FREEMAN v. THE STATE.
A14A1222
Court of Appeals of Georgia
DECIDED OCTOBER 30, 2014.
765 SE2d 631
DILLARD, Judge.
Greg H. Bell, for appellant. Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Walter G. Sammons, for appellee.
Following trial, a jury convicted Tracey Freeman on one count of trafficking in cocaine and one count of possession of less than one ounce of marijuana. On appeal, Freeman contends that the evidence was insufficient to support the trafficking conviction because the State failed to prove that he had knowledge of the weight of the cocaine and that the trial court erred in admitting the out-of-court statements of a confidential informant, which violated his right to confrontation under the
Viewed in the light most favorable to the jury‘s verdict,2 the record shows that in July 2006, Atlanta Police Department officers set up surveillance on a house located at 1718 Thoms Drive based on complaints from neighbors, who believed that illegal drug sales were occurring there. And after observing numerous individuals going in and out of the house for very brief periods of time, at all hours of the day and night, the police believed that the neighbors’ suspicions were well founded. Consequently, in the early afternoon on July 25, 2006, an officer sent a confidential informant (“CI“) into the house to attempt to make a controlled purchase of illegal drugs. A few minutes later, the CI exited the house and returned to the officer, having successfully bought a small quantity of crack cocaine. Based on this information, the officer quickly obtained a search warrant for the residence.
Later that same afternoon, the officer and several other members of the Atlanta Police Department‘s narcotics squad returned to the Thoms Drive address to execute the search warrant. And upon entering the house, the officers noticed that it was sparsely furnished with only one bedroom containing any furniture. In that bedroom, the officers encountered Freeman and found a small amount of marijuana and powder cocaine on a laptop computer. Additionally, in the same bedroom, the officers found clothes and shoes that appeared to belong to Freeman as well as some mail addressed to him at 1718 Thoms Drive. Consequently, Freeman was arrested. Elsewhere in the house, the officers encountered Freeman‘s four uncles, whom they arrested solely on disorderly conduct charges. Shortly thereafter, a K-9 unit arrived, and the dog quickly alerted the officers to a vent on the floor in the bedroom, in which the officers found a bag containing 50.62 grams of crack cocaine.
Thereafter, Freeman was charged, via indictment, with one count of trafficking in cocaine3 and one count of possession of less than one ounce of marijuana.4 At Freeman‘s trial, several of the
Freeman testified in his own defense and claimed that he (1) did not live at the house (which was actually rented by his uncles), and (2) was only there that day to use the computer to complete his homework for culinary school. Freeman also denied having any knowledge of the cocaine or marijuana found in the bedroom. Additionally, Freeman‘s mother, his girlfriend, a long-time friend, and three of his uncles testified that Freeman did not live at the 1718 Thoms Drive residence but visited there occasionally to use the computer for his school work. Nevertheless, at the trial‘s conclusion, the jury found Freeman guilty on both counts, and the court imposed a 30-year sentence, with 20 years to be served in confinement. Subsequently, Freeman file a motion for new trial, which the trial court denied after a hearing. This appeal follows.
1. Freeman contends that the evidence was insufficient to support his conviction for trafficking in cocaine because the State failed to prove that he had knowledge of the weight of the drug. We disagree.
At the outset, we note that when a criminal conviction is appealed, the evidence must be “viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.”5 And we do not weigh the evidence or determine witness credibility but only consider whether “a rational trier of fact could have found the defendant [ ] guilty of the charged offenses beyond a reasonable doubt.”6 Thus, the jury‘s verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State‘s case.”7 With these guiding principles in mind, we turn now to Freeman‘s specific claim of error.
Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine . . . .9
And in the recently decided case of Scott v. State, 10 the Supreme Court of Georgia held that “[t]he plain language of the version of former
And here, the evidence shows that the crack cocaine which Freeman was convicted of possessing had a purity of 82 percent and weighed 50.62 grams—nearly two times the trafficking threshold weight of 28 grams—and was packaged in a plastic bag and hidden in a vent in a bedroom that Freeman was apparently occupying. Furthermore, the jury heard evidence of five similar transactions, including Freeman‘s three convictions for possession of cocaine with the
2. Freeman also contends that the trial court erred in admitting the out-of-court statements of the CI, arguing that this evidence violated his right to confrontation under the
The
Although the Supreme Court did not specifically outline the parameters for determining whether a statement can be characterized as testimonial in Crawford, it did explain that such testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.”23 Accordingly, the Confrontation Clause prohibits “the introduction of a formal statement to a government officer made in an effort to establish an evidentiary case, such as that which occurs during a police investigation.”24 Additionally, the Supreme Court in Crawford found that a statement might also be considered testimonial if it was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”25
At the trial of this matter, during the cross-examination of the police officer who set up the CI‘s controlled buy, Freeman‘s counsel asked if the CI provided a general description of the person who sold him the crack cocaine. The officer responded that the affidavit in support of the search warrant only indicated that the CI purchased the drugs from a “black male,” but that any additional information would have been included in his “buy report,” which he did not currently have. At that point, Freeman‘s counsel requested that the State provide a copy of the buy report, and he reiterated this request a short time later after the jury was excused for the evening. The State asserted that it did not have the buy report and that, regardless, the defendant was not entitled to it. But the trial court disagreed and ruled that if the report could be located, the defendant was entitled to, at the very least, have it reviewed in camera for potential impeachment or exculpatory purposes.
The following morning, the State presented the buy report for review, having successfully located it. But upon review, Freeman‘s counsel noted that in the report, the CI indicated that he purchased the crack from a black male, whom he knew as “Trace.” Consequently, defense counsel argued that admitting the report or allowing the officer to testify as to its details would violate Freeman‘s Confrontation Clause rights. However, the trial court disagreed, stating that
Thereafter, during its redirect examination of the officer, the State introduced the buy report into evidence over Freeman‘s objection. At that point, the trial court instructed the jury that it could consider the contents of the report “only in the context of the credibility or impeachment or lack of impeachment of this particular witness and for no other purpose.” Subsequently, the officer testified that, based on the buy report, the CI claimed to have purchased the crack from a suspect named Trace. And later, despite the trial court‘s instruction, the State argued during closing that although the cocaine-trafficking charge did not require proof that Freeman sold crack to the CI, “Trace is often a nickname for Tracey.” Freeman‘s counsel lodged yet another objection, which the trial court overruled.
As he did during the trial, Freeman argues on appeal that the CI‘s statement in the buy report, in which he claimed to have purchased crack cocaine from someone named Trace, was testimonial, and therefore prohibited by the Confrontation Clause. As previously noted, we agree.
Quite simply, a confidential informant‘s “statements to a law enforcement officer are clearly testimonial”26 because “[t]ips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial.”27 And the very fact that the informant is confidential—i.e., that his or her identity is not disclosed—“heightens the dangers involved in allowing a declarant to bear testimony without confrontation.”28 Indeed, permitting anonymous accusations of crime without “any opportunity for cross-examination would make a mockery of the Confrontation Clause.”29
Furthermore, we disagree with the trial court‘s assertion that Freeman opened the door to the admission of this evidence during his aggressive cross-examination of the lead officer as to why Freeman was targeted when there were at least four other people at the residence at the time the search warrant was executed. Defense counsel‘s decision to waive a defendant‘s confrontation rights must be
Finally, while admitting evidence in violation of a defendant‘s Confrontation Clause rights “is one of constitutional magnitude, it can be harmless error if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict, such as when the evidence at issue is cumulative of other properly-admitted evidence or when the evidence against the defendant is overwhelming.”39 But here, the State cannot meet that burden. The CI‘s statement that he purchased crack cocaine from “Trace” was arguably the only direct or noncircumstantial evidence that Freeman was involved in the illegal drug activity occurring at the Thoms Drive residence. Thus, the statement was not merely cumulative of other sufficient evidence.40
Nor can we characterize the remaining evidence against Freeman as overwhelming so as to satisfy us that the CI‘s statement did not contribute to the jury‘s verdict. Although there was some evidence that Freeman resided at the Thoms Drive residence, Freeman and six other witnesses testified that he lived elsewhere and only went to that house to use the computer. In addition, while the 50 grams of crack cocaine were found in the same bedroom where Freeman was located at the time the officers executed the search warrant, the drugs were not found on his person but were instead hidden in a floor vent. Moreover, there was at least some evidence that four of Freeman‘s uncles lived at the residence and, therefore, also would have had access to the cocaine. In fact, two of Freeman‘s uncles specifically testified that the drugs belonged to a local dealer, who would store the drugs there, and in return would provide cocaine for one of the uncles. Given these circumstances, we simply cannot conclude that there is no reasonable probability the CI‘s statement that he purchased crack cocaine from “Trace” did not contribute to the jury‘s guilty verdict. To the contrary, we agree with the trial court‘s rather candid acknowledgment that the evidence was, in fact, “very damaging.” Accordingly, this Confrontation Clause violation was not harmless, and Freeman is entitled to a new trial.41
For all of the foregoing reasons, we reverse Freeman‘s convictions. Nevertheless, the State may retry Freeman without violating the
Judgment reversed. Doyle, P. J., and Miller, J., concur.
DILLARD
JUDGE