Maldonado v. Duron

325 Ga.App. 41

752 S.E.2d 112

MALDONADO

v.The STATE.

Duron

v.The State.

Nos. A13A1575, A13A1812.

Court of Appeals of Georgia.

Nov. 20, 2013.

Certiorari Denied May 5, 2014.

Brown & Gill, Sharon Lee Hopkins, Angela Brown Dillon, for Appellants.

Daniel J. Porter, Dist. Atty., Dan W. Mayfield, Asst. Dist. Atty., Appellee.

BOGGS, Judge.

David Ada Maldonado and Carlos Humberto Duron were convicted, along with two other individuals, of trafficking in cocaine. Their amended motions for new trial were denied, and they appeal. Finding no error, we affirm.

1. Maldonado and Duron assert that the evidence was insufficient to support their convictions. When reviewing the sufficiency of the evidence,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence shows that the Atlanta High Intensity Drug Trafficking Area Task Force set up a controlled buy via a confidential informant and an undercover officer, who was wearing a hidden microphone monitored by other officers. After the deal was set up at a gas station with an intermediary, Maldonado and his sister, co-defendant Meyssi Aryani Saavedra–Maldonado, who was living with Duron, arrived in a white Tahoe with a Hardy Chevrolet drive-out tag. The informant and the undercover officer followed the white Tahoe into a nearby gated apartment complex, where Maldonado parked the Tahoe near building 300 and got out, while Saavedra–Maldonado spoke with the informant. Saavedra–Maldonado then drove away in the Tahoe, while Maldonado remained talking with the informant and the undercover officer for about half an hour, after which the informant and the officer drove to a nearby convenience store to wait and Maldonado walked between building 300 and building 400. Other officers monitoring the exchange saw a black Avalanche with a Hardy Chevrolet drive-out tag drive through the complex.

The informant and officer drove back to building 300, and Saavedra–Maldonado returned in the white Tahoe, followed by a gold Expedition driven by co-defendant Francis Perdomo and owned by Maldonado. Saavedra–Maldonado walked over to the Expedition carrying a black purse, spoke briefly with Perdomo, and then opened the rear passenger door of the Tahoe and “messed around” with something on the floor. Perdomo, Saavedra–Maldonado, the undercover officer, and the informant all gathered at the rear passenger door, the officer sat in the rear seat, and a brief conversation was held in Spanish about the money for the sale. Translated transcripts of these conversations were admitted into evidence, and the speakers were identified.

Suddenly, Perdomo and Saavedra–Maldonado called the deal off. Perdomo left hurriedly and was arrested at a nearby WalMart. The undercover officer and the informant then left, while Saavedra–Maldonado remained sitting in the driver's seat of the Tahoe. She looked into the rear passenger seat, then walked “in a hurried fashion” into the breezeway between building 300 and building 400; a few minutes later, Maldonado followed her.

Shortly afterward, Maldonado walked out of building 300, opened the rear passenger door of the Tahoe, looked inside, closed the door, got into the driver's seat, and drove away. He went to a nearby strip mall, parked, and spent 18 minutes walking up and down the storefronts. Duron then drove up in a black Avalanche with a Hardy Chevrolet drive-out tag, and pulled in behind the Tahoe. Maldonado got out of the Tahoe with the black purse, handed it to Duron, and got into the Avalanche. Duron walked to the rear passenger window of the Tahoe, looked in, then got back in the Avalanche and left with Maldonado in the passenger seat.

Duron drove a short distance, made an abrupt U-turn, encountered a surveillance officer, and fled at speeds in excess of 100 miles per hour. An aircraft was assisting with surveillance, however, and officers were able to follow Duron and Maldonado as they drove to a Waffle House 26 miles away.

An investigator arrived at the Waffle House in time to see Duron and Maldonado go inside, Maldonado carrying the black purse. After six minutes, Duron left in the Avalanche and the investigator followed him until another officer could take up the pursuit. He then returned to the Waffle House and spoke with Maldonado, who had the same black purse on a table. Maldonado consented to a search; the purse contained two wallets belonging to Maldonado, a wallet belonging to Perdomo, and a prescription bottle with Duron's name on it.

Maldonado claimed that a stranger gave him the purse. He had a car key in his jacket pocket, but said he had borrowed the jacket from another stranger and did not know what car the key belonged to. He told the investigator that he arrived at the Waffle House by taxi and that he was staying at a hotel, though he had no room key. Maldonado was arrested and taken to where the other officer had stopped Duron. Asked who Duron was, he shrugged his shoulders “as if he did not know.”

The investigator returned to the white Tahoe with the key he had recovered from Maldonado and unlocked the Tahoe. When he looked inside the rear passenger window, he saw a tightly wrapped package on the rear passenger floor, which he recognized from his experience as a kilogram-size package. This proved to contain a kilogram of cocaine. An apartment in building 300 contained cellular telephones, identification, a checkbook, and bank cards belonging to Saavedra–Maldonado.

After Duron's arrest, search warrants were issued for two adjoining homes in Commerce, Georgia, which he had purchased together. The homes contained documents and other personal items showing that Duron and Saavedra–Maldonado occupied both residences. An insurance bill in Duron's name for coverage on both the white Tahoe and the black Avalanche was found in one home, along with 12 cell phones, two SIM (Subscriber identity module) cards, and $106,000 in cash. Next door, officers found cocaine, cocaine packaging materials, $23,000 in cash, five more cell phones and two SIM cards, as well as Saavedra–Maldonado's passport, which was locked in a safe in the master bedroom closet.

The State then obtained court orders to intercept Duron's telephone calls. In August 2009, about nine months after Duron's arrest in the offense charged here, the wiretaps revealed that Duron was involved in another sale of cocaine. He placed approximately 40 calls to set up the deal. Police listened to calls in which Duron discussed the price and quantity of the cocaine and directed various individuals in complex arrangements to move, store, and test the cocaine by transferring it to numerous vehicles and safe houses. At one point, Duron commented that he had been “doing nothing” for nine months, since he was arrested. After one of his couriers realized that the police were observing him, Duron made numerous calls making plans to evade the police and hide the cocaine. He directed the courier to wait in a shopping center while he drove there to observe the police and help the courier escape. The courier was arrested, and cocaine was found hidden in the woods nearby.

An intelligence analyst with the drug task force was qualified as an expert witness/forensic analyst of telephone data. The analyst testified that she was trained in the use of computer programs, charts, and notebooks used for compiling law enforcement data, as well as databases and other tools used to analyze telephone records obtained from cellular providers. The parties stipulated to the provision of the data from the telephone companies. The analyst described the manner in which her computer programs and equipment were able to extract contact lists, call activity, and text messages from multiple cell phones and analyze that information. The resulting reports show which individuals called other individuals at particular times, and identify “common calls” or telephones in frequent communication with one another.

The analyst testified that her research and analysis led her to conclude that a particular telephone was used by Duron. She explained her findings, memorialized in a chart, to the jury. Similarly, the analyst testified that she was able to compare six cell phones used by Duron with a cell phone used during the drug transaction, and testified that the contact lists contained numerous similarities (such as Duron's father's telephone number) suggesting that Duron used that cell phone as well. Moreover, that cell phone was purchased at the same time and place as a cell phone found in Duron's possession when he was arrested, the subscriber information was the same for both telephones, and the numbers were one digit apart. Both of those cell phones were used by Duron on the day of the drug transaction, and phone records showed that he made more than 80 telephone calls with Perdomo and Saavedra–Maldonado while the transaction was in progress.¹

This evidence, construed in favor of the jury's verdict, clearly supported the convictions. See, e.g., Hernandez–Garcia v. State, 322 Ga.App. 455, 461–462(3), 745 S.E.2d 706 (2013), and Aguilera v. State, 320 Ga.App. 707, 713(2), 740 S.E.2d 644 (2013), involving a virtually identical scheme.

Case No. A13A1575

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