Drug violation. Fulton Superior Court. Before Judge Campbell.
Kenneth D. Kondritzer, for appellant.
Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Lenny I. Krick, Assistant District Attorneys, for appellee.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
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 Sixth Amendment to the United States Constitution. Although we find that the evidence was sufficient to [329 Ga.App. 430] support the jury's verdict that Freeman was guilty of trafficking, we agree that the trial court erred in admitting the confidential informant's out-of-court statements, and, therefore, we reverse Freeman's convictions.
Viewed in the light most favorable to the jury's verdict, 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 cocaine and one count of possession of less
than one ounce of marijuana. At Freeman's trial, several of the [329 Ga.App. 431] Atlanta police officers involved in the case testified regarding their search of the house, and the lead officer also testified as to the details of the CI's controlled buy, which resulted in him successfully obtaining the search warrant. In addition, a GBI forensic chemist testified that the crack cocaine recovered by law enforcement weighed 50.62 grams and had a purity of 82 percent. The State also introduced similar-transaction evidence, showing that over the course of the last ten years, Freeman had five prior convictions for various illegal drug offenses, including three convictions for possession of cocaine with intent to distribute and two for possession of marijuana with intent to distribute.
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 ...