Cooper v. State

• Citation: 751 S.E.2d 102,324 Ga.App. 451
• Decision Date: 04 November 2013
• Docket Number: No. A13A1467.,A13A1467.
• Parties: COOPER v. The STATE.
• Court: United States Court of Appeals (Georgia)

324 Ga.App. 451

751 S.E.2d 102

COOPER

v.The STATE.

No. A13A1467.

Court of Appeals of Georgia.

Nov. 4, 2013.

Katherine Morgan Mason, for Appellant.

Richard Ashley Mallard, Dist. Atty., Joseph Barclay Black, Asst. Dist. Atty., for Appellee.

ELLINGTON, Presiding Judge.

Following a bench trial, a Bulloch County judge found DeMarco Montez Cooper guilty of four counts of selling cocaine, OCGA § 16–13–30(b) (Counts 1, 4, 7, and 9); five counts of distributing cocaine within 1,000 feet of a public housing project, OCGA § 16–13–32.5(b) (Counts 2, 5, 8, 10, and 14); three counts of using a communication facility in committing or facilitating the commission of a felony (sale of cocaine), OCGA § 16–13–32.3(a) (Counts 3, 6, and 11); possession of cocaine with intent to distribute, OCGA § 16–13–30(b) (Count 12); and possession of a counterfeit controlled substance, OCGA § 16–13–30(i)(1) (Count 13). Cooper appeals from the order denying his motion for a new trial, challenging the sufficiency of the evidence and contending that the trial court erred in conducting a bench trial without first determining whether he had waived his right to a jury trial. Cooper also moved this Court to remand his case so that he could pursue a claim of ineffective assistance of trial counsel. For the following reasons, we vacate the judgments of conviction and remand to the trial court for proceedings consistent with this opinion.

1. Cooper contends that the trial court erred in conducting a bench trial without first determining that he voluntarily, knowingly, and intelligently waived his right to a jury trial.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Whitaker v. State, 256 Ga.App. 436, 439(2), 568 S.E.2d 594 (2002). “The question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this court unless such determination is clearly erroneous.” (Citations and punctuation omitted.) Id. In this case, Cooper questions the validity of the waiver for the first time on appeal. “Generally, claims of error not objected to in the trial court may not be raised for the first time on appeal, except for certain constitutional issues, among which is whether the defendant waived his constitutional right to a jury trial.” (Footnote omitted.) Whitaker v. State, 244 Ga.App. 241, 243(4), 535 S.E.2d 283 (2000).

Because the State has not yet had the opportunity to rebut Cooper's claim with extrinsic evidence showing that he intelligently and knowingly waived his right to a jury trial, such as the testimony of or an affidavit from Cooper's attorney, the record before us is incomplete. See Jackson v. State, 253 Ga.App. 559, 560, 560 S.E.2d 62 (2002). Cooper's convictions are hereby vacated, and the case is remanded to the trial court for an evidentiary hearing on this issue. See Rosser v. State, 312 Ga.App. 240, 241(2), 718 S.E.2d 310 (2011); Lawal v. State, 201 Ga.App. 797, 798(2), 412 S.E.2d 864 (1991). In the event the trial court determines from the evidence adduced at this hearing that Cooper did make such a waiver and that he personally participated in the decision, then the convictions and sentences may be reinstated, to the extent not otherwise barred,¹ and Cooper will be entitled to file a new appeal directed to this issue alone. Whitaker v. State, 244 Ga.App. at 244(4), 535 S.E.2d 283;Lawal v. State, 201 Ga.App. at 798(2), 412 S.E.2d 864.

2. In his remaining claims of error, Cooper challenges the sufficiency of the evidence supporting his convictions. Although we have vacated his convictions for the reasons explained in Division 1, supra, we address Cooper's sufficiency argument because the trial court would not be authorized to reinstate any conviction the State failed to prove.²

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citation, footnote, and emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781 (61 L.Ed.2d 560) (1979). So viewed, the record reveals the following.

An officer with the Statesboro Police Department used a confidential informant to make four controlled buys of cocaine from “Tez,” who resided in apartment H4 of the Fox Ridge Apartment complex, a low-income housing project in Bulloch County. The police recorded the conversations between the informant and the seller, including the calls to arrange the sales of cocaine and the conversations that occurred during the hand-to-hand transactions, and the State introduced the recordings into evidence. After obtaining the suspected cocaine, the police determined that Cooper resided in apartment H4 from a list maintained by the apartment complex. Thereafter, the police obtained a search warrant, searched the apartment, and found additional suspected cocaine, a single pill of suspected MDMA ³, and the currency used in the controlled buys. The informant told the police, and he later testified at trial, that Cooper sold the cocaine to him. Cooper admitted that he used cocaine and that he had possessed the cocaine recovered from the informant and his apartment, but he denied that he had sold it to the informant. He testified that he and the informant, who is his cousin, possessed the cocaine jointly and would “get high together.” Finally, a forensic scientist with the Georgia Bureau of Investigation testified that the drugs Cooper sold to the informant tested positive for cocaine and that the drugs recovered from Cooper's apartment tested positive for cocaine, except for the pill, which tested positive for piperazine.

(a) Cooper contends that the evidence adduced was insufficient to support his convictions because the State relied on the hearsay testimony of a forensic scientist who did not personally conduct the chemical tests that identified the drugs Cooper sold or possessed. Cooper argues that admitting the “surrogate testimony” of the forensic scientist in this case violated his right to confront the witnesses against him.⁴ However, even assuming that the forensic chemist's testimony was inadmissible, the State nevertheless submitted sufficient evidence establishing that the drugs recovered, with the exception of the pill, constituted cocaine.

Both the informant and Cooper made admissions to the police and during their testimony at trial that the white powdery substance sold by Cooper or recovered from Cooper's apartment was cocaine, and Cooper interposed no objection to this testimony. The testimony of the police, the informant, and Cooper was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the substance sold or possessed by Cooper, as alleged in Counts 1, 3, 4, 6, 7, 9, 11, and 12, was cocaine. See, e.g., Willingham v. State, 296 Ga.App. 89, 90–91, 673 S.E.2d 606 (2009) (expert testimony as to the chemical composition of the contraband is not always required; so long as the State presents, without objection, the testimony by one with personal knowledge establishing that the substance is what the state claims, then the evidence is sufficient); Burroughs v. State, 190 Ga.App. 467, 470(1)(b), 379 S.E.2d 175 (1989) (accord). See also Gooch v. State, 249 Ga.App. 643, 645(1), 549 S.E.2d 724 (2001) (witnesses who were involved in the drug transaction and who had used methamphetamine on multiple prior occasions testified that the substance at issue was methamphetamine).

(b) However, the evidence is insufficient to establish that Cooper possessed a counterfeit drug, as alleged in Count 13 of the indictment. ⁵

OCGA § 16–13–30(i)(1) provides that “it is unlawful for any person to possess ... a counterfeit substance.” The definition of a “counterfeit substance” applicable here is “[a] controlled substance or [a] noncontrolled substance, which is held out to be a controlled substance or marijuana, whether in a container or not which does not bear a label which accurately or truthfully identifies the substance contained therein,” or “[a]ny substance, whether in a container or not, which bears a label falsely identifying the contents as a controlled substance.” OCGA § 16–13–21(6)(B), (C).

The State presented the testimony of an officer who opined that the pill found in Cooper's apartment appeared to be suspected MDMA. The State's forensic chemist testified that the pill contained piperazine. The State, however, failed to adduce any evidence establishing that the pill bore markings that misidentified or misrepresented it as being MDMA.⁶ Because the record contains no evidence from which the factfinder could conclude that the pill was a counterfeit controlled substance as defined in the statute, this conviction is not supported by sufficient evidence.

(c) Cooper contends the evidence adduced...