Aрpellant Delman Higuera-Hernandez and his co-defendant Rogelio Higuera-Gutierrez were jointly tried for two murders and other offenses. A jury found Appellant guilty of the malice murder of Antonio Clark, the felony murder of Santos Palacios-Vasquez during the commission of a conspiracy to commit trafficking in cocaine, the underlying conspiracy offense itself, trafficking in a quantity of cocaine separate and distinct from that involved in the conspiracy count, and two counts of possession of a firearm during the commission of a felony. The trial court entered judgments of conviction on these guilty verdicts and imposed concurrent sentеnces of life imprisonment for the two murders and consecutive terms of five years for conspiracy, ten years for trafficking, and five years for each weapons offense. Appellant directly appeals from those convictions.* *
1. Construed most strongly in support of the verdicts, the evidence shows that Appellant and his co-defendant met others at an apartment for the purpose of selling two kilograms of cocaine. After
*554
receiving a large amount of cash, Appellant shot and killed Clark. Palacios-Vasquez was fatally shot, and Appellant himself was shot in the abdomen. He fled with the help of others and sought trеatment at a hospital, claiming that he was injured in an attempted robbery. Although Appellant denied knowledge of the apartment, his blood was found at the crime scene, and a set of keys to the apartment was discovered at his house. Investigators also found over 28 grams of cocaine with a purity of at least 10% at the apartment in a different container from the purported two kilograms of cocaine offered for sale. The evidence was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted.
Jackson v. Virginia,
However, where, as hеre, the defendant is found guilty of both felony murder and the underlying felony, that “underlying felony merges into the felony murder conviction. [Cit.] Here, the [conspiracy] conviction was the underlying felony that formed the basis for the felony murder conviction . . . .”
Carter v. State,
Because the underlying [conspiracy] merged into the felony murder conviction, the trial court erred in entering a separate judgment of conviction and sentence on the jury’s verdict finding [Appellant] guilty of [conspiracy]. [Cits.] Therefore, that separate judgment and sentence, even though not enumerated as error, must be vacated. [Cits.]
White v. State,
2. Appellant contends that the testimony of Flores Calderon regаrding inculpatory statements allegedly made by Appellant while they were cellmates for four days violated his Sixth Amendment right to counsel as set forth in
Massiah v. United States,
The State argues that this issue has not been properly preserved for appellate review. Although Appellant did file a general motion in limine, he failed to raise the Massiah objection to the cellmate’s testimony in that motion, in argument thereon, or during the testimony. Instead, defense counsel did not object on thе basis asserted in this appeal until the day after the cellmate’s testimony was complete.
*555 Standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below. [Cits.]
Whitehead v. State,
The trial court denied the motion to strike, ruling that, although Calderon had provided information on prior occasions in connection with other investigations, he was not a professional informant in the sense that he was paid or in any way necessarily engaged by the State. These findings were supported by the evidence. The overwhelming majority of federal and state jurisdictions recognize
that an informant must be a government agent before the protections in Massiah are implicated and further recognize that this agency inquiry is separate from whether the informant “deliberately elicited” information. [Cits.] . . . Although there are some differences in the approaches of the various jurisdictions, they are unified by at least one сommon principle: to qualify as a government agent, the informant must at least have some sort of agreement with, *556 or act under instructions from, a government official. .. . And several courts have expressly held that the analysis does not change even if the government is aware of the entrepreneurial inmate’s self-sеeking tendencies and government officials believe — or even hope — that the inmate will elicit information from the defendant. [Cits.] ... Various jurisdictions also agree that a person’s past service as a government informant in unrelated cases does not necessarily mean that the person is a government agеnt in the case at hand. [Cits.].. . [S]uch evidence is simply something the factfinder can consider in its discretion. [Cits.] . . . [Three federal circuits go further and] hold that an informant is not a government agent in a given case unless he has been instructed to obtain information from that defendant; any general agreement to obtain information about crime is deemed irrelevant. [Cits.]
Manns v. State,
A thorough review of the testimony of both the lead detective and Calderon shows that they did not have any agreement and that Calderon had not been promised any payment, lenient treatment, or other help in return for any evidence that he might produce.
Baxter v. State,
In the absence of any express or implied quid pro quo underlying the relationship between [Calderon] and the [State], [cit.], and in the absence of any instructions or directions by the [State], we hold that [Calderon] was not a [State] agent. [Appellant’s] right to counsel was not violated even if [Calderon] had deliberately elicited incriminating statements from [Appellant].
United States v. Taylor, supra. Moreover, there is no evidence whatsoever that Calderon deliberately elicited the incriminating statеments.
[A] defendant does not make out a violation of the [Sixth Amendment] right [to counsel] simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
Kuhlmann v. Wilson,
3. Appellant also contends that the trial court violated Uniform Superior Court Rule (USCR) 32.1 by placing him on a two-hour call for trial without seven days notice and further erred by denying relief under OCGA § 17-16-6 for the State’s failure to comply with the reciprocal discovery requirements in a timely manner pursuant to OCGA § 17-16-4. Appellant insists that, contrary to reasoning of the trial court, he did not waive his rights under either USCR 32.1 or OCGA § 17-16-6 by filing a demand for speedy trial under OCGA § 17-7-170.
The remedies for the State’s failure to comply with the reciprocal discovery requirements include a continuance and, “upon a showing of prejudice аnd bad faith,” exclusion of the evidence not disclosed. OCGA § 17-16-6. Indeed, excluding evidence is a particularly “ ‘harsh sanction and should be imposed only where there is a showing of prejudice to the defense and bad faith by the State.’
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[Cits.]”
Bryant v. State,
OCGA § 17-16-6 . . . also permits the trial court to “enter such other order as it deems just under the circumstances.” “ ‘ “In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.”’ (Cit.)” [Cit.] “The trial court has latitude in fashioning an appropriate remedy, and we will not reverse its decision absent an abuse of discretion. (Cit.)” [Cit.]
Norris v. State,
Furthermore, “ ‘compliance with Rule 32.1 must be judged in the circumstances of each case.’ [Cits.]”
State v. Hitchcock,
[I]n a case in which compliance with USCR 32.1’s seven-day notice of trial requirement would cause the state to violate a defendant’s right to a speedy trial, a trial court retains the discretion to proceed to trial in accordance with the defendant’s speedy trial demand. [Cits.]
Trimm v. State,
Under appropriate circumstances, it has been held even where the case is called immediately following the return of an indictmеnt, that there can be no presumption that a defendant is not ready for trial nor error in proceeding with trial. [Cit.]
Croft v. State,
In early January 2010, when Appellant was first arraigned, the trial court gave defense counsel a date in early August 2010 when the case would appear on a case management calendar in order tо ensure that all discovery was provided in a timely manner and that no other issue would prevent the case from proceeding to trial. However, Appellant filed a demand for speedy trial on January 27, 2010 and was informed on February 25, 2010 that discovery materials were then available and had been mailed to defensе counsel. On Monday, March 1, 2010, the case was placed on the two-hour call, and defense counsel was handed 46 discs containing all discovery materials. Appellant’s attorney was released from the two-hour call on March 3 *559 and told to report for trial five days later on March 8. On March 4, Appellant filed a motion for a ten-day continuance and a motion in limine to exclude any and all evidence not supplied to his counsel within ten days prior to trial as required by OCGA § 17-16-4. See OCGA § 17-16-6. On March 8, defense counsel told the trial court that she could not open seven of the discs even after receiving replacements. The trial court explained, month by month and week by week, that its calendar was full of civil and criminal trials and hearings through the month of June, the last day of which was the deadline for compliance with the speedy trial demand. The court concluded that it was not required to continue this case and thereby create serious schеduling issues due to its very heavy docket. However, the trial court heard in some detail what discovery material defense counsel had been able to review and stated that it would consider any specific evidence that defense counsel brought to its attention during trial as appropriate for exclusion due to the timing of discovery. The ensuing trial lasted six days.
Under all of the circumstances, we find that the trial court did not abuse its broad discretion under OCGA § 17-16-6 by denying a continuance and refusing the harsh remedy of evidence exclusion for the untimeliness of discovery. See
Smith v. State,
As for USCR 32.1, the trial court did not wholly fail to comply with that rule’s seven-day notice requirement, but rather gave at least five days notice. Compare
Clark v. State,
Judgments affirmed in part and vacated in part.
Notes
The crimes occurred on September 28, 2009, and the grand jury returned an indictment on January 26, 2010. The jury found Appellant guilty on March Í6, 2010, and the trial court entered the judgments of conviction and sentences on April 20, 2010. Appellant filed the notice of appeal on May 7, 2010. The case was docketed in this Court for the April 2011 term and was orally argued on May 16, 2011.