Higuera–hernandez v. the State.

• Decision Date: 11 July 2011
• Docket Number: No. S11A0851.,S11A0851.
• Citation: 289 Ga. 553,714 S.E.2d 236,11 FCDR 2199
• Parties: HIGUERA–HERNANDEZv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 553

714 S.E.2d 236

11 FCDR 2199

HIGUERA–HERNANDEZ

v.The STATE.

No. S11A0851.

Supreme Court of Georgia.

July 11, 2011.

Cathy Morrison Alterman, Alterman & Associates, P.C., Marrieta, for appellant.Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Christopher Michael Quinn, Asst. Dist. Attys., Samuel S. Olens, Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Sheila Elizabeth Gallow, Asst. Atty. Gen., for appellee.CARLEY, Presiding Justice.

Appellant Delman Higuera–Hernandez and his co-defendant Rogelio Higuera–Gutierrez were jointly tried for two murders and other offenses. A jury found Appellant guilty of the malice murder of Antonio Clark, the felony murder of Santos Palacios–Vasquez during the commission of a conspiracy to commit trafficking in cocaine, the underlying conspiracy offense itself, trafficking in a quantity of cocaine separate and distinct from that involved in the conspiracy count, and two counts of possession of a firearm during the commission of a felony. The trial court entered judgments of conviction on these guilty verdicts and imposed concurrent sentences of life imprisonment for the two murders and consecutive terms of five years for conspiracy, ten years for trafficking, and five years for each weapons offense. Appellant directly appeals from those convictions.^*

1. Construed most strongly in support of the verdicts, the evidence shows that Appellant and his co-defendant met others at an apartment for the purpose of selling two kilograms of cocaine. After receiving a large amount of cash, Appellant shot and killed Clark. Palacios–Vasquez was fatally shot, and Appellant himself was shot in the abdomen. He fled with the help of others and sought treatment at a hospital, claiming that he was injured in an attempted robbery. Although Appellant denied knowledge of the apartment, his blood was found at the crime scene, and a set of keys to the apartment was discovered at his house. Investigators also found over 28 grams of cocaine with a purity of at least 10% at the apartment in a different container from the purported two kilograms of cocaine offered for sale. The evidence was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hendricks v. State, 277 Ga. 61–62(1), 586 S.E.2d 317 (2003).

However, where, as here, the defendant is found guilty of both felony murder and the underlying felony, that “underlying felony merges into the felony murder conviction. [Cit.] Here, the [conspiracy] conviction was the underlying felony that formed the basis for the felony murder conviction....” Carter v. State, 285 Ga. 394, 399(8), 677 S.E.2d 71 (2009).

Because the underlying [conspiracy] merged into the felony murder conviction, the trial court erred in entering a separate judgment of conviction and sentence on the jury's verdict finding [Appellant] guilty of [conspiracy]. [Cits.] Therefore, that separate judgment and sentence, even though not enumerated as error, must be vacated. [Cits.]

White v. State, 278 Ga. 499, 501(2), 604 S.E.2d 159 (2004).

2. Appellant contends that the testimony of Flores Calderon regarding inculpatory statements allegedly made by Appellant while they were cellmates for four days violated his Sixth Amendment right to counsel as set forth in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Under that case, the right to counsel is violated by the admission of incriminating statements which a government agent deliberately elicits after indictment and in the absence of counsel. Massiah v. United States, supra at 206, 84 S.Ct. 1199

The State argues that this issue has not been properly preserved for appellate review. Although Appellant did file a general motion in limine, he failed to raise the Massiah objection to the cellmate's testimony in that motion, in argument thereon, or during the testimony. Instead, defense counsel did not object on the basis asserted in this appeal until the day after the cellmate's testimony was complete.

Standard practice in Georgia has long required a party to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal, and standard practice also allows parties to raise on appeal only the same objections that were properly preserved below. [Cits.]

Whitehead v. State, 287 Ga. 242, 246(2), 695 S.E.2d 255 (2010). Furthermore, we have disallowed “the use of a motion to strike made at any point before the jury retires as a procedural tool to object to evidence....”

Sharpe v. Dept. of Transp., 267 Ga. 267, 271(2), 476 S.E.2d 722 (1996). However, “[a]n important exception to the rule prohibiting the use of a motion to strike as a substitute for a contemporaneous objection is applicable to criminal cases.” McFadden, Brewer and Sheppard, Ga. Appellate Practice § 9:7 (2010–2011 ed.) (also noting an “ ‘exception to the exception’ with regard to search and seizure claims concerning tangible physical evidence”). Under Sharpe, “where a criminal defendant alleges evidence presented was inadmissible because it was obtained in violation of his constitutional rights, he may properly move to strike the evidence at any point before the jury retires. [Cit.]” Gilliam v. State, 240 Ga.App. 158, 159(1), 522 S.E.2d 766 (1999). In this case, Appellant did move to strike Calderon's testimony prior to closing arguments, which was of course before the jury retired. Having already argued that Calderon acted as a State agent in obtaining the incriminating statements, Appellant relied on additional testimony by the lead detective characterizing Calderon as a professional informant and admitting that he and other officers had something to do with the transfer of Calderon to a close proximity to Appellant. Accordingly, we conclude that the Massiah issue has not been waived.

The trial court denied the motion to strike, ruling that, although Calderon had provided information on prior occasions in connection with other investigations, he was not a professional informant in the sense that he was paid or in any way necessarily engaged by the State. These findings were supported by the evidence. The overwhelming majority of federal and state jurisdictions recognize

that an informant must be a government agent before the protections in Massiah are implicated and further recognize that this agency inquiry is separate from whether the informant “deliberately elicited” information. [Cits.] ... Although there are some differences in the approaches of the various jurisdictions, they are unified by at least one common principle: to qualify as a government agent, the informant must at least have some sort of agreement with, or act under instructions from, a government official.... And several courts have expressly held that the analysis does not change even if the government is aware of the entrepreneurial inmate's self-seeking tendencies and government officials believe—or even hope—that the inmate will elicit information from the defendant. [Cits.] ... Various jurisdictions also agree that a person's past service as a government informant in unrelated cases does not necessarily mean that the person is a government agent in the case at hand. [Cits.] ... [S]uch evidence is simply something the factfinder can consider in its discretion. [Cits.] ... [Three federal circuits go further and] hold that an informant is not a government agent in a given case unless he has been instructed to obtain information from that defendant; any general agreement to obtain information about crime is deemed irrelevant. [Cits.]

Manns v. State, 122 S.W.3d 171, 182–186(II)(B)(4) (Tex.Crim.App.2003). Likewise, placement of an informant with such “past service” into the defendant's cell may be a factor in some jurisdictions but is not in many others. Manns v. State, supra at 187(II)(B)(4). Furthermore, an informant's receipt of a benefit or reward for the information may constitute some evidence of a prior agreement if the “benefit had already been promised at the time the informant elicited the information; if not, later receipt of a benefit is of no consequence. [Cits.]” Manns v. State, supra at 188(II)(B)(4). As this Court has stated, “ ‘[a]n inmate who acts upon the expectation of an unpromised reward does not thereby become an agent for the state.’ [Cit.]” Burgan v. State, 258 Ga. 512, 515(5), 371 S.E.2d 854 (1988).

A thorough review of the testimony of both the lead detective and Calderon shows that they did not have any agreement and that Calderon had not been promised any payment, lenient treatment, or other help in return for any evidence that he might produce. Baxter v. State, 254 Ga. 538, 546(12), 331 S.E.2d 561 (1985) (distinguishing on this basis United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), on which Appellant relies). “What [Calderon] hoped to get for his testimony went to his credibility, not to the admissibility of his testimony.” Burgan v. State, supra. The trial court was not required to draw an inference, contrary to that testimony, of an agreement between the State and Calderon merely from his placement in Appellant's cell. United States v. Taylor, 800 F.2d 1012, 1016(I)(A) (10th Cir.1986). Moreover, Appellant's testimony shows that he viewed that placement as coincidental. The trial court expressly considered Calderon's past service to investigators and determined that he was nevertheless not a State agent. The fact that Appellant separately spoke to his cousins regarding their knowledge of and involvement in the crimes is not relevant to that determination, although it may be relevant to his credibility. Furthermore, all of these facts “do not amount to an instruction to [Calderon] to get information...