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Court of Appeals of Georgia.


No. A09A1658.

Decided: February 10, 2010

Nicki Noel Vaughan, Adam Sean Levin, Richard Joseph Silver, for Cabrera. Lee Darragh, John G. Wilbanks Jr., for The State.

Rodolfo Cabrera appeals from his conviction for trafficking in methamphetamine. He asserts that insufficient evidence supports his conviction and that he received ineffective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the record shows that a confidential informant arranged for a person named Arroyo to deliver two pounds of methamphetamine at a location in Hall County. Police officers set up surveillance at the delivery location and observed a sport utility vehicle park next to the confidential informant's vehicle. Cabrera was the driver, and Arroyo was seated in the front passenger seat. After the confidential informant identified Arroyo, the police detained both Arroyo and Cabrera. Two dogs trained to detect the odor of drugs separately showed “a strong odor response” to the center console between where Arroyo and Cabrera had been sitting, but the officers did not find any drugs in it. An officer “standing at the back area of the vehicle” saw “a crack on the left-hand side of the vehicle on the interior in the storage area on the plastic on the side of the vehicle.” Another officer went “to the back area,” and after the plastic in the cargo area was pulled out, “reached in and recovered a bag which contained two Tupperware containers which contained ․ approximate[ly] two pounds of methamphetamine” worth $89,600. The registered owner of the sport utility vehicle lived at the same address as Cabrera. The police did not find any contraband on Cabrera's person.

After entering into a guilty plea agreement with Arroyo shortly before Cabrera's trial, the State called Arroyo as a witness. After acknowledging that he had been charged with and pled guilty to trafficking in methamphetamine, Arroyo refused to answer any of the State's questions. The State also asked numerous leading questions about Cabrera's involvement in the sale based upon statements made by Arroyo during his guilty plea hearing, and Arroyo refused to answer any of them. The State also asked whether Arroyo had been threatened since he pled guilty, sought to show that he had been in contact with Cabrera in jail, and tried to confirm that Cabrera found out he was going to testify. Arroyo refused to answer these questions as well. While Cabrera's counsel objected to one of the questions on the ground that it was leading, the trial court overruled it. At the conclusion of its direct examination, the State introduced into evidence, without objection from defense counsel, a transcript from Arroyo's guilty plea hearing. Later in the trial, defense counsel made a continuing witness objection to the plea colloquy being considered by the jury during their deliberations, and the trial court sustained the objection. A review of the transcript does not reveal that the plea colloquy was ever published or read to the jury.

At defense counsel's request, the trial court charged the jury that “[e]vidence does not include ․ the content of any questions asked by the attorneys.” The trial court also reminded the jury before the closing arguments of counsel “that nothing that the attorneys have said or might have implied through their questions is evidence for your consideration․”

1. Cabrera contends that insufficient evidence supports his conviction because he was merely present near hidden contraband. We have excluded from our review of this issue the State's leading questions to Arroyo and the plea colloquy. “[H]earsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.” (Citations and punctuation omitted.) In re Burton, 271 Ga. 491, 494(3) (521 S.E.2d 568) (1999). See also Barksdale v. State, 265 Ga. 9, 10-11(2)(a) (453 S.E.2d 2) (1995) (co-defendant's statement inadmissible hearsay because he refused to answer any questions in court); Lingerfelt v.. State, 235 Ga. 139, 140 (218 S.E.2d 752) (1975) (state cannot introduce co-indictee's statement through leading questions when co-indictee refuses to testify).

The remaining evidence against Cabrera establishes that he did not own the SUV he was driving at the time of his arrest, that the owner lived at the same address as Cabrera, that the methamphetamine was hidden in the rear compartment of the car, that his passenger arranged for the sale of the same quantity of methamphetamine found in the SUV, that the informant talked to Arroyo several times to provide directions while Arroyo was on his way with the methamphetamine, and that Cabrera drove to the location arranged by the informant and Arroyo for pick-up of the methamphetamine.

Where the State is unable to provide evidence of actual possession, it may sustain a conviction based upon evidence of constructive possession. Johnson v. State, 282 Ga.App. 52, 54(1) (637 S.E.2d 775) (2006). Constructive possession requires proof that the accused “knowingly had both the power and the intention at a given time to exercise control over the drugs.” (Citation, punctuation and footnote omitted.) Id. In cases involving contraband found in automobiles, the State is generally entitled to an evidentiary presumption that the owner or driver of the automobile is in constructive possession of the contraband. See Ramirez v. State, 290 Ga.App. 3, 4(1) (658 S.E.2d 790) (2008). That presumption does not apply, however, where there is evidence that persons other than the accused had equal access to the vehicle prior to the discovery of the drugs. Farmer v. State, 152 Ga.App. 792, 796(3) (264 S.E.2d 235) (1979). But “the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.” Ramirez, supra, 290 Ga.App. at 4(1).

In this case, Cabrera was not entitled to the benefit of the equal access rule because the State also indicted Arroyo for possessing the methamphetamine. Id at 4-5(1). Based upon the rebuttable presumption that Cabrera constructively possessed the methamphetamine found in the car in which he was driving and all of the other non-hearsay evidence submitted by the State, we conclude that sufficient evidence supports his conviction. Id.

2. In his remaining enumeration of error, Cabrera asserts he received ineffective assistance of counsel because his lawyer failed to raise a confrontation clause objection when the State began asking leading questions after Arroyo refused to testify. Cabrera asserts his counsel should also have objected to the introduction of his plea colloquy into evidence.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U.S. 668 (104 SC 2052, 80 LE2d 674) (1984) asks whether counsel's performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's deficiency.

(Citation, punctuation and footnote omitted.) Bruce v. State, 252 Ga.App. 494, 498(2) (555 S.E.2d 819) (2001). “[A] court addressing the ineffective assistance issue is not required to ․ address both components if the defendant has made an insufficient showing on one.” Lajara v. State, 263 Ga. 438, 440(3) (435 S.E.2d 600) (1993).

In this case, we are constrained to conclude that Cabrera cannot show a reasonable probability that the outcome would have been different if his trial counsel had made the proper objections to the prosecutor's questioning of Arroyo and to the introduction of Arroyo's guilty plea into evidence. The trial court instructed the jury on two separate occasions that the questions posed by the attorneys should not be considered as evidence. “In the absence of clear evidence to the contrary, qualified jurors, under oath, are presumed to follow the instructions of the trial court.” (Citation, punctuation and footnote omitted.) Wilcox v. State, 297 Ga.App. 201, 204-205(2) (677 S.E.2d 142) (2009). The facts in Wilcox, supra, are similar to those before us now, and in Wilcox, we held: “Considering the trial court's multiple instructions to the jury that it should not consider either the indictment or the opening statement as evidence, [the defendant] has not shown that there is a reasonable probability that the outcome of the trial would have been different if his counsel had objected to the prosecutor's reference to [his co-defendant]'s guilty plea during opening statement or to the unredacted indictment.” (Citations and footnote omitted.) Id. at 205(2). Based upon the similarities between this case and Wilcox, supra, we conclude that Wilcox controls our resolution of this portion of Cabrera's ineffective assistance of counsel claim.

With regard to the plea colloquy, the record fails to show that it was published or read to the jury at the time of its admission, and defense counsel made a successful continuing witness objection that precluded the colloquy from going to the jury room after the close of evidence. As a result, we cannot conclude a reasonable probability exists that exclusion of the plea colloquy would have resulted in a different outcome.

Based on all of the above, we find that the trial court did not clearly err by denying Cabrera's ineffective assistance of counsel claim.

Judgment affirmed.

SMITH, Presiding Judge.

PHIPPS and BERNES, JJ., concur.

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