Laghaeifar v. State

360 Ga.App. 843

861 S.E.2d 808

LAGHAEIFAR

v.The STATE.

A21A0911

Court of Appeals of Georgia.

August 2, 2021

Elizabeth Ann Geoffroy, Raymond V. Giudice, Atlanta, for Appellant.

Fani T. Willis, District Attorney, Lyndsey H. Rudder, Ruth M. Pawlak, Assistant District Attorneys, for Appellee.

Brown, Judge.

Kousha Laghaeifar appeals from the denial of his plea in bar on double jeopardy grounds. He argues that this prosecution is precluded by his prior guilty plea to other charges arising from the same conduct and same transaction. For reasons that follow, we affirm in part and reverse in part.

The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court's oral and written rulings as a whole, the trial court's findings support its conclusion. But where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we review de novo the trial court's application of the law to undisputed facts.

(Citation and punctuation omitted.) Massengille v. State , 356 Ga. App. 729, 848 S.E.2d 902 (2020). The testimony from the plea-in-bar hearing shows that in February 2018, the Forsyth County Sheriff's Department began investigating Laghaeifar after he was introduced to them by a confidential informant. On February 28, 2018, a Forsyth County detective arranged via text to purchase marijuana from Laghaeifar. Because the sale occurred at Laghaeifar's home in Fulton County, the Forsyth County detective notified the Johns Creek Police Department, and a joint investigation began. The joint investigation continued through April 4, 2018, involved "several phone calls" to Laghaeifar's home, "a lot of" which were placed from Forsyth County, and finally culminated in an agreement for a "transaction" on April 4, 2018, at a hotel parking lot in Forsyth County. On the morning of April 4, 2018, Laghaeifar was placed under constant surveillance at his home while Forsyth County officers continued to communicate with him about the transaction. Laghaeifar was observed leaving his home with a large duffel bag and proceeding to the hotel parking lot, where he removed the same large duffel bag from his vehicle. Forsyth County officers arrested Laghaeifar as he exited his vehicle. The duffle bag contained 11 pounds of marijuana, which was taken by a Forsyth County officer and placed in the department's property room. On the same day — while Laghaeifar was in custody in Forsyth County — Johns Creek officers obtained and executed a warrant for the search of his residence where they discovered an additional 2.5 ounces of marijuana and a couple of long-bladed knives. The marijuana seized from Laghaeifar's home was processed through the "Johns Creek Police Evidence Room."

On July 9, 2018, Laghaeifar was indicted in Forsyth County for sale of marijuana (Count 1), trafficking in marijuana (Count 2), possession of a firearm during the commission of a felony (Count 3), and use of communication facility (Count 4).¹ On October 30, 2018, Laghaeifar was indicted in Fulton County for sale of marijuana (Count 1), possession of marijuana with intent to distribute (Count 2), and use of communication facility in committing crime (Count 3).²

On December 11, 2018, Laghaeifar entered a negotiated guilty plea in Forsyth County to sale of marijuana, trafficking in marijuana (which was reduced to possession of marijuana with intent to distribute), and possession of a firearm during the commission of a felony. The State nolle prossed the remaining charge of illegal use of communication facility. On December 18, 2018, Laghaeifar filed a plea in bar, seeking to dismiss the Fulton County charges on double jeopardy grounds. He alleged that the charges in the Fulton County indictment were part of the same conduct and transaction as the charges to which he pleaded guilty in Forsyth County. Following an evidentiary hearing, the trial court granted the motion as to Count 1 (sale of marijuana),³ but denied it as to Count 2 (possession of marijuana with intent to distribute) and Count 3 (use of communication facility in committing crime). The trial court ruled that both counts "were committed in Fulton County, thus Fulton County Superior Court has exclusive jurisdiction." Laghaeifar appeals from this ruling, contending in his sole enumeration of error that the trial court erred in denying his plea in bar/double jeopardy motion as to Counts 2 and 3 of the Fulton County indictment.

"The Fifth Amendment to the United States Constitution and the Georgia Constitution prohibit the government from placing a defendant in jeopardy twice for the same offense once he has been convicted or acquitted, and also prohibit multiple punishments for the same offense. Georgia Const. of 1983, Art. I, Sec. I, Par. XVIII." Herrington v. State , 315 Ga. App. 101, 102 (1), 726 S.E.2d 625 (2012).

The bar to successive prosecutions is referred to as the procedural aspect of the double jeopardy rule. The rationale behind the bar to successive prosecutions is to prevent harassment of the accused. The bar to multiple convictions is referred to as the substantive aspect. The rationale behind the bar to multiple convictions is to prevent multiple and excessive punishments.

(Citation and punctuation omitted.) Maxwell v. State , 311 Ga. 673, 676 *3 (2), 859 S.E.2d 58 (2021). "Because the Georgia Code expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions, all questions of double jeopardy in Georgia must now be determined under OCGA §§ 16-1-6 through 16-1-8." (Citation and punctuation omitted.) Id. (a) Count 2 (Possession of Marijuana with Intent to Distribute). Laghaeifar contends that Fulton County's prosecution of him for this charge is barred under (i) the principle of substantive double jeopardy ( OCGA § 16-1-8 (a) ) and (ii) the principle of procedural double jeopardy ( OCGA §§ 16-1-7 (b) and 16-1-8 (b) ) because he has already been convicted in Forsyth County for possession of marijuana with intent to distribute (as reduced from trafficking) and both the Fulton County and Forsyth County possession of marijuana with intent to distribute charges "arose out of the same course of conduct" or the "same criminal conduct." We are not persuaded.

(i) Substantive Double Jeopardy. OCGA § 16-1-8 (a) provides that "[a] prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal; or (2) Was terminated improperly after the jury was impaneled and sworn[.]" The reduced possession charge to which Laghaeifar pleaded guilty in Forsyth County arose from the seizure of 11 pounds of marijuana in the parking lot of a hotel in Forsyth County on the morning of April 4, 2018, while Count 2 of the Fulton County indictment arose from the discovery of additional marijuana at Laghaeifar's home pursuant to the execution of a search warrant later that same day. Accordingly, it was proper to charge each offense separately. This conclusion is in line with a number of cases decided by this Court. See State v. Pruiett , 324 Ga. App. 789, 792-793 (1) (a), 751 S.E.2d 579 (2013) (prosecution for possession of Xanax found at defendant's house did not arise out of the same conduct as the possession of the drug in the defendant's car on the same day that formed the basis of the defendant's guilty plea); Kinchen v. State , 265 Ga. App. 474, 475-476, 594 S.E.2d 686 (2004) (defendant's indictment on charge of possession with intent to distribute twelve pounds of marijuana found in his home in Lee County following his plea of guilty in Dougherty County to charge of possession with intent to distribute six pounds of marijuana he attempted to sell undercover officer did not violate double jeopardy because defendant "engaged in two separate courses of conduct at different times and locations with distinct quantities of contraband, even though he may have at some earlier time possessed all the marijuana"); Poole v. State , 175 Ga. App. 374, 375 (2), 333 S.E.2d 207 (1985) (prosecution for possession of marijuana found near defendant during apparent drug deal in downtown area did not arise out of the same conduct as possession of marijuana found during a search of the defendant's residence later that same day).⁴

(ii) Procedural Double Jeopardy.

Under OCGA § 16-1-7 (b), if several crimes (1) arising from the same conduct are (2) known to the proper prosecuting officer at the time of commencing the prosecution and are (3) within the jurisdiction of a single court, they must be prosecuted in a single prosecution. A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b). In order for this procedural aspect of double jeopardy to prohibit a prosecution, all three prongs must be satisfied.

(Citation and punctuation omitted; emphasis supplied.) Daniels v. State , 355 Ga. App. 134, 135-136, 843 S.E.2d 18 (2020). Because Laghaeifar is unable to satisfy the first prong, we need not address prongs two and three.

"This [C]ourt has held that the term ‘same conduct’ is used interchangeably with the phrase ‘same transaction.’ We also consider whether the offenses at issue ‘arose out of one course of conduct.’ " (Citation and punctuation omitted.) Hassard v. State , 319 Ga. App. 708, 711 (1), 738 S.E.2d 293 (2013). See also Maxwell , 311 Ga. at 678 *3 (c), 859 S.E.2d 58 ; Daniels , 355 Ga. App. at 136, 843 S.E.2d 18 ("the crimes arise from the same transaction or continuing course of conduct, occur at the same scene, occur on the same date, and occur without a break in the action; additionally, if it is necessary to present evidence of the one crime in order to prove the other, then the State must prosecute those charges at the same time") (citation and punctuation omitted). As we have...