Gonzalez v. State

• Decision Date: 01 March 2007
• Docket Number: No. A06A2392.,A06A2392.
• Citation: 283 Ga. App. 843,643 S.E.2d 8
• Parties: GONZALEZ v. The STATE.
• Court: Georgia Court of Appeals

283 Ga. App. 843

643 S.E.2d 8

GONZALEZ v. The STATE.

No. A06A2392.

Court of Appeals of Georgia.

March 1, 2007.

Garland, Samuel & Loeb, William C. Lea, Atlanta, for appellant.

Herbert E. Franklin Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

ANDREWS, Presiding Judge.

Jessica Gonzalez, convicted by a jury of trafficking in methamphetamine¹ and other charges,² appeals the denial of her motion for new trial, alleging that her custodial statements to police were improperly allowed into evidence and that her trial counsel rendered ineffective assistance.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). We do not weigh the evidence or determine witness credibility, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence here was that Gonzalez had moved to the Atlanta area from California with her boyfriend, Antonio Lopez,³ when she was 17 and Lopez was in his 30s. Gonzalez was aware that Lopez had been dealing drugs, including methamphetamine (hereinafter "meth"), in California. She thereafter had a son by Lopez, who was two years old at the time of the trial in 2004.

Michael Hines had dealt drugs in Chattooga County for a year or two prior to 2003. His original supplier was an Hispanic male in Atlanta, but Hines had quit dealing with this man by late March or early April 2003. Around that time, three men, including Lopez, and a woman later identified as Gonzalez, came to Hines' home. According to Hines, he and Lopez, who spoke some English, went upstairs and talked and Gonzalez remained downstairs. Hines and Lopez discussed prices for meth and, before Lopez left, he gave Hines a phone number to call if he needed anything.

Not long after this visit, Chattooga County Investigators Mark Schrader and Eddie Stroup visited Hines in response to reports that he was cooking meth in his home. Hines consented to a search of his home and the officers found red phosphorus, an ingredient used in the manufacture of meth, and a small amount of meth. As a result, Hines agreed to cooperate with the officers and serve as an informant. Hines told the officers about his recent visit from Lopez, Gonzalez, and the others. As a result, a series of phone calls was initiated, using mainly Schrader's cell phone, and recordings were made of these conversations. Because Hines could not understand Lopez' English over the phone, Gonzalez served as the translator. During these calls, arrangements were made to bring a quantity of meth to Chattooga County. All of these calls occurred between Hines and Gonzalez, and Hines could hear Gonzalez speaking to Lopez in Spanish during the discussions.

Pursuant to these conversations, a delivery was arranged for June 6, 2003. Investigators Schrader, Stroup, Eddie Colbert, and narcotics agent Jackie Womack took up positions in Hines' home to watch the delivery. Around 5:25 p.m., Schrader saw a blue Toyota Corolla driven by an Hispanic male drive slowly up the road in front of Hines' home, turn around, and drive slowly back by. The Corolla then went back up the hill and stopped briefly by the passenger side of a red Lincoln Navigator. The Corolla then turned around and drove into Hines' driveway. Then, a man later identified as Victor Luviano got out of the Corolla, rang the doorbell, and asked the man who answered the door if he were Hines. Upon receiving an affirmative answer, Luviano returned to the Corolla, removed a bag from the car, and delivered it to Hines. Luviano was then arrested and the red Navigator immediately left the area. The bag contained a total of 622.88 grams of a substance. The Georgia Bureau of Investigation lab tested 402.20 grams of it and found it contained meth.

Hearing the lookout, Lieutenant Buchanan of the Chattooga County Sheriff's Department stopped the red Navigator and found Gonzalez driving, Lopez in the front passenger seat, and two children in the backseat.⁴ Upon being asked for a driver's license, Gonzalez admitted she did not have one. She and Lopez were then placed under arrest.

Shortly after her arrest, Gonzalez was interviewed by Schrader and Womack, with Sergeant Lisa Davenport present. The interview began at 7:36 p.m. and occurred at the Chattooga County Sheriff's Office. Gonzalez was read her Miranda rights and she initialed each right and signed the waiver of her rights.

During this interview, Schrader told Gonzalez that the officers had her telephone conversations on tape. Thereafter, the following pertinent colloquy occurred:

[P.O. Schrader]: . . . We basically wanted—want to talk to you about this. [P.O. Womack] is gonna ask you some questions about it okay.

[Gonzalez]: If I talk to a lawyer uh when is he gonna be present?

[P.O. Schrader]: At anytime that you want to talk to a lawyer.

[Gonzalez]: So I can talk to him right now?

[P.O. Schrader]: Yes.

[Gonzalez]: But I don't know.

[P.O. Womack]: If you want to speak to an attorney then we'll stop talking to you.

[P.O. Schrader]: Until you talk to one.

[P.O. Schrader]: That's totally your choice.

* * *

[Gonzalez]: I may need some advice.

[P.O. Womack]: Okay so if you want to talk.

[Gonzalez]: I don't want to be here either.

[P.O. Womack]: Well that's a decision you'll have to make on your own. We can't give you any advice.

[P.O. Schrader]: If you think you need an attorney we'll be happy to stop until you talk with an attorney.

[Gonzalez]: When do I get to call an attorney?

[P.O. Schrader]: You'll get to call an attorney of yours or anything.

[Gonzalez]: Don't know no attorney.

[P.O. Schrader]: The court will appoint you an attorney. But uh that's not gonna happen today. It's a big decision to make. But it's your choice you know.

[Gonzalez]: Okay. Well I just want to do whatever is right.

[P.O. Womack]: Well whatever you feel is right, is what's right for you.

[P.O. Schrader]: We're not going to pressure you one way or another.

[Gonzalez]: Oh no[,] I know.

[P.O. Schrader]: If you'd rather talk with an attorney [P.O. Womack]: Do you want to proceed and talk to us so we can figure out what's going on[?]

[ Gonzalez]: Yea but it looks like it's all my fault.

[P.O. Womack]: Well[,] that's what we want to clear up. That's why we want to talk to you. Because you're right, it don't look good. Your [sic] the one that made all the phone calls.

[Gonzalez]: Yea. But. . .

[P.O. Schrader]: And I realize probably some of that is because of your ability to speak English. But uh . . .

[Gonzalez]: I know but that doesn't matter.

[P.O. Schrader]: That's totally your choice, . . . we don't want you to do nothing that you don't want to do. You make the decision. Uh[,] like I said at anytime you can decide to stop and talk with an attorney.

[Gonzalez]: Ask me questions.

(Emphasis supplied.)

Gonzalez then acknowledged that she participated in the phone calls and had her suspicions about what was going on, although she claimed she did not know that meth was actually being delivered on that day. In another interview on June 10, 2003, Gonzalez was again advised of her Miranda rights and again signed a waiver. Again, she acknowledged her part in the phone calls and that she and Lopez, in the red Navigator, led Luviano in another car to Hines' neighborhood and directed him to the house.

The evidence was legally sufficient. Waters v. State, 280 Ga.App. 566, 634 S.E.2d 508 (2006).

2. In her first enumeration of error, Gonzalez contends that the admission of her two in-custody statements was error because they were made after she requested an attorney and were not voluntary.

(a) We consider first the issue of voluntariness to the extent that Gonzalez' argument is based on Investigator Schrader's request of the court between the two interviews that Gonzalez' bond be lowered. This argument applies only to the admissibility of the second interview.

[I]n ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of the defendant's statement at a Jackson v. Denno hearing will be upheld on appeal.

( Citation and punctuation omitted.) Jackson v. State, 274 Ga.App. 26, 28(2), 619 S.E.2d 294 (2005).

Gonzalez argues that Schrader's actions in requesting the court to lower her bond amounted to the slightest hope of benefit. We disagree. "To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." OCGA § 24-3-50. The Supreme Court of Georgia has construed "slightest hope of benefit" to mean the hope of a lighter sentence. See Caffo v. State, 247 Ga. 751, 757(3), 279 S.E.2d 678 (1981); see also High v. State, 271 Ga.App. 388, 390(2), 609 S.E.2d 722 (2005).

Here, the hope of benefit was not a reduced sentence but a lowered bond. A mere promise to reduce bond does not constitute a "hope of benefit" under OCGA § 24-3-50. See Pasuer v. State, 271 Ga.App. 259, 261-262(1), 609 S.E.2d 193 (2005). Instead, such promise, which does not implicate the sentence or charge at issue, is "a collateral benefit that does not make an otherwise admissible confession involuntary." Id.; see also Sparks v. State, 232 Ga.App. 179, 184(4), 501 S.E.2d 562 (1998) ("`The promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing...