Fernandez v. State

• Decision Date: 17 August 2005
• Docket Number: No. A05A1047.,No. A05A1046.,A05A1046.,A05A1047.
• Parties: FERNANDEZ v. The STATE. Esparza v. The State.
• Court: Georgia Court of Appeals

275 Ga. App. 151

619 S.E.2d 821

FERNANDEZ v. The STATE.

Esparza v. The State.

No. A05A1046.

No. A05A1047.

Court of Appeals of Georgia.

August 17, 2005.

COPYRIGHT MATERIAL OMITTED

Kevin Drummond, for appellant (case no. A05A1046).

Gerald Word, Johnson, Word & Simmons, Carrollton, for Appellant (case no. A05A1047).

Peter Skandalakis, District Attorney, Anne Allen, Assistant District Attorney, for Appellee.

ELLINGTON, Judge.

A Carroll County jury found Hector Fernandez (a.k.a. Hector Garza) and Delia Esparza guilty of trafficking in over 400 grams of cocaine, OCGA § 16-13-31(a)(1)(C). Fernandez and Esparza appeal from orders denying their motions for new trial. They both contend the evidence adduced at trial was insufficient to support the verdicts and that the trial court erred in denying their motion to suppress the cocaine evidence seized. Fernandez also contends he was denied the effective assistance of counsel. Because these appeals arise from the same criminal trial and involve the same facts and overlapping legal issues, we consolidate them.

Viewed in the light most favorable to the jury verdicts,¹ the record reveals the following. At around 11:20 a.m. on February 6, 2001, a Villa Rica sheriff's deputy saw a green Ford Explorer moving along Interstate 20 in Carroll County. The driver of the Explorer was rubbing his face and head, as if extremely fatigued, and a young child was bouncing around in the back seat, unrestrained. The deputy followed the car. He saw the car's California license plates. He observed the driver, who continued to rub his face, weave out of his lane. The deputy also noticed that neither the driver nor his front seat passenger wore safety belts. The deputy made a traffic stop based upon the seat belt and failure to maintain lane violations he witnessed.

The deputy walked to the front passenger side of the Explorer to speak with the driver, Fernandez, and his passenger, Esparza. As the deputy asked Fernandez for his license and registration, he saw a third adult, Louis Garcia, lying down in the back seat. The deputy noticed that Esparza's carotid artery had begun visibly pulsing and that she seemed very nervous. She also broke out in hives. The deputy told Fernandez that he stopped the car because Fernandez seemed tired, because Fernandez had failed to maintain his lane, and because the deputy had witnessed a violation of the seat belt law.

During this exchange, the child in the back seat interjected himself into the conversation in a manner the deputy described as unusually friendly and distracting. The deputy testified the car reeked of freshly sprayed perfume of fabric softeners, and of the many pine tree-shaped, cardboard air fresheners hanging throughout the car and wedged into the molding of the floorboards. Fast food wrappers were littered throughout the car. Three cell phones were plugged into the dash charger.

The deputy asked Fernandez to step to the back of the Explorer while he wrote up warnings for the traffic violations. Fernandez produced a driver's license from the state of Washington, but he could not produce the vehicle's registration papers. In fact, neither Fernandez nor Esparza could tell the deputy to whom the car belonged, although Fernandez said "a friend" had loaned it to them. Fernandez said he was going to Atlanta to look for work. Esparza and the other passenger claimed to be on vacation. Considering the length of the trip from California to Atlanta and the number of people in the car, the deputy thought it peculiar that the car contained so little luggage. He began to suspect that the car was either stolen or was being used to transport contraband. The deputy testified that he had seen several Ford Explorers and similar cars used for smuggling because they could be modified to accommodate secret compartments. Also, he testified that California was a known source for illegal drugs brought into Atlanta.

The videotape reveals that, at the beginning of the traffic stop, both the deputy and Fernandez communicated in English. Fernandez responded quickly and appropriately, in English, to the deputy's questions. In fact, Fernandez laughed when the deputy made a joke about how well the car's radio worked. As the interview progressed and as the deputy began asking questions about the purpose of the trip, Fernandez seemed to lose his ability to communicate in English. He began pacing, staring into the video camera in the patrol car, and adjusting his jacket repeatedly. The deputy, who had some personal and professional training in speaking the Spanish language, accommodated Fernandez by switching to Spanish.

The deputy finished writing the warning citations for the traffic violations he had observed and returned Fernandez's license to him. Concerned about the lack of information on the car's owner, the deputy walked back to the passenger side of the car and asked Esparza if she had any registration documents. She produced some papers from the glove compartment, but none resolved the question of the car's ownership. The deputy then asked Fernandez, in Spanish, if there were any guns or drugs in the car and Fernandez said "no." The deputy asked in Spanish for consent to search ("buscar") the truck for drugs ("drogas"), which Fernandez granted, gesturing toward the car. Six minutes elapsed between the time the deputy pulled Fernandez over and the time he asked for permission to search.

The deputy asked everyone in the car to step out so he could search. Just before the deputy began his search, Esparza darted back to the passenger side to grab her purse. For his safety, the deputy looked in the purse. He saw another cell phone and a large bulb of garlic. The deputy told Esparza to stand aside and not to use her telephone. When all the passengers were away from the car, the deputy began his search.

The deputy observed that the floorboards in the rear of the car appeared to have been modified, raised up about an inch. The molding around the edges had been cut loose, as if to accommodate the modification. Yet the carpet, which is normally loose, had been glued down. The deputy also saw evidence that "bondo" and fresh paint had been applied to the floorboards. When the deputy looked underneath the car, he saw a sealed compartment attached to the undercarriage. When he tapped the compartment, it made a heavy, thudding sound, not a metallic, hollow sound.

The deputy got an electric drill from his patrol car and drilled a hole through the floorboards of the Ford Explorer and into the compartment. When he pulled the drill bit out, he noticed a white powdery substance that appeared to be cocaine and which had a strong odor. As soon as the deputy discovered the substance, Esparza tried to make a telephone call. At that point, the officer placed everyone under arrest. Officers later removed 33 kilos (32,560 grams) of 81 percent pure cocaine from the hidden compartment.

Fernandez and Esparza both denied knowing the cocaine was present in the car. After her arrest, Esparza told an investigator she was traveling from California with Fernandez, her boyfriend of two months, for a weekend vacation in Atlanta. She later admitted she had just met Fernandez and did not know his address. She said they left California late Friday and intended to be back home on Monday or Tuesday, although she admitted the trip had already taken three days to go one way. She said they had been driving almost continuously, stopping only to sleep at rest stops. When Esparza was arrested, she had $100 in her purse.

Fernandez told the investigator he was traveling to Atlanta to do roofing work. He was unable, however, to produce any contact information for prospective employers in Atlanta. Fernandez said he met Esparza 15 days before the trip began. He admitted that a man named Molano paid him $200 to drive the car to Atlanta and would give him another $500 upon arrival. Fernandez explained that he was supposed to receive a call on one of the cell phones when he arrived in Atlanta and that the caller would tell him where to deliver the Explorer. During his custodial interview, Fernandez got three calls on one of the cell phones. The calls made him extremely nervous. The first call was brief and ended in the caller hanging up. During the second call, the caller asked many questions Fernandez appeared reluctant to answer, as if, according to the investigator, he was stalling or trying to tip off the caller. Fernandez cut the second call short by hanging up. Fernandez also ended the third call by abruptly hanging up, but the investigator could hear the caller asking where the others were, including "the woman" who was traveling with them.

The investigator discovered that the Explorer was registered to Antunio Giovani Molano of California, who was notified that the car had been seized in Georgia. Molano never claimed it.

1. Both Fernandez and Esparza contend the trial court erred in denying their pre-trial motion to suppress the cocaine evidence seized. The record reveals that upon the State's tendering the cocaine at trial, the appellants' attorneys each affirmatively stated they had "no objection" to its admission. As we have held, "[w]hen a motion to suppress has been filed, merely failing to object to the admission of the evidence does not constitute a waiver of the grounds asserted in the motion. However, affirmatively stating there is no objection in effect concedes the point." (Punctuation and footnotes omitted.) Crenshaw v. State, 248 Ga.App. 505, 508(2), 546 S.E.2d 890 (2001). See also Monroe v. State, 272 Ga. 201, 204(6), 528 S.E.2d 504 (2000) (accord).

2. Both Fernandez and Esparza raise the general grounds. Specifically, they contend the evidence adduced was insufficient to prove they were in "knowing" possession of the cocaine, as required by OCGA § 16-13-31(a)(1). We disagree. It has long been the law that knowledge may be proved by facts and circumstances from which a jury...