Eliezer Toro v. State

• Court: Court of Appeals of Georgia
• Decided: November 29, 2012
• Docket: A12A1569
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

November 29, 2012

In the Court of Appeals of Georgia A12A1569. TORO v. THE STATE. AD-060C

ADAMS, Judge.

On October 28, 2005, an indictment was returned charging, inter alia, Elierzer

Toro and Brent Smith with trafficking in methamphetamine, possession of MDMA,

misdemeanor possession of marijuana (less than one ounce), and possession of a

firearm in the commission of a felony; Toro was also charged with theft by receiving

stolen property (Indictment Number 05SC36729). A short time later, on November

4, 2005, an indictment was returned charging, inter alia, Toro and Jennifer Klein with

trafficking in methamphetamine (Indictment Number 05SC36979). The trial court

granted the State’s motion to join the indictments for trial, and a jury subsequently

convicted Toro of all charged offenses. Toro filed motions for new trial and to vacate his sentence, and the trial court denied both motions but modified Toro’s sentence.

Toro appeals, challenging the trial court’s denial of both motions.

The evidence adduced at trial, construed to support the verdict as we must on

appeal, shows the following: Toro was first arrested on October 14, 2005. Tim

Brown, who at that time was working as an undercover officer with the Atlanta Police

Department, testified that Officer Willie Robinson and he were conducting

surveillance in an unmarked car in the Lenox Mall parking lot after being advised by

a police investigator that two “suspects” were coming there to meet with a victim who

had reported his car stolen. The victim was also parked in the Lenox lot, and Brown

observed two men, subsequently identified as Toro and Brent Smith, arrive in a

Honda Accord with a “drive out tag” on the back. Toro exited the car and exchanged

words with the victim, and then Toro got back in the Honda and drove out of the

parking lot. Brown and Robinson followed the Honda, which was stopped by a

marked police car. Toro and Smith were taken into custody.

At the time of his arrest Toro had a gun holster on the right side of his belt, and

Brown identified a gun holster introduced into evidence at trial as the same one Toro

was wearing that day. Brown testified that a loaded Hi-Point 9mm semiautomatic

pistol, which fit “perfectly” into the holster Toro was wearing, was found inside the

2 vehicle. Additionally, an electronic scale and crystal methamphetamine were found

inside a black bag located in the car’s middle console, and MDMA, or ecstasy, a

small amount of marijuana, a digital scale, small plastic baggies and a radio scanner

were found either inside the black bag or scattered throughout the car. Various keys,

which appeared to be either vehicle keys or house keys, were also found in the car.

Brent Smith, who was arrested and charged along with Toro, testified next.

According to Smith, he had been “hanging out” with Toro and other

methamphetamine (“meth”) users “off and on” for about two weeks. Smith testified

that Toro had driven him back to his motel the night before the incident here, and at

that time Toro was driving a Honda Accord which he assumed was stolen because it

did not have an ignition. Toro came back to the motel to pick up Smith the next

morning, in what appeared to Smith to be a different Honda because it did have an

ignition. Smith also said that Toro brought him methamphetamine and ecstasy, which

they used before they left the motel. They then went to see someone about a stolen

Mercedes automobile, which he and Toro were planning to give back to the owner

for a reward. Smith, who acknowledged that his memory of the day was incomplete

because of his drug use, testified that he thought they stopped to let Toro speak to the

owners of the Mercedes, and the next thing he knew they were surrounded by police.

3 Smith also identified the gun police recovered from the Honda as being the same one

that Toro “always had” with him and testified that the holster that was introduced at

trial was the same one Toro was wearing when he was arrested. Smith also said that

Toro had the gun in the holster earlier in the day and that Toro usually carried around

the black case that was found in the car.

On cross-examination, Smith acknowledged that he had been indicted for the

same crimes as Toro, except that he was not charged with theft by receiving; that

those charges were still pending against him; and that he was facing considerable jail

time because of those charges. However, he denied that his case would be dead

docketed because of the testimony he gave against Toro; he said he had no idea what

would happen to his case after Toro’s trial.

Officer Willie Robinson testified concerning the surveillance he conducted

with Brown that led to Toro and Smith’s arrest. According to Robinson, the Honda

that Toro was driving that day was “packed with . . . stuff,” as if someone had been

living in it, and that drugs and a gun were also found in the car. Robinson also

testified that a tag search revealed that the car had been stolen.

The owner of the Honda testified that on October 12, 2005, she had driven her

1996 Honda Accord to choir practice and that she had parked her vehicle on the

4 bottom level of the deck of her church parking garage because she was eight months

pregnant. When she returned to the garage after practice, she discovered her car was

gone. She reported the theft, and several days later, on October 14, she received a call

from police that her car had been located. When she went to retrieve her car, she

discovered that her key would open the door but would not start the car. However, a

key found in the car when Toro was apprehended started the car, but that key would

not open the door. She said that the metal tag she had on the car had been replaced

with a paper tag, but the officers found her metal tag in the car and returned it to her.

She also said that the car was full of someone else’s personal belongings, that her

stereo had been removed and replaced with one that did not exactly fit, and that the

car had been damaged in various ways. And many of the items she had in the car,

including equipment which she had received for the child she was expecting, were

missing.

Toro was again arrested on October 28, 2005. Officer Robert Blauvelt testified

that a little after 10:10 a.m. on that date, he was dispatched to a Ramada Inn on

Piedmont Road in Atlanta, Georgia in response to a call concerning a suspicious

person or persons sleeping in a car. Blauvelt, an officer-in- training, and another

officer, Craig Faircloth, responded to the call. When they approached the car, they

5 observed a female, subsequently identified as Jennifer Klein, and a male,

subsequently identified as Toro, sleeping in the back seat of the car. Toro was

wearing what appeared to be a bullet proof vest and a holster. During a search of the

car, officers found a “fanny pack” containing what was subsequently identified as

methamphetamine located in between Toro and Klein in the back seat. Both were

subsequently charged with trafficking in methamphetamine. Toro also had $470 in

cash in his left pants pocket. Toro denied knowing the money was in his pocket, and

denied owning the fanny pack where the drugs were found and denied owning the

drugs. Klein and the owner of the car, who was staying at the hotel, also denied they

owned the drugs.

Klein testified that at the time she was arrested, she was enrolled in college in

Alabama and that she had come to the Atlanta area to visit for the weekend, but she

never went back to school. Klein had been staying at a fellow meth user’s house,

along with a number of other “squatters,” but the owner of the house had gotten tired

of the squatters and had given her money to rent a hotel room. Klein and several

others went to the Ramada on Piedmont Road, and she got a room in her name. She

testified she got very high while she was there and thus could not remember all the

6 details of what happened next.1 She thought Toro, whom Klein said she had met only

about four times before that day, came to meet someone at the motel, and most of

those in the room, including Toro, left early that morning to give someone a ride to

work. Klein said she did not remember much about the ride, except that she and Toro

were riding in the back seat and that at some point she fell asleep. She did not

remember anything else until police woke her up.

Klein also testified that the trafficking charge was still pending against her, and

she denied that she had been offered anything in connection with those charges in

exchange for her testimony. She also testified that she had never sold meth and that

the meth culture involved users sharing the drug more or less freely, and that someone

would normally give her meth almost every day and that she “hardly ever” had to buy

the drug. Klein testified again on cross-examination that she did not have an

agreement with the State in exchange for her testimony, but she had spoken to her

lawyer about trying to go to drug court or to have her charge dismissed.

Other evidence will be set forth below as necessary to address Toro’s specific

claims of error.

1 Klein testified she could not remember exactly how long she had been without sleep, but she thought it was about seven days.

7 1. Toro first challenges the sufficiency of the evidence to support his

conviction for theft by receiving a stolen automobile, arguing that the evidence was

insufficient to show that he knew that the vehicle was stolen. See OCGA § 16-8-7 (a).

However, contrary to Toro’s arguments on appeal, the evidence recited above, as well

as other evidence presented at trial, was more than sufficient to show that Toro had

the requisite knowledge. This enumeration thus provides no basis for reversal. Green

v. State, 277 Ga. App. 867, 869 (1) (627 SE2d 914) (2006).

2. Toro next contends that his conviction on the trafficking in

methamphetamine charge in Case No. 05SC36979 was void and should have been

vacated because of irregularities in the composition of the grand jury.2 However, the

record shows that Toro did not file his motion to vacate until April 8, 2011, which

was almost four years after he was tried and convicted of this charge. Thus, his

challenge to the composition of the grand jury was clearly untimely, and we will not

consider the merits of his claim. See Dempsey v. State, 290 Ga. 763, 766 (1) (727

SE2d 670) (2012), explaining Langlands v. State, 282 Ga. 103,107 (3) (646 SE2d

2 There is nothing in the record to suggest that the grand jurors were not properly qualified, sworn or charged; rather, Toro’s challenge pertains to a procedure established by the Fulton County Superior Courts to use “reserve” grand jurors when available and needed.

8 253) (2007). See also Colon v. State, 275 Ga. App. 73, 78-79 (3) (619 SE2d 773)

(2005).

3. Lastly, Toro cites several instances of alleged ineffective assistance of trial

counsel. To prevail on this claim, Toro must show both that his counsel’s

performance was deficient and that this deficient performance prejudiced his defense.

Boseman v. State, 283 Ga. 355, 358 (3) (659 SE2d 364) (2008), citing Strickland v.

Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). As recently

emphasized by our Supreme Court, quoting Harrington v. Richter, ___ U. S. ___,

(IV) (B) (131 SC 770, 178 LE2d 624) (2011), to show prejudice, “[t]he likelihood of

a different result must be substantial, not just conceivable. (Cit).” Hill v. State, 291

Ga. 160, 164 (4) (728 SE2d 225) (2012).

(a) (i) Toro first contends that his trial counsel was ineffective when she failed

to object or move for a mistrial when Officer Robinson testified that he arrested Toro

and Smith on October 14, 2005 for trafficking in methamphetamine, possession of a

stolen car, and a “convicted felon with a weapon.” Toro argues that because Smith

had testified prior to Robinson’s testimony that he had not had any legal problems

before his arrest on these charges, this testimony necessarily implied that Toro was

the convicted felon.

9 At the motion for new trial hearing, Toro’s trial counsel testified that she was

surprised she had not objected to this testimony and it was not part of her planned

strategy. It is true that “[g]enerally, the character of the parties is irrelevant and no

evidence of a criminal defendant’s general bad character or prior convictions shall be

admissible unless and until the defendant shall have first put his character in issue.”

(Citation, punctuation and footnote omitted.) Carrie v. State, 298 Ga. App. 55, 56 (1)

(679 SE2d 30) (2009). But this Court also has held that passing, implied or indirect

references to incarcerations or prior convictions do not place an accused’s character

in evidence, especially if the witness has not been specifically instructed to avoid

such references. Id. at 59 (e); See Rayshad v. State, 295 Ga. App. 29, 34 (2) (a) (670

SE2d 849) (2008), and citations therein, at n. 22. See also Jackson v. State, 302 Ga.

App. 412, 415 (1) (691 SE2d 553) (2010). In this case the reference was passing and

equivocal–Robinson testified that “I think we put on it trafficking in meth, stolen

vehicle, [and] convicted felon with a weapon.” Thus, Toro cannot establish that this

testimony impermissibly placed his character in evidence.

Moreover, even if trial counsel performed deficiently by failing to object to this

testimony, reversal is not necessarily required. “To satisfy the prejudice prong, [Toro]

must show a reasonable probability that, but for counsel’s unprofessional errors, the

10 result of the proceedings would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” (Punctuation and

citation omitted.) Rayshad v. State, 295 Ga. App. at 34 (2). Toro was not actually

charged with possession of a firearm by a convicted felon, and no other direct

references to his prior convictions occurred during trial. Further, the other arresting

officer testified that when Toro was arrested, he was charged with possession of a

firearm, and made no reference to Toro being a convicted felon and being charged

accordingly. And, having carefully reviewed the evidence here, it does not appear

with any reasonable probability that but for counsel’s alleged deficient performance,

the outcome at trial would have been different. Kimble v. State, 301 Ga. App. 237,

250 (7) (e) (687 SE2d 242) (2009).

(ii) Toro also contends that his trial counsel was ineffective for failing to object

or move for a mistrial when Smith’s attorney stated, in the presence of the jury, that

the State had approached him about diverting Smith’s case to drug court or a similar

program because he did not have any priors. Toro argues that this testimony, when

coupled with Klein’s testimony that she was attempting to get similar lenient

treatment, led to the “clear implication” that Toro was not offered the same treatment

because he had prior offenses.

11 When questioned at the motion hearing, trial counsel once again testified that

she was surprised she failed to object and that her failure was not planned trial

strategy. However, for the reasons discussed above, we do not believe any implied

reference to Toro’s prior criminal history from such testimony amounted to the

improper introduction of bad character evidence. In fact, Klein simply testified that

she hoped to have her case diverted to drug court; unlike Smith, no evidence was

introduced that she had been approached by the State with a specific “deal” because

she had no prior criminal history. Thus, Toro has failed to show his counsel

performed deficiently by failing to interpose an objection or move for a mistrial on

this basis.

(b) Toro also contends that his trial counsel was ineffective because she failed

to object or move for a mistrial when Klein testified on redirect examination that a

meth user named Karen Lemax told her that Toro had stolen the car another user had

loaned her and that he had also stolen methamphetamine from her. The transcript

shows that the prosecuting attorney asked two more questions after this testimony--to

clarify which car was stolen and to ask the quantity of drugs allegedly stolen, and at

that point defense counsel interposed a hearsay objection. The trial court sustained

the objection, and the prosecuting attorney pursued another line of questioning. Trial

12 counsel testified that her failure to object immediately was an oversight on her part

and not part of her trial strategy. However, inasmuch as the transcript reveals that the

two intervening questions only clarified the previous testimony and that trial counsel

then, in fact, posed a successful hearsay objection, after which no additional

references to this incident occurred, we find that Toro has failed to demonstrate either

deficient performance or prejudice from his counsel’s initial failure to object.

Moreover, even assuming that trial counsel performed deficiently in each

instance where Toro contends that she should have objected or moved for a mistrial,

and even considering the cumulative effect of each passing or indirect reference to

Toro’s prior criminal history or other crimes, we do not believe that it is reasonably

probable that any resulting prejudice led to a different outcome.

(c) Lastly, Toro contends that his first appointed counsel was ineffective

because counsel failed to adequately investigate and discuss the benefits of accepting

the State’s initial plea bargain offer of 15 years with no recidivist treatment.

Specifically, Toro argues that counsel did not explain “Georgia’s parole system” and

that if he had a better understanding of that system he would have taken the original

offer. Further, Toro testified that by the time he better understood Georgia’s parole

13 system the State was only willing to offer him a deal that included recidivist

sentencing.

“Objective professional standards dictate that a defendant, absent extenuating

circumstances, is entitled to be told that an offer to plead guilty has been made and

to be advised of the consequences of the choices confronting him. For counsel to do

otherwise amounts to less than reasonably professional assistance.” (Citation

omitted.) Mann v. State, 240 Ga. App. 809, 810 (1) (b) (524 SE2d 763) (1999). But

there is no constitutional requirement that a defendant be informed of his parole

eligibility prior to accepting, or rejecting, the State’s plea offer. King v. State, 246 Ga.

App. 100, 102 (3) (539 SE2d 614) (2000). “Eligibility or ineligibility for parole is not

a consequence of a plea of guilty, but rather is a matter of legislative grace or a

consequence of the withholding of legislative grace. . . . There is no constitutional

requirement that a defendant be advised of such collateral consequences for his

decision to reject or accept a plea bargain to be valid.” (Citation and punctuation

omitted.) Id.

However, our Supreme Court has distinguished between counsel’s failure to

inform a defendant of the collateral consequences of accepting or rejecting a guilty

plea , such as eligibility for parole, and counsel’s affirmatively misrepresenting those

14 consequences. Rollins v. State, 277 Ga. 488, 489 (1) (591 SE2d 796) (2004); see also

Stinson v. State, 286 Ga. 499, 500 (1) (b) (689 SE2d 323) (2010); Smith v. Williams,

277 Ga. 778, 778-779 (1) (596 SE2d 112) (2004). “Should . . . counsel make an

affirmative misrepresentation about the collateral consequences of a plea, such as

parole eligibility, the misrepresentation may form the basis of an ineffective

assistance of counsel claim.” (Citations omitted.) Crowder v. State, 288 Ga. 739 (707

SE2d 78) (2011).

Toro has not contended that his first appointed counsel affirmatively

misrepresented his eligibility, or ineligibility for parole, but rather he asserts that his

counsel did not sufficiently explain Georgia’s parole system. Thus, Toro has failed

to show that his counsel rendered deficient performance, and the trial court did not

err by refusing to grant Toro a new trial on the basis that his trial counsel was

ineffective for this reason. Mann v. State, 240 Ga. App. at 810 (1) (b).

Judgment affirmed. Barnes, P. J., and McFadden, J., concur.