Martinez v. The State

• Decision Date: 26 March 2010
• Docket Number: No. A09A1687.,A09A1687.
• Citation: 692 S.E.2d 766,303 Ga.App. 166
• Parties: MARTINEZv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 166
692 S.E.2d 766

MARTINEZ
v.
The STATE.

No. A09A1687.

Court of Appeals of Georgia.

March 26, 2010.

692 S.E.2d 767

COPYRIGHT MATERIAL OMITTED

692 S.E.2d 768

Sharon L. Hopkins, Augusta, for appellant.

Daniel J. Porter, Dist. Atty., Carole Cox, Asst. Dist. Atty., for appellee.

BERNES, Judge.

Alberto Elizandro Martinez a/k/a Alberto Elizandro Lopez was indicted and tried on charges of trafficking in methamphetamine and possession of a firearm during the commission of a felony.¹ Lopez maintained that the confidential informant involved in the drug deal had entrapped him. After hearing all of the evidence, the jury found Lopez guilty of the charged offenses, and the trial court denied his amended motion for new trial. On appeal, Lopez contends that the trial court erred in denying his motion to suppress and in allowing the state to place his character in issue by introducing evidence of his prior arrest for possession of marijuana. Lopez further contends that his trial counsel rendered ineffective assistance. For the reasons discussed 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 verdict. See Johnson v. State, 289 Ga.App. 206, 656 S.E.2d 861 (2008). So viewed, the evidence showed that on May 19, 2003, a narcotics investigator met with a confidential informant and discussed the possibility of contacting Lopez to set up a drug deal. They agreed that the investigator would pose as the buyer and would be introduced to Lopez through the informant.

While the investigator listened on a speaker phone, the informant called Lopez and said that he knew someone interested in buying crystal methamphetamine. Lopez assured the informant that he could make the deal happen. In a series of subsequent phone conversations with Lopez, the informant introduced the investigator as the buyer, and the investigator and Lopez discussed the amount and price of the methamphetamine. Ultimately, Lopez agreed to supply the investigator with two pounds of crystal methamphetamine in return for $30,000 to be paid at the time of delivery.

According to the investigator, during their phone conversations, Lopez used code words and lingo for the deal that in his training and experience were commonly used by those involved in the illegal drug trade. The investigator also testified that two pounds of crystal methamphetamine was an extremely large amount to purchase, that “[i]t's very hard to find somebody that can produce two pounds ... within a matter of a couple of days,” and that the ability to carry out such a transaction indicated someone “very well connected in the drug community” who had “done this type of thing many times before.”

On May 21, 2003, Lopez agreed to meet the investigator and informant in a grocery store parking lot in Fayette County and provide a sample of the crystal methamphetamine. Undercover state and federal narcotics agents set up visual surveillance of the parking lot and arranged for additional visual surveillance to be provided by helicopter. The investigator was wired with an audio recording device so that the other agents could maintain audio surveillance of the transaction as well.

Lopez arrived at the grocery store parking lot in a black Chevrolet S-10 pickup truck driven by a co-defendant, and the investigator and informant arrived in a car driven by the investigator. When Lopez exited from the pickup truck, he greeted the informant and talked about how good it was to see him again. According to the investigator, Lopez

692 S.E.2d 769

and the informant acted like friends who had not seen each other in a while. Lopez and his co-defendant got into the car driven by the investigator, and Lopez provided the investigator and the informant a sample of the crystal methamphetamine as they drove around the surrounding area. As the parties drove around discussing the deal, Lopez bragged about the quality of the crystal methamphetamine, quoted the investigator a separate price for purchasing marijuana from him by the pound, and assured the investigator that he would give him a price break the next time they did a deal together. The parties then drove back to the parking lot and agreed to meet later in the day to consummate the methamphetamine deal.

Undercover agents in unmarked vehicles and in the helicopter maintained visual surveillance as the pickup truck left the grocery store parking lot, stopped briefly at a pool hall, and then traveled to a private residence in Gwinnett County. Lopez and his co-defendant exited from the pickup truck and went inside the residence. They later returned to the truck with a package wrapped in a black coat. They placed the package wrapped in the coat on the front seat of the truck and drove away from the residence, with Lopez riding in the front passenger seat.

Lopez and the investigator agreed to meet at a gasoline station on Jimmy Carter Boulevard in Gwinnett County in order to complete the deal. Undercover agents followed the pickup truck to the gasoline station while other agents maintained ground surveillance around the station and waited. The agents observed Lopez and his co-defendant park the pickup truck in a parking lot across the street from the gasoline station and then walk over to a set of pay phones at the station. Once Lopez and his co-defendant were standing by the pay phones, officers gave the takedown signal, and the two defendants were arrested.

Officers performed a warrantless search of the interior of the pickup truck. Underneath the black coat was a package of crystal methamphetamine weighing 885.33 grams. Officers also located a loaded semi-automatic handgun on the front floorboard between the driver and passenger sides of the truck. The handgun was in arm's reach of where Lopez had been sitting in the passenger seat.

Lopez was transported to the police station and agreed to speak with officers without an attorney present after being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Lopez told the officers that he had been fronted the crystal methamphetamine by a third party without having to pay for it, and that his plan had been to pay $26,000 to his supplier after the completion of the deal and split the remaining $4,000 with his co-defendant. Lopez indicated to the officers that he had been excited about the size of the deal.

Lopez subsequently was indicted and tried for trafficking in methamphetamine and possession of a firearm during the commission of a felony.² While the informant did not testify at trial, the narcotics investigator who posed as the drug buyer and several members of the surveillance team testified to the events as set out above. The state also introduced and played for the jury an audio cassette recording from the device worn by the investigator when Lopez provided him the methamphetamine sample. Additionally, the officers who interviewed Lopez testified to the admissions made by him concerning the methamphetamine deal, and the state introduced and played for the jury a video recording of a portion of the police interview.³

In the defense case-in-chief, Lopez admitted to possession of the methamphetamine and asserted the affirmative defense of entrapment. ⁴ See OCGA § 16-3-25.⁵ Lopez

692 S.E.2d 770

testified that he was not a drug dealer and had never sold drugs before the transaction in this case, but that he had chosen to do so here because the informant had repeatedly threatened to harm Lopez and his family if the methamphetamine deal was not completed. Lopez further testified that he believed the informant's threats because the two men had once shared a jail cell and he had witnessed the informant physically attack and hurt other inmates on several occasions. Lopez explained that he had been in jail with the informant as the result of a marijuana possession charge that later had been dismissed because he was not guilty. According to Lopez, he had been charged with possessing marijuana after being stopped in a car with his uncle, who, unbeknownst to Lopez, had “a couple of joints behind the seat.”

In rebuttal, the state presented the testimony of the police sergeant who had conducted the traffic stop of Lopez and his uncle that had resulted in the prior marijuana charge. The sergeant testified that the case did not involve “a couple of joints behind the seat,” but rather ten packaged bundles of marijuana weighing 3.5 pounds apiece that had been hidden in a secret compartment of the car, which had been traveling from a border town notorious for drug smuggling activity. According to the sergeant, the charges against Lopez had been dismissed as part of an agreement with Lopez's uncle to plead guilty to a marijuana charge.

The state also recalled the narcotics investigator who had posed as the drug buyer. The investigator testified that based upon his experience in other drug cases, he knew that the pool hall where Lopez had stopped after providing him with the methamphetamine sample was a place “frequented ... by numerous high level drug dealers.” The investigator further testified that Lopez never appeared afraid of the informant in the interactions he had heard or observed, but rather appeared to be friends with the informant.

1. Although not enumerated as error, we conclude that the evidence presented by the state was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Lopez had not been entrapped and was guilty of trafficking in methamphetamine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA § 16-13-31(e); Haralson v. State, 223 Ga.App. 787, 789-790(1), 479 S.E.2d 115 (1996); Cody v. State, 222 Ga.App. 468, 472(6), 474 S.E.2d 669 (1996); Norley v. State, 170 Ga.App. 249, 250(1), 316 S.E.2d 808 (1984); Bacon v. State, 188 Ga.App. 782, 782-783(1), 374 S.E.2d 351 (1988). A rational fact finder likewise...