Court of Appeals Reverses Drug Trafficking Conviction

The Georgia Court of Appeals held that even though the State’s evidence supported the conviction, the trial court erred in its response to a question from the jury regarding the drug trafficking statute’s knowledge requirement. As a result, the court remanded the case for a new trial.

On October 30, 2009, the Fayette County Tactical Narcotics Team arranged an undercover drug deal with one of its special agents and an individual named “Mike.” Under the terms of the deal, the agent would meet Mike, driving a blue Chrysler 300, in a grocery store parking lot and pay him $1900 for two ounces of cocaine. When he arrived at the parking lot, the agent saw the driver of the Chrysler exit the vehicle and approach the passenger side of a dark Chevrolet HHR parked nearby. When the driver returned to the Chrysler, the agent received a confirmation phone call and proceeded to the Chrysler to complete the exchange. After the transaction, Mike returned to the passenger side of the Chevrolet and surveillance team members moved in and arrested both Mike and the man sitting in the passenger seat of the Chevrolet, McGee. McGee told one of the agents that he did not have the cocaine before the sale and was simply in the parking lot to make sure Mike didn’t get robbed. Mike and McGee were both indicted for trafficking cocaine.

Georgia’s drug trafficking statute, O.C.G.A. § 16-11-31, states that a person commits the offense of trafficking in cocaine when he “is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine.” Even if the defendant did not have actual possession of the cocaine, the State can prove the defendant had joint constructive possession of the drug with another person—meaning he had both the power and intention to exert control over the substance—to sustain a cocaine trafficking conviction.

In McGee’s case, the Court of Appeals found that there was sufficient evidence to prove he engaged in cocaine trafficking beyond a reasonable doubt. Mike’s contact with McGee both before and after the drug exchange in addition to McGee’s explanation that he was in the parking lot to prevent Mike from getting robbed merits a finding that, at a minimum, McGee was acting as Mike’s lookout during the deal. An individual acting as a lookout during the commission of a crime can be convicted as a party to the crime. Dixon v. State, 277 Ga. App. 656, 627 S.E.2d 406 (2006).

Despite the Court of Appeals’ conclusion that there was sufficient evidence to sustain McGee’s conviction, it still found that the trial court erred in its response to a jury question. While deliberating, jurors asked if the defendant had to know what crime was being committed in order to be found guilty of being a party to the crime. The court responded that in order to prove knowledge of a specific crime being committed, the State would need to prove that the defendant knew or should have known what crime was occurring.

The Court of Appeals found that this was an incorrect statement of the law and there was a reasonable probability that the trial court’s error misled the jury into believing that McGee could be convicted upon a showing of mere criminal negligence rather than proof of knowledge. Under Georgia law, the conviction of a defendant as a party to the crime requires proof that he had knowledge of the intended crime and shared in the criminal intent of the principal actor.

In addition, the court did not deem this erroneous response to be harmless. The State’s evidence was not overwhelming and the jury could have concluded that McGee volunteered to protect Mike during a dangerous interaction without knowing exactly what activity was involved. Under the trial court’s erroneous instruction, the jury could have found McGee guilty if they felt he should have known Mike was involved in a cocaine deal. Thus, the Court of Appeals concluded that reversal of the conviction was warranted.

It is important to note that McGee objected to the judge’s response to the jury’s question at trial, thus preserving the issue on appeal. As a jury’s understanding of the essential elements of the crimes is fundamental in criminal trials where the burden of proof is of the utmost importance, criminal defense attorneys should pay particularly close attention to the details of jury instructions as well as responses to jury questions. Had the defendant not objected to the erroneous instruction at time it was given, it is very possible that the issue could have been waived on appeal.