PEREZ v. THE STATE, 254 Ga. App. 872

Phipps, Judge. Pedro Perez was tried by a jury and convicted of trafficking in methamphetamine in an amount greater than 400 grams. His co-defendant, Anibal Cruz, negotiated a guilty plea to a lesser offense in exchange for his testimony against Perez. Perez claims that the trial court erred by impermissibly limiting his cross-examination of Cruz about the reduced sentence he had received as part of his deal with the State. We agree and reverse on this ground.

Perez also claims that the trial court erred by allowing the State to introduce evidence of his character and by admitting a tape-recorded telephone conversation between Cruz and a confidential informant. We hold that Perez has waived his right to challenge the admission of the character evidence and further hold that the trial court did not err by admitting the tape recording. Perez and Cruz arranged to sell a confidential informant a pound of methamphetamine in the parking lot of an abandoned Sam’s Club warehouse in Austell.

The informant was wired for sound, and when it became clear that drugs had been exchanged for money, members of the Drug Enforcement Administration (DEA) task force moved in and arrested Perez and Cruz. They were indicted for trafficking in methamphetamine in an amount greater than 400 grams. 1. Cruz negotiated a guilty plea to a lesser offense in exchange for his testimony against Perez. On direct examination, Cruz admitted that he had pled guilty and been sentenced to serve 15 years. During Cruz’s cross-examination, Perez’s attorney sought to reveal the terms of Cruz’s deal with the State.

The goal of the questioning objected to by the State and precluded by the trial court was to show the significant reduction in sentence (from 25 years to 15 years) given in exchange for Cruz’s testimony. Because Cruz offered the only testimony from a witness who observed the transaction for which Perez was prosecuted, exposing Cruz’s motive, bias, and interest in cooperating with the State was crucial to Perez’s defense. In Vogleson v.

State, this court held that a defendant has a constitutionally protected right to explore on cross-examination a co-defendant’s or an accomplice’s agreement with the State, including the amount of prison time the co-defendant or accomplice would avoid by agreeing to cooperate with the State and testify against the defendant. Applying Vogleson, we reverse. The dissent argues that Vogleson should be reversed in light of Hodo v. State, a Supreme Court of Georgia decision we distinguished in Vogleson. But this case is even more distinguishable from Hodo than was Vogleson.

Here, Cruz had already been sentenced before testifying against Perez whereas the witness in Hodo was not involved in the crimes being tried and had not been charged with any crime. Requiring the witness in Hodo to speculate about crimes with which he might be charged differs significantly from requiring an accomplice to reveal the disparity between the sentence he has received and the minimum sentence he would have received if not for his deal with the State.

The dissent’s claim that our decision will mislead the jury about the fact that an accomplice or co-defendant may serve less than his entire sentence because of the possibility of parole is itself misleading. The goal of the cross-examination protected here is to expose a witness’s bias or motivation by revealing the deal the State gave to the accomplice/witness for agreeing to testify against the defendant. The most important aspect of such a deal is the potential for a reduction in the sentence imposed by the trial court.

The authority to grant parole or other relief from the sentence imposed by the trial court rests with the State Board of Pardons & Paroles, not the district attorney’s office. Thus, the decision to grant parole cannot be part of any deal reached between the accomplice/witness and the State. Moreover, this case is not about the possibility of parole. Cruz had already pled guilty and been sentenced before he testified; Perez merely sought to reveal the much larger mandatory sentence Cruz avoided by testifying against him. 2.

Perez claims that the trial court erred by allowing the State to introduce evidence of his character in three separate instances: (1) the State’s opening argument;

(2) DEA Task Force Agent Tysver’s testimony; and (3) a tape-recorded conversation between Cruz and the informant, which involved the informant setting up the drug purchase with Cruz and included two brief references to Perez. We find that Perez has waived his right to review of these claims. (

a) During opening arguments, the prosecutor told the jury that Cruz would testify that “these drugs belonged to Pedro Perez, they’re in business together.” Pretermitting whether the statement was improper, we find that Perez waived this issue by failing to object to the statement in the trial court. (

b) On direct examination, Tysver testified that “[t]he confidential informant had told us that he had gotten this quantity [of drugs] before from Pedro [Perez].” The statement was clearly objectionable, but Perez made no objection. Later in his testimony, Tysver made another objectionable comment, stating that “[t]he confidential informant had told us when he previously dealt with Pedro [Perez] that [Perez] never counted the money.” Again, Perez raised no objection. When the court announced that it was time for a lunch break, Perez’s counsel moved for a mistrial based on Tysver’s comments.

The court denied the motion as untimely, recalling that after the objectionable comments were made, “the State went on to at least two other subjects. ... It was at least five or six minutes until the State suggested that we break for lunch. . . .

And I broke for lunch and then, and only then, did you make a motion for mistrial.” “To preserve a motion for mistrial for appellate review, the motion must be made contemporaneously with the objectionable testimony. [Cits.]” Perez’s motion for mistrial was not timely and review of its denial was waived because it was not made contemporaneously with the objectionable testimony.

We note that “[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Given our holding in Division 1, we need not determine if the objectionable comments should be reviewed under this plain error standard. (

c) Perez asserted a hearsay objection to the tape-recorded conversation between Cruz and the informant, which we review in Division 3, infra. But Perez never objected to or made a motion to exclude the tape recording because it impermissibly placed his character in issue.

As a result, he cannot raise that objection for the first time on appeal. 3. “[T]he statements made by [Cruz] in the recorded call were admissible under the exception to the hearsay rule recognized by OCGA § 24-3-5” because at the time of the call, the conspiracy was still pending between Perez and Cruz to commit the trafficking offense for which they were eventually arrested.

Even though the informant was not a co-conspirator, his statements “in the recorded call would be admissible as part of reciprocal and integrated utterances between him and [Cruz], for the limited purpose of putting [Cruz’s] responses in context and making [Cruz’s] statements intelligible to the jury and recognizable as the statements of a co-conspirator. [Cit.]” The trial court did not err by admitting the tape recording. Judgment reversed. Blackburn, C. J, Johnson, P. J., Miller, Ellington and Mikell, JJ., concur. Pope, P. J., Smith, P. J., Ruffin and Barnes, JJ., concur and concur specially. Andrews, P.

J., and Eldridge, J., dissent. 250 Ga. App. 555, 558-559 (1) (552 SE2d 513) (2001). 272 Ga. 272 (528 SE2d 250) (2000). OCGA § 42-9-42 (a). Perez alludes to a claim of ineffective assistance of counsel in his argument, but failed to include such a claim in his enumeration of errors. Given our holding in Division 1, we need not address this claim. Bailey v. State, 273 Ga. 303, 306 (4) (540 SE2d 202) (2001). Gilliam v. State, 240 Ga. App. 158, 159 (1) (522 SE2d 766) (1999). (Citations and punctuation omitted.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986) (on motion for rehearing). Howard v.

State, 233 Ga. App. 724, 729 (5) (505 SE2d 768) (1998). Bundrage v. State, 265 Ga. 813, 814 (2) (462 SE2d 719) (1995). Id.; but see id. at 817-818 (Sears, J., concurring specially).