Kimble v. State

687 S.E.2d 242

301 Ga. App. 237

KIMBLE v. The STATE.

Loury v. The State.

No. A09A1266.

No. A09A1267.

Court of Appeals of Georgia.

November 20, 2009.

David M. Burns, Jr., Savannah, for appellant (case no. A09A1266).

Steven L. Sparger, Savannah, for appellant (case no. A09A1267).

Larry Chisolm, District Attorney, Russell B. Mabrey, Jr., Jeffrey S. Hendrix, Assistant District attorneys, for appellee.

MILLER, Chief Judge.

Following the July 14, 2006 execution of a search warrant, Roy Loury and four other individuals, Travis Kimble, Dedrick Pierce, Rashawn Stewart, and Leola Waters, were indicted for various drug-related offenses. Following a trial of all of the co-defendants but Waters, a Chatham County jury convicted Kimble and Loury of trafficking in cocaine (OCGA § 16-13-31(a)) and, further, convicted Loury of trafficking in marijuana (OCGA § 16-13-31 (c)), use of a communications facility in committing a felony (OCGA § 16-13-32.3), and two counts of possession of tools for the commission of a crime (OCGA § 16-7-20). Kimble and Loury appeal following the denial of their motions for a new trial.

Both Kimble and Loury challenge the sufficiency of the evidence. Kimble contends that the State presented insufficient evidence to support his conviction of trafficking in cocaine and failed to prove venue beyond a reasonable doubt. Loury claims that the State presented insufficient evidence to convict him of use of a communications facility in committing a felony. Kimble and Loury also argue that the trial court erred in allowing the State to admit hearsay; permitting the State to introduce recordings of phone calls made by a cooperating witness; and denying their Batson¹ challenges to two of the State's peremptory strikes. Finally, Loury contends that the trial court erred in denying his motion to suppress and that he received ineffective assistance of counsel at trial. Discerning no error, we affirm.

At trial, Counter Narcotics Team ("CNT") Agent Peter Delatorre of the Savannah-Chatham County Metropolitan Police Department testified that he began investigating 1413 East 57th Street after an informant told him that he was purchasing marijuana from "Roy Youmans," gave him Roy's phone number, and described Roy's residence. The informant's description matched the residence at 1413 East 57th Street. Delatorre testified that the informant called his supplier to order marijuana, but none was available.

On June 20, 2006, Delatorre observed a Ford truck in front of the residence. Delatorre saw the driver carry a large bag toward the truck, get in the vehicle, and drive off. Delatorre followed, but lost the truck as it sped away. Three weeks later, Agent Delatorre observed a man, later identified as Bernard Jones, leave the residence in a Nissan Xterra. Agent Delatorre followed, and when a records check revealed that Jones was driving on a suspended license, officers assisting Delatorre executed a traffic stop. Jones fled on foot into the woods pursued by CNT agents. After apprehending Jones, the agents recovered a large bag of cocaine² and a small bag of marijuana among the things that Jones discarded as he ran.

Taken to the CNT office, Jones agreed to "make a phone call to the person he had been purchasing drugs from." At Agent Delatorre's direction, Jones placed a call for marijuana, a recording of which was published to the jury without objection. During the conversation, Jones asked the other individual, "What about ... tomorrow? I need some [marijuana]." The other individual indicated that he would have some the following afternoon. Jones asked, "So what about the [cocaine]?," and the other individual said that would take a week.

The following day, Jones placed another call, a recording of which was played for the jury, again without objection. At the beginning of the recording, Agent Delatorre stated "This is July 14th, approximately 1356 [h]ours. We're going to have Bernard Jones contact Roy at 227-0739 for the purchase of marijuana." During the call, the other individual told Jones that he would "have it at 5:00." At some point, the other individual said "Hey, Y'all," and an unidentified female replied, "Hey, Roy." Following Jones' calls, Agent Delatorre sought and obtained a "no knock" search warrant.

CNT agent Malik Khaalis was dispatched to the residence to watch for activity which would trigger the execution of the search warrant. Contemporaneously, CNT agent Eugene Harley was at the Chatham County jail with Jones, who placed further phone calls. A recording of these was played for the jury over defense counsel's hearsay, confrontation clause, and authenticity objections. During the first call, the other individual indicated that someone would be arriving at his house in approximately 15 minutes. Subsequently, the other individual advised Jones that he had just taken a delivery of cocaine.

Outside the residence, Agent Khaalis saw Loury move an SUV from the yard to the street. Later, Dedrick Pierce drove up and parked. Loury and Pierce spoke briefly, and both men went inside. Minutes later, Pierce returned to his vehicle, retrieved a box and carried it into the house. Travis Kimble and Rashawn Stewart then arrived at the scene. Shortly thereafter SWAT team members and CNT agents executed the search warrant after throwing a flash bang device into the residence. In the kitchen and adjacent to digital scales, agents found 18 pounds of marijuana in a box resembling the one that Pierce carried into the house. Cellular phones and marijuana residue were seized elsewhere in the residence, and Leola Waters was discovered hiding in a closet.

Outside the residence, Agent Coursey saw two hands drop a bag out a window. A man wearing a light-colored shirt then came crashing through the window. Agent Coursey testified that only Kimble presented cuts after the raid and that he was the only person in the house wearing a light shirt that day. The white substance found outside the window later tested positive for 78.8 percent pure cocaine and weighed 490.22 grams.

Agents discovered that the springs and cushions had been torn out of the back seat of a Buick Regal in the carport, creating a "conceal compartment" used to hide contraband. Papers bearing the name "Roy Loury" were found in the car,³ and, after his apprehension, Loury told Delatorre, "I know who set me up."

Kimble, Loury, Pierce, Stewart and Waters were indicted for various crimes. Specifically, Kimble and Loury were charged with trafficking in cocaine, trafficking in marijuana, and possession of tools for the commission of a crime relating to the digital scales. Loury also was charged with sale of a controlled substance to Jones, use of a communications facility in committing a felony, and possession of tools for the commission of a crime relating to the Regal. All of the defendants except Waters were tried together.⁴ After the State rested, the trial court granted Loury's motion for directed verdict on the count against him for sale of a controlled substance to Jones. The jury convicted Kimble of trafficking in cocaine and convicted Loury on the remaining counts against him.⁵

1. Kimble challenges the sufficiency of the evidence supporting his conviction for trafficking in cocaine and argues that the State failed to prove venue.

(a) "Upon this Court's review of a criminal defendant's challenge to the sufficiency of the evidence supporting a conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citation, punctuation and emphasis omitted.) Robinson v. State, 296 Ga.App. 561, 561-562, 675 S.E.2d 298 (2009).

"Any person ... who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... commits the felony offense of trafficking in cocaine." OCGA § 16-13-31(a)(1). "Possession of contraband may be joint or exclusive, and actual or constructive. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it." (Punctuation and footnotes omitted.) Herberman v. State, 287 Ga.App. 635, 637(1), 653 S.E.2d 74 (2007). Here, the State, through Agent Coursey's testimony and otherwise, presented evidence sufficient to allow the jury to conclude that Kimble was the individual wearing a light-colored shirt seen pushing his hands through a window and dropping a bag of cocaine outside of the house. As such, the jury was authorized to conclude Kimble was in actual possession of 490.22 grams of cocaine, and Kimble's conviction for trafficking in cocaine was supported by sufficient evidence.

(b) "Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed." (Footnote omitted.) Jones v. State, 272 Ga. 900, 901(2), 537 S.E.2d 80 (2000). "Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt." (Punctuation and footnote omitted.) King v. State, 271 Ga.App. 384, 385(1), 609 S.E.2d 725 (2005). The State may establish venue by use of "both direct and circumstantial evidence." Jones, supra, 272 Ga. at 902-903(2), 537 S.E.2d 80.

Here, Agent Harley testified that he had been employed with the CNT since February 2004 and that his duties involve trying "to identify and go after major drug dealers within the borders of Chatham County." "In light of the well-settled principle that public officials are believed to have performed their duties properly and not to have exceeded their authority unless clearly proven otherwise," the jury was authorized to find that Agent Harley, in participating in the investigation of 1413 East 57th Street, was acting within his jurisdiction. (Citations omitted.) Chapman v. State, 275 Ga. 314, 317-318(4), 565 S.E.2d 442 (2002)...