Griffin v. State , 294 Ga. 325 ( 2013 )

HUNSTEIN, Justice.

Tommy Tyrone Griffin was convicted of felony murder and conspiracy to commit trafficking in cocaine in connection with a fatal shooting in a Gwinnett County apartment in April 2010.¹ Griffin appeals from the denial of his motion for new trial, challenging the sufficiency of the evidence and the trial court’s instructions to the jury. Our review of the record reveals that the State failed to adduce any evidence on an essential element of the drug conspiracy charge and therefore that his conviction for conspiracy to commit trafficking in cocaine must be reversed. Because the felony murder conviction was predicated on the drug conspiracy offense, this conviction must, in turn, be reversed as well.

Viewed in the light most favorable to the jury’s verdicts, the evidence adduced at trial established as follows. On April 8, 2010, Griffin and two other men drove to a Gwinnett County apartment with $4,000 for the purpose of purchasing drugs. When the men entered the apartment, a shootout erupted, involving at least two different guns. Griffin was shot in the abdomen, and two of the apartment’s occupants were shot, one of whom died from his wounds. Everyone present at the shootout fled.

In the apartment, investigators found drug paraphernalia including digital scales, plastic wrap, baggies, and money marking pens used to detect counterfeit money. Further searching uncovered a large package of cocaine—later quantified at 248.56 grams—hidden under the furnace where floorboards had been cut. Based on the sparsely furnished nature of the apartment and the presence of drugs and their accoutrements, an expert witness opined that the house was a “stash house,” used for storing and distributing illegal drugs.

In an interview with police, Griffin claimed that he had gone to the apartment with two other men, one of whom he knew as “Tru,” to purchase marijuana. He told police that when he entered the apartment the men there asked for his money, and then another man emerged from a back room and opened fire. He denied being in possession of a gun at the time, and he told police he believed he had been set up to be robbed. Forensic testing indicated that marijuana had not been present in the apartment.

In evaluating the sufficiency of the evidence, our task is to ascertain whether, viewing the evidence in the light most favorable to the jury’s verdicts, there was evidence establishing each essential element of each crime of which the defendant was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Here, Griffin was convicted of conspiracy to commit trafficking in cocaine, as well as felony murder predicated on the drug trafficking conspiracy. Specifically, the indictment charged that Griffin:

did then and there unlawfully, together with Benjamin Catalan-Gonzalez, Federico Andres Espinal, Juan SilverioGonzalez, Pedro Ortiz-Gonzalez, and other persons, conspire to commit a violation of OCGA § 16-13-31, the offense of Violation of the Georgia Controlled Substances Act: Trafficking in Cocaine, and one or more of the conspirators did perform one or more of the following overt acts, to wit: (a) the said accused did travel to [the stash house] for the purpose of conducting a drug transaction, (b) Federico Andres Espinal did bring money marking pens used for the identification of counterfeit currency to [the stash house] for the purpose of conducting a drug transaction; and (c) Pedro Ortiz-Gonzalez, Juan Silverio-Gonzalez, and Benjamin Catala[n]Gonzalez did possess two-hundred (200) grams or more of a mixture containing at least ten percent (10%) cocaine ....

See OCGA § 16-13-31 (a) (1) (offense of trafficking in cocaine committed when one sells, manufactures, delivers, imports, or “is in possession of” 28 grams or more of cocaine or any mixture with a purity of 10% or more of cocaine).

“A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8. In order for a conspiracy to exist, “there must be an agreement between two or more persons to commit a crime.” Kilgore v. State, 251 Ga. 291, 298 (3) (c) (305 SE2d 82) (1983). Such agreement need not be express, nor does it require a “meeting of the minds” to the same degree necessary to form a contract; all that is required is a tacit mutual understanding between persons to pursue a common criminal objective. Duffy v. State, 262 Ga. 249 (1) (416 SE2d 734) (1992); Kilgore, 251 Ga. at 299. In the context of narcotics trafficking, courts have sometimes inferred such a tacit agreement even where participants had no direct contact with one another, where there was evidence that “each defendant knew or had reason to know the scope of the criminal enterprise, and had reason to believe that their own benefits derived from the operation were dependent upon the success of the entire venture. [Cit.]” (Punctuation and emphasis omitted.) United States v. Abushi, 682 F2d 1289,1293 (9th Cir. 1982). Accord United States v. Matthews, 168 F3d 1234, 1245 (11th Cir. 1999); Kilgore, 251 Ga. at 299.

At the same time, however,

[Georgia’s] appellate courts have consistently held . . . that “the mere agreement of one person to buy contraband which another agrees to sell does not establish that the two acted in concert so as to support a finding of a conspiracy.” [Cit.] This is because in an illegal drug transaction the purchaser and the seller are not acting together to commit the same crime and there is no joint design or purpose.

Darville v. State, 289 Ga. 698, 700 (2) (715 SE2d 110) (2011). Thus, a simple buy-sell transaction, without more, does not support a conspiracy conviction under Georgia law. Id.; Pruitt v. State, 264 Ga. App. 44 (2) (589 SE2d 864) (2003) (reversing drug conspiracy conviction where evidence showed nothing more than that defendant purchased drugs periodically from dealer). Even where there is evidence that the buyer purchased drugs in a quantity that exceeds the amount one would likely want for personal use, such evidence is insufficient to sustain a conviction for conspiracy between supplier and buyer, absent evidence that the supplier had some stake in the buyer’s resales. Id. Such a stake may be shown where, for example, the supplier “fronts” the drugs to the buyer for the buyer to resell, with the proceeds used to pay for drugs. See, e.g., Aguilera v. State, 320 Ga. App. 707 (1) (740 SE2d 644) (2013).

Here, the record contains no evidence of any agreement between Griffin and the men operating the stash house, beyond a possible buy-sell agreement. In his statement to police, Griffin denied any prior acquaintance with the stash house men, and the State offered no evidence suggesting otherwise. In fact, the lead detective, when questioned on cross-examination, admitted that investigators had no evidence that Griffin even knew there was cocaine at the stash house when he arrived there.

The dissent contends that the evidence is sufficient to support the conclusion that Griffin “conspired with a friend and others to possess more than 28 grams of cocaine.” The only evidence regarding this “friend” — “Tru,” whose actual identity has never been discovered — was from Griffin’s statements to police in which he claimed that he accompanied Tru to the stash house to purchase marijuana. There was no evidence that Tru had any agreement or relationship with the stash house men. Though the fact of Tru’s presence with Griffin at the stash house might conceivably be viewed as evidence of some agreement between him and Griffin, the conspiratorial agreement actually alleged here was one involving the stash house men, Griffin, and others. “[T]he state must prove all material allegations in an indictment which describe the offense or the particular manner in which the offense was committed.” Smith v. State, 202 Ga. App. 664, 666 (415 SE2d 481) (1992); see also State v. Grube, 293 Ga. 257, 260 (2) (744 SE2d 1) (2013) (“to comport with constitutional due process an indictment charging a defendant with a criminal offense must. . . contain the essential elements of the crimes and apprise a defendant of what he must be prepared to meet at trial” (emphasis supplied)). Consistent with the language of the indictment, the prosecution’s presentation of the case centered on the allegation of a conspiracy involving the men at the stash house. The absence of proof of any agreement between Griffin or his compatriots with the stash house men is thus fatal to Griffin’s conspiracy conviction. See Smith, 202 Ga. App. at 665 (reversing conviction on conspiracy to sell non-controlled substance where defendant was indicted for conspiracy to sell cocaine).

Accordingly, Griffin’s conviction for conspiracy to commit trafficking in cocaine must be reversed. Griffin’s felony murder conviction, predicated on the drug trafficking conspiracy offense, must likewise be reversed.

Judgment reversed.

All the Justices concur, except Hines, P. J., and Melton, J., who dissent.

1 In June 2011, Griffin was indicted by a Gwinnett County grand jury on two counts of felony murder, attempted armed robbery, conspiracy to commit trafficking in cocaine, and firearm possession during the commission of a felony. Griffin was tried before a jury in July 2011. At the close of the State’s evidence, the trial court directed verdicts of acquittal on the attempted armed robbery charge and the felony murder count predicated thereon. The jury then acquitted Griffin on the firearm possession charge but convicted him of conspiracy to traffic in cocaine and felony murder predicated on the drug conspiracy. Griffin was sentenced to life imprisonment for the felony murder, and the drug conspiracy conviction was merged. On July 18, 2011, Griffin filed a motion for new trial, which he amended on August 20, 2012 following the appointment of new counsel. The motion was denied on November 28, 2012, and Griffin filed a notice of appeal on December 18,2012. The appeal was docketed to the April 2013 term of this Court and was thereafter submitted for decision on the briefs.