkhot v. State,7 Deleon-Alvarez argues that the wiretapping was illegal and thus any evidence derived therefrom constitutes “fruit of the poisonous tree”8 and cannot be used to support his conviction.

*699Deleon-Alvarez did not seek suppression before the trial court, and consequently waived this issue.9 Furthermore, his contention is unavailing because he lacked the requisite standing to challenge the wiretapping as unlawful.

[Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. The exclusionary rule is to protect those whose Fourth Amendment rights have been violated.10

Moreover, “[t]he only authority for a motion to suppress is [OCGA § 17-5-30], and under the provisions of that statute a pretrial motion to suppress is available only to the person aggrieved by an unlawful search and seizure.”11

Deleon-Alvarez makes no assertion that his Fourth Amendment rights were violated. Rather, he acknowledges in his appellate brief that the evidence showed that he was not a subscriber of the phones tapped and that his voice was not heard during any conversation of the phones tapped. As Deleon-Alvarez puts it, “Appellant could not move to suppress the wiretap since the phone was not his.” Because there was no evidence that Deleon-Alvarez was a subscriber of the phones tapped and no evidence that his voice was heard during the wiretapped conversations, he lacked standing to seek suppression of the conversations at issue (and thus any alleged fruit of the poisonous tree) on the ground raised here.12

*700(b) Deleon-Alvarez argues that the evidence stemming from the traffic stop of the Expedition (in which he and Tejada were passengers) was inadmissible, maintaining that the evidence constituted fruit of the poisonous tree (the wiretapping) and asserting that the warrantless stop was unconstitutional. This contention is without merit. Deleon-Alvarez’s assertion that the evidence constituted fruit of the poisonous tree is unavailing to him,13 and his assertion that the warrantless traffic stop was unconstitutional is belied by the record.

[A] law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. That is, under the totality of the circumstances, the investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.14

Trial evidence showed that, based on telephone surveillance, the police had discerned that an abducted individual was being held against his will at a particular residence in Floyd County. A warrant had been issued to search that residence. Police had maintained direct observation of the residence and had seen persons exiting the house and leaving in vehicles, including the Expedition, which police then followed at close range prior to effecting the stop. Those circumstances provided a lawful basis for the traffic stop of the Expedition.15

(c) Deleon-Alvarez argues that the victim of the kidnapping crime, Tejada, was an accomplice in drug trafficking, and that there*701fore his felony conviction rested solely on the uncorroborated testimony of an accomplice in violation of then-applicable OCGA § 24-4-8.16

In light of that Code section, “the testimony of an accomplice used to convict the [defendant] of a crime must be supported by independent corroborating evidence as to the identity and participation of the [defendant] tending to connect him to the crime.”17 “The corroborating evidence need not be sufficient by itself to convict [a defendant], nor does the testimony of an accomplice need to be corroborated in every detail.”18 Rather, slight evidence of corroboration connecting the defendant with the crime satisfies the requirements of OCGA § 24-4-8 and that evidence may be entirely circumstantial.19 Also, evidence of the defendant’s conduct before and after the crime may give rise to an inference that he participated in the crime.20

Pretermitting whether Tejada could have been considered an accomplice of Deleon-Alvarez for purposes of former OCGA § 24-4-8,21 Deleon-Alvarez’s conviction plainly did not rest solely on Tejada’s testimony. Evidence sufficiently corroborating Tejada’s testimony that Deleon-Alvarez, along with the three co-defendants, kidnapped him for ransom included the following. The proprietor of a business located in the same strip mall as Tejada’s clothing store saw Tejada being forcibly taken away. That evening, on conversations monitored from Palacios-Baras’s telephones, Tejada was overheard pleading for his life; Tejada was also overheard asking his family for $84,000. Later that night, police observed a white Expedition parked at the Floyd County residence they had under surveillance. And when police observed that vehicle depart that residence, they stopped it; Deleon-Alvarez was found in the back seat, along with Tejada and a hidden gun. An officer testified that Tejada had “grayish-whiteish” glue on his wrists and immediately said that his life had been threatened. An ensuing search of the Floyd County residence yielded, *702inter alia, discarded duct tape. Giving the foregoing, there is no merit in Deleon-Alvarez’s contention that he was convicted in violation of former OCGA § 24-4-8.

(d) Contrary to Deleon-Alvarez’s contention, the evidence adduced against him was sufficient to sustain his conviction of kidnapping for ransom.22

3. After the time for filing a brief and enumeration of errors had passed, Deleon-Alvarez filed a supplemental brief,23 contending that “[t]he trial court erred in admitting evidence from a void wiretap warrant and the evidence based upon the wiretap evidence.” Deleon-Alvarez cites the Supreme Court of Georgia’s decision in Luangkhot 24

Deleon-Alvarez did not contend in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court,25 it is unavailing. Deleon-Alvarez neither filed a motion to suppress such evidence before the trial court, nor did he have standing to raise the Fourth Amendment issue.26 Consequently, this contention provides no basis for reversing the judgment of conviction entered against Deleon-Alvarez.27

4. Deleon-Alvarez has filed a motion to remand this case for a hearing “to determine if the appellant has standing or if trial counsel was ineffective for failing to move for suppression of the wiretaps.”28 Deleon-Alvarez cites the Supreme Court of Georgia’s decision in Luangkhot,29 and points out that his motion for new trial was denied prior to that decision. In light of Division 2 (a), however,30 the motion is denied.31

*703 Case No. A13A1001 —Appeal of Palacios-Baras

5. As was the situation in Deleon-Alvarez’s case,32 Palacios-Baras’s motion for new trial was filed before the trial court entered the judgment of conviction in his case. Notwithstanding, the subsequent entry of the judgment rendered the motion “only prematurely filed and this prematurity will not serve to deprive the appellate court of jurisdiction to review the merits of the appeal. Consequently, the order denying the motion, as amended, . . . was timely appealed.”33

6. Palacios-Baras contends that his Sixth Amendment right to confrontation was violated when the trial court sustained objections to his cross-examination of Tejada about a deal Tejada made with the state.

The record shows that Tejada testified at the trial under a grant of testimonial immunity.34 Accordingly, near the end of the state’s direct examination of Tejada, the jury was apprised as follows:

Q: Mr. Tejada, you understand that you were testifying under a grant of testimonial immunity, correct?
A: Yes.
Q: And you understand—do you understand what that means?
A: Yes.
Q: Do you understand that that means anything you say cannot be used against you? Anything you testify to cannot be used against you in a future prosecution.
A: Yes.

Hence, Palacios-Baras sought to show on cross-examination that Tejada was thereby biased:

Q: And you have never been in — and you have never been indicted for the crime of conspiracy to traffic in cocaine; is that correct?
A: Yes.
*704Q: Did you conspire to put together a three-kilo cocaine deal...?
A: Yes.
Q: Okay. So you are here, today, to testify without having ever been charged, is basically what I’m getting at. And you have been granted a complete immunity to testify here today.
A: Yes.
Q: And you know that by testifying here today, you do not have to do one minute in prison for anything that you’ve done in the past, correct?

The prosecutor interjected, “Judge, I object. That’s a gross misstatement of what testimonial immunity is, Judge.” The trial court agreed, responding further with an instruction to the jury explaining:

Testimonial immunity means you cannot be prosecuted for what you say in court or any—directly or indirectly. In other words, the evidence that you give in court cannot turn around and then be admitted against you and used against you, should you be charged with a crime, based upon the things that you admit in court. It differs from transactional immunity, which means you cannot be prosecuted for the transaction at all, any time.35

Thereupon, Palacios-Baras’s cross-examination of Tejada resumed:

Q: And you have agreed to testify against these men with immunity and you know that you did this to avoid being prosecuted; is that correct?
A: Yes.
Q: And you know that the penalty is 25 years in prison for trafficking in cocaine and [sic] that amount, so you’ll never have to do that.

Again, the prosecutor objected, which objection the court sustained. Further, the court remarked to defense counsel, ‘You’re *705misleading the jury on two different occasions ... and you know what these terms mean.” The court then gave instructions, first to the jury, then to defense counsel, “I’m instructing the jury to disregard the inaccurate statements that counsel has made — and instruct you not to make those statements again, sir. If you do that again, then we’re going to have to deal with that, sir.” Defense counsel responded, “Thank you, Your Honor. Nothing further.”

On appeal, Palacios-Baras relies on State v. Vogleson36 to assert that the trial court abused its discretion “when it sustained the State’s objection and refused to allow Appellant to cross-examine the named victim as to the potential sentence he avoided by cooperating with and testifying for the State.” In Vogleson, the Supreme Court of Georgia noted that “[t]he Sixth Amendment... guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him”37 and held that “the trial court abuses its discretion and commits error when it cuts off all inquiry on a subject on which the defense is entitled to reasonable cross-examination.”38 As Vogleson recognized, “Defense counsel is entitled to a reasonable cross-examination on the relevant issue of whether the witness entertained any belief of personal benefit from testifying favorably for the prosecution.”39 But Vogleson went on to explain:

That is not to say, however, that the Confrontation Clause of the Sixth Amendment prohibits the imposition of any limits on the cross-examiner’s inquiry into the potential bias of an adverse witness. . . . [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.40

Here, the trial court was authorized to determine that, as phrased, the questions that drew objections tended to confuse issues relating to the specific type of immunity extended to Tejada.41 In sustaining *706those objections, the trial court articulated that concern, issued curative instructions to the jury, and admonished defense counsel not to ask questions that misrepresented applicable law and circumstances. These actions taken by the court did not impose unreasonable limits on Palacios-Baras’s cross-examination of Tejada, nor did the actions cut off all inquiry into the subject of Tejada’s testimonial immunity.42 Instead, as the record reveals, Palacios-Baras’s counsel thereafter chose not to ask Tejada any additional question(s) that might have exposed to the jury Tejada’s belief concerning “whether the deal [he] struck with the State was sufficiently lucrative to render [his] testimony less creditworthy.”43 Given the foregoing, the trial court did not abuse its discretion.44

7. Palacios-Baras contends that the trial court erred by rejecting his claim of ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,[45] [a defendant] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. On appeal, this [c]ourt accepts the trial court’s findings of fact, unless they are clearly erroneous. However, the trial court’s legal conclusions are reviewed de novo.46

*707Palacios-Baras complains that his trial lawyer did not file a motion to suppress evidence derived from the wiretapping, asserting that such “evidence was plainly illegal pursuant to our Supreme Court’s holding in Luangkhot.”47 In that case, the Court interpreted the Georgia wiretap statute48 and held that “superior courts do not currently possess the authority to issue wiretap warrants for interceptions conducted outside the boundaries of their respective judicial circuits.”49 The Court expounded:

[I]n the absence of any state statute expressly granting superior courts the authority to issue wiretap warrants that apply outside their own judicial circuits, we hold that current state law vests the authority to issue wiretap warrants only in those superior courts of the judicial circuits in which the tapped phones or listening post are located.50

Palacios-Baras contends that, under that holding, the Gwinnett County Superior Court lacked the authority to issue the wiretap warrant for the interceptions at issue here,51 which, according to the evidence presented, took place exclusively in the HIDTA “wiretap facility” located in Atlanta. The state concedes that “the wiretap facility where the calls were intercepted was not in Gwinnett County.”

Palacios-Baras’s contention demonstrates no error, however, in the trial court’s rejection of his ineffectiveness claim. After Palacios-Baras was convicted, he was appointed new counsel who, as Palacios-Baras concedes on appeal, did not include on motion for new trial an allegation that trial counsel was effective for failing to challenge the propriety of the underlying warrant. “Because appellant’s allegation of ineffective assistance based on [such failure] was not raised on *708motion for new trial by appellate counsel who had been appointed following appellant’s conviction, it is waived.”52

Even had Palacios-Baras’s post-conviction counsel alleged that trial counsel was ineffective for failing to file a motion to suppress evidence on the ground of an unauthorized warrant, the trial court would have been bound to reject it under this court’s 2012 decision in Luangkhot v. State.53 Although that decision was overturned in 2013 by the Supreme Court of Georgia, at the 2011 joint trial, Palacios-Baras’s “trial counsel was not ineffective for failing to predict [the 2013 decision].”54 “Because there was no basis for [a motion to suppress the evidence pursuant to the Supreme Court’s decision in Luangkhot], [Palacios-Baras’s] trial counsel did not perform deficiently in failing to [pursue such a motion].”55

Indeed, Palacios-Baras’s claim that “[certain] evidence was plainly illegal pursuant to our Supreme Court’s holding in Luangkhot’ is, on its face, the product of hindsight, which has “no place in an assessment of the performance of trial counsel.”56

Hindsight, whether by a court, the defendant, or defendant’s counsel, is a legally insufficient basis for concluding that counsel’s performance at trial was deficient. As the United States Supreme Court has explained, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct *709the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.57

“There is a rebuttable presumption that counsel exercised reasonable professional judgment.”58 “The decision of whether to file a motion to suppress is a matter of professional judgment,”59 and thus “will not form the basis for an ineffective assistance of counsel claim unless it was so patently unreasonable that no competent attorney would have chosen it.”60 Notably, Palacios-Baras has made neither argument nor assertion that trial counsel’s failure to seek suppression of the evidence fell within that realm. And all things considered, we conclude that it did not.61

8. Palacios-Baras has filed a motion to remand this case “for a hearing on trial counsel’s effectiveness consistent with our Supreme Court’s holding in Luangkhot.” Palacios-Baras explains that “[he] did not raise said ineffectiveness in the trial court because Luangkhot was decided after [his] motion for new trial was denied.” Given our holding in Division 7,62 said motion is denied.63 The cases cited by Palacios-Baras, Gregory v. State64 and Wilson v. State,65 turned on *710circumstances inapposite to those here and thus provide no support for his argument that he is entitled to a remand to allege ineffective assistance of trial counsel in light of the Supreme Court’s holding in Luangkhot.

Case No. A13A1002 Appeal of Hernandez

9. Hernandez contends that the trial court erred by rejecting his claim of ineffective assistance of trial counsel, asserting that his trial counsel was “ineffective for not making use of available evidence to show that the evidence supported conclusions other than that Appellant was party to the crime of kidnapping for ransom.”

In particular, Hernandez claims that the trial evidence did not “conclusively establish that only four people participated in the criminal enterprise”; that the evidence did not “foreclose someone other than [Appellant as] the driver of the Camry from Gwinnett County to Floyd County”; and that his lawyer did not “offer an explanation for Appellant’s presence at the scene of the crime.” Hernandez posits that his trial lawyer might have advanced theories that his involvement was limited to the Camry — as a prospective buyer of that vehicle, or alternatively, as one serving only to dispose of that vehicle.

Hernandez showed on motion for new trial that, prior to trial, the state provided the defense recordings of numerous intercepted telephone conversations concerning the sales of various vehicles. Hernandez thus posited on motion for new trial that his trial lawyer should have used those conversations to support a defense theory that he was at the Floyd County residence solely to purchase or otherwise dispose of the Camry. On appeal, Hernandez argues that “disposing of the Camry would make Appellant an accessory after the fact. One cannot be guilty both as a principal involved in the crime and as an accessory after the fact.”

But as Hernandez acknowledges in his appellate brief, none of the conversations that he cited on motion for new trial concerned the Camry. And none of the conversations concerned a vehicle transaction involving Hernandez.

*711Hernandez did not testify at the hearing on motion for new trial, but he called his trial lawyer to the stand. She recounted that, before and after receiving discovery from the state, she consulted with Hernandez to develop a defense strategy. He had claimed to her that he had not been at the Gwinnett County residence and that he had gone to the Floyd County residence only to give “[a particular individual] a ride home. So that was basically his involvement.” The lawyer testified that she thus asked Hernandez why that individual was not in the Camry when it was stopped by police, but “I didn’t get an answer.” Also, the lawyer recalled at the motion for new trial hearing that Hernandez had initially told her that the Camry belonged to his friend; thereafter, he mentioned to her that he was at the Floyd County residence to buy the Camry, “but then when I said, well you told me it was your friend’s, he didn’t really pursue that.”

Even assuming arguendo that alternate strategies were available for Hernandez’s defense, “[i]t cannot be said that counsel was ineffective simply because another attorney might have placed more or a different emphasis on the evidence.”66 Hernandez’s defense at trial was that the state’s evidence fell short of proving beyond a reasonable doubt that he was guilty. To that end, Hernandez’s lawyer asserted during opening statement that the state’s case would lack evidence — for example, that Hernandez was at the parking lot of Tejada’s store when he was abducted, that he participated in any of the intercepted phone conversations, and that he was found with a firearm when stopped by police in the Camry. Accordingly, defense counsel’s cross-examination of the state’s witnesses elicited testimony to show these and other arguable evidentiary weaknesses and inconsistencies. And during closing argument, Hernandez’s lawyer argued that the state had “tried to paint with a very broad brush so that some of the paint gets on every defendant,” but evidentiary weaknesses and inconsistencies as to Hernandez rendered a guilty verdict unsustainable.

We reject Hernandez’s claim that this trial “strategy was unreasonable to the extent that no competent attorney would have chosen it on Appellant’s behalf.”67 “There are countless ways to provide *712effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.”68

While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.69
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.70

Because Hernandez’s trial lawyer, after reviewing the evidence and consulting with Hernandez, made a reasonable decision to pursue an all-or-nothing defense strategy, the trial court did not err in rejecting the claim of ineffective assistance of trial counsel.71

10. With new counsel on appeal, Hernandez asserts that counsel who represented him on motion for new trial was ineffective for failing to allege that his trial counsel was ineffective for failing to move to suppress the evidence obtained by investigators through the wiretapping. Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot72 Pretermitting whether this claim is properly before us,73 we find that it lacks merit.

*713Decided November 14, 2013

Sharon L. Hopkins, for appellant (case no. A13A1000).

G. Richard Stepp, for appellant (case no. A13A1001).

Matthew D. Crosby, for appellant (case no. A13A1002).

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

At trial, Hernandez’s lawyer elicited testimony from prosecution witnesses that Hernandez was never identified as an owner or subscriber of the three targeted cell phones monitored, nor was he ever identified as a participant of the intercepted conversations. And on appeal, Hernandez makes no assertion that there was evidence that he had standing to pursue suppression of such evidence. We therefore conclude that Hernandez lacked standing to pursue suppression of the evidence,74 and that neither his trial counsel nor counsel on motion for new trial performed deficiently for failing to raise the suppression issue.75

11. After the time for filing a brief and enumeration of errors had passed, Hernandez filed a supplemental brief, contending that “[t]he trial court erred in admitting evidence from a void wiretap warrant and the evidence based upon the wiretap evidence.” Hernandez cites the Supreme Court of Georgia’s decision in Luangkhot.76

Hernandez did not claim in his enumeration of errors that the trial court so erred. Pretermitting whether this contention was timely presented to this court,77 it is unavailing. As Hernandez acknowledges, he did not file a motion to suppress such evidence before the trial court.78 This contention, therefore, provides no basis for reversing the judgment of conviction entered against Hernandez.79

Judgments affirmed.

Ellington, P. J., and Branch, J., concur.

Deleon-Alvarez v. State
324 Ga. App. 694 751 S.E.2d 497

Case Details

Name
Deleon-Alvarez v. State
Decision Date
Nov 14, 2013
Citations

324 Ga. App. 694

751 S.E.2d 497

Jurisdiction
Georgia

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