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Sanchez-Villa v. State

Court of Appeals of Georgia, Fifth Division

April 19, 2017

SANCHEZ-VILLA
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Bethel, Judge.

         Felipe Sanchez-Villa appeals from his conviction of one count of trafficking in cocaine pursuant to OCGA § 16-13-31(a)(1)(C), for which he was sentenced to twenty-five years imprisonment and ordered to pay a one million dollar fine. On appeal, he contends that the trial court erred by permitting the State to introduce evidence from a United States Drug Enforcement Administration (DEA) investigation of Sanchez-Villa. The evidence included testimony from a DEA agent regarding the agency's surveillance of Sanchez-Villa for over a year prior to his arrest and a recording of a conversation involving Sanchez-Villa that occurred almost a month prior to his arrest on the cocaine trafficking charge. Sanchez-Villa also contends that the trial court erred by not instructing the jury on an "equal access" defense and that it erred in instructing the jury as to conspiracy. While we affirm the trial court's rulings in regard to jury instructions for equal access and conspiracy, we find that the trial court abused its discretion in admitting the evidence of the DEA investigation as "intrinsic" evidence of the charged trafficking offense. Because we further find this error was harmful, we vacate Sanchez-Villa's conviction and remand this matter for a new trial consistent with this opinion.

         On appeal, the defendant "is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict." Batten v. State, 295 Ga. 442, 443 (1) (761 S.E.2d 70) (2014) (citations omitted).

         So viewed, on April 8, 2014, the DeKalb County High Intensity Drug Trafficking Area Task Force (the "Task Force") received a tip from a confidential informant (CI) indicating that a drug transaction would take place that evening at a particular gas station around 10:00 pm. The CI indicated that a suspect (who he identified as "Cuarenta") would arrive in a gray Honda Accord and that he would meet someone driving a black Lincoln.

         A Honda matching that description arrived after Task Force officers began monitoring the area, and it was joined minutes later by a black Lincoln. The driver of the Lincoln then exited the vehicle, approached the Honda, and began speaking through its driver's side window.

         The man returned soon after to the Lincoln, and the Lincoln drove off. The Honda followed the Lincoln, and Task Force officers followed both vehicles until they parked in front of a restaurant close by. An officer observed the driver of the Lincoln remove a "weighted down" duffel bag from the Lincoln's trunk and place it in the back seat of the Honda. The man then returned to the Lincoln and drove off.

         Several minutes later, the Honda drove away. The Task Force officers began following the Honda. They then instructed an officer from the DeKalb County Police Department (who was not part of the Task Force) to look for the Honda, giving a description. Soon after, the DeKalb police officer encountered the Honda speeding and pulled it over.

         After backup arrived, the officer approached the driver, later identified as Sanchez-Villa. He saw that the Honda was equipped with special hand controls and noted that Sanchez-Villa appeared to be disabled.

         During the stop, the officers noted that Sanchez-Villa had nothing in his hands, but when one of the officers looked into the backseat, he saw a large duct-taped block on the floor between the passenger's feet. The officer instructed the passenger and Sanchez-Villa to exit the vehicle. The officer picked up the block and asked Sanchez-Villa and the passenger whether it belonged to them. The passenger shook his head "no, " and Sanchez-Villa stated, "No, I don't know what that is." The officer opened the block, and its contents field-tested positive for cocaine. Sanchez-Villa and the passenger were then arrested.

         Incident to the arrest, Task Force officers searched the vehicle and located hidden compartments adjacent to the back seats. They located roughly eight additional kilograms of cocaine in that space; no cocaine was located in the front seat area of the vehicle. Officers also recovered an empty black duffel bag from the back seat, as well as two wallets containing cash. They later determined that the Honda was not registered to Sanchez-Villa.

         Sanchez-Villa was indicted for trafficking in cocaine, and the indictment alleged that Sanchez-Villa and the passenger, individually and as parties concerned in the commission of a crime, were guilty of possessing the requisite amounts of cocaine. Sanchez-Villa entered a not-guilty plea.[1]

         Prior to trial, the State indicated to Sanchez-Villa, through supplemental discovery, that it had evidence of a DEA investigation of Sanchez-Villa that had been ongoing for over a year preceding his arrest. That evidence included a secret DEA recording from March 11, 2014, in which an individual the State claimed to be Sanchez-Villa discussed the sale of significant quantities of cocaine and marijuana with a CI who was cooperating with the DEA.

         The State also brought forth testimony through a DEA agent[2] detailing the agency's investigation of Sanchez-Villa, including the agent's knowledge that Sanchez-Villa was a cocaine supplier and his characterization of Sanchez-Villa as a "heavy distributor" of drugs in the metro Atlanta area. The DEA agent also discussed various forms of lingo for cocaine used by Sanchez-Villa in the recorded conversation, which the agent indicated were in common use in conversations regarding cocaine trafficking. The DEA agent stated that, at various times, Sanchez-Villa had been observed driving the same Honda that he was driving at the time of the arrest. The DEA agent also testified that he was aware the Honda had secret compartments. According to his testimony, the agent knew from his investigation that Sanchez-Villa was disabled and that he went by the alias "Carnal."

         The Task Force did not know Sanchez-Villa was under DEA investigation at the time of arrest. Likewise, the DEA was not aware of the Task Force's investigation of Sanchez-Villa until after he was arrested and charged.

         At trial, Sanchez-Villa conceded that cocaine was found in the vehicle, but he argued that he had no knowledge of the cocaine or the hidden compartments in the vehicle and was merely present as a driver. In light of this defense, the State initially argued in pre-trial proceedings that evidence from the DEA investigation was admissible to establish Sanchez-Villa's knowledge of drugs and drug trafficking. The State later clarified that it sought to admit the recording and the agent's testimony because such evidence was "intrinsic" to the events surrounding the trafficking charge. As discussed more fully in Division 1, infra, the trial court admitted the testimony and the recordings on this basis over various objections by Sanchez-Villa, noting that the cocaine discussed in the secret recording "could very well be the same cocaine" seized from the Honda.

         Upon the State's request, the jury was instructed regarding the principles of joint, actual, and constructive possession of narcotics, but the State did not request an instruction as to the presumption of possession. However, because the State presented evidence and emphasized in its opening and closing statements that Sanchez-Villa was, as the driver of the Honda, in control of the cocaine, Sanchez-Villa argued that the jury should be instructed as to the "equal access" defense even though the jury had not been instructed as to the presumption of possession that such defense would rebut. The trial court denied this request. The State also requested that the jury be instructed as to conspiracy, arguing that the evidence presented at trial supported this charge even though it was not part of the indictment. This request was granted over Sanchez-Villa's objection. Following his conviction, Sanchez-Villa brought this direct appeal.

         (1) Sanchez-Villa first argues that the trial court's decision to admit evidence from the DEA investigation, including the recorded conversation, violated Rule 404(b), as ...


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