FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and BRANCH, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 4, 2013
In the Court of Appeals of Georgia A13A1467. COOPER v. THE STATE.
ELLINGTON, Presiding Judge.
Following a bench trial, a Bulloch County judge found DeMarco Montez
Cooper guilty of four counts of selling cocaine, OCGA § 16-13-30 (b) (Counts 1, 4,
7, and 9); five counts of distributing cocaine within 1,000 feet of a public housing
project, OCGA § 16-13-32.5 (b) (Counts 2, 5, 8, 10, and 14); three counts of using
a communication facility in committing or facilitating the commission of a felony
(sale of cocaine), OCGA § 16-13-32.3 (a) (Counts 3, 6, and 11); possession of
cocaine with intent to distribute, OCGA § 16-13-30 (b) (Count 12); and possession
of a counterfeit controlled substance, OCGA § 16-13-30 (i) (1) (Count 13). Cooper
appeals from the order denying his motion for a new trial, challenging the sufficiency
of the evidence and contending that the trial court erred in conducting a bench trial without first determining whether he had waived his right to a jury trial. Cooper also
moved this Court to remand his case so that he could pursue a claim of ineffective
assistance of trial counsel. For the following reasons, we vacate the judgments of
conviction and remand to the trial court for proceedings consistent with this opinion.
1. Cooper contends that the trial court erred in conducting a bench trial without
first determining that he voluntarily, knowingly, and intelligently waived his right to
a jury trial.
A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.
(Citation and punctuation omitted.) Whitaker v. State, 256 Ga. App. 436, 439 (2) (568
SE2d 594) (2002). “The question of whether a defendant is capable or incapable of
making a knowing and intelligent waiver of his rights is to be answered by the trial
judge and will be accepted by this court unless such determination is clearly
erroneous.” (Citations and punctuation omitted.) Id. In this case, Cooper questions
2 the validity of the waiver for the first time on appeal. “Generally, claims of error not
objected to in the trial court may not be raised for the first time on appeal, except for
certain constitutional issues, among which is whether the defendant waived his
constitutional right to a jury trial.” (Footnote omitted.) Whitaker v. State, 244 Ga.
App. 241, 243 (4) (568 SE2d 594) (2002).
Because the State has not yet had the opportunity to rebut Cooper’s claim with
extrinsic evidence showing that he intelligently and knowingly waived his right to a
jury trial, such as the testimony of or an affidavit from Cooper’s attorney, the record
before us is incomplete. See Jackson v. State, 253 Ga. App. 559, 560 (560 SE2d 62)
(2002). Cooper’s convictions are hereby vacated, and the case is remanded to the trial
court for an evidentiary hearing on this issue. See Rosser v. State, 312 Ga. App. 240,
241 (2) (718 SE2d 310) (2011); Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d
864) (1991). In the event the trial court determines from the evidence adduced at this
hearing that Cooper did make such a waiver and that he personally participated in the
decision, then the convictions and sentences may be reinstated, to the extent not
otherwise barred,1 and Cooper will be entitled to file a new appeal directed to this
1 See Division 2, infra.
3 issue alone. Whitaker v. State, 244 Ga. App. at 244 (4); Lawal v. State, 201 Ga. App.
at 798 (2).
2. In his remaining claims of error, Cooper challenges the sufficiency of the
evidence supporting his convictions. Although we have vacated his convictions for
the reasons explained in Division 1, supra, we address Cooper’s sufficiency argument
because the trial court would not be authorized to reinstate any conviction the State
failed to prove.2
When an appellate court reviews 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.
2 See Whitaker v. State, 244 Ga. App. 242 (1). See, generally, Williams v. State, 258 Ga. 305 (1) (369 SE2d 232) (1988) (“The primary purpose underlying the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction.”) (citations omitted).
4 (Citation, footnote, and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319
(III) (B) (99 SCt 2781) (61 LE2d 560) (1979). So viewed, the record reveals the
following.
An officer with the Statesboro Police Department used a confidential informant
to make four controlled buys of cocaine from “Tez,” who resided in apartment H4 of
the Fox Ridge Apartment complex, a low-income housing project in Bulloch County.
The police recorded the conversations between the informant and the seller, including
the calls to arrange the sales of cocaine and the conversations that occurred during the
hand-to-hand transactions, and the State introduced the recordings into evidence.
After obtaining the suspected cocaine, the police determined that Cooper resided in
apartment H4 from a list maintained by the apartment complex. Thereafter, the police
obtained a search warrant, searched the apartment, and found additional suspected
cocaine, a single pill of suspected MDMA3, and the currency used in the controlled
buys. The informant told the police, and he later testified at trial, that Cooper sold the
cocaine to him. Cooper admitted that he used cocaine and that he had possessed the
cocaine recovered from the informant and his apartment, but he denied that he had
sold it to the informant.
Free access — add to your briefcase to read the full text and ask questions with AI
FIRST DIVISION PHIPPS, C. J., ELLINGTON, P. J., and BRANCH, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 4, 2013
In the Court of Appeals of Georgia A13A1467. COOPER v. THE STATE.
ELLINGTON, Presiding Judge.
Following a bench trial, a Bulloch County judge found DeMarco Montez
Cooper guilty of four counts of selling cocaine, OCGA § 16-13-30 (b) (Counts 1, 4,
7, and 9); five counts of distributing cocaine within 1,000 feet of a public housing
project, OCGA § 16-13-32.5 (b) (Counts 2, 5, 8, 10, and 14); three counts of using
a communication facility in committing or facilitating the commission of a felony
(sale of cocaine), OCGA § 16-13-32.3 (a) (Counts 3, 6, and 11); possession of
cocaine with intent to distribute, OCGA § 16-13-30 (b) (Count 12); and possession
of a counterfeit controlled substance, OCGA § 16-13-30 (i) (1) (Count 13). Cooper
appeals from the order denying his motion for a new trial, challenging the sufficiency
of the evidence and contending that the trial court erred in conducting a bench trial without first determining whether he had waived his right to a jury trial. Cooper also
moved this Court to remand his case so that he could pursue a claim of ineffective
assistance of trial counsel. For the following reasons, we vacate the judgments of
conviction and remand to the trial court for proceedings consistent with this opinion.
1. Cooper contends that the trial court erred in conducting a bench trial without
first determining that he voluntarily, knowingly, and intelligently waived his right to
a jury trial.
A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.
(Citation and punctuation omitted.) Whitaker v. State, 256 Ga. App. 436, 439 (2) (568
SE2d 594) (2002). “The question of whether a defendant is capable or incapable of
making a knowing and intelligent waiver of his rights is to be answered by the trial
judge and will be accepted by this court unless such determination is clearly
erroneous.” (Citations and punctuation omitted.) Id. In this case, Cooper questions
2 the validity of the waiver for the first time on appeal. “Generally, claims of error not
objected to in the trial court may not be raised for the first time on appeal, except for
certain constitutional issues, among which is whether the defendant waived his
constitutional right to a jury trial.” (Footnote omitted.) Whitaker v. State, 244 Ga.
App. 241, 243 (4) (568 SE2d 594) (2002).
Because the State has not yet had the opportunity to rebut Cooper’s claim with
extrinsic evidence showing that he intelligently and knowingly waived his right to a
jury trial, such as the testimony of or an affidavit from Cooper’s attorney, the record
before us is incomplete. See Jackson v. State, 253 Ga. App. 559, 560 (560 SE2d 62)
(2002). Cooper’s convictions are hereby vacated, and the case is remanded to the trial
court for an evidentiary hearing on this issue. See Rosser v. State, 312 Ga. App. 240,
241 (2) (718 SE2d 310) (2011); Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d
864) (1991). In the event the trial court determines from the evidence adduced at this
hearing that Cooper did make such a waiver and that he personally participated in the
decision, then the convictions and sentences may be reinstated, to the extent not
otherwise barred,1 and Cooper will be entitled to file a new appeal directed to this
1 See Division 2, infra.
3 issue alone. Whitaker v. State, 244 Ga. App. at 244 (4); Lawal v. State, 201 Ga. App.
at 798 (2).
2. In his remaining claims of error, Cooper challenges the sufficiency of the
evidence supporting his convictions. Although we have vacated his convictions for
the reasons explained in Division 1, supra, we address Cooper’s sufficiency argument
because the trial court would not be authorized to reinstate any conviction the State
failed to prove.2
When an appellate court reviews 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.
2 See Whitaker v. State, 244 Ga. App. 242 (1). See, generally, Williams v. State, 258 Ga. 305 (1) (369 SE2d 232) (1988) (“The primary purpose underlying the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction.”) (citations omitted).
4 (Citation, footnote, and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319
(III) (B) (99 SCt 2781) (61 LE2d 560) (1979). So viewed, the record reveals the
following.
An officer with the Statesboro Police Department used a confidential informant
to make four controlled buys of cocaine from “Tez,” who resided in apartment H4 of
the Fox Ridge Apartment complex, a low-income housing project in Bulloch County.
The police recorded the conversations between the informant and the seller, including
the calls to arrange the sales of cocaine and the conversations that occurred during the
hand-to-hand transactions, and the State introduced the recordings into evidence.
After obtaining the suspected cocaine, the police determined that Cooper resided in
apartment H4 from a list maintained by the apartment complex. Thereafter, the police
obtained a search warrant, searched the apartment, and found additional suspected
cocaine, a single pill of suspected MDMA3, and the currency used in the controlled
buys. The informant told the police, and he later testified at trial, that Cooper sold the
cocaine to him. Cooper admitted that he used cocaine and that he had possessed the
cocaine recovered from the informant and his apartment, but he denied that he had
sold it to the informant. He testified that he and the informant, who is his cousin,
3 See footnote 6, infra.
5 possessed the cocaine jointly and would “get high together.” Finally, a forensic
scientist with the Georgia Bureau of Investigation testified that the drugs Cooper sold
to the informant tested positive for cocaine and that the drugs recovered from
Cooper’s apartment tested positive for cocaine, except for the pill, which tested
positive for piperazine.
(a) Cooper contends that the evidence adduced was insufficient to support his
convictions because the state relied on the hearsay testimony of a forensic scientist
who did not personally conduct the chemical tests that identified the drugs Cooper
sold or possessed. Cooper argues that admitting the “surrogate testimony” of the
forensic scientist in this case violated his right to confront the witnesses against him.4
However, even assuming that the forensic chemist’s testimony was inadmissible, the
State nevertheless submitted sufficient evidence establishing that the drugs recovered,
with the exception of the pill, constituted cocaine.
Both the informant and Cooper made admissions to the police and during their
testimony at trial that the white powdery substance sold by Cooper or recovered from
4 See Disharoon v. State, 291 Ga. 45 (727 SE2d 465) (2012) (“‘Surrogate testimony’ of a ‘scientist who did not sign a certification or perform or observe the test reported in the certification violates the Confrontation Clause.’” (citation omitted); Leger v. State, 291 Ga. 584, 592-593 (5) (732 SE2d 53) (2012) (accord); Estrada v. State, 319 Ga. App. 762, 765-766 (3) (738 SE2d 344) (2013) (accord).
6 Cooper’s apartment was cocaine, and Cooper interposed no objection to this
testimony. The testimony of the police, the informant, and Cooper was sufficient to
allow a rational trier of fact to find beyond a reasonable doubt that the substance sold
or possessed by Cooper, as alleged in Counts 1, 3, 4, 6, 7, 9, 11, and 12, was cocaine.
See, e.g., Willingham v. State, 296 Ga. App. 89, 90-91 (673 SE2d 606) (2009) (expert
testimony as to the chemical composition of the contraband is not always required;
so long as the State presents, without objection, the testimony by one with personal
knowledge establishing that the substance is what the state claims, then the evidence
is sufficient); Burroughs v. State, 190 Ga. App. 467, 470 (1) (b) (379 SE2d 175)
(1989) (accord). See also Gooch v. State, 249 Ga. App. 643, 645 (1) (549 SE2d 724)
(2001) (witnesses who were involved in the drug transaction and who had used
methamphetamine on multiple prior occasions testified that the substance at issue was
methamphetamine).
(b) However, the evidence is insufficient to establish that Cooper possessed a
counterfeit drug, as alleged in Count 13 of the indictment.5
5 Cooper was indicted in Count 13 for possessing “MDMA,” which was not defined in the indictment with reference to any specific chemical formula. Before trial, the court allowed the State to amend the indictment (without objection) to reflect that it was pursuing, with reference to Count 13, the “lesser-included” offense of felony possession of a counterfeit drug. We do not address whether the State’s
7 OCGA § 16-13-30 (i) (1) provides that “it is unlawful for any person to possess
. . . a counterfeit substance.” The definition of a “counterfeit substance” applicable
here is “[a] controlled substance or [a] noncontrolled substance, which is held out to
be a controlled substance or marijuana, whether in a container or not which does not
bear a label which accurately or truthfully identifies the substance contained therein,”
or “[a]ny substance, whether in a container or not, which bears a label falsely
identifying the contents as a controlled substance.” OCGA § 16-13-21 (6) (B), (C).
The State presented the testimony of an officer who opined that the pill found
in Cooper’s apartment appeared to be suspected MDMA. The State’s forensic chemist
testified that the pill contained piperazine. The State, however, failed to adduce any
evidence establishing that the pill bore markings that misidentified or misrepresented
it as being MDMA.6 Because the record contains no evidence from which the
amendment to the indictment was valid because Cooper has not alleged such as error. 6 MDMA is a Schedule I controlled substance denominated “3, 4-Methylenedioxymethamphetamine.” OCGA § 16-13-25 (3) (Z). MDMA is often referred to as “ecstacy.” See Jackson v. State, 314 Ga. App. 272 (724 SE2d 9) (2012). Piperazine is a Schedule I controlled substance, see OCGA § 16-13-25 (8), similar to ecstacy, sometimes referred to as “synthetic ecstacy,” and which has been confused with or treated as ecstacy by law enforcement. See State v. Rogers, 319 Ga. App. 834, 835, n. 3 (738 SE2d 667) (2013) (“[The officer] visually identified the pills as ecstasy, the crime lab determined that the pills were actually 1-(3-trifluoromethylphenyl) piperazine, which is a controlled substance similar to
8 factfinder could conclude that the pill was a counterfeit controlled substance as
defined in the statute, this conviction is not supported by sufficient evidence.
(c) Cooper contends the evidence adduced was insufficient to establish that he
sold drugs within 1,000 feet of a public housing project. We agree. The State failed
to offer any evidence establishing that the Fox Ridge Apartment complex was owned
or operated by a public housing authority, an essential element of the offense.7
Quarterman v. State, 305 Ga. App. 686, 688-690 (1) (a) (700 SE2d 674) (2010) (the
State failed to establish the required public housing project element of the offense).
ecstasy.”); Farley v. State, 317 Ga. App. 628 (732 SE2d 131) (2012) (Undercover agents purchased purported “ecstacy” pills which subsequently tested positive for the presence of piperazine.). 7 OCGA § 16-13-32.5 (b) provides that
[i]t shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project, unless the manufacture, distribution, or dispensing is otherwise allowed by law. For the purposes of this Code section, the term “housing project” means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.
9 Consequently, Cooper’s convictions on Counts 2, 5, 8, 10, and 14 are not supported
by sufficient evidence.
3. Cooper’s current appellate counsel filed with this Court a “Motion for
Remand Without Prejudice” to “allow development of the record regarding” a claim
of ineffective assistance of trial counsel.8 Because we are remanding this case for the
reasons explained in Division 1, supra, the motion is hereby denied as moot.
It is well settled that “a defendant must raise all allegations of ineffective
assistance of counsel at the earliest practicable moment, and any allegation not raised
[at that time] is deemed waived.” Billings v. State, 293 Ga. 99, 102 (2) (745 SE2d
583) (2013). See also Simmons v. State, 281 Ga. 437, 438 (2) (637 SE2d 709) (2006)
(accord); Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986) (accord).
The record shows that Cooper’s trial counsel filed a motion for new trial. After
the trial court appointed new attorneys to represent Cooper in post-conviction
proceedings, his new appellate counsel did not raise a claim of ineffective assistance
8 We note that Cooper has not asserted a claim of ineffective assistance of trial counsel in his appellate brief nor has he explained how his trial counsel was allegedly deficient in his motion to remand. In order to address a motion to remand on the ground of ineffective assistance of counsel, it is imperative that we know the basis for the claim so that we may assess whether the claim is one that involves matters outside of the record and, thus, is a claim that should be remanded for further proceedings. See Wilson v. State, 277 Ga. 195, 199-200 (586 SE2d 669) (2003).
10 of trial counsel either in an amendment to Cooper’s motion for new trial or at the
hearing on that motion. See Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994) (New
counsel could have amended an existing motion for a new trial to raise a claim of
ineffective assistance of counsel, but because he elected not to do so, the claim was
waived.); Alford v. State, 293 Ga. App. 512, 515-516 (4) (667 SE2d 680) (2008)
(accord).
We note that, although Cooper’s trial counsel and his appellate counsel were
each public defenders, they were employed by the Office of the Public Defender for
two separate judicial circuits, the Ogeechee Judicial Circuit and the Augusta Judicial
Circuit, respectively. Accordingly, this is not a case in which Cooper’s waiver may
be excused by the failure of a succession of attorneys from the same public defender’s
office to raise the issue of the ineffective assistance of trial counsel. Cf. Ryan v.
Thomas, 261 Ga. 661, 662 (409 SE2d 507) (1991) (“[A]ttorneys in a public
defender’s office are to be treated as members of a law firm for the purposes of
raising claims of ineffective assistance of counsel. As such[,] different attorneys from
the same public defender’s office are not to be considered ‘new’ counsel for the
purpose of raising ineffective assistance claims . . . . Therefore, a defendant’s right
to raise such a claim may not be barred by the failure of a succession of attorneys
11 from the same public defender’s office to raise it.”).9 Consequently, although this case
is remanded for other reasons, the trial court is not required to give Cooper an
opportunity to develop evidence regarding any belatedly-asserted claim of ineffective
assistance of trial counsel. Billings v. State, 293 Ga. at 102-103 (2); Bailey v. State,
264 Ga. at 300.
Judgment vacated and case remanded with direction. Phipps, C. J., and
Branch, J., concur.
9 “[C]ircuit public defenders working in the circuit public defender office of the same judicial circuit are akin to lawyers working in the same unit of a legal services organization and each judicial circuit’s public defender’s office is a ‘firm’ as the term is used [in Rule 1.10 (a), concerning conflicts of interest.]” (Footnote omitted.) In re Formal Advisory Opinion 10-1, 293 Ga. 397, 398 (1) (744 SE2d 798) (2013) See also Hung v. State, 282 Ga. 684 (2) (653 SE2d 48) (2007) (attorney who filed motion for new trial was not considered to be “new” counsel for the purpose of an ineffective assistance of counsel claim where he and trial counsel were from the same public defender’s office); Kennebrew v. State, 267 Ga. 400, 402 (2) (480 SE2d 1) (1996) (appellate counsel who was from the same public defender office as appellant’s trial lawyer could not represent appellant on appeal where appellant had an ineffective assistance of counsel claim).