Flemister v. State

• Decision Date: 02 October 2012
• Docket Number: No. A12A1580.,A12A1580.
• Citation: 317 Ga.App. 749,732 S.E.2d 810
• Parties: FLEMISTER v. The STATE.
• Court: Georgia Court of Appeals

317 Ga.App. 749

732 S.E.2d 810

FLEMISTER

v.The STATE.

No. A12A1580.

Court of Appeals of Georgia.

Oct. 2, 2012.

William Allen Adams Jr., for Appellant.

Scott L. Ballard, Dist. Atty., Robert Wright Smith Jr., Asst. Dist. Atty., for Appellee.

BARNES, Presiding Judge.

A jury convicted Bobby Flemister of possession of cocaine, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime. On appeal from the denial of his motion for new trial, Flemister contends that there was insufficient evidence to convict him of possession of marijuana with intent to distribute; that the trial court erred in admitting into evidence a statement he made to a police lieutenant before he was informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and that the trial court erred in allowing hearsay testimony from the lieutenant linking him to a residence where drugs and drug paraphernalia had been found by the police. Flemister also argues that his trial counsel rendered ineffective assistance in several respects. For the reasons set forth below, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury's verdict. See Jackson v. State, 314 Ga.App. 272, 724 S.E.2d 9 (2012). So viewed, the evidence showed that on November 16, 2002, special agents with the Griffin–Spalding County Narcotics Task Force executed a search warrant at a residence where they suspected that drugs were being sold. As part of the surveillance conducted before the search, agents had observed Flemister's car outside the house on several occasions, and they believed that he lived there. In preparing for execution of the warrant, the police lieutenant who led the task force briefed the other agents about the suspected drug activity at the house and about Flemister and his car.

When the lieutenant and other special agents arrived at the residence to execute the warrant, Flemister and his car were not there. The lieutenant stationed agents outside the house, advised them to be on the lookout for Flemister, and provided them with a physical description of his car.

Upon entering the residence, agents found crack cocaine residue, razor blades with crack cocaine residue on them, smoking devices, and green plastic baggies. Based upon his 11 years of training and experience as a narcotics agent and involvement in over 1,000 drug investigations, the lieutenant identified the baggies as the type commonly used for packaging large quantities of drugs into smaller bundles for distribution.

Agents also noticed that the residence lacked furniture, was extremely dirty, and had wax all over the countertops in different rooms where candles had been burned. There was no running water or power in the house, except for an extension cord that had been run through a window to a neighbor's house to provide a small amount of electricity. According to the lieutenant, the house “appeared to be what's commonly referred to as a ... smokehouse,” which is “a residence where people can go in and can purchase quantities of illegal narcotics and use them right there on the scene.”

Agents also found documents on the floor of the living room. One of the documents was a business letter that was addressed to Flemister at the residence. Another document was a final judgment and decree of divorce for Flemister and his ex-wife. Like the business letter, the certificate of service for the final judgment and decree of divorce listed the residence as Flemister's address.

As agents continued searching the residence, Flemister drove down the street in the car that had been described to the agents by the lieutenant. A crowd that had gathered outside began shouting to Flemister as he drove toward the house. One of the agents stationed outside heard the shouting and recognized the car coming down the road. The agent stepped into the middle of the road and yelled for Flemister to stop, but Flemister kept “looking straightforward,” ignored the agent's commands, and continued driving past him. The agent quickly jumped into a patrol car with another agent and began to pursue Flemister. As the agents followed Flemister, he threw something out of his car window. When later recovered by one of the agents, the item thrown from the car was identified as a bag of individual green baggies containing a total of 11.81 grams of marijuana. The baggies were of the same type that had been found inside the residence.

After throwing the baggies of marijuana from his window, Flemister stopped his car, and an agent approached and detained him. Upon opening the driver's side door of Flemister's car, an agent saw cocaine in the window track of the open window. The agent also saw a plastic bag in the pocket of the door. The bag contained the corners of torn-off sandwich baggies with cocaine inside them. In addition to the cocaine, the agent saw a handgun in plain view next to the driver's seat.

Flemister was placed in the back of a patrol car. The police lieutenant approached Flemister, told him that he was going to be transported to the county jail, explained to him that the jail was cold and had a shortage of blankets, and asked him “if he wanted a jacket out of his house.” Flemister responded that he wanted his green jacket out of the upstairs closet, and the lieutenant went inside and retrieved it for him. The verbal exchange about the jacket occurred before Flemister was advised of his Miranda rights.

Flemister was indicted and tried before a jury on charges of possession of cocaine with intent to distribute, possession of cocaine, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime.¹ Flemister was charged for the cocaine and firearm found in his car and the marijuana that he had thrown from his car; the State only introduced evidence of the drugs and drug paraphernalia found in the searched residence to prove circumstantially that he had the intent to distribute. The lieutenant and other agents involved in execution of the search warrant and arrest of Flemister testified to the events as summarized above, and the State also called as expert witnesses the individuals who tested the cocaine found in the car and the marijuana thrown from the car.

Flemister testified in his own defense. He admitted that he and his mother previously lived at the residence where the search warrant had been executed, but he claimed that neither of them lived there currently and that he had nothing to do with the “smokehouse” that the residence had become. According to Flemister, he had moved to another residence located down the same street, and the residence where the search occurred was now an “abandoned house” that had become squalid after he and his mother had moved out. Flemister testified that some of his mail might still be at the searched residence, but he denied having any belongings remaining there. He also claimed that the lieutenant and other agents were lying about the cocaine found in his car, about him throwing marijuana from his car window, and about his asking the lieutenant to retrieve the green jacket for him from the upstairs closet. Flemister further claimed that his brother drove the car as much as he did and that it was his brother who continued to “hang down there all the time” at the searched residence even after he and his mother had moved out.

After hearing all of the testimony, the jury convicted Flemister of possession of cocaine, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a crime, but acquitted him of possession of cocaine with intent to distribute. Flemister filed a motion for new trial in which he contended, among other things, that his trial counsel had been ineffective. Following an evidentiary hearing, the trial court denied the motion, resulting in this appeal.

1. Flemister first contends that there was insufficient evidence to convict him of possession of marijuana with intent to distribute. Specifically, he argues that there was insufficient evidence showing that he acted with the intent to distribute the marijuana. We disagree.

“To prove possession with intent to distribute, the State must show more than mere possession of a controlled substance.” Gerlock v. State, 283 Ga.App. 229, 230(1), 641 S.E.2d 240 (2007). “No bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession with intent to distribute,” and “whether the State has proven an intent to distribute ... is peculiarly a question of fact for determination by the jury.” (Citations and punctuation omitted.) Bailey v. State, 316 Ga.App. 78–79, 728 S.E.2d 747 (2012). Furthermore, in addressing the sufficiency of the evidence, we are always mindful that it is not our role to weigh the evidence or determine the credibility of witnesses; instead, under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we “only determine whether a rational trier of fact could have found the defendant guilty of the charged offense beyond a reasonable doubt.” (Citation omitted.) Jackson, 314 Ga.App. at 272, 724 S.E.2d 9.

The marijuana that one of the narcotics agents saw Flemister throw from his car window was packaged in individual green baggies of the same type as were found in the searched residence, and the police lieutenant testified that, based on his training and experience, baggies of the type found in the residence were commonly used for packaging marijuana for distribution.

[T]he evidence of the controlled substance in this case being packaged in a manner commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that [Flemister] possessed [marijuana], a controlled...