Bridges v. StateBridges v. State
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- Before:
- Deen
Lead Opinion
Appellant Bridges was indicted in April 1987 on a charge of conspiring with thirty-four others to import into Georgia and deliver more than 100 pounds of marijuana, the conspiracy allegedly existing *852between January 1, 1983, and April 3, 1987. See
Of the thirty-five persons named in the first indictment, twenty-five plead guilty, two had their cases nol prossed, and six were never arrested. The thirty-fourth indictee plead guilty to the second indictment, and appellant was tried under both indictments jointly, over his objection to the joinder. At the conclusion of all the evidence the trial court instructed the jurors that if they found appellant guilty under the second indictment — i.e., actual trafficking in marijuana — they need give no further consideration to the offense charged in the first indictment; that is, conspiracy to traffic. The jury found Bridges guilty of actual trafficking in marijuana, and he was sentenced to twenty years’ incarceration and a $40,000 fine. His motion for new trial, based on denial of his motion for directed verdict of acquittal, was denied. On appeal he enumerates as error the sufficiency of the evidence; the trial court’s joining the two indictments for trial, over objection; and the correctness vel non of the trial court’s jury instruction on possession. Held:
1. The prosecution introduced more than sufficient competent evidence to authorize the rational trier of fact to find Bridges guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Appellant’s elaborate argument as to the interrelation of the two indictments, and the bearing of this interrelationship upon the evidence, is ingenious but both legally and logically irrelevant. This enumeration is without merit.
2.
“[Defense counsel]: I object to the last-minute joinder of the two indictments. Even as late as yesterday the implication was that we were going to try on the second or later indictment. . . .
“The State: Your Honor, . . . [a]t no point in time have I ever indicated to [defense counsel] that we would not seek joinder, that we would not pursue both charges, and I would point out that the motion to suppress which he filed yesterday includes both case numbers on it, indicating that both of them were involved in the same case, involved the same evidence and the same witnesses.
“[Defense counsel]: [Y]esterday there was no announcement by [the state] either way. I’ll admit that he didn’t tell me he was not going to [pursue both charges]. . . .
“The Court: Very well, the court has ruled and allowed joinder. . . .”
The purpose of the enactment of
The only case appellant cites in support of his contention that a defendant cannot be tried on consolidated indictments without his consent is inapposite in that this sole case, Bradford v. State, 126 Ga. App. 688 (191 SE2d 545) (1972), deals with “separate and distinct violations” (narcotics trafficking and illegal possession of a firearm), rather than, as here, with identical conduct designated in the two indictments as a substantive offense and conspiracy to commit the substantive offense. Bradford is thus readily distinguishable and does not affect the rule set forth in Jackson, supra, and affirmed in subsequent decisions.
3. Appellant’s final enumeration of error is that the trial court incorrectly charged on possession. He asserts that in rejecting a requested charge (No. 14) and giving instead a charge on possession (including the distinction between actual and constructive possession) couched in slightly different language, the trial court has somehow given an erroneous charge and compounded the error by “confusing” the jury. He concedes, however, that it is not error for the trial court *854to reject a requested charge if the charge actually given covers substantially the same ground.
Our review of the trial court’s jury charge as a whole, and of the section on possession in particular, reveals nothing either erroneous or unclear. This enumeration, too, has no merit.
Judgment affirmed.
Pope, J., concurs. Beasley, J., concurs specially.
Concurrence Opinion
concurring specially.
I fully concur in Divisions 1 and 2. As to Division 3, the error enumerated is that the court’s charge on possession was incorrect and that the court should have given defendant’s requests to charge on that subject.
The defendant was not charged with trafficking by “possession” of cocaine but rather with trafficking by “bringing into this state” marijuana.
I agree that the instruction on possession, as such, was not erroneous. It should not have been given, however, because defendant was not charged with possession and could not have been convicted of it. But defendant does not, and could not because he requested it, complain of the giving of instructions on possession. Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980); Hill v. State, 237 Ga. 523, 525 (3) (228 SE2d 898) (1976); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975).
Instructing on possession could conceivably have led the jury to believe they had to find actual possession by Bridges, of which there was scant evidence, and so would have helped him. Even if defendant had shown error, he would also have to show harm, in order to win reversal. Chenault v. State, 234 Ga. 216, 220 (2) (215 SE2d 223) (1975).
If, on the other hand, the jury ignored the possession instruction because they recognized that the indictment charged only “bringing into,” then the charge complained of was superfluous.