Taylor v. State

• Decision Date: 21 March 2013
• Docket Number: No. A12A1877.,A12A1877.
• Parties: TAYLOR v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 596

740 S.E.2d 327

TAYLOR

v.The STATE.

No. A12A1877.

Court of Appeals of Georgia.

March 21, 2013.

H. Bradford Morris Jr., Gainesville, Travis Anton Williams, Lucy Gail Huggins, Appellant.

William Jeffrey Langley, Dist. Atty., Cathy Ann Cox–Brakefield, Asst. Dist. Atty., for Appellee.

BRANCH, Judge.

On appeal from her conviction for attempt and conspiracy to manufacture methamphetamine as well as possession of ephedrine and pseudoephedrine, Karen Taylor argues that the evidence was insufficient and that trial counsel was ineffective because his law partner ¹ represented Taylor's co-defendant in the same matter. Tayloralso argues that the trial court erred when it failed to merge two counts for sentencing purposes, held a portion of voir dire outside the presence of counsel, and admitted evidence of a similar transaction. We find no reversible 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.” (Citation omitted.) Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). 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.” (Citation omitted.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In Hargis v. State, 319 Ga.App. 432, 735 S.E.2d 91 (2012),² we set out many of the facts relevant to this appeal as construed in favor of the jury's verdict against Taylor and her co-defendant, Anthony Hargis:

[I]n June 2006, after reviewing records concerning Hargis's transactions on eBay between September 2003 and March 2006, including the purchase of a number of items used in methamphetamine manufacture, a drug enforcement agent obtained a warrant to search the house where Hargis lived with ... Taylor. The agent found Hargis working in an outbuilding outfitted with equipment used in methamphetamine manufacture, a ventilation shaft, and a surveillance camera. Taylor arrived during the search, and both were arrested. An agent recovered a handgun from a bedroom in the house. Other evidence seized included shipping labels addressed to Hargis, a box of false identification cards with his picture on each card, over-the-counter tablets containing ephedrine and pseudoephedrine, and liquids that tested positive for the two substances. Agents also found written directions to a number of pharmacies in Taylor's handwriting. In September 2006, Hargis was charged with attempt and conspiracy to manufacture methamphetamine, possession of ephedrine and pseudoephedrine, possession of false identification, and second-degree forgery.

Id. at 432–433, 735 S.E.2d 91. Taylor, who owned the house, was charged only with conspiracy to manufacture methamphetamine and possession of ephedrine and pseudoephedrine.

The history of Hargis's and Taylor's representation is a tortuous one. Soon after Taylor's arraignment in October 2006, Jeanne Davis appeared as court-appointed counsel on Taylor's behalf. At this time, Hargis was represented by the Enotah Judicial Circuit Public Defender's Office. In September 2007, Davis was hired as an Enotah Judicial Circuit public defender. Because both co-defendants were now represented by the same office, private counsel Joe Stauffer was appointed to assume representation of Taylor. In March 2008, Hargis hired private counsel Jeff Cox. In June 2008, Stauffer and Cox, who were now representing Taylor and Hargis respectively, became law partners. In November 2008, Stauffer returned Taylor's representation to Davis of the public defender's office. In December 2008, Cox moved to withdraw from Hargis's case because he was not being paid, after which Hargis filed a State Bar complaint against him alleging a conflict arising from Stauffer's previous representation of Taylor. The trial court granted Cox's motion.

On February 18, 2009, a consent order was entered severing Hargis's and Taylor's cases for trial. When Hargis did not appear at the trial scheduled for February 23, 2009, a bench warrant was issued for his arrest.³Hargis, supra at 433, 735 S.E.2d 91 In April 2009, Taylor retained Stauffer for a second time after waiving any conflicts arising from Cox's representation of Hargis.

Taylor later testified that Hargis returned to her house on July 29, 2009, and spent the night there. On the next day, acting on a tip, police located Hargis in a truck belonging to Taylor and arrested him for obstruction after he refused to identify himself. Hargis, supra at 433, 735 S.E.2d 91. Police then searched the truck, recovering ephedrine, lighter fluid, brake cleaner, and 17 identification cards bearing Hargis's photograph. See id. at 433, 735 S.E.2d 91.

Based on [this] evidence ..., officers obtained a search warrant for Hargis's house and found boxes containing devices for manufacturing and smoking methamphetamine, one of which contained the drug. A tape recorder and cassette tape were also seized. Conversations on the tape included Hargis instructing Taylor on the use of the recorder, Taylor's conversations with her counsel, and their negotiations with prosecutors assigned to the case.

Id. at 433, 735 S.E.2d 91. Shortly after Hargis's July 30, 2009 arrest, Cox, who was still practicing law with Stauffer, appeared on Hargis's behalf for the second time. On August 12, 2009, Taylor and Hargis signed waivers of any conflict arising from the partners' co-representation of each of them.

After the State moved to vacate its earlier motion to sever Hargis's and Taylor's cases, Stauffer and Taylor agreed that appearing with Hargis as a co-defendant would allow Taylor to argue that “she wasn't involved.” Taylor's and Hargis's cases were thus rejoined for trial without objection from either co-defendant. At the same pretrial hearing at which the cases were rejoined, the trial court ruled that evidence of the events incident to Hargis's July 2009 arrest were admissible as a similar transaction to show intent and course of conduct. Hargis also moved to suppress the evidence seized in July 2009 as the product of an illegal search. The trial court denied the motion. See Hargis, supra at 434, 735 S.E.2d 91.

On the first day of [the co-defendant's] trial on the 2006 charges, held in late September and early October 2009, and in addition to the evidence directly supporting those charges, the State moved to admit evidence of Hargis's failure to appear at the February 2009 trial as indicating consciousness of guilt as well as the tape seized in July 2009 for the purpose of showing the existence of a conspiracy [to manufacture methamphetamine] between Taylor and Hargis. The court ruled the tape admissible for the limited purpose of showing the existence of a conspiracy.

Id., 735 S.E.2d 91. After a jury found Taylor guilty on all three counts, she was convicted and sentenced to 30 years with 15 to serve.

Davis, who had represented Taylor twice before in the case, was appointed as Taylor's first appellate counsel and filed a motion for new trial on her behalf. At a joint hearing on Hargis's and Taylor's motions for new trial, Taylor testified that although she felt that Hargis's second retention of Cox, which had occurred after her own second retention of Stauffer, had prejudiced Stauffer's conduct of her defense, she wanted to waive any conflicts involving Davis and the public defender's office. When Hargis refused to waive the same kinds of conflicts arising from Cox, Stauffer, and the public defender'soffice's representations on the cases, however, the trial court ordered new counsel appointed for both Hargis and Taylor. In January 2012, second appellate counsel for Taylor filed an amended motion for new trial, which the trial court denied after a hearing. This appeal followed.

1. Taylor first argues that the evidence was insufficient to sustain her convictions for (a) attempt and conspiracy to manufacture methamphetamine and (b) possession of ephedrine and pseudoephedrine. We disagree.

(a) Taylor argues that because she rarely entered the basement where the methamphetamine ingredients were found, and because the possession of those ingredients amounted to mere preparation, the evidence was insufficient to sustain her convictions for attempt and conspiracy to manufacture the drug. We disagree.

OCGA § 16–13–30(b) renders it “unlawful for any person to manufacture ... any controlled substance.” “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16–4–1. “An act constituting a ‘substantial step’ is one done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation.” (Citation omitted.) Ogburn v. State, 296 Ga.App. 254, 255(1)(a), 674 S.E.2d 101 (2009). To prove a conspiracy to violate the controlled substances laws, including the ban on the manufacture of them,

two elements must be shown: an agreement and an act in furtherance of it. The state need not prove an express agreement between the co-conspirators; it only must show that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective. Conspiracy may be shown through circumstantial evidence. The conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators and other circumstances, such as presence, companionship and conduct before and after the commission of the alleged offense.

(Punctuation and footnotes omitted.) Williamson v. State, 300 Ga.App. 538, 547–548(5), 685 S.E.2d 784 (2009).

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