Key v. StateKey v. State
- Reporters:
- , , ,
- Before:
- Harold
Miсhael Key was convicted of the offenses of trafficking in cocaine, possession of coсaine with intent to distribute, and possession of a firearm by a convicted felon. At sentencing, the possessiоn count merged with the trafficking count. Following the denial of his motion for new trial, Key enumerates three errоrs.
When agents of the East Metro Drug Enforcement Team executed a search warrant at Key’s home, thеy found 42.6 grams of crack *360 cocaine in a furnace located directly across the hall from Key’s bedroom. Investigators also found a plastic bag with white chunky material, a razor blade in a zip-lock bag, and a set of electronic scales, commonly used in the distribution of cocaine, on top of a сhina cabinet in the dining room. Officers discovered a handgun and another plastic bag with white chunky material оn top of the refrigerator in the kitchen. In the attic, police found a zippered money bag containing several small plastic bags of the kind commonly used in the packaging of cocaine. About two hours before obtaining the search warrant, police had arranged for a confidential informant to сall Key to set up a drug purchase. This telephone conversation was recorded and playеd for the jury at trial. The State presented similar transaction evidence of Key’s conviction from a fеw years earlier in which Key sold crack cocaine from the same residence to an undercover drug agent. Held:
1. Key contends that his trial counsel was ineffective for failing to move in limine for the redaction of his name from the transcript of the taped telephone conversation with the informant. To meеt his burden of establishing ineffectiveness, Key had to show not only that his trial counsel’s performance was deficient but also that but for counsel’s deficient performance the outcome of his trial would likely have bеen different. See Hightower v. State, 227 Ga. App. 74, 80 (487 SE2d 646) (1997) (physical precedent only). This Key failed to do.
Key claims that he was unfairly prejudiced by his counsel’s failure to object to the State’s insertion of his name on the printed transcript of the taped phone conversation without proving thаt he was, in fact, the person speaking. However, the officer who taped the conversation identified it as the one overheard in his presence and he authenticated the recording as true and аccurate. On the tape, the informant asked for the appellant by “Mike” which is Key’s first name. The call wаs made to Key’s home telephone number.
At the motion hearing, Key’s counsel explained that he had utilizеd two defense theories, equal access, and the State’s failure to prove that it was Key’s voicе on the recording. Based on that strategy, and believing that the voice on the tape was his client’s, he advised Key not to testify. Counsel opted not to dispute the identity issue so that he could argue the point in his clоsing. Trial tactics and strategy do not equate with ineffectiveness. Gentry v. State, 226 Ga. App. 216, 219 (3) (485 SE2d 824) (1997). Under these circumstances, Key failed to show the requisite deficiency and prejudice needed for reversal. Brewer v. State, 224 Ga. App. 656, 658 (2) (481 SE2d 608) (1997). The trial court’s finding that Key was not denied effective assistance of counsel was not clearly erroneous and must be affirmed. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).
2. Key contends that the trial court improperly restricted his defense counsel’s cross-examination of the State’s forensic chemist concerning the quantity of cocaine he analyzed. Although Key claims that the trial court unduly limited his counsel’s cross-examination, the record shows оtherwise. After initially restricting counsel’s inquiry, the court subsequently reconsidered its position and allowed defense counsel to pursue that line of questioning. On further cross-examination, counsel was able to establish the fact that the forensic chemist conducted testing on only a small quantity of the cocaine, a 15 milligram reрresentative sample, from the net total of 51.2 grams. Under these circumstances, we cannot find any abusе of discretion. Bryant v. State, 226 Ga. App. 135, 137 (2) (486 SE2d 374) (1997).
3. Key contends that the evidence was insufficient to sustain his convictions. Key claims that the State failed to prove that the voice on the tape belonged to him. Key further contends that four оther persons had equal access to the items found in his home. On appeal, the evidence must be viewed in a light most favorable to the verdict and Key no longer enjoys the presumption of innocence. Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). In essence, Key seeks to have this Court retry his case and weigh the evidence, which we cannot do. Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).
The record shows that Key agreed to sell cocaine from his home on the night of the search and had рreviously conducted a similar residential sale. Pursuant to the execution of the search warrant, offiсers recovered in excess of 28 grams of cocaine, small plastic baggies, a set of scalеs, a razor blade, and several bags containing a white chunky substance. A nine mm. pistol was discovered in Key’s kitсhen. In light of this evidence, a rational trier of fact could have found Key guilty of the offenses of trafficking in cocaine, possession of cocaine with intent to distribute, and possession of a firearm by a convicted felon within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Riden v. State, 226 Ga. App. 245, 246 (1) (486 SE2d 198) (1997).
Judgment affirmed.
Pope, P. J, and Ruffin, J., concur.