Perry v. State

• Decision Date: 05 March 2012
• Docket Number: No. A11A1561.,A11A1561.
• Citation: Perry v. State, 12 FCDR 915, 314 Ga.App. 575, 724 S.E.2d 874 (Ga. App. 2012)
• Parties: PERRY v. The STATE.
• Court: Georgia Court of Appeals

12 FCDR 915

314 Ga.App. 575

724 S.E.2d 874

PERRY

v.The STATE.

No. A11A1561.

Court of Appeals of Georgia.

March 5, 2012.

Jennifer Adair Trieshmann, for appellant.

Herbert E. Franklin, Jr., Dist. Atty., Christopher Arnt, Asst. Dist. Atty., for appellee.

MILLER, Judge.

Following a jury trial, Benjamin F. Perry was convicted of sale of cocaine (OCGA § 16–13–30(b)). The trial court denied Perry's motion for new trial. On appeal, Perry contends that (i) the trial court erred in admitting his prior convictions for possession of cocaine as similar transaction evidence; (ii) the trial court erred in admitting his prior drug convictions since the State's similar transactions notice was untimely and failed to list witness names and contact information; and (iii) his trial counsel was ineffective. We discern no reversible error and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.

(Punctuation and footnote omitted.) Brown v. State, 274 Ga.App. 302(1), 617 S.E.2d 227 (2005).

So viewed, the trial evidence showed that on July 28, 2008, narcotics agents with the Chattooga County Sheriff's Office conducted an undercover drug investigation and coordinated a controlled buy using a confidential informant. Prior to the controlled buy, the informant and her vehicle were searched. The officers confirmed that she did not have any drugs or other contraband in her possession. The officers then gave the informant funds for her use in consummating the controlled buy and equipped her with surveillance equipment to record the transaction.

The confidential informant drove to an area known as “the block” and made contact with Perry, whom she had known for approximately two years. During the encounter, Perry sold the informant what was later confirmed to be crack cocaine weighing less than one gram.

After completing the transaction, the informant delivered the crack cocaine to the narcotics agents. The narcotics agents downloaded the audiotape recording of the controlled buy. Perry was later arrested and charged with the sale of cocaine offense.

At the ensuing trial, the informant testified and described the controlled buy transaction that she had consummated with Perry. The audiotape recording of the controlled buy transaction was played for the jury. In addition, the State presented similar transaction evidence of Perry's 2002, 1999, 1998, and 1994 prior convictions for sale of cocaine and possession of cocaine. At the conclusion of the trial, the jury returned a verdict finding Perry guilty as charged of the sale of cocaine offense.

1. Perry contends that the trial court erred in admitting his prior convictions for possession of cocaine as similar transaction evidence where only the certified convictions were offered to prove similarity.

Before evidence of prior crimes is admissible, the State must show at a pretrial hearing held pursuant to Uniform Superior Court Rule [“USCR”] 31.3 that (1) it intends to introduce evidence of the prior crime for an appropriate purpose; (2) there is sufficient evidence to establish the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citations and punctuation omitted.) Jones v. State, 206 Ga.App. 307, 425 S.E.2d 384 (1992). We have held that “certified copies of convictions are admissible when they are helpful in proving the identity of the defendant as the perpetrator of a similar transaction offense and are not the sole evidence of a previous crime.” (Citations omitted; emphasis supplied.) Shuman v. State, 244 Ga.App. 335, 337(3), 535 S.E.2d 526 (2000). Accordingly, in Jones, supra, 206 Ga.App. at 307–308, 425 S.E.2d 384, we upheld the trial court's admission of the defendant's prior convictions for possession of cocaine when the State presented testimony from several police officers relating to two prior convictions and introduced certified copies of the convictions.

The State in this case did not present any testimony at trial establishing Perry's prior convictions for possession of cocaine. Rather, the State's evidence was limited to the introduction of copies of Perry's guilty pleas and convictions for the two prior drug possession offenses. Significantly, “the [S]tate's establishment of a prima facie case of similarity does not satisfy its obligation to present proof on that issue at trial.” Stephens v. State, 261 Ga. 467, 469(6), 405 S.E.2d 483 (1991). Where only the conviction itself is offered, the required proof of the similar transaction evidence is insufficient. See id.; see also Brown v. State, 274 Ga. 31, 32(1), 549 S.E.2d 107 (2001) (ruling that “[t]he only evidence linking appellant to the [prior crime of possession of crack cocaine] was a certified conviction, which is insufficient, standing alone, to establish the required nexus” for similar transaction evidence).¹ Accordingly, the trial court's admission of the 1994 and 1999 convictions was erroneous.

Notwithstanding the error, however, we are not required to reverse Perry's instant conviction since it was highly probable that the error did not contribute to the guilty verdict. It is axiomatic that to constitute reversible error, the appellant must show harm as well as error. See Bowdry v. State, 211 Ga.App. 626, 627, 440 S.E.2d 59 (1994) (“Erroneous admission of similar transaction evidence, however, may be harmless.”) (citation omitted). Here, the State presented the testimony of the confidential informant and the audiotape recording of the drug transaction, both of which established Perry's guilt of the sale of cocaine charge. Moreover, the State presented competent evidence of Perry's 2002 and 1998 prior convictions for sale of cocaine. During the trial, the State introduced the testimony of the officers involved in the investigations leading to the prior sale of cocaine convictions, along with copies of those convictions. Perry's enumeration of error does not contend that his prior convictions for sale of cocaine were admitted for an improper purpose ² or not sufficiently similar to the current offense, which also involved his sale of cocaine. In light of the overwhelming competent evidence establishing Perry's guilt of the sale of cocaine offense, it is unlikely that the erroneous admission of the prior possession offenses contributed to the verdict. See id.

2. Perry next claims that the trial court erred in admitting his prior drug convictions as similar transaction evidence since the State's notice was untimely and failed to provide the names and contact information for the witnesses involved in the similar transactions. Again, we discern no reversible error.

“Notices of the [S]tate's intention to present evidence of similar transactions or occurrences ... shall be given and filed at least ten [10] days before trial unless the time is shortened or lengthened by the judge.” (Emphasis supplied.) USCR 31.1. “We have interpreted this rule as clothing the trial court with discretion which will not be controlled absent abuse. Even if the time was shortened in this case, the rule permits it.” (Citation and punctuation omitted.) Bryant v. State, 226 Ga.App. 135, 138(3)(a), 486 S.E.2d 374 (1997).

The record in this case shows that the State filed its notice of intent to introduce similar transaction evidence four days prior to trial. The State's notice requested the trial court to shorten the time for giving its notice and indicated that no prejudice resulted to the defense since the State had previously discussed its intent to introduce the similar transactions with Perry's counsel one year prior to the trial. In addition, the State had notified Perry's counsel of Perry's criminal history and its intent to introduce the similar transactions in aggravation of punishment several months prior to trial. Notably, four days prior to trial, Perry filed his jury charge requests that included a charge on similar transaction evidence, which reflected his awareness of the State's intent to introduce the similar transaction evidence. Based upon the circumstances presented, the trial court granted the State's request to shorten the time for the State's notice. No abuse of the trial court's discretion has been shown. See Caraway v. State, 286 Ga.App. 592, 595–596(4), 649 S.E.2d 758 (2007) (“While the [S]tate did not give ten days notice as required by Uniform Superior Court Rule 31.1, that rule authorizes the trial judge to shorten the time required for giving notice of a similar transaction.”) (punctuation and footnote omitted); Woodward v. State, 262 Ga.App. 363, 364–366(1), 585 S.E.2d 687 (2003) (the trial court did not abuse its discretion in shortening the time for filing the State's similar transactions notice since the defendant had the requisite notice despite the late filing, and defense counsel and the prosecutor had discussed the prior offense several months before trial); Ware v. State, 191 Ga.App. 538, 538–539(1), 382 S.E.2d 383 (1989) (same). Compare Stephan v. State, 205 Ga.App. 241, 244(2), 422 S.E.2d 25 (1992) (trial court erred in admitting similar transaction evidence when State announced intent to introduce the evidence on the day of trial and failed to inform appellant of the...