Justin Kyle Hampton v. State , 338 Ga. App. 864 ( 2016 )

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, 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.
http://www.gaappeals.us/rules
October 13, 2016
In the Court of Appeals of Georgia
A16A1270. HAMPTON v. THE STATE.
BARNES, Presiding Judge.
A jury convicted Justin Kyle Hampton of trafficking in methamphetamine, and
the trial court sentenced him to serve 20 years in prison, followed by 10 years on
probation. He appeals, arguing that the trial court erred in denying his Sixth
Amendment right to confront witnesses against him by refusing to let him call the
State’s informant as a witness to testify regarding Hampton’s defense of entrapment,
on which the trial court charged the jury. Hampton also argues that the trial court
erred in refusing to allow him to see the transcript of the court’s in-camera hearing
with the informant, that his counsel was ineffective, and that the evidence was
insufficient. While we find the evidence sufficient to sustain the judgment of
conviction, for the reasons that follow, the trial court erred in refusing to allow
Hampton to call the known informant as a witness. Because Hampton has shown
harm as well as error, we reverse.
1. On appeal, we review the evidence in the light most favorable to the jury’s
verdict to determine whether the State presented sufficient evidence for a rational trier
of fact to find the defendant guilty of the crimes for which he was convicted. Jackson
v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Hardin v. State, 277
Ga. 242 (1) (587 SE2d 634) (2003). The jury resolves conflicts in the testimony and
weighs and draws reasonable inferences from the evidence, and we will uphold the
verdict if some competent evidence is presented that supports each fact necessary to
make out the State’s case. Lomax v. State, 319 Ga. App. 693 (738 SE2d 152) (2013).
So viewed, the evidence showed that Hampton’s employer asked him to put
together a drug deal for a friend to buy 28 grams of methamphetamine for $1,400.
Hampton’s employer was actually an informant and the informant’s “friend” was an
undercover agent with a local drug task force. Hampton called an acquaintance,
David Thompson, who contacted Dwayne Eddie Collett and reported back to
Hampton that he and Collett could meet him that afternoon in Fayette County to
complete the sale.
2
The case agent who oversaw the informant was not ready that afternoon to
organize a $1,400 “buy-bust” of 28 grams of methamphetamine, and the informant
asked Hampton to reset the sale for the following afternoon. Hampton and his contact
Thompson agreed to meet at a Fayette County convenience store the next day at 2:00
pm. The informant and undercover agent met with the case agent at the sheriff’s
office, and the undercover agent then drove the informant to the store, where they met
Hampton. The three men waited for the sellers in the undercover agent’s truck for
almost three hours before the agent finally decided to call the deal off. The State
secretly recorded the conversation while they waited, and most of that recording was
played for the jury.
About 30 minutes after the undercover agent called off the deal, Hampton
received a phone call from the sellers, who were at the convenience store ready to
make the sale. Hampton called the informant, who contacted the case agent, who
decided there was not enough time to set up a buy-bust and that therefore the
informant did not need to be present. Instead, the case agent decided he had enough
evidence to arrest “the subjects that are involved in this situation.”
While the officers were en route to the convenience store, they passed Hampton
walking back and decided to watch and see if he made contact with the sellers,
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Thompson and Collett. Thompson got out of his vehicle and met Hampton at the front
door of the convenience store, then returned to the driver’s seat while Hampton went
inside. The officers moved in with lights and sirens and Thompson fled on foot, but
was caught a short distance away. In the area where he was caught, the officers found
a bag containing 26.26 grams of methamphetamine.
Collett did not run, and the officers found another bag containing almost 12
grams of methamphetamine in the car, and several small bags of methamphetamine
as well as several alprazolam pills in Collett’s pockets. The officers recovered 5 bags
of methamphetamine at the arrest scene that contained a total of 40.54 grams, the
largest bag being the one found near Thompson. Hampton left the store by the back
door and was arrested a week later.
Collett, Thompson, and Hampton were charged with trafficking in
methamphetamine for possessing more than 28 grams of a mixture containing the
controlled substance. Collett was also charged with possession of alprazolam, and
Thompson was charged with obstruction and hindering law enforcement by refusing
an officer’s lawful commands. As of Hampton’s trial, Collett and Thompson had pled
guilty and were sentenced respectively to 15 years to serve and 15 years to serve 10
in custody. Neither testified at Hampton’s trial.
4
The statute in effect in November 2011, when the crime occurred, former
OCGA § 16-13-31 (e), provided that “[a]ny person who knowingly sells, delivers, or
brings into this state or has possession of 28 grams or more of methamphetamine . .
. as described in Schedule II, in violation of this article commits the felony offense
of trafficking.” The State concedes that Hampton never had actual possession of the
drugs, and Hampton concedes the evidence is sufficient to show he had constructive
possession of the 26.26 grams of methamphetamine discovered near the area where
Thompson was apprehended. Hampton argues that the evidence was not sufficient to
establish he also had constructive possession of the methamphetamine found in
Collett’s car or on his person, and therefore he did not knowingly possess the 28
grams required for a trafficking conviction.
The plain language of the version of former OCGA§ 16-13-31 [e]1 at
issue dictates the conclusion that knowledge of the quantity of the drug
was an element of the crime. It contains express scienter requirements,
that is, knowledge of the nature and amount of the drug and of being in
possession of it. And, certainly where “knowledge” is made part of an
1
The version of the statute applicable to Hampton was effective July 1, 2003
to June 30, 2012. Ga. L. 2003, p. 177, § 4 The statute was amended, effective July 1,
2012 to June 30, 2013, and its present version became effective July 1, 2013. Ga. L.
2012, p. 899, § 3-8/HB 1176; Ga. L. 2013, p. 222, § 4/HB 349.
5
offense, the State has the burden to prove the defendant’s guilty
knowledge.
Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014).
The evidence as outlined above showed that Hampton made phone calls to
Thompson to arrange for the informant to buy 28 grams of methamphetamine.
Thompson and Collett came to the pre-arranged meeting location with more than 28
grams in their possession. While Hampton argues that only 26.26 grams was
delivered to support the sale in which he was involved, the evidence did not demand
such a finding. The jury could also infer that Thompson and Collett brought some of
the additional methamphetamine in case the buyer insisted on delivery of the full
weight for which he had bargained. The evidence as outlined was sufficient for a
rational trier of fact to find Hampton in constructive possession of at least 28 grams
of methamphetamine and therefore guilty of trafficking. Hardin, 277 Ga. at 242 (1).
2. Hampton argues that the trial court denied him his Sixth Amendment right
to confront witnesses against him by not allowing him to call the informant, his
employer, as a witness. His defense was entrapment, and he filed motions before trial
both to reveal the identity of the informant and to compel the State to produce the
informant as a witness. The State represented to the trial court that Hampton’s motion
6
to compel production was encompassed completely by his motion to disclose the
informant’s identity. While the State responds on appeal that the trial court properly
denied Hampton’s motion to compel disclosure of the identity of its “confidential
informant,” Hampton knew the identity of the informant. It was the man who
employed him, who had to be removed from the courtroom twice before the parties
argued Hampton’s motions, and who appeared in an almost-three-hour video
introduced by the State in its case-in chief. The issue is whether Hampton should
have been allowed to call the informant and question him related to Hampton’s
entrapment defense.
The function of law enforcement is the prevention of crime
and the apprehension of criminals. Manifestly, that
function does not include the manufacturing of crime.
Criminal activity is such that stealth and strategy are
necessary weapons in the arsenal of the police officer.
However, a different question is presented when the
criminal design originates with the officials of the
Government, and they implant in the mind of an innocent
person the disposition to commit the alleged offense and
induce its commission in order that they may prosecute.
Sherman v. United States, 356 U.S. 369, 372 (78 SCt 819; 2 LE2d 848) (1958)
(citations and punctuation omitted).
7
“[T]he entrapment defense consists of three distinct elements: (1) the idea for
the commission of the crime must originate with the state agent; (2) the crime must
be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the
defendant must not be predisposed to commit the crime. OCGA § 16-3-25[.]” Keaton
v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984). If a defendant raises the
affirmative defense of entrapment, he must generally admit that the act charged was
committed, unless it is the State that injects evidence of entrapment and the defendant
insists he did not commit the crime charged. Gregoroff v. State, 248 Ga. 667 (285
SE2d 537) (1982) (physician denied having prescribed controlled substances without
a legitimate medical purpose).
Even if a defendant knows or suspects who the informant is, “the public and
the informant have a clear interest which can . . . be protected even when the
informant’s identity has been disclosed or discovered.” State v. Mason, 181 Ga. App.
806, 809 (3) (353 SE2d 915) (1987), overruled in part on other grounds, Watts v.
State, 274 Ga. 373, 375 (1) (552 SE2d 823) (2001). The purpose behind the
government’s privilege to prevent the informant from testifying “is the furtherance
and protection of the public interest in effective law enforcement” by allowing
citizens to remain anonymous and thus encourage them to fulfill their obligation “to
8
communicate their knowledge of the commission of crimes to law-enforcement
officials. . . . But [t]he scope of the privilege is limited by its underlying purpose.”
Roviaro v. United States, 353 U.S. 53, 59-60 (77 SCt 623, 1 LE2d 639) (1957).
Our Supreme Court analyzed the confidential informant disclosure issue under
both Brady v. Maryland, 373 U.S. 83 (83 SCt 1194; 10 LE2d 215) (1963) (disclosure
of evidence favorable to defendant required if material to guilt or punishment) and
Roviaro, 353 U.S. 53 (balancing government interests against defendant’s rights and
concluding that, under facts presented, government was required to disclose
informant’s name at trial). Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977).
The Court observed that
the basis of both Brady and Roviaro is fundamental fairness to the
accused. Therefore, they must be read together where, as here, the
question is disclosure of the identity of the state’s informer-witness or
informer-participant if material to the defense on the issue of guilt or
punishment. When such an informer’s identity is required under the
standards set forth in Brady, the trial court must go further and weigh
the materiality of the informer’s identity to the defense against the
state’s privilege not to disclose his name under Roviaro.
Thornton, 238 Ga. at 164-165 (2). “Where a defendant charges that a confidential
informant has entrapped him outside the presence of any other witnesses, Roviaro
9
would ordinarily require disclosure of the informant’s identity, since the defense of
entrapment would rest upon allegations which only the informant could confirm or
deny.” (Footnote omitted.) State v. Royal, 247 Ga. 309, 312 (2) (275 SE2d 646)
(1981); Griffiths v. State, 283 Ga. App. 176, 177-178 (1) (641 SE2d 169) (2006).
When this case was called for trial, Hampton noted that he had a pending
motion to reveal the identity of the “confidential informant,” his defense being that
the informant had threatened his job unless he found a local methamphetamine
connection. The State responded that Hampton had the burden of proving both the
materiality and the necessity of the witness’s testimony for his entrapment defense,
and to rebut that argument, the State introduced a video of the informant, the
undercover agent, and Hampton that was recorded while they waited in the agent’s
truck for almost three hours for the sellers to show up. The State then called the
informant’s case agent, who testified about his participation in the setup and
confirmed that he had not been privy to conversations between the informant and
Hampton and had no personal knowledge about whether the informant made threats
to or coerced the informant into setting up the deal.
The parties argued at length about Hampton’s entrapment defense. Hampton
proffered that the conversations he had with the informant were conducted outside
10
the privy of the State, that the informant originated the idea of the crime, and that but
for the informant’s undue influence and duress, Hampton would never have
committed the act. He further proffered that Hampton had a tenth grade education,
that he had difficulty finding employment, and that the informant had threatened to
withhold work from Hampton unless he found a local methamphetamine connection
for the informant.
The trial court conducted an in-camera hearing with the informant and the
State, absent the defendant and his counsel, to determine whether to grant Hampton’s
request to reveal the informant’s name at trial and compel the State to produce the
informant as a witness. The trial court conducted most of the examination during the
in camera hearing, and in response to the trial court’s direct questions, the informant
denied planting the idea to commit the crime in Hampton’s mind. He admitted that
Hampton came to him looking for work and that he had given him a few days of
work. He also testified that he had known Hampton for about eight years, and added,
“But I went the wrong way and started doing time. And then he started doing a lot of
pills and stuff.”
The informant further testified that, in his capacity as an informant, he had
previously told Hampton to let him know if Hampton knew where he could “get
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anything at,” and that Hampton “kept saying I got somebody, I can bring it.” The
informant admitted that, while waiting for the sellers to show up with the drugs, he
told Hampton, “man, if these people don’t show up — because he’s going to make
me look bad in front of them — then I said I’m going to work you an extra day for 5
dollars or something like that. I was just playing with him.”
The trial court asked the informant if he was testifying that it was not his idea
to procure the methamphetamine, and he responded,
I wasn’t on him like that. I mentioned it to him, you know where can we
get some of that good stuff, and — some ice or something, because I do
work for [the case agent] and them. And he said I can get some; I can get
some of it. And then I just — I said well, okay, let’s finish this job. Went
to the next job; and he said I made that call, I can get it. I was like, man,
I ain’t talking about no nickel and dime stuff. And then he kept pursuing
it from there.
The State asked the informant if he had ever arranged a deal with Hampton
before or known of him to deal drugs, and the informant replied that he had bought
pills from Hampton before, who had acted as a go-between or broker. The informant
denied thinking that he would personally benefit from having Hampton set up the
deal, because he thought that his latest Fayette County offense — having pawned a
neighbor’s lawn equipment without permission — had been resolved by then. He also
12
testified that his name was “crap” in the county because people knew he was an
informant, and that had been severely beaten a year before the trial by eight or nine
men, including the nephew of a man the informant had set up.
When the parties returned to court the next morning, the trial court ruled from
the bench, noting first that once Hampton presented evidence of entrapment, the
burden shifted to the State to prove there was no entrapment. The court found that,
based on the informant’s in camera testimony, evidence from him would be
inculpatory, not exculpatory, and further noted that the jury would be able to see the
informant, Hampton, and the undercover agent interact during the video recording.
The State then presented its case in chief to the jury, which consisted of the
testimony of the case agent, the video recording of Hampton, the informant, and the
undercover agent waiting in the agent’s truck, the testimony of a deputy sheriff about
chain of custody, and the testimony of a forensic chemist about the weight and
composition of the methamphetamine placed in evidence. After the State rested and
the trial court denied Hampton’s motion for a directed verdict of acquittal, Hampton
testified.
Hampton testified that he had never sold or taken methamphetamine before, but
set up this methamphetamine deal because his employer, the informant, told him that
13
if he did not do so, the informant would not employ him any more, and Hampton
needed the job so he could feed himself. Hampton, who was 22 when the incident
took place, said he began working part-time for the informant in October 2011. He
explained that his father died when he was 2, his mother died when he was 10, and
the aunt he had gone to live with kicked him out of her house when he was 17. He
slept in couches and friend’s cars, quit school, and began working full-time. He
described his economic difficulties, and said that in fall 2011, when his usual work
cutting grass was unavailable, he began working for the informant a couple of days
a week for $60 to $100 cash until he could join the Army the following summer. He
testified that the informant initially asked him if he knew where to get “pills and
stuff,” and that he replied he did not “mess with” anything like that any more. He
admitted that he used to smoke marijuana and take pills, and that he had sold some
of his personal stash to friends at cost, but denied ever making a profit selling drugs.
He also denied selling, using, or even seeing methamphetamine before the trial, and
testified he had not expected to make any money on the deal he set up for the
informant.
Hampton testified that the first time the informant asked him if he knew where
to find some methamphetamine was the day before the drug bust took place. In
14
response, Hampton said he asked the informant if he was using drugs, because the
informant used to be a crack addict and Hampton did not want to ride around with
him if he was carrying drugs. The informant said he was looking for a friend who
wanted to find a local connection for methamphetamine by the ounce. Hampton
testified that he asked why the informant would be talking to someone who wanted
to find that drug and said he should tell his friend to “get lost.”
Hampton further testified that the informant responded that it was important
for him to help his friend make a connection, and when Hampton again said he did
not know anyone, the informant “started to get frustrated.” According to Hampton,
the informant finally said, “Justin, I’m helping you with a job. If you don’t help me
find my friend a new connection, then I’m not going to work you. You’re no good to
me.” Hampton testified that he believed that the informant would not give him any
work if he did not find someone to sell the informant’s friend an ounce of
methamphetamine, and that he needed the job to feed himself because no one else was
going to take care of him. He called a friend who knew someone who sold pills and
asked if the friend knew anyone who could find methamphetamine for his boss’s
friend. Hampton’s friend gave him the phone number of a girl named Chris, whose
boyfriend was David Thompson. Thompson said he thought his guy “Eddie” could
15
get an ounce of methamphetamine. Thompson checked and called Hampton back to
set up a time and place for the sale.
Hampton admitted that while he waited with the informant and undercover
agent for the sellers to show, he tried to impress both men by saying he used to sell
drugs. He also testified that after the undercover agent called off the deal, the
informant cussed at him on the phone for wasting his friend’s time and hung up on
him, although his attitude was different when Hampton called back to say the sellers
had finally arrived at the agreed-upon meeting place. The informant told Hampton to
return to the store and introduce the informant’s friend to the seller. After Hampton
returned to the store, he identified Thompson’s truck over the phone to the
informant’s friend and briefly met with Thompson at the door to the store. Hampton
then went inside, bought a drink, and left through the back door, he said, never having
seen the cops who arrived then to arrest Thompson and Eddie Collett.
After Hampton rested, his trial counsel asked the trial court for a copy of the
court’s written order denying his motion to reveal the informant so he could address
the trial court’s findings when he argued his renewed motion, but the order had not
been finalized. The court added that the video recording had been a key factor in its
decision to deny Hampton motion, finding that the video weighed against the need
16
for the informant’s testimony.2 Hampton argued that the entrapment occurred before
the recording and that no evidence rebutted his testimony about his job being
threatened. The State responded that Hampton admitted having previously exchanged
drugs for money, which was sufficient to establish his predisposition to sell drugs,
and that his statements on the video were inconsistent with his entrapment defense.
The trial court denied the renewed motion. In its instructions, the court charged the
jury on Hampton’s affirmative defense of entrapment, including the proposition that
the State had the burden of proving beyond a reasonable doubt that Hampton had not
been entrapped.
After deliberating for almost an hour, the jury asked the court to recharge them
on the definition of parties to a crime and entrapment. After the trial court did so, the
jury deliberated for another 15 minutes and returned a verdict of guilty.
The issue in this case is not whether the trial court erred in declining to require
the State to identify the informant. Hampton knew who the informant was. The
informant’s identity was also known to the jury, who watched the informant onscreen
during the lengthy video recording of him sitting with Hampton and the undercover
agent. In fact, the informant had come into the courtroom twice and had to be
2
The record does not contain a written order.
17
removed. The issue is whether the trial court erred in finding that the State’s interest
in preventing the informant from testifying outweighed Hampton’s right to compel
the attendance of the only witness besides Hampton who had evidence related to
Hampton’s entrapment defense.
The informant’s testimony was material to Hampton’s entrapment defense, as
it was the only source of evidence about it other than Hampton himself. Further, the
informant was not a “mere tipster” — “one who provides information about criminal
activity” and whose relevant testimony would be inadmissible hearsay, but a “‘decoy’
— a person used to obtain evidence (the informer-participant) or to establish facts
(the informer-witness) upon which to base a prosecution.” Thornton, 238 Ga. at 163.
See also Wingfield v. State, 159 Ga. App. 69, 71 (282 SE2d 713) (1981) (defendant
had right to compel attendance of informant who was not a mere tipster, “whose cover
had been blown,” whose picture was in evidence, and whose testimony was highly
material to defendant’s only defense of misidentification). The informant here
testified in camera that he brought up the subject of drug sales in the first place, that
he told Hampton not to set up “no nickel and dime stuff,” and that he threatened to
work Hampton for $5 a day if the sellers did not show up. The informant was not
even sure if he had been in trouble with the county when he orchestrated this deal.
18
Neither the trial court nor the State questioned the informant during the in camera
hearing about any quid pro quo he received for his facilitation of the drug deal.
The Sixth Amendment to the U. S. Constitution guarantees the
right of an accused in a criminal prosecution to be confronted with the
witnesses against him. The main and essential purpose of the right of
confrontation is to secure for the opponent the opportunity of
cross-examination. The partiality of a witness is subject to exploration
at trial, and is always relevant as discrediting the witness and affecting
the weight of his testimony. This principle is particularly important with
witnesses who have substantial incentives to cooperate with the
government. . . . Accordingly, defense counsel is entitled to a reasonable
cross-examination on the relevant issue of whether a witness entertained
any belief of personal benefit from testifying favorably for the
prosecution.
Manley v. State, 287 Ga. 338, 340 (2) (698 SE2d 301) (2010) (citation and
punctuation omitted). While the trial court retains wide latitude to impose reasonable
limits on such an examination, id., in this case the defendant had no opportunity to
question the informant about his partiality as it might affect his testimony about
whether he coerced Hampton into setting up the deal. Hampton’s conduct and
statements during the video may be relevant to his credibility, but it is not the only
proof of whether he set up the deal under duress.
19
Further, post-trial counsel moved the court for both a copy of the in-camera
transcript and to compel the attendance of the informant at the new trial hearing to
establish what kind of benefits he might have obtained from the police while working
as an informant, but the trial court denied both motions.
Hampton must show harm as well as error to obtain a new trial. Moore v. State,
187 Ga. App. 387, 392 (2) (370 SE2d 511) (1988).
In Roviaro, the Supreme Court, after applying the balancing test, held
that it was prejudicial error not to reveal the informant’s identity where
the informant was the sole participant, other than the accused, in the
transaction and, thus, “was the only witness in a position to amplify or
contradict the testimony of government witnesses.” (Emphasis
supplied.) Id. at 64. Further, although the defendant in Roviaro was not
in a position to interview the unidentified informant (decoy) and thereby
ascertain the anticipated scope and content of his testimony, the
Supreme Court concluded that “[t]he circumstances of this case
demonstrate that [the informant’s] possible testimony was highly
relevant and might have been helpful to the defense.” (Emphasis
supplied.) Id. at 63-64.
Id. at 388-389 (2).
Here, the informant himself testified in camera that his identity as an informant
for the police was well-known in Fayette County and that he had been severely beaten
20
a year before because of his informant activities. Thus, the government no longer has
an overriding interest in maintaining the informant’s anonymity to continue securing
the flow of information from him. See Roviaro, 353 U.S. at 60 (“The scope of the
privilege is limited by its underlying purpose. Thus, ... once the identity of the
informer has been disclosed to those who would have cause to resent the
communication, the privilege is no longer applicable.”)
Although the informant denied during the in camera hearing that the idea for
committing the crime originated with him and denied that he used undue persuasion
or incitement to induce Hampton to set up the methamphetamine sale, Hampton
testified otherwise. As the Georgia Supreme Court observed, “if the confidential
informant acts as the entrapper, and if the defendant can show that he has an arguably
persuasive defense of entrapment — the [S]tate might have a duty to produce such
a witness.” Boatright v. State, 260 Ga. 534, 536 (397 SE2d 689) (1990). Hampton
obviously made an arguably persuasive case of entrapment, as the trial court charged
the jury on the defense. Further, the trial court’s conclusion that the informant’s
testimony was inculpatory, not exculpatory, is not dispositive. Regardless of whether
the informant disputes or corroborates Hampton’s testimony, Hampton is entitled
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under Roviaro to confront the informant and let a jury determine the relative
credibility of both men.
Accordingly, because the trial court erred in not granting Hampton’s motion
to compel the State to produce the informant to testify at trial, we must reverse the
conviction and remand for a new trial.
3. Hampton’ remaining enumerations of error are without merit or unlikely to
arise upon retrial.
Judgment reversed. Boggs and Rickman, JJ., concur.
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