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Merritt v. State

Court of Appeals of Georgia

November 20, 2014

MERRITT
v.
THE STATE

Page 218

[Copyrighted Material Omitted]

Page 219

Drug violation. Douglas Superior Court. Before Judge James.

Judgment affirmed.

Mark R. Jeffrey, for appellant.

Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.

BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.

OPINION

Page 220

Branch, Judge.

On appeal from his conviction for possession of cocaine with intent to distribute, Richard Merritt argues that the trial court erred when it denied his motion to suppress, admitted evidence of two prior drug convictions, considered two prior convictions for sentencing purposes, and denied his motion for new trial in light of newly discovered evidence that Merritt was tasered during his arrest. Merritt also alleges that trial counsel was ineffective in a number of ways. We find no error and affirm.

" On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a " rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson [329 Ga.App. 872] v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation omitted).

So viewed, the record shows that on January 26, 2009, police arrested Kimberly Taylor at a hotel in Douglas County for possession of drug paraphernalia, including crack pipes. Taylor then agreed to provide police with the names of her drug suppliers. With police recording the conversation, Taylor called a man named Fred and ordered $300 of crack cocaine to be delivered to the hotel. As police continued to record, Taylor called Fred twice more to determine when he would arrive with the cocaine. Fred told Taylor that " Richard" would be arriving shortly after making a payment at an Enterprise car rental office nearby. Taylor knew Richard Merritt, with whom she had smoked crack at the hotel a number of times in the past few weeks, and who had introduced her to Fred.

Shortly after the last of Taylor's three calls to Fred, Merritt arrived at the hotel in a white Nissan Sentra. After Taylor positively identified Merritt and his vehicle, Merritt entered the hotel carrying a cup of beer in his left hand and with his right hand in his

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jacket pocket. As he did so, police apprehended him and forced him to the ground. In a report written on the day of Merritt's arrest, Detective Juan Gonzales stated that a second officer, Tully Yount, had pulled out his taser and had " applied" it to the suspect, at which point Merritt stopped struggling and allowed the officers to arrest him. At trial, Gonzales testified that although Yount had threatened to use the taser on Merritt, he had not actually discharged the device. Yount did not appear at trial.

After Merritt was subdued, police observed a bag later shown to contain 1.59 grams of crack cocaine on the floor next to Merritt's right jacket pocket. Also on the floor next to Merritt were candies, a lottery ticket, and Enterprise rental car keys, all of which Merritt admitted at trial were his. Merritt was charged with one count each of possession of cocaine with intent to distribute and obstruction of a police officer. At trial, held in March 2010, Merritt also admitted that he had a long history of using crack cocaine, that he had often smoked crack with Taylor, that he had previously purchased drugs from Fred, that he had assisted Taylor in obtaining drugs in the past, and that he had gone to the Enterprise car rental office before arriving at the hotel. Merritt denied that the cocaine found on the floor was his, however. A jury found Merritt guilty of possession of cocaine with intent to distribute but not guilty of obstruction. Merritt was convicted and sentenced as a recidivist to serve 30 years.

At the hearing on Merritt's motion for new trial, Merritt's assertions included that a " Use of Force" report written in March [329 Ga.App. 873] 2013, three years after trial, showed that Yount had indeed discharged his taser while holding it against Merritt's back. Yount also testified at the same hearing that he had discharged his taser in the course of subduing Merritt. The trial court denied Merritt's motion. This appeal followed.

1. Merritt first argues that the trial court erred when it denied his motion to suppress the bag of crack cocaine found next to him on the ground at the time of his arrest because Taylor had not been shown to be a reliable source of information before she identified Merritt. We disagree.

A trial court's order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. We construe all ...

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