Following a bench trial, a Bulloch County judge found DeMarco Montez Cooper guilty off our counts of selling cocaine, OCGA § 16-13-30 (b) (Counts 1, 4, 7, and 9); five counts of distributing cocaine within 1,000 feet of a public housing project, OCGA § 16-13-32.5 (b) (Counts 2, 5, 8, 10, and 14); three counts of using a communication facility in committing or facilitating the commission of a felony (sale of cocaine), OCGA § 16-13-32.3 (a) (Counts 3, 6, and 11); possession of cocaine with intent to distribute, OCGA § 16-13-30 (b) (Count 12); and possession of a counterfeit controlled substance, OCGA § 16-13-30 (i) (1) (Count 13). Cooper appeals from the order denying his motion for a new trial, challenging the sufficiency of the evidence and contending that the trial court erred in conducting a bench trial without first determining whether he had waived his right to a jury trial. Cooper also moved this Court to remand his case so that he could pursue a claim of ineffective assistance of trial counsel. For the following reasons, we vacate the judgments of conviction and remand to the trial court for proceedings consistent with this opinion.
1. Cooper contends that the trial court erred in conducting a bench trial without first determining that he voluntarily, knowingly, and intelligently waived his right to a jury trial.
A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.
(Citation and punctuation omitted.) Whitaker v. State,
Because the State has not yet had the opportunity to rebut Cooper’s claim with extrinsic evidence showing that he intelligently and knowingly waived his right to a jury trial, such as the testimony of or an affidavit from Cooper’s attorney, the record before us is incomplete. See Jackson v. State,
2. In his remaining claims of error, Cooper challenges the sufficiency of the evidence supporting his convictions. Although we have vacated his convictions for the reasons explained in Division 1, supra, we address Cooper’s sufficiency argument because the trial court would not be authorized to reinstate any conviction the State failed to prove.
When an appellate court reviews the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
(Citation, footnote and emphasis omitted.) Jackson v. Virginia,
An officer with the Statesboro Police Department used a confidential informant to make four controlled buys of cocaine from “Tez,” who resided in apartment H4 of the Fox Ridge Apartment complex, a low-income housing project in Bulloch County. The police recorded the conversations between the informant and the seller, including the calls to arrange the sales of cocaine and the conversations that occurred during the hand-to-hand transactions, and the State introduced the recordings into evidence. After obtaining the suspected cocaine, the police determined that Cooper resided in apartment H4 from a list maintained by the apartment complex. Thereafter, the police obtained a search warrant, searched the apartment, and found additional suspected cocaine, a single pill of suspected MDMA,
(a) Cooper contends that the evidence adduced was insufficient to support his convictions because the State relied on the hearsay testimony of a forensic scientist who did not personally conduct the chemical tests that identified the drugs Cooper sold or possessed. Cooper argues that admitting the “surrogate testimony” of the forensic scientist in this case violated his right to confront the witnesses against him.
Both the informant and Cooper made admissions to the police and during their testimony at trial that the white powdery substance sold by Cooper or recovered from Cooper’s apartment was cocaine, and Cooper interposed no objection to this testimony. The testimony of the police, the informant, and Cooper was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the substance sold or possessed by Cooper, as alleged in Counts 1, 3, 4, 6, 7, 9, 11, and 12, was cocaine. See, e.g., Willingham v. State,
(b) However, the evidence is insufficient to establish that Cooper possessed a counterfeit drug, as alleged in Count 13 of the indictment.
OCGA § 16-13-30 (i) (1) provides that “it is unlawful for any person to possess ... a counterfeit substance.” The definition of a “counterfeit substance” applicable here is “[a] controlled substance or [a] noncontrolled substance, which is held out to be a controlled substance or marijuana, whether in a container or not which does not bear a label which accurately or truthfully identifies the substance contained therein,” or “[a]ny substance, whether in a container or not, which bears a label falsely' identifying the contents as a controlled substance.” OCGA § 16-13-21 (6) (B), (C).
The State presented the testimony of an officer who opined that the pill found in Cooper’s apartment appeared to be suspected MDMA. The State’s forensic chemist testified that the pill contained piperazine. The State, however, failed to adduce any evidence establishing that the pill bore markings that misidentified or misrepresented it as being MDMA.
(c) Cooper contends the evidence adduced was insufficient to establish that he sold drugs within 1,000 feet of a public housing project. We agree. The State failed to offer any evidence establishing that the Fox Ridge Apartment complex was owned or operated by a public housing authority, an essential element of the offense.
3. Cooper’s current appellate counsel filed with this Court a “Motion for Remand Without Prejudice” to “allow development of the record regarding” a claim of ineffective assistance of trial counsel.
It is well settled that “a defendant must raise all allegations of ineffective assistance of counsel at the earliest practicable moment, and any allegation not raised [at that time] is deemed waived.” Billings v. State,
The record shows that Cooper’s trial counsel filed a motion for new trial. After the trial court appointed new attorneys to represent Cooper in post-conviction proceedings, his new appellate counsel did not raise a claim of ineffective assistance of trial counsel either in an amendment to Cooper’s motion for new trial or at the hearing on that motion. See Bailey v. State,
We note that, although Cooper’s trial counsel and his appellate counsel were each public defenders, they were employed by the Office of the Public Defender for two separate judicial circuits, the Ogeechee Judicial Circuit and the Augusta Judicial Circuit, respectively. Accordingly, this is not a case in which Cooper’s waiver may be excused by the failure of a succession of attorneys from the same public defender’s office to raise the issue of the ineffective assistance of trial counsel. Cf. Ryan v. Thomas,
Judgment vacated and case remanded with direction.
Notes
See Division 2, infra.
See Whitaker v. State,
See footnote 6, infra.
See Disharoon v. State,
Cooper was indicted in Count 13 for possessing “MDMA,” which was not defined in the indictment with reference to any specific chemical formula. Before trial, the court allowed the State to amend the indictment (without obj ection) to reflect that it was pursuing, with reference to Count 13, the “lesser-included” offense of felony possession of a counterfeit drug. We do not address whether the State’s amendment to the indictment was valid because Cooper has not alleged such as error.
MDMA is a Schedule I controlled substance denominated “3, 4-Methylenedioxymeth-amphetamine.” OCGA § 16-13-25 (3) (Z). MDMA is often referred to as “ecstasy.” See Jackson v. State,
OCGA § 16-13-32.5 (b) provides that
[i]t shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project, unless the manufacture, distribution, or dispensing is otherwise allowed by law. For the purposes of this Code section, the term “housing project” means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.
We note that Cooper has not asserted a claim of ineffective assistance of trial counsel in his appellate brief nor has he explained how his trial counsel was allegedly deficient in his motion to remand. In order to address a motion to remand on the ground of ineffective assistance of counsel, it is imperative that we know the basis for the claim so that we may assess whether the claim is one that involves matters outside of the record and, thus, is a claim that should be remanded for further proceedings. See Wilson v. State,
“[C]ircuit public defenders working in the circuit public defender office of the same judicial circuit are akin to lawyers working in the same unit of a legal services organization and each judicial circuit’s public defender’s office is a ‘firm’ as the term is used [in Rule 1.10 (a), concerning conflicts of interest].” (Footnote omitted.) In re Formal Advisory Opinion 10-1,