Lopez v. State, No. A04A0338
| Decision Date | 21 May 2004 |
| Docket Number | No. A04A0338, No. A04A0339. |
| Citation | 267 Ga. App. 532,601 S.E.2d 116 |
| Parties | LOPEZ v. The STATE. Mejia v. The State. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
David L. Whitman, Lawrenceville, Norman H. Cuadra, Decatur, for appellant.
Daniel J. Porter, District Attorney, Karen M. Harris, William C. Akins, Assistant District Attorneys, for appellee.
In a joint jury trial, Ubence Lopez a/k/a Ramon Maisoney Rodriguez and Francisco Mejia were both convicted of trafficking in cocaine. After filing unsuccessful motions for a new trial, Lopez and Mejia filed separate appeals, raising several distinct grounds. After extensive review, we discern no error and affirm.
Viewed in the light most favorable to the verdict, the evidence shows that on April 24, 2001, an undercover Drug Enforcement Administration (DEA) agent met with Mario Martinez and Jose "Lupe" Garza at a shopping center to finalize the purchase of one kilogram of cocaine. The agent posed as the buyer. Also present during these negotiations was a confidential informant (CI) who had previously introduced the agent to Martinez and Garza and served as intermediary on a prior drug deal involving the same participants. Concerned that he might get cheated, Martinez asked the agent whether his money was real or counterfeit. When the agent asked Martinez to show him the cocaine, Martinez told him that the cocaine was "nearby" and "very close" and asked the agent to accompany him to pick it up. When the agent refused to do so, Martinez left in a blue Chevrolet Celebrity. Garza, the CI, and the agent remained behind at the shopping center to await Martinez's return.
While other law enforcement officers maintained surveillance, Martinez proceeded directly to the parking lot of an apartment complex located less than a mile away. As another DEA agent watched, a red pickup truck driven by Mejia backed into a parking space, and Martinez pulled into an adjacent space. This agent testified that when "the blue Celebrity c[a]me through, the red pickup truck stops, backs up, and the blue Celebrity pulls in right next to it." Lopez was the passenger in Mejia's truck. By positioning their vehicles next to one another, Martinez and Mejia could speak to each other without exiting their vehicles. The drivers met briefly before leaving in tandem, but the observing agent did not see whether anything had been exchanged. Martinez, Lopez, and Mejia left the apartment complex and went to the shopping center where the CI and the others were waiting.
From the time that Martinez left the shopping center and came back with the cocaine, no more than ten or fifteen minutes had passed. Surveillance officers at the shopping center watched Mejia's red pickup truck follow Martinez's vehicle until Mejia parked his truck about 35 yards away from the location of the anticipated drug deal. Mejia parked his truck facing toward Martinez's car.
After returning to the shopping center, Martinez showed the cocaine to the undercover agent. While also standing next to Martinez's car, Garza began demanding, "[w]here's the money?" The agent told them he was going to get the money and began walking toward his vehicle. As the agent walked toward his vehicle, he gave a "take-down" signal to his fellow officers. At this signal, agents moved in to arrest Martinez and Garza. To avoid apprehension, Martinez then slammed his vehicle into reverse and backed into one of the agents' vehicles. Although Garza fled on foot, agents captured him at the scene.
Other officers immediately intercepted Lopez and Mejia before they could leave. At the time of his arrest, Mejia was using his cell phone.
Searches of the four men revealed substantial amounts of money. Martinez had $865, Lopez had $335, Mejia had $1,166, and Garza had $114. Agents removed the package of suspected cocaine from Martinez's car. A Georgia Bureau of Investigation forensic chemist later analyzed the contents of the package and determined that the substance inside was, in fact, cocaine. The chemist testified that the drugs weighed 2.1 pounds or about 900 grams and had a purity of 47 percent cocaine.
The undercover agent testified that with the help of the CI, he had met with Martinez and Garza in early February at the same shopping center and bought an ounce of cocaine from them for $1,000. After that buy, the agent and the CI had several telephone conversations with Martinez and Garza, some of which were recorded. The agent testified that he, Martinez, and Garza had tried three or four times to set up the kilogram deal. When asked, "[d]id [Martinez] or [Garza] ever indicate to you why they weren't ready on the previous occasions?" the agent testified that they had told him that "they didn't have the kilogram of cocaine I was looking for." The agent attributed the delay in finalizing the transaction to the explanation provided by Martinez and Garza that "they were out and had not received any more."
Agents recovered cellular telephones from each of the four men. An agent reviewed the contents of the cell phones and discovered that Lopez had stored in his cell phone the cell phone numbers of co-defendants Mejia, Martinez, and Garza. The cell phones belonging to Martinez and Garza both had Lopez's number stored in them. Martinez's phone showed received calls from Lopez.
Martinez and Garza entered negotiated guilty pleas to trafficking in cocaine and possession of hydrocodone.1 In exchange for their guilty pleas and their agreements to testify truthfully in this case, the State recommended that Martinez and Garza pay $300,000 fines and serve 30-year sentences with the first 15 years in confinement.
At trial Martinez testified that after the undercover agent asked him to get a kilogram of cocaine for him, he called Lopez. Martinez testified that "I had talked with him many times, but they had not been able to gather all of the drugs" until that day. Martinez testified that through Lopez he met Mejia but did not have Mejia's phone number, and that he could only contact Mejia through Lopez. According to Martinez, when he called Lopez an hour or two before the deal on April 24, Lopez had told him on the phone that "they were on their way to my house and that they had the drug[s]." Martinez also testified that Lopez provided him with a pen so that "we could tell that the money was not counterfeit." Martinez testified that Mejia said that "he wanted $20,000 and anything left over we could keep." Martinez testified that when he first saw the cocaine it was in Lopez's hands, but then told Lopez to pass the drugs to Martinez, which Lopez did. Martinez also testified that it was Mejia who "told me, for me to take it and he would follow behind." He stated that Lopez also said they were going to follow him.
Garza testified that he contacted Lopez to get the kilogram and that a week earlier Lopez had told him that he had a friend who had that amount. Garza testified that earlier on April 24, he and Martinez had met with Lopez and Mejia at the apartment complex where Garza lived with Martinez. Garza testified that "they told us that they had the drug to be able to deliver." When asked who said that the cocaine was ready to deliver, Garza responded, "Francisco Mejia." Garza also testified that Lopez gave Martinez a pen "so that we could check the bills." He testified that as part of the deal, "[w]e had to turn over $20,000 to Mejia."
A jury found Lopez and Mejia guilty of trafficking in cocaine.
Prior to trial, Lopez filed a motion to suppress, arguing that he was arrested and seized without probable cause and that evidence obtained as a result of the illegal seizure of his cell phone should be excluded.2 Lopez also filed a motion to reveal the identity of the CI. These motions were denied.
1. Lopez contends that the trial court erred in admitting what he characterizes as "profile evidence." He claims that the trial court erred in allowing the undercover agent to testify about his past experience as a drug agent in arranging purchases of large amounts of cocaine.
At the pre-trial motion hearing, Lopez agreed to stipulate that the undercover agent was an expert in "the undercover investigation of large-scale narcotics trafficking." At trial the agent was not formally tendered as an expert. Nevertheless, "[a] witness may become qualified to render an expert opinion without ever being formally so declared by the court." (Footnote omitted.) Mitchell v. State, 242 Ga.App. 694, 695(3), 531 S.E.2d 143 (2000).
Contrary to Lopez's argument, at no point did the agent testify that Lopez fit the profile of a drug supplier or that Lopez shared characteristics common to such individuals. His testimony about large-scale trafficking in narcotics was "beyond the ken" of the average juror, and was relevant to the facts of the case to describe the sequence of events that took place between late January and the latter part of April. See Vaughan v. State, 251 Ga.App. 221, 223(1)(b), 553 S.E.2d 335 (2001). There was no error. See Mitchell, supra, 242 Ga.App. at 696(3), 531 S.E.2d 143.
2. Lopez asserts that the trial court erred in admitting evidence of the $1,000 February drug deal as a similar transaction. However, before trial the State withdrew its intent to introduce the February drug deal as similar transaction evidence, announcing its decision not to present that evidence. Despite the State's announcement that it would not present the similar transaction evidence, counsel for both Lopez and Mejia argued at the pre-trial motion hearing that the evidence of the prior one-ounce sale was so interrelated with the one-kilogram sale that their absence from that deal should be admissible to indicate their lack of involvement in the larger sale. Ironically, the State objected to the use of this evidence against Martinez and Garza as improper character evidence. Ultimately, the trial court allowed the evidence.
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