October 30, 2014
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 sentence, with 20 years to be served in confinement. Subsequently, Freeman filed 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."  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."  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."  With these guiding principles in mind, we turn now to Freeman's specific claim of error.
[329 Ga.App. 432] At the time of Freeman's arrest in 2006 and his trial in 2009, former OCGA § 16-13-31 (a) (1), in relevant part, provided:
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 ... .
And in the recently decided case of Scott v. State, the Supreme Court of Georgia held that " [t]he plain language of the version of former OCGA § 16-13-31 (a) (1) at issue dictates the conclusion that knowledge of the quantity of the drug was an element of the crime."  Specifically, our Supreme Court found that the cocaine-trafficking statute contained " express scienter requirements, that is, knowledge of the nature and amount of the drug and of being
in possession of it,"  and that " where 'knowledge' is made part of an offense, the State has the burden to prove the defendant's guilty knowledge."  Nevertheless, a jury may find criminal intention, i.e., knowledge, " upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted."  Indeed, both knowledge and possession may be proved, " like any other fact, by circumstantial evidence." 
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 [329 Ga.App. 433] intent to distribute. More specifically, in one of those previous cases, Freeman was found to be in possession of nearly 26 grams of cocaine, and in another, he was found to be in possession of 19 grams of the drug. Given these circumstances, there was sufficient evidence showing that Freeman had knowledge of the weight of the cocaine found in the search of the Thoms Drive residence.
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 Sixth Amendment to the United States Constitution. We agree.
The Sixth Amendment's Confrontation Clause provides: " In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."  This fundamental right is a " bedrock procedural guarantee [that] applies to both federal and state prosecutions,"  and is a " concept that dates back to Roman times."  And in 2004, the Supreme Court of the United States clarified the original public meaning and scope of the right to confrontation of one's accusers in
Crawford v. Washington, holding that when the admission of " testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."  But when the [329 Ga.App. 434] statement at issue is nontestimonial in nature, " the State's normal rules regarding the admission of hearsay apply." 
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."  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."  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." 
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 [329 Ga.App. 435] defense counsel opened the door for this evidence when he cross-examined the officer about the vague description of the seller contained in the officer's affidavit. The court then indicated that it would instruct the jury that the evidence was not being admitted for the truth of the matter asserted but, rather, to explain the officer's conduct. Maintaining his objection, defense counsel asked the trial court if it thought the evidence was damaging to Freeman, to which the court responded, " [v]ery damaging."
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"  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."  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."  Indeed, permitting anonymous accusations of crime without " any opportunity for cross-examination would make a mockery of the Confrontation Clause." 
[329 Ga.App. 436] Here, the CI's statement in the buy report and the officer's testimony regarding that statement were clearly testimonial. And although the Confrontation Clause does not bar " the use of testimonial statements for purposes other than establishing the truth of the matter asserted,"  contrary to the trial court's ruling and its subsequent instructions to the jury, the crux of the officer's testimony--that the CI claimed to have purchased crack cocaine from a person named " Trace" --" was not offered merely to explain why a government investigation was undertaken or to demonstrate the effect of the out-of-court statements on the officers."  Rather, the purpose of this testimony was to establish that the person named " Trace" was involved with the illegal drug activity occurring at the Thoms Drive residence. In fact, the State's argument during closing that " Trace is often a nickname for Tracey" made this exact point and belies any contention that the statement merely provided an explanation for the lead officer's conduct. Moreover, Freeman had no opportunity to cross-examine the CI. Accordingly, the buy report and the officer's testimony concerning its details clearly violated Freeman's Sixth Amendment Confrontation Clause rights.
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 [329 Ga.App. 437] done " intentionally and for valid, tactical purposes in order to satisfy the requirement that the waiver of a constitutional right must be clear and intentional."  But here, there was no such waiver. In fact, the record shows that Freeman's counsel explicitly objected to the admission of the CI's statements, as well as the trial court's ruling that he opened the door to such statements. And although courts at times allow " the use of otherwise inadmissible evidence, including hearsay statements, to clarify, rebut, or complete an issue opened up by defense counsel on cross-examination,"  as the Supreme Court of the United States has explained, " [w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence ... ."  Thus, the trial court erred in ruling that Freeman opened the door to the CI's statement.
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."  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.
[329 Ga.App. 438] 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.
For all of the foregoing reasons, we reverse Freeman's convictions. Nevertheless, the State may retry Freeman without violating the Fifth Amendment prohibition against double jeopardy because, as we held in Division 1, supra, even without the CI's statement, the evidence at trial was sufficient to support the convictions.