Allen v. State

• Decision Date: 10 July 2007
• Docket Number: No. A07A0133.,A07A0133.
• Citation: 286 Ga. App. 469,649 S.E.2d 583
• Parties: ALLEN v. The STATE.
• Court: Georgia Court of Appeals

286 Ga. App. 469

649 S.E.2d 583

ALLEN v. The STATE.

No. A07A0133.

Court of Appeals of Georgia.

July 10, 2007.

Axam & Adams, Tony L. Axam, Atlanta, for appellant.

Paul L. Howard Jr., Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., Shepard R. Orlow, Marc A. Mallon, Senior Asst. Dist. Attys., Gary S. Hulsey, Asst. Dist. Atty., for appellee.

ADAMS, Judge.

Gregory Allen was tried and convicted of trafficking in cocaine for knowingly being in possession of 28 grams or more of cocaine, possession of cocaine with intent to distribute (which merged with the first count), and possession of a firearm during the commission of a felony. On appeal, he contends the evidence was insufficient, that his trial counsel was ineffective, and that he was denied a fair trial because the jury foreperson failed to provide truthful responses during voir dire.

Construed in favor of the verdict, the evidence shows that, during the execution of a search warrant, authorities arrested Allen and his girlfriend, Erica Fitzgerald, in the house where they lived. The arrest followed several days of surveillance by Officer Greg Junior and others that produced evidence that cocaine was being sold from the house. Fitzgerald pleaded guilty to lesser charges and testified that Allen was her boyfriend at the time and that she was pregnant with his child. She testified that the gun and drugs found in a pillowcase in their bedroom belonged to Allen and that he had brought them to the residence; that Allen sold drugs from the house through an intermediary although he occasionally sold some himself; that the intermediary gave the monetary proceeds to Allen; that Allen was in charge of the selling operation and responsible for providing the drugs; that one man served as a lookout at the house; that she and Allen were in their bedroom where the drugs were found when the officers executed the search warrant; and that the couple met when she herself purchased drugs from him only a couple of months prior to the arrest.

This information was corroborated by other testimony that Allen rented the property; that many people were observed making short — two to five-minute — visits to the residence on each of four different days in a two-week span, sometimes at a rate of six to eight people an hour, including on the day the search warrant was executed; that several people were arrested in possession of cocaine after a brief visit to the house; that on two of those days, the officers observed Allen directing people into the house and following them inside; that 37.8 grams of cocaine were found in the bedroom; that a .38 caliber handgun was found in the same bedroom; that Allen had $737 on his person in small bills; that items of clothing seen on Allen, and other clothing matching the size of Allen and Fitzgerald, were found in the bedroom where the drugs and gun were located; and that after execution of the warrant, six more people came to the house asking to purchase cocaine.

1. The evidence was sufficient to support convictions for trafficking in cocaine for being knowingly in possession of 28 grams or more of cocaine (OCGA § 16-13-31), possession of cocaine with intent to distribute (OCGA § 16-13-30), and possession of a firearm during the commission of a violation of the Georgia Controlled Substances Act (OCGA § 16-11-106). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Gay v. State, 221 Ga.App. 263, 264-265(1), 471 S.E.2d 49 (1996).

Allen contends the State relied solely on circumstantial evidence but failed to eliminate all other reasonable hypotheses of innocence, primarily because several other people were in the house at the time of the search. See OCGA § 24-4-6. First,

Fitzgerald's testimony included direct evidence. And, questions as to the reasonableness of hypotheses are generally to be decided by the jury [that] heard the evidence[,] and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law. [Cit.]

Robbins v. State, 269 Ga. 500, 501(1), 499 S.E.2d 323 (1998). Because there was evidence linking Allen with the drugs and gun, including Fitzgerald's testimony, the jury was authorized to conclude that Allen was not merely an innocent bystander at the residence at the time the search warrant was executed.

Allen contends there was no evidence that the drugs or gun were in his possession. But Allen was found in the doorway to the bedroom where the items were found; he rented the home; Fitzgerald testified that the drugs and gun belonged to Allen and that the bedroom was the one they shared; and items of Allen's clothing were found in the room. The evidence authorizes the conclusion that Allen and Fitzgerald were in joint constructive possession of the drugs and gun and that they had equal access to the items. Brownlee v. State, 173 Ga.App. 138, 139(1), 325 S.E.2d 815 (1984).

Allen contends his conviction was based on the uncorroborated testimony of an alleged accomplice, namely, Fitzgerald. See OCGA § 24-4-8. But slight evidence of corroboration is sufficient, and the sufficiency of corroborating evidence is generally a matter for the jury. Knight v. State, 242 Ga.App. 363, 365(1), 528 S.E.2d 855 (2000); Brown v. State, 199 Ga.App. 18, 21-23(4), 404 S.E.2d 154 (1991). In this case, at least slight evidence, as shown above, was presented at trial to corroborate Fitzgerald's testimony, and it tended to connect and identify Allen with the crime charged in that he rented the house, the drugs and gun were found in his bedroom, and he had a large amount of cash on his person. See Clemons v. State, 265 Ga. App. 825, 826-827, 595 S.E.2d 530 (2004).

2. Allen contends he received ineffective assistance of counsel in several regards.

In order to establish ineffectiveness of trial counsel, appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. . . . In reviewing a lower court's determination of a claim of ineffective assistance of counsel, we give deference to the trial court's factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court's legal conclusions de novo.

(Citations and punctuation omitted.) Williams v. State, 277 Ga. 853, 857(6), 596 S.E.2d 597 (2004). Furthermore, the cumulative effect of counsel's errors should be considered with regard to the prejudice test. Schofield v. Holsey, 281 Ga. 809, 811, n. 1, 642 S.E.2d 56 (2007), following Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

(a) Allen contends trial counsel elicited from law enforcement officials irrelevant, inflammatory and prejudicial hearsay that linked him to the crimes.

Prior to trial, Allen's counsel moved in limine to exclude all evidence associated with the surveillance. The State argued that all incidents surrounding the surveillance for the 15 days leading up to the arrest were part of the res gestae of the crime, especially with regard to the charge of trafficking and possession with intent to distribute. The State made clear that it intended to offer what the officers saw but not any hearsay. Counsel for Allen added, "They can't get into the people they stopped and those conversations." She also urged that to introduce the hearsay would be a violation of Allen's right to confront the witnesses. The State indicated that it intended to offer testimony that six individuals had come to buy drugs after the arrest.

The trial court ruled that the evidence of pre-search surveillance could come in except for any hearsay. But the court distinguished the testimony about what six would-be purchasers said following the execution of the warrant and ruled that the hearsay regarding those statements would be allowed.¹ Shortly thereafter, Allen's counsel added, "regarding independent acts [of others arrested during the surveillance], . . . I would just make an objection to the Court's ruling; and since the Court is ruling on my motion in limine, that I'll still raise the objection at trial, but I will make [a]n objection on the record for now." The Court responded, "that can be a continuing objection so you don't need to keep making it. That's fine." Thus, Allen's counsel had the benefit of a continuing objection to the pre-search surveillance evidence.

At trial, the State questioned Officer Junior about the surveillance and, for the most part, avoided eliciting hearsay from the people who had been questioned regarding their visits to Allen's home. During the direct examination (as summarized above), Officer Junior testified about Allen's activities when he appeared to be directing people to go into the house and how some of the people leaving the house were found to have drugs. He also testified about the search and discovering Allen and his clothing in close proximity to the drugs and gun, and a large quantity of small bills on his person.

On cross-examination, Allen's counsel asked about statements made by two of the people who were stopped after leaving the premises during the surveillance. In her question she revealed damaging evidence:

In your police report, you state that, in reference to those two people that were arrested, that they gave descriptions of my client, Mr. Allen . . . they referenced him as Greg . . . and also Erica Fitzgerald; is that correct? . . . and . . . that these people . . . sold them crack cocaine; is that correct?

Later counsel asked Officer Junior to read from his report. He read the following:

Two other persons were arrested, gave brief descriptions of Gregory Allen and Erica Fitzgerald, (Greg and Sunshine), and said th...