Gilbert Hinton appeals his conviction for possession of methamphetamine with intent to distribute, contending that his rights were violated by the State’s failure to produce videotape evidence, that the trial court erred in admitting evidence of a similar transaction, and that his trial counsel was ineffective. For the reasons that follow, we affirm.
We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions.
Campbell v. State,
Viewed in that light, the evidence at trial established that around midnight in October 2004, an officer with the Cobb County Police Department was patrolling a “heavily populated drug traffic area” when he saw an unfamiliar car with three men inside pull into an apartment complex parking lot. Hinton got out, went into an apartment, stayed about two minutes, and then returned to the car, which drove off. The officer pulled out behind the car and turned on his lights to see how the driver would react. The driver made a “pretty erratic” turn into a gas station and the officer parked across the street with his lights out to watch while the driver fumbled with the gas cap, went inside the business, came out with a soda, and drove away. The officer followed in his patrol car, and made a traffic stop after seeing that one of the taillights in the vehicle was not working.
The officer asked the driver to step out and move to the back of his car. The driver consented to a search of his car, and Hinton and the third man got out and sat with two backup officers. The search revealed a small container of marijuana in the open console between the two front seats. Because the marijuana would have been accessible to all three men, all three were charged with marijuana possession. After patting down Hinton to look for weapons and cuffing his hands, the officer placed him in his patrol car and turned to the third man. As the officer opened the police car door to place the third man in the back seat, Hinton began screaming, “hey, hey, hey, you know, there’s drugs in your back seat. I hope you aren’t going to charge me with it.” The officer pulled the third man from the car and shone his flashlight on the floorboard, revealing two plastic bags containing 20.18 grams of “ice,” or crystal methamphetamine, with a street value of at least $2,000.
The officer testified that he always searched his patrol car before beginning his shift to make sure no one had hidden any contraband inside. Hinton was the first person to step into the patrol car since the shift began, so the officer arrested Hinton for possession with intent to distribute.
1. Hinton contends that his Sixth Amendment right to confrontation and cross-examination was violated because the trial court admitted evidence of Hinton’s similar transaction without first requiring the State to present witness testimony at the hearing. Instead, the only evidence the State presented at the hearing was certified copies of the police report and conviction from the prior case, which, without the arresting officer’s testimony, was hearsay and insufficient to prove that evidence of the prior crime was admissible. A review of the transcript reveals that the State made a proffer at the hearing of what the arresting officer would say at trial, and that
*481
Hinton did not object. Thus Hinton waived any objection to the hearing procedure. See
Darnell v. State,
2. Hinton contends that his trial counsel was ineffective for failing to object to the State’s proffer of evidence at the similar transaction hearing, positing that “ [h] ad the Court denied the motion based on the State’s lack of sufficient proof, the defendant would not have been severely prejudiced at trial by the jury hearing about the former conviction.” To establish ineffective assistance, Hinton must show both that his trial counsel’s performance was deficient and that this deficiency prejudiced his defense.
Ellison v. State,
In this case, trial counsel’s performance was not deficient by failing to object to the State’s proffer during the similar transaction hearing.
We have repeatedly approved of such a procedure; the question is whether defendant was deprived of any substantial rights by the proffer. [Cits.] The recent decision of the United States Supreme Court limiting the hearsay exceptions to the Confrontation Clause to those “firmly rooted” in the common law do not persuade us otherwise, as the State introduced no hearsay evidence during trial, and [Hinton] had ample opportunity to cross-examine the similar transaction witness then. See Crawford v. Washington,541 U. S. 36 , 41 (124 SC 1354, 158 LE2d 177) (2004).
(Punctuation omitted.)
Ellis v. State,
3. Hinton contends that the trial court erred in allowing evidence of his similar transaction without determining on the record that the State offered the evidence for a proper purpose, that sufficient evidence established he committed the independent act, and that the independent act tended to prove the offense charged because the two were sufficiently similar, as required by
Williams v. State,
4. Hinton contends that his right to exculpatory evidence as set forth in
Brady v. Maryland,
At the motion for new trial hearing, trial counsel testified that she tried to obtain videotapes from any of the three patrol cars but neither the State nor the police officers had them. She sought the tapes because the police officers initially denied that they ever tried to put anyone else in the car with Hinton, but the officers subsequently remembered that they tried to put the third man in the car, and thus the tapes were no longer needed for that purpose.
While Hinton argues in his brief that his trial counsel “had information from the State that a videotape existed...,” the citation to the motion for new trial hearing transcript does not support this statement. The transcript shows instead that Hinton wanted to find a videotape from the patrol car behind the one in which he was held, but that counsel could not confirm the existence of any videotapes taken during the arrest.
[T] o establish a Brady violation, a defendant has the burden of showing that: (1) the State possessed information favorable to the defendant; (2) the defendant did not possess the evidence nor could he obtain it with due diligence; (3) the prosecution suppressed the evidence; (4) a reasonable probability exists that the outcome of the trial would have been different if the evidence had been disclosed.
(Citation and punctuation omitted.)
Cook v. State,
5. Finally, Hinton’s trial counsel was not ineffective for failing to obtain evidence which apparently did not exist.
Judgment affirmed.