Kendall Caldwell appeals from the judgment of conviction entered on jury verdicts finding him guilty of two counts of aggravated assault and two counts of trafficking in
Caldwell was jointly indicted and tried with co-defendant Jason Tillman on charges that, during an attempted drug deal at Caldwell’s house invоlving over 200 grams of cocaine, Caldwell and Tillman assaulted and shot co-defendant Maurice Montgomery. 2 Both counts of aggravated assault and one of the trafficking counts arose from those charges. The second trafficking count arose from charges that Caldwell and Tillman were jointly in possession of over 400 grams of cocaine found at a hotel room rented by Tillman.
In support of the two counts of aggravated assault and the trafficking count that occurred at Caldwell’s house, the State produced direct and circumstаntial evidence showing that Montgomery went to Caldwell’s house to participate in a drug deal for over 200 grams of cocaine, but, during the course of the attempted deal, a fight erupted in which Caldwell and Tillman physically beat, pistol whipped, and shot Montgomery. Testimоny from Caldwell’s neighbors established that, shortly after Montgomery arrived at Caldwell’s house wearing a black leather jacket, gunfire sounded from inside the house. After the gunfire, neighbors saw Montgomery trying to jump out a window and saw Caldwell and Tillman leave the house and drive off in separate cars. One of the neighbors testified that Montgomery appeared at his front door bleeding and wearing only boxer shorts and one shoe and pounded on the door attempting to get inside.
Police responded to 911 calls from the neighbors reporting the gunfire and describing the suspects and the cars they were driving. Based on the descriptions provided, police stopped Caldwell and Tillman as they were driving from the scene. Tillman’s clothing was bloody, and a handgun was found in the car he was driving. Caldwell also had blood on his clothing, and a spent shell casing fell out of his clothing when he exited the car. Caldwell had over $3,000 in cash on his person. Montgomery was found inside a neighbor’s house where he had forced entry and was lying inside bleeding from a gunshot wound to his leg and other wounds to his head and arms.
When Tillman was stopped, he told рolice that the incident was about “some dope” and said they would find a black leather jacket with drugs in it at Caldwell’s house. At Caldwell’s house police found blood splattered around the house, bloody pants, a bloody t-shirt, and a bloody black leather jacket. When an officer picked up the jacket, a bag containing a substance suspected to be cocaine fell out of the jacket. The substance was weighed and tested at the Georgia State Crime Lab and found to be 247.9 grams of a substance containing 61 percеnt cocaine.
Montgomery testified for the State that, after he arrived at Caldwell’s house, Caldwell accused him of stealing cocaine and a fight erupted. He said that Caldwell and Tillman beat him and ripped off his clothes and that Caldwell shot him in the leg.
The State also presented evidence in support of the second trafficking count charging that Caldwell had possession of over 400 grams of cocaine located in a room at the Guest House Inn which was rented by Tillman. When they were arrested, both Caldwell and Tillman were carrying cаrd keys to Room 320 at the Guest House Inn. Police searched the room pursuant to a search warrant and found over 400 grams of a substance suspected to be cocaine along with cutting material for cocaine, thrée sets of electronic scales, plаstic bags, and several guns. The substance was weighed and tested at the State Crime Lab and found to be over 400 grams of a substance containing at least 70 percent cocaine.
1. Caldwell does not contеst the sufficiency of the evidence. Nevertheless, to the extent the State relied on circumstantial evidence,
the evidence was sufficient to exclude every reasonable hypothesis save that of Caldwell’s guilt. OCGA § 24-4-6. The evidence both direct and circumstantial wаs sufficient to allow a reasonable trier of fact to find Caldwell guilty of the offenses for which he was convicted beyond a reasonable doubt.
Jackson v. Virginia,
2. Caldwell contends that, contrary to the requirements of
Edwards v. Arizona,
When Caldwell was taken into custody and informed of his rights under
Miranda v. Arizona,
Under
Edwards v. Arizona,
once an accused being held in custody requests counsel pursuant to
Miranda,
all police interrogation must stop and may not resume without counsel present, unless the accused initiates further conversation with the police and voluntarily waives the invoked right.
Bailey v. State,
We agree with the State. Only words or actions that the police
should have known were likely to elicit an incriminating response constitute interrogation.
Shields v. State,
The transcript of Caldwell’s recorded statement shows that the questioning officer urged Caldwell to tell the truth if he wanted “[the officer] to be in a position to do anything to say that you cooperated. . . .” The officer said he was “the one who would put in a word for you,” that “you can still help yourself... by telling us the truth,” and that “we can put you in touch with other people you can talk to that might be willing to help you . . . like [the Gеorgia Bureau of Investigation].” When Caldwell asked what the GBI could do for him, the officer said that he could not speak for the GBI.
Urging Caldwell to tell the truth did not create a hope of a lighter sentence or any other hope of benefit in violation of OCGA § 24-3-50.
Lee v. State,
4. Contrary to Caldwell’s contention, the trial court did not err by denying his motion to suppress the key to the Guest House Inn room where police found over 400 grams of cocaine.
The key was found in Caldwell’s wallet after he was arrested during a standard inventory of his personal effects and was properly admitted into evidence.
Loden v. State,
5. Caldwell contends the trial court abused its discretion by refusing to allow him to pose a general question to the entire jury panel on voir dire as to whether anyone on the panel had ever been treated for any type of mental illness.
Whether a potential juror is competent to serve because of mental illness is a proper inquiry on voir dire. OCGA § 15-12-163 (b) (3);
Najmaister v. State,
The “scope of voir dire and the propriety of particular questions are left to the sound discretion of the trial court. . . .”
Pace v. State,
6. There is no merit to Caldwell’s contention that the trial court improperly limited his cross-examination of a police оfficer.
The trial court refused to allow defense counsel to cross-examine a police officer on issues which had already been decided by the court in a ruling on Caldwell’s pretrial motion to suppress. Even if, as defense counsel claimed, he was attеmpting to develop new facts relating to the motion to suppress, this was not an issue for consideration by the jury which had no role in deciding factual issues for the motion to suppress.
Bassford v. State,
7. The trial court did not err by allowing the State to use Caldwell’s statement to police to impeach him on cross-examination.
Defense counsel made repeated general objections that the State was not using the statement for purposes of impeaching Caldwell, apparently claiming that Caldwell had not given any testimony that was inconsistent with the statement. To the contrary, the rеcord shows that Caldwell’s testimony was inconsistent with his prior statement on numerous points. For example, in his statement Caldwell admitted to police that he took cocaine to the Guest House Inn room where police found over 400 grams of cocaine, but at trial Caldwell said that he could not remember doing so, that he had only a vague memory of the hotel room, and that he had no knowledge of any cocaine at the hotel room. There was no error in allowing the State to impeach Caldwell with his prior inconsistent statement.
Duckworth v. State,
8. Caldwell claims the trial court erred in admitting his prior drug conviction as similar transaction evidence because, instead of presenting testimonial evidence at the similar transaction hearing, the State relied on the prosecutor’s representations as to the evidence.
Since this objection was not raised in the trial court, it presents nothing for appellate review.
Buckner v. State,
9. Caldwell waived his claim that the trial court’s contemporaneous limiting instruction on the similar transaction evidence was erroneous because no objection was made at trial.
Jones v. State,
10. Caldwell’s claim that the indictment against him was defective as to form was also waived because he failed to file a written pretrial objection raising this claim.
Selley v. State,
Judgment affirmed.
Notes
Guilty verdicts on two additional counts of рossession of cocaine were merged into the guilty verdicts on the traffic counts.
Montgomery was charged in the same indictment with trafficking in cocaine, tried separately after his severance motion was granted, and found guilty. He subsequently testified for the State in the case against Caldwell and Tillman under a grant of use immunity. See OCGA § 24-9-28. Montgomery’s conviction was affirmed on appeal in
Montgomery v. State,
The State used portions of the statement on cross-examination of Caldwell to impeach him. The statement was admissible for impeachment purposes even if it was obtained in violation of
Edwards v. Arizona. Hicks v. State,