Thomas v. the State

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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

July 10, 2017

In the Court of Appeals of Georgia
A17A0820. THOMAS v. THE STATE.

BARNES, Presiding Judge.

Star Ashley Thomas appeals her convictions for trafficking in

methamphetamine and three misdemeanor drug offenses. She argues that there was

insufficient evidence to support her trafficking conviction, that the trial court erred

by allowing a forensic chemist from the Georgia Bureau of Investigation (“GBI”) to

testify about drug identification tests performed by a different chemist, and that her

trial counsel rendered ineffective assistance by failing to object to the introduction

into evidence of both chemists’ crime lab reports. We find no error and affirm.

Viewed in a light favorable to the jury’s verdict,1 the evidence shows that in

January 2014, Thomas’s brother overdosed on heroin at their mother’s Douglasville

home, where Thomas also lived. The first responder at the scene was a police

corporal, who found the man’s mother and two other women attempting to resuscitate

1
See Hubbard v. State, 274 Ga. App. 639, 639 (618 SE2d 690) (2005).
him. Emergency medical services personnel arrived soon after and transported the

man to a hospital, accompanied by the mother and one of the other women, a family

friend who was visiting from out of town. The man later died.

The third woman who had been helping him stayed behind at the house, and

the corporal interviewed her. The third woman told the corporal that she and the man

had used heroin and marijuana earlier, and she gave the corporal a marijuana pipe and

the wrapper in which the heroin had been packaged.

While the corporal was talking to the third woman, Thomas came upstairs from

the basement and the corporal noticed her for the first time. The corporal followed

Thomas back downstairs to a bedroom she identified as hers. After ascertaining her

identity, he brought her upstairs for questioning. Suspecting there were more drugs

in the house, the corporal asked Thomas for permission to search, but she said no. He

told her to wait in the kitchen while the police applied for a search warrant. At that

point, Thomas – whose demeanor had been calm – became “very concerned” and

wanted to leave the house.

The detective assigned to the case obtained a warrant and, with the assistance

of another officer, searched Thomas’s bedroom. Before the search began, Thomas

told the detective that he “might find a little marijuana, but that’s all [she had].” On

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top of the dresser, however, the police found a “white crystal-like substance” – which

they suspected was methamphetamine – “sprinkled out” on a plate, along with a

rolled up dollar bill.2 Inside a drawer, the police found a plastic tub containing a large

amount of a substance that field-tested positive for methamphetamine. The substance

was later taken to the GBI crime lab and was determined to weigh 37.24 grams and

to contain methamphetamine. Next to the tub was a bottle of “crystal flake,” a

substance commonly used to “cut” methamphetamine. Elsewhere in the room the

police found a digital scale, a number of baggies, a glass methamphetamine pipe, two

grinders used to pulverize marijuana, several marijuana cigarettes, and several pills

of a prescription muscle relaxant, Tizanidine.

Thomas was arrested and charged with trafficking in methamphetamine and

possession of marijuana, Tizanidine, and drug-related objects.3 At trial, Thomas and

her mother testified in Thomas’s defense. Thomas conceded that the marijuana and

marijuana-related materials found in her bedroom were hers. She maintained,

however, that the tub of methamphetamine had been left behind by her former live-in

2
The assisting officer testified that rolled-up bills are commonly used to snort
methamphetamine.
3
Thomas also was charged with possession of another prescription medication
discovered in her room, but the jury found her not guilty of that offense.

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boyfriend, who had told her it contained “some kind of carpet cleaner . . . used as a

cut.” Thomas stated that her ex-boyfriend also had left behind clothing in the dresser

and closet, and her mother likewise testified that his clothing was present in the

room.4 According to Thomas’s mother, the visiting family friend had been sleeping

in Thomas’s bedroom during the week before her son’s overdose. Thomas insisted

that the suspected methamphetamine found on top of her dresser belonged to the

family friend. The detective who searched Thomas’s room found no men’s clothing

there, and no sign that anyone except Thomas was living in the room.

A jury found Thomas guilty of the charges. She filed a motion for new trial,

which the trial court denied, and this appeal followed.

1. Thomas argues that there was insufficient evidence to support her trafficking

conviction because the State failed to show that she constructively possessed the

methamphetamine found in her dresser.5 She contends that her ex-boyfriend and the

family friend staying in her bedroom had equal access to the methamphetamine and

4
Thomas and her ex-boyfriend had been arrested on drug charges, including
trafficking in methamphetamine, the previous year. The charges against Thomas were
dropped, but her ex-boyfriend apparently was convicted and remained incarcerated
at the time of Thomas’s trial.
5
The suspected methamphetamine found on top of the dresser was neither
weighed nor tested and thus did not form the basis of the trafficking charge.

4
that the evidence of her possession of it “was based merely on spatial proximity.” We

conclude that whether Thomas constructively possessed the methamphetamine was

a question for the jury.

A person who knowingly possesses 28 or more grams of methamphetamine

commits the offense of trafficking in methamphetamine. OCGA § 16-13-31 (e); see

also Navarro v. State, 293 Ga. App. 329, 330-331 (667 SE2d 125) (2008). “If the

State presents evidence that a defendant owned or controlled premises where

contraband was found, it gives rise to a rebuttable presumption that the defendant

possessed the contraband.” (Citation and punctuation omitted.) Bailey v. State, 294

Ga. App. 437, 439-440 (1) (669 SE2d 453) (2008); see also Swan v. State, 300 Ga.

App. 667, 670 (2) (686 SE2d 310) (2009); Castillo v. State, 288 Ga. App. 828, 830

(655 SE2d 695) (2007). This presumption may be rebutted by evidence that someone

other than the defendant had equal access to the specific place where the contraband

was found, but whether the defendant presented sufficient evidence to establish equal

access is a jury question. Swanger v. State, 251 Ga. App. 182, 185-186 (554 SE2d

207) (2001) (“[h]aving heard evidence in support of [defendant’s] equal access

theory, the jury was authorized to reject it”).

5
 Thomas presumptively possessed the methamphetamine at issue here because

it was found in a dresser in her bedroom. See Swan, 300 Ga. App. at 670 (2); Bailey,

294 Ga. App. at 439-440 (1). Additionally, evidence of recent methamphetamine use

was found in open view on top of the dresser, Thomas admitted that other drugs and

drug paraphernalia found in the room were hers, and the police saw no indication that

anyone else was living in the room. Although Thomas claimed that the

methamphetamine in the dresser and the suspected methamphetamine on top of the

dresser belonged to other people, the jury was not required to believe her testimony.

See Swan, 300 Ga. App. at 670-671 (“[w]hether the evidence of equal access is

sufficient to rebut any inference of possession arising from discovery of drugs in the

defendant’s bedroom is a question properly left to the jury” (citation and punctuation

omitted)).

2. Thomas argues that the trial court erred by allowing a GBI forensic chemist

to testify about drug identification tests performed by a different chemist who was not

available at trial. We disagree.

During trial, the State announced that the chemist who had weighed and

performed the drug analysis of the methamphetamine found in Thomas’s dresser

could not come to court due to her husband’s medical emergency and her own serious

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illness. Over Thomas’s objection, the State presented the testimony of the woman’s

co-worker, another GBI chemist, who was tendered as an expert in forensic chemistry

and drug identification testing. The second chemist stated that while he had neither

performed the drug analysis himself nor witnessed the first chemist doing so, he had

independently evaluated the data on which her results were based and reached his

own conclusion:

Essentially, in our software system, we have at the laboratory, where we
keep all of our technical data and results, whatever, I basically looked
at the data she had produced in our software system. I looked up, you
know, everything she did . . . and all the data that she used to draw a
conclusion on this case. And essentially, with my expertise, I looked at
that data, came to the same conclusion she did, and I produced a report
signifying that.

The second chemist also examined the instruments that the first chemist had

used and found them to be in working order. He testified that the first chemist was a

“very straight arrow” known for her diligence and that “[t]here was nothing in the

data to suspect any kind of mishandling of the evidence or her way of testing it.” He

explained that if the first chemist had improperly performed the tests, “it would show

in the data that she did something wrong or that the data she produced [wasn’t]

consistent.” Ultimately, the second chemist agreed with the first chemist that the

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substance in the tub was 37.24 grams of solid material containing methamphetamine.

Thomas was able to cross-examine the second chemist, and the court instructed the

jury to consider the fact that she was unable to cross-examine the first chemist when

evaluating the credibility of the second chemist.

Thomas argues that the admission of the second chemist’s testimony violated

her right to confront the witnesses against her under the Confrontation Clause.6 She

cites Bullcoming v. New Mexico, 564 U. S. 647 (131 SCt 2705, 180 LE2d 610)

(2011), in which the State of New Mexico introduced a forensic lab report certifying

that a DUI defendant’s blood-alcohol concentration was above the legal limit. The

scientist who generated and signed the report had since been “placed on unpaid leave

for an undisclosed reason,” and the prosecution did not call him as a witness. Id. at

659 (II). Instead, the prosecution called a different scientist who “had neither

observed nor reviewed [the original scientist’s] analysis,” nor reached an independent

conclusion about it. Id. at 655 (I) (B). The United States Supreme Court ruled that the

“surrogate testimony” of the second scientist was insufficient to satisfy the

Confrontation Clause, particularly when the state had not asserted that the original

6
See U. S. Const. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.”).

8
scientist was unavailable, the defendant did not know why he had been placed on

leave, and his presence at trial would have permitted the defendant to ask “questions

designed to reveal whether incompetence, evasiveness, or dishonesty accounted for

[the first scientist’s] removal from his work station.” Id. at 661 (II) (B).

Georgia courts “have consistently held that the Confrontation Clause does not

require the analyst who actually completed the forensic testing used against a

defendant to testify at trial.” (Citation and punctuation omitted.) Leger v. State, 291

Ga. 584, 592 (5) (732 SE2d 53) (2012). In Disharoon v. State, 291 Ga. 45 (727 SE2d

465) (2012), the Georgia Supreme Court recognized Bullcoming’s condemnation of

“surrogate testimony,” but ruled that Bullcoming does not require the exclusion of a

substitute witness who “is a supervisor, reviewer, or someone else with a personal,

albeit limited, connection to the scientific test at issue.” (Punctuation and citation

omitted.) Id. at 48; see also Leger, 291 Ga. at 592 (5) (scientist who did not

personally perform DNA tests, but supervised worker who did, interpreted worker’s

results, and wrote lab report could testify at trial); Estrada v. State, 319 Ga. App. 762,

765-766 (3) (738 SE2d 344) (2013) (analyst who performed lab testing was

unavailable, but supervisor could testify because he had reviewed analyst’s work to

determine whether it had been performed correctly and whether he agreed with it).

9
 In this case, there was evidence that the first chemist was known to be careful

in her work, but was unavailable at trial due to circumstances unrelated to her job

performance. The second chemist explained the procedures the first chemist had

followed, inspected the testing instruments she had used, analyzed the data she had

electronically stored, determined that the data appeared to be reliable, reached an

independent conclusion concerning the nature of the tested substance, and generated

his own report. Given the second chemist’s “personal, albeit limited, connection to

the scientific test at issue,” Disharoon, 291 Ga. at 48, his testimony was not the sort

of “surrogate testimony” forbidden by Bullcoming. Thomas’s Confrontation Clause

rights were not violated.7

3. Thomas argues that she received ineffective assistance of counsel because

her trial lawyer failed to object, during the second chemist’s testimony, to the

admission into evidence of both his report and the report of the first chemist

concerning the weight and nature of the substance found in her dresser drawer.

Although counsel objected repeatedly to the testimony of the second chemist, he did

7
Thomas also asserts that the second chemist’s testimony was inadmissible
hearsay. But the second chemist, who “made the determination that the substance was
contraband based on [his] interpretation of the data[,] did testify at trial and was thus
subject to cross-examination.” Carolina v. State, 302 Ga. App. 40, 42 (690 SE2d 435)
(2010). Therefore, there was no hearsay problem. See id.

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not specifically challenge the admissibility of the lab reports. We, however, find no

ineffective assistance.

The second chemist’s lab report was admissible because the person who

generated the report – the second chemist – testified at trial and was available for

cross-examination. See Wise v. State, 300 Ga. 593, 598 (4) (797 SE2d 447) (2017);

compare Melendez-Diaz v. Massachusetts, 557 U. S. 305 (129 SCt 2527, 174 LE2d

314) (2009) (crime lab reports are testimonial and therefore inadmissible unless the

analysts themselves testify at trial). Any objection to the admission of the report

would have been meritless, and the failure to make a meritless objection is not

ineffective assistance of counsel. See Tran v. State, 340 Ga. App. 546, 554 (2) (c)

(798 SE2d 71) (2017).

Assuming without deciding that the first chemist’s lab report was not

admissible, counsel’s failure to object to its admission did not prejudice Thomas. As

noted in Division 2, the second chemist properly testified about the first chemist’s

testing and conclusions, and the second chemist’s independent report – which reached

the same conclusions as the first chemist’s report – was properly admitted into

evidence. Because the first chemist’s report was merely cumulative of other,

admissible evidence, Thomas cannot establish the prejudice necessary for an

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ineffective assistance claim. See Wilson v. State, 297 Ga. 86, 88 (2) (772 SE2d 689)

(2015) (“The failure of trial counsel to object to such cumulative evidence does not

support a claim for ineffective assistance of counsel.”)

Judgment affirmed. McMillian and Mercier, J.J., concur.

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