Culajay v. the State.

309 Ga.App. 631

710 S.E.2d 846

11 FCDR 1577

CULAJAY

v.The STATE.

No. A11A0014.

Court of Appeals of Georgia.

May 19, 2011.

Jonathan David Aurelia, for appellant.Daniel J. Porter, Dist. Atty., Karen M. Harris, Asst. Dist. Atty., for appellee.DILLARD, Judge.

Following a jury trial, Jose Culajay was convicted of two counts of trafficking in methamphetamine and one count of sale of methamphetamine. Culajay appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in denying his motion to strike a prospective juror for cause and in allowing testimony that improperly placed his character into evidence. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,¹ the evidence shows that in May 2006, an undercover officer with the Gwinnett County Drug Task Force received information from a confidential informant that Culajay was engaged in the trafficking and sale of methamphetamine. With his confidential informant's assistance, the undercover officer, posing as a drug buyer, made contact with Culajay, and on May 19, 2006, he went to Culajay's house and purchased over 50 grams of methamphetamine from Culajay. During that same meeting, Culajay provided the officer with his cell phone number, and the two discussed potential future methamphetamine transactions. On May 31, 2006, the undercover officer, accompanied this time by another undercover officer, went to Culajay's house to buy more methamphetamine. On this occasion, the officer purchased approximately 12 grams of methamphetamine from Culajay, and continued to discuss the possibility of pursuing additional drug deals with him.

Over the course of the next two months, the undercover officer remained in contact with Culajay in an attempt to set up a large purchase of methamphetamine that would also possibly lead the officer to Culajay's supplier. As a result of those discussions, on August 2, 2006, the undercover officer went to Culajay's house to finalize a purchase of two pounds of methamphetamine. Upon arriving there, Culajay entered the officer's vehicle and directed him to drive to a gas station just off of a nearby interstate. Unbeknownst to Culajay, the undercover officer was wearing a wire, which communicated everything that was being said to the drug task force surveillance teams following closely behind them.

A few minutes after the officer and Culajay arrived at the gas station, a red pickup truck containing two males pulled into the parking lot, and the two men motioned for the officer and Culajay to follow them. Shortly thereafter, the officer and Culajay arrived at a house just outside of Duluth and went inside to the kitchen where they met with five or six other people to negotiate the deal. Eventually, the officer agreed to buy two pounds of methamphetamine for $15,500. Following this discussion, one of the men went upstairs and returned to the kitchen carrying a plastic container filled with a large quantity of methamphetamine separated into several plastic bags. After examining the container, the undercover officer told Culajay and the others that he would leave to obtain the money and return soon to complete the purchase.

Upon leaving the house, the undercover officer went to obtain a search warrant, while the surveillance teams stayed at the scene to keep the house under close observation. However, a few minutes after the undercover officer left the premises, the surveillance team observed Culajay exit the house and make a call on his cell phone. And fearing that Culajay and the other suspects were becoming suspicious, the surveillance team immediately moved in and arrested Culajay and the others as they attempted to flee. Once the search warrant was obtained, the officers searched the house and recovered over 244 grams of methamphetamine.

Thereafter, Culajay was indicted on one count of trafficking in methamphetamine, related to the May 19, 2006 sale; one count of sale of methamphetamine, related to the May 31, 2006 sale; one count of trafficking in methamphetamine, related to the August 2, 2006 sale; ² and one count of criminal attempt to sell methamphetamine, also relating to the August 2006 sale. During his and a co-defendant's trial, the undercover officer and members of the drug task force surveillance team testified regarding their respective roles in the investigation of the case and Culajay's arrest. Additionally, a forensic chemist with the GBI confirmed (1) that the substances recovered by the officers on each of the dates in question were methamphetamine and (2) the weight of the drugs recovered on those respective dates. At the trial's conclusion, the jury found Culajay guilty on both counts of trafficking in methamphetamine and on the count of sale of methamphetamine, but not guilty on the count of attempt to sell methamphetamine. Subsequently, Culajay filed a motion for new trial, which the trial court denied after conducting a hearing on the matter. This appeal follows.

1. Culajay contends, generally, that the evidence is insufficient to support his convictions of trafficking in and the sale of methamphetamine. We disagree.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.³ We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendant[ ] guilty of the charged offenses beyond a reasonable doubt.” ⁴ Accordingly, the jury's verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case[.]” ⁵

A person commits the offense of trafficking in methamphetamine when that person “knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine....” ⁶ It is likewise unlawful for any person to “manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance” in any amount,⁷ including methamphetamine.⁸

And here, the evidence shows that Culajay sold more than 28 grams of methamphetamine to the undercover officer on May 19, 2006, and that he also sold a smaller quantity to the officer on May 31, 2006. Accordingly, the evidence is sufficient to support Culajay's convictions for trafficking in ⁹ and the sale of methamphetamine¹⁰ related to those two dates. Furthermore, the evidence also authorized the jury to find that Culajay participated in the August 2, 2006 drug deal, and thus that he “was, at a minimum, a party to trafficking in methamphetamine” ¹¹ on that date. ¹²

2. Culajay further contends that the trial court erred in denying his challenge to strike a prospective juror for cause and, therefore, he was improperly required to exercise a peremptory strike. We disagree.

Georgia law presumes that “potential jurors are impartial, and the burden of proving partiality lies with the party seeking to have the juror disqualified.” ¹³ Additionally, “[w]hether to strike a juror for cause lies within the sound discretion of the trial court, and a trial court is not obligated to strike a juror for cause in every instance where the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences.” ¹⁴ Moreover, “[t]he trial judge is uniquely positioned to observe a potential juror's demeanor and thereby to evaluate his or her capacity to render an impartial verdict.” ¹⁵ Nevertheless, “[t]he court must excuse a potential juror for cause based on the juror's partiality, ... if an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence.” ¹⁶

But here, we see no basis for second guessing the trial court's refusal to strike the prospective juror in question for cause. During voir dire, this prospective juror indicated that he had bad experiences with a particular attorney. And when questioned about those past experiences by the State's prosecutor, the prospective juror responded, “I don't like the idea that justice can be bought, in my opinion. A lot of times—the O.J. Simpson case, to me, points it out better than any.... I just, you know, I don't trust all lawyers.” When pressed further on this issue, the prospective juror stated, “But something probably brought everybody here that has been accused, so they have to have some support. It's part of the system. But, again, I have a problem with the trust and the whole thing. It is just an ethical issue to me.” In response to questions from the co-defendant's counsel, the prospective juror again stated that he thought the State had to have some evidence for someone to be accused but that such evidence could be planted by the police. Later, in response to questions from Culajay's counsel, the prospective juror claimed that he would not be able to “[e]thically” do defense counsel's job. Nevertheless, the prospective juror also stated that he would do his best to be impartial and would wait to hear the evidence before making any decision about guilt or innocence. Furthermore, when asked by the trial court whether he could set aside his personal feelings, listen to the evidence, and render an impartial verdict, the prospective juror replied that he thought he could do so.

Given the foregoing, we find that the trial court did not err in concluding that the prospective juror in question had not formed a fixed or definite opinion regarding Culajay's guilt or innocence.¹⁷ Indeed, as we have previously explained, it is “not an abuse of discretion to seat a juror who questions [his] ability to set aside biases so long as the juror indicates [he]...