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Camacho v. State

Court of Appeals of Georgia, Fourth Division

August 9, 2017

CAMACHO
v.
THE STATE.

          DILLARD, C. J., RAY, P. J. and SELF, J.

          Self, Judge.

         Following a jury trial, Marcos Benitez Camacho was convicted of trafficking in methamphetamine. Camacho appeals the denial of his amended motion for new trial, asserting that the trial court erred (1) in charging the jury on the law of deliberate ignorance, (2) in allowing the State to impeach Camacho by questioning him about a previous, unrelated arrest, (3) in admitting hearsay testimony, and (4) in permitting the State to make prejudicial remarks in closing argument. Finding no error, we affirm.

         Viewed in the light most favorable to the jury's verdict, the evidence showed that on April 17, 2015, federal agents with the U.S. Department of Homeland Security/Homeland Security Investigations ("DHS") arranged for a confidential informant ("the CI") to make a controlled delivery[1] of over 44 kilograms of methamphetamine to a member of a drug trafficking organization ("DTO"). The methamphetamine, with a street value of $12, 000 to $18, 000 per kilogram and $1, 000 per ounce, was wrapped in 189 individual packages and concealed in a hidden compartment in the trunk of a trap vehicle that was to be driven by the CI. The trap vehicle was a white Ford Fusion outfitted with a GPS device and a kill switch, allowing agents to remotely and immediately disable the vehicle if necessary. A second confidential informant had contacted members of the DTO to arrange delivery of the drugs and that informant relayed the DTO's instructions to federal agents, who then passed them along to the CI. The CI knew he was delivering drugs to the DTO, but he did not know what kind of drugs; he was merely told to wait for "some Hispanic males[] [t]hat will come and. . . pick up the car."

         With undercover agents following him, the CI drove the Fusion to the parking lot of a Lowe's in Gwinnett County, where other undercover agents had set up surveillance. A red pickup truck driven by two Hispanic men entered the parking lot followed by several counter-surveillance vehicles. The CI made contact with the red pickup truck and handed the driver the keys to the Fusion. The men in the pickup truck asked the CI to drive the Fusion three exits north on I-85, but he refused. They handed the CI a cellphone and he advised the person on the other end that he could not drive the Fusion any farther. The men from the pickup then said, "let's go over here to the apartments and get. . . these two persons" and left the parking lot in the pickup truck.

         About fifteen minutes later, the red pickup truck returned, followed by a black Acura. Camacho was sitting in the passenger seat of the Acura and his pregnant wife was driving. Camacho exited the Acura and met with the two men driving the pickup truck. All three men then met the CI who handed the Fusion keys to the two men and they handed the keys to Camacho. The CI showed Camacho and the two men how to operate the Fusion's hidden compartment by putting the key in the ignition, turning on the defroster, and then pressing a button on the backseat allowing it to fold down, revealing the drugs. When the hidden compartment was exposed, the wrapped packages and a red bag were in plain view to all four men.[2] The CI explained that the red bag needed to be returned with the vehicle because it contained drugs he was delivering to someone else. The CI then left the three men and walked into the Lowe's.

         Camacho drove the Fusion out of the parking lot followed by the red pickup truck and a Chrysler 300 sedan that agents had identified as a counter-surveillance vehicle. Undercover agents followed as Camacho drove north on I-85 with his wife in the front passenger seat. At approximately 6:39 p.m., Georgia State Troopers Anthony Munoz and John Morris, who had been advised of the controlled delivery, stopped Camacho on I-85 for operating his vehicle in the rain without headlights and driving with an inoperable brake light. As soon as Camacho was stopped by the police, the red pickup truck took off at a high rate of speed. The undercover agents did not pursue the pickup truck because of safety concerns.

          After approaching the Fusion, Munoz noticed Camacho's wife in the passenger seat and explained that DTOs often use decoys in vehicles to keep from being stopped. Decoys include passengers, particularly children, a Bible on the dashboard, or a sticker "on the back of [the] car to try to affiliate [the driver] with something to try to keep. . . an investigator. . . from looking at [the driver.]. . ." Munoz observed that Camacho was very nervous and shaking when he presented a Mexico driver's license issued to Yadir Galarza Leon. Camacho told Munoz that he lived in Marietta and that he was driving a friend's vehicle to visit cousins in Gainesville, but he could not provide the friend's name. On the video captured by Munoz's dashboard camera, Camacho's wife is seen walking from the Fusion to the patrol car and she appears to enter the back of the patrol car. After she exits the patrol car and returns to the Fusion, one of the troopers says that Camacho's wife told him that they borrowed the vehicle from a friend so she could attend a doctor's appointment the following day. Camacho signed a Spanish consent to search form and just as Munoz and Morris opened the trunk, Camacho's wife began complaining of labor pains. Munoz called for an ambulance and Camacho's wife was transported to the hospital. In the hidden compartment of the trunk, the police discovered 189 packages of methamphetamine: 150 loose packages and 39 packages in the red and black duffle bag. Camacho was taken into custody.

         At trial, Camacho testified in his own defense. He explained that he worked as a day laborer and that he and his wife would wait to be picked up for work at a Quik Trip close to their home in Marietta. On April 17, 2015, Camacho and his wife "came over. . . to 285" to wait for work. At approximately 1:30 p.m., a small red pickup truck with two men inside pulled up to Camacho and one man explained that he had just bought a car and needed someone to help him drive the car to a mechanic "on Exit 105. . . ." The men told Camacho they would pay him $80 to $100. Camacho agreed and he and his wife followed the red pickup truck to a mall where they waited for over two hours for the car to arrive. While they waited in the mall, the pickup truck left but returned a short time later and the driver told Camacho that "they weren't willing to bring the car to Exit 104. They've left it at Exit 101." Camacho drove his black Acura to the Lowe's parking lot and his wife rode in the passenger seat because she "doesn't know how to drive." Camacho arrived five to ten minutes after the red pickup truck and parked one spot away from "the white car." As soon as Camacho pulled up to the white car, the driver got out and "went inside the store really, really fast." Camacho did not see him and the man did not "really [get] a good look at [Camacho]." One of the men from the red pickup truck handed Camacho the keys to the white car and instructed him to drive the car up to Exit 105 and drop it at a mechanic shop; the men said they would follow Camacho to the exit and then get in front of him so he could follow them to the shop and then they would drive Camacho and his wife back to their car. Camacho did not know where the mechanic shop was. He testified that he just wanted to earn some money and could not explain why the men in the pickup truck asked him to drive the white car when there were two of them. No one ever told Camacho about a secret compartment in the car or that there were drugs in the car.

         Camacho testified that he was on his way to the mechanic shop on I-85 when he was stopped by Munoz. Because Camacho does not speak English, he and Munoz could not understand each other. He told Munoz the car belonged to a friend because it was too difficult to explain why he was driving the car to a mechanic shop. Camacho testified that Munoz asked him if he had family in Gainesville and he said yes; he denied telling Munoz that he was going to visit family in Gainesville. Camacho denied any involvement with a Mexican drug cartel or the drug business, and testified that he had no idea drugs were in the car and had never transported drugs. Camacho testified that he has used several different names and fake identification cards and that he gave Munoz a false identification card on April 17, 2015, because he had been deported under the name "Marcos Benitez Camacho." He also lied to Munoz about his birthday. On November 28, 2008, Camacho was stopped for possession of cocaine and released on bond. A year later, he was arrested for driving under the influence and deported to Mexico. Camacho has been deported three or four times, but returns to the United States each time with the help of "Coyotes"[3] because there are no jobs in Mexico. Camacho's family living in the U.S. pays a Coyote $4, 000 to $5, 000 each time for Camacho to return to the United States after he is deported.

         DHS Special Agent Steven Ledgerwood explained that DTOs are made up of components and members, with each member having a different job. For example, when a member arrives from Mexico or Guatemala, the member's first job might be to sit in an apartment and watch over 50 kilos of drugs. As a member moves up in the organization, the member will perform duties such as making deliveries, moving money, supervising junior members, and renting apartments and obtaining cars for the organization. Eventually, the member will communicate with Mexico to coordinate drug deliveries. Ledgerwood testified that it not uncommon "to find drugs without money" because the DTOs hold a member's family accountable: if drugs end up missing or stolen, the family of a member asked to watch over the drugs could be killed.

         1. In his first enumeration of error, Camacho contends that the trial court erred by charging the jury, over objection, on deliberate ignorance. The court charged the jury as follows:

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw such an inference is a matter solely within your discretion.

Camacho contends that the charge was not warranted because the evidence points to actual knowledge. Camacho also asserts that the charge "misled the jury since it equated knowledge with intent, . . . significantly [lowering] the State's burden of proof."

         (a)Camacho's claim that the charge as given misled the jury is without merit. "The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence." (Footnote omitted.) Sims v. State, 296 Ga.App. 461, 464 (3) (675 S.E.2d 241) (2009). The deliberate ignorance charge given by the trial court in this case was a correct statement of law and tracked the language which was approved in Able v. State, 312 Ga.App. 252, 261 (3) (b) (718 S.E.2d 96) (2011).

         (b)We agree with the trial court that there was some evidence to support a jury charge on deliberate ignorance.

[A] jury charge on deliberate ignorance or wilful blindness is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.

McCullough v. State, 330 Ga.App. 716, 721 (1) (769 S.E.2d 138) (2015). "A [trial] court should not instruct a jury regarding deliberate ignorance 'when the evidence only points to either actual knowledge or no knowledge on the part of the defendant.'" (Emphasis supplied.) United States v. Schlei, 122 F.3d 944, 973 (II) (D) (11th Cir. 1997), citing United States v. Stone, 9 F.3d 934, 937 (11th Cir.1993), cert. denied, 513 U.S. 833 (115 S.Ct. 111, 130 L.Ed.2d 58) (1994).[4] "The deliberate ignorance instruction is based on the alternative to the actual knowledge requirement at common law that if a party has his suspicions aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge." (Citation omitted.) Perez-Castillo v. State, 257 Ga.App. 633, 634 (572 S.E.2d 657) (2002). Under Camacho's version of events, there was some evidence that he blatantly ignored evidence of nefarious activity. Camacho believed he was driving the Fusion to a mechanic shop in exchange for $80 to $100. He did not question the men in the pickup truck as to why they needed his assistance when there were two of them, and even though he testified that he did not know the location of the mechanic shop, he made no inquiry as to why the men planned to follow him on the highway. The trial court did not err in giving a charge on deliberate ignorance. See, e.g., Garcia-Maldonado v. State, 324 Ga.App. 518, 522 (751 S.E.2d 149) (2013) (evidence sufficient to prove that defendant acted with deliberate ignorance when he drove vehicle containing 446.74 grams of methamphetamine without question to a motel in return for promise of $500).

         2. In his second enumeration of error, Camacho contends that the trial court erred in allowing the State to impeach his character by questioning him about his 2008 arrest for possession of cocaine. The State contends that Camacho opened ...


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