Freeman v. State

• Decision Date: 30 October 2014
• Docket Number: No. A14A1222.,A14A1222.
• Citation: 329 Ga.App. 429,765 S.E.2d 631
• Court: Georgia Court of Appeals
• Parties: FREEMAN v. The STATE.

329 Ga.App. 429

765 S.E.2d 631

FREEMAN

v.The STATE.

No. A14A1222.

Court of Appeals of Georgia.

Oct. 30, 2014.

Kenneth D. Kondritzer, for Appellant.

Paul L. Howard Jr., Dist. Atty., Peggy Ann Katz, Lenny I. Krick, Asst. Dist. Atty., for Appellee.

Opinion

DILLARD, Judge.

Following trial, a jury convicted Tracey Freeman on one count of trafficking in cocaine and one count of possession of less than one ounce of marijuana. On appeal, Freeman contends that the evidence was insufficient to support the trafficking conviction because the State failed to prove that he had knowledge of the weight of the cocaine and that the trial court erred in admitting the out-of-court statements of a confidential informant, which violated his right to confrontation under the Sixth Amendment to the United States Constitution.¹ Although we find that the evidence was sufficient to support the jury's verdict that Freeman was guilty of trafficking, we agree that the trial court erred in admitting the confidential informant's out-of-court statements, and, therefore, we reverse Freeman's convictions.

Viewed in the light most favorable to the jury's verdict,² the record shows that in July 2006, Atlanta Police Department officers set up surveillance on a house located at 1718 Thoms Drive based on complaints from neighbors, who believed that illegal drug sales were occurring there. And after observing numerous individuals going in and out of the house for very brief periods of time, at all hours of the day and night, the police believed that the neighbors' suspicions were well-founded. Consequently, in the early afternoon on July 25, 2006, an officer sent a confidential informant (“CI”) into the house to attempt to make a controlled purchase of illegal drugs. A few minutes later, the CI exited the house and returned to the officer, having successfully bought a small quantity of crack cocaine. Based on this information, the officer quickly obtained a search warrant for the residence.

Later that same afternoon, the officer and several other members of the Atlanta Police Department's narcotics squad returned to the Thoms Drive address to execute the search warrant. And upon entering the house, the officers noticed that it was sparsely furnished with only one bedroom containing any furniture. In that bedroom, the officers encountered Freeman and found a small amount of marijuana and powder cocaine on a laptop computer. Additionally, in the same bedroom, the officers found clothes and shoes that appeared to belong to Freeman as well as some mail addressed to him at 1718 Thoms Drive. Consequently, Freeman was arrested. Elsewhere in the house, the officers encountered Freeman's four uncles, whom they arrested solely on disorderly conduct charges. Shortly thereafter, a K–9 unit arrived, and the dog quickly alerted the officers to a vent on the floor in the bedroom, in which the officers found a bag containing 50.62 grams of crack cocaine.

Thereafter, Freeman was charged, via indictment, with one count of trafficking in cocaine³ and one count of possession of less than one ounce of marijuana.⁴ At Freeman's trial, several of the Atlanta police officers involved in the case testified regarding their search of the house, and the lead officer also testified as to the details of the CI's controlled buy, which resulted in him successfully obtaining the search warrant. In addition, a GBI forensic chemist testified that the crack cocaine recovered by law enforcement weighed 50.62 grams and had a purity of 82 percent. The State also introduced similar-transaction evidence, showing that over the course of the last ten years, Freeman had five prior convictions for various illegal drug offenses, including three convictions for possession of cocaine with intent to distribute and two for possession of marijuana with intent to distribute.

Freeman testified in his own defense and claimed that he (1) did not live at the house (which was actually rented by his uncles), and (2) was only there that day to use the computer to complete his homework for culinary school. Freeman also denied having any knowledge of the cocaine or marijuana found in the bedroom. Additionally, Freeman's mother, his girlfriend, a long-time friend, and three of his uncles testified that Freeman did not live at the 1718 Thoms Drive residence but visited there occasionally to use the computer for his school work. Nevertheless, at the trial's conclusion, the jury found Freeman guilty on both counts, and the court imposed a 30–year sentence, with 20 years to be served in confinement. Subsequently, Freeman filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Freeman contends that the evidence was insufficient to support his conviction for trafficking in cocaine because the State failed to prove that he had knowledge of the weight of the drug. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be “viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.”⁵ And we do not weigh the evidence or determine witness credibility but only consider whether “a rational trier of fact could have found the defendant[ ] guilty of the charged offenses beyond a reasonable doubt.”⁶ Thus, the jury's verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.”⁷ With these guiding principles in mind, we turn now to Freeman's specific claim of error.

At the time of Freeman's arrest in 2006 and his trial in 2009, former OCGA § 16–13–31(a)(1),⁸ in relevant part, provided:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine ....⁹

And in the recently decided case of Scott v. State,¹⁰ the Supreme Court of Georgia held that “[t]he plain language of the version of former OCGA § 16–13–31(a)(1) at issue dictates the conclusion that knowledge of the quantity of the drug was an element of the crime.”¹¹ Specifically, our Supreme Court found that the cocaine-trafficking statute contained “express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it,”¹² and that “where ‘knowledge’ is made part of an offense, the State has the burden to prove the defendant's guilty knowledge.”¹³ Nevertheless, a jury may find criminal intention, i.e., knowledge, “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”¹⁴ Indeed, both knowledge and possession may be proved, “like any other fact, by circumstantial evidence.”¹⁵

And here, the evidence shows that the crack cocaine which Freeman was convicted of possessing had a purity of 82 percent and weighed 50.62 grams—nearly two times the trafficking threshold weight of 28 grams—and was packaged in a plastic bag and hidden in a vent in a bedroom that Freeman was apparently occupying. Furthermore, the jury heard evidence of five similar transactions, including Freeman's three convictions for possession of cocaine with the intent to distribute. More specifically, in one of those previous cases, Freeman was found to be in possession of nearly 26 grams of cocaine, and in another, he was found to be in possession of 19 grams of the drug. Given these circumstances, there was sufficient evidence showing that Freeman had knowledge of the weight of the cocaine found in the search of the Thoms Drive residence.¹⁶

2. Freeman also contends that the trial court erred in admitting the out-of-court statements of the CI, arguing that this evidence violated his right to confrontation under the Sixth Amendment to the United States Constitution. We agree.

The Sixth Amendment's Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”¹⁷ This fundamental right is a “bedrock procedural guarantee [that] applies to both federal and state prosecutions,”¹⁸ and is a “concept that dates back to Roman times.”¹⁹ And in 2004, the Supreme Court of the United States clarified the original public meaning and scope of the right to confrontation of one's accusers in Crawford v. Washington,²⁰

holding that when the admission of “testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”²¹ But when the statement at issue is non-testimonial in nature, “the State's normal rules regarding the admission of hearsay apply.”²²

Although the Supreme Court did not specifically outline the parameters for determining whether a statement can be characterized as testimonial in Crawford, it did explain that such testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.”²³ Accordingly, the Confrontation Clause prohibits “the introduction of a formal statement to a government officer made in an effort to establish an evidentiary case, such as that which occurs during a police investigation.”²⁴ Additionally, the Supreme Court in Crawford found that a statement might also be considered testimonial if it was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”²⁵

At the trial of this matter, during the cross-examination of the police officer who set up the CI's controlled buy, Freeman's counsel asked if the CI provided a general description of the person who sold him the crack cocaine. The officer responded that the affidavit in support of the search warrant only indicated that the CI...