Merritt v. State
| Decision Date | 20 November 2014 |
| Docket Number | No. A14A1446.,A14A1446. |
| Citation | 329 Ga.App. 871,766 S.E.2d 217 |
| Court | Georgia Court of Appeals |
| Parties | MERRITT v. The STATE. |
329 Ga.App. 871
766 S.E.2d 217
MERRITT
v.
The STATE.
No. A14A1446.
Court of Appeals of Georgia.
Nov. 20, 2014.
Mark Robert Jeffrey, for Appellant.
Emily Kathleen Richardson, Asst. Dist. Atty., James David McDade, Brian Keith Fortner, Dist. Atty., for Appellee.
Opinion
BRANCH, Judge.
On appeal from his conviction for possession of cocaine with intent to distribute, Richard Merritt argues that the trial court erred when it denied his motion to suppress, admitted evidence of two prior drug convictions, considered two prior convictions for sentencing purposes, and denied his motion for new trial in light of newly discovered evidence that Merritt was tasered during his arrest. Merritt also alleges that trial counsel was ineffective in a number of ways. We find no error and affirm.
“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted).
So viewed, the record shows that on January 26, 2009, police arrested Kimberly Taylor at a hotel in Douglas County for possession of drug paraphernalia, including crack pipes. Taylor then agreed to provide police with the names of her drug suppliers. With police recording the conversation, Taylor called a man named Fred and ordered $300 of crack cocaine to be delivered to the hotel. As police continued to record, Taylor called Fred twice more to determine when he would arrive with the cocaine. Fred told Taylor that “Richard” would be arriving shortly after making a payment at an Enterprise car rental office nearby. Taylor knew Richard Merritt, with whom she had smoked crack at the hotel a number of times in the past few weeks, and who had introduced her to Fred.
Shortly after the last of Taylor's three calls to Fred, Merritt arrived at the hotel in a white Nissan Sentra. After Taylor positively identified Merritt and his vehicle, Merritt entered the hotel carrying a cup of beer in his left hand and with his right hand in his
jacket pocket. As he did so, police apprehended him and forced him to the ground. In a report written on the day of Merritt's arrest, Detective Juan Gonzales stated that a second officer, Tully Yount, had pulled out his taser and had “applied” it to the suspect, at which point Merritt stopped struggling and allowed the officers to arrest him. At trial, Detective Gonzales testified that although Yount had threatened to use the taser on Merritt, he had not actually discharged the device. Yount did not appear at trial.
After Merritt was subdued, police observed a bag later shown to contain 1.59 grams of crack cocaine on the floor next to Merritt's right jacket pocket. Also on the floor next to Merritt were candies, a lottery ticket, and Enterprise rental car keys, all of which Merritt admitted at trial were his. Merritt was charged with one count each of possession of cocaine with intent to distribute and obstruction of a police officer. At trial, held in March 2010, Merritt also admitted that he had a long history of using crack cocaine, that he had often smoked crack with Taylor, that he had previously purchased drugs from Fred, that he had assisted Taylor in obtaining drugs in the past, and that he had gone to the Enterprise car rental office before arriving at the hotel. Merritt denied that the cocaine found on the floor was his, however. A jury found Merritt guilty of possession of cocaine with intent to distribute but not guilty of obstruction. Merritt was convicted and sentenced as a recidivist to serve 30 years.
At the hearing on Merritt's motion for new trial, Merritt's assertions included that a “Use of Force” report written in March
2013, three years after trial, showed that Yount had indeed discharged his taser while holding it against Merritt's back. Yount also testified at the same hearing that he had discharged his taser in the course of subduing Merritt. The trial court denied Merritt's motion. This appeal followed.
1. Merritt first argues that the trial court erred when it denied his motion to suppress the bag of crack cocaine found next to him on the ground at the time of his arrest because Taylor had not been shown to be a reliable source of information before she identified Merritt. We disagree.
A trial court's order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. We construe all evidence presented in favor of the trial court's findings and judgment.
Lopez v. State, 292 Ga.App. 518, 519, 664 S.E.2d 866 (2008) (citation, punctuation and footnote omitted); see also Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994).
It is true that “when probable cause is based, at least in part, upon information supplied by an informant, the State must demonstrate that the information is reliable.” Lopez, 292 Ga.App. at 520, 664 S.E.2d 866 (citation and punctuation omitted). But it is no less true that probable cause may be provided by “the totality of the circumstances surrounding (1) the basis of the informant's knowledge and (2) the informant's veracity or reliability,” with any “deficiency in one” of these categories “compensated for ... by a strong showing as to the other, or by some other indicia of reliability.” Id. Thus we concluded in Lopez that when police had set up the controlled buy, when the informant had been charged, was in custody, and was giving inculpatory information against his own penal interest, and when the informant's tips as to the drug dealer's time and mode of arrival had already proved accurate, a trial court did not err when it denied the motion to suppress. Id. at 522, 664 S.E.2d 866. Here, Taylor's information as to Merritt's appearance, his car, the timing of his arrival, and his purpose in coming there proved accurate in every material respect, and was against her penal interest in that she was in custody on a charge of possessing drug paraphernalia and had admitted to using drugs with Merritt recently. Thus we cannot say that the trial court erred when it concluded on the basis of all these circumstances that the State had made a sufficiently strong showing of Taylor's reliability to justify the admission of the evidence against Merritt as found in a search
supported by probable cause. Id. at 522, 664 S.E.2d 866
(affirming trial court's denial of motion to suppress evidence found on the basis of an informant's disclosures).
2. Merritt also argues that the trial court erred when it admitted two 1988 felony convictions, one for possession of cocaine with intent to distribute and one for simple possession, for purposes of impeachment. We disagree.
Former OCGA § 24–9–84.1(a)(2), which was in effect at the time of Merritt's March 2010 trial, provided:
Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant[.]
See also Quiroz v. State, 291 Ga.App. 423, 427 –428(4), 662 S.E.2d 235 (2008) (requiring trial courts to make express findings that a prior conviction's probative value outweighs its prejudicial effect). “Factors to be considered [as to probative value] include the kind of felony involved, the date of the conviction, and the importance of the witness's credibility.” Id. at 428(4), 662 S.E.2d 235.
Here, the State timely served Merritt with notice of its intent to use the 1988 convictions for cocaine possession in the event that Merritt chose to testify at trial. Before these prior convictions were offered at trial, the court held that their probative value substantially outweighed their prejudicial effect. When Merritt chose, against his own counsel's advice, to testify in his own defense, counsel made a strategic decision to elicit testimony as to these prior convictions from Merritt in order to “lessen the blow” of this evidence on the jury, which might look more favorably on a defendant willing to admit past mistakes.
As this Court has repeatedly noted, a defendant who testifies “on direct examination about his prior convictions...
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