JONES v. THE STATE
A16A1279
Court of Appeals of Georgia
October 13, 2016
Reconsideration Denied October 27, 2016
339 Ga. App. 95 | 791 SE2d 625
DILLARD, Judge.
2. Hill-Blount also contends that the trial court erred in removing a juror after deliberations had begun. However, it is well established that “[t]he trial court has [broad] discretion to replace a juror with an alternate at any time in the trial, whether before or after submission to the jury.” Murray v. State, 276 Ga. 396, 398-399 (4) (578 SE2d 853) (2003). We find no abuse of discretion in this case.
The trial court here instructed the jury not to “go looking for other information,” but to decide the case solely on the testimony and the exhibits admitted into evidence. Nonetheless, the following morning, the juror brought to the jury room a dictionary and a number of religious materials, and he refused to stop reading and talking about his outside material despite admonishments from the foreman. After the foreman brought the disruptive juror‘s conduct to the trial court‘s attention, the trial court spoke with the juror, who explained that he wanted to find out what “intent” meant. Contrary to Hill-Blount‘s assertion, the trial court did not excuse the juror “based solely on his use of a dictionary to look up a single word.” The trial court listened to the foreperson‘s and juror‘s statements and excused the juror after determining that the juror refused to decide the case solely on the evidence and the law charged by the trial court. Accordingly, the trial judge properly exercised his discretion in replacing this juror with the alternate. See McGuire v. State, 200 Ga. App. 509, 510 (3) (408 SE2d 506) (1991) (trial court did not err in replacing juror who violated court‘s instructions by visiting crime scene).
Judgment affirmed. Division Per Curiam. All Judges concur.
DECIDED OCTOBER 26, 2016.
Peter D. Johnson, for appellant.
Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.
Following a trial by jury, Torrell Jones was convicted of possessing a controlled substance outside of its original container, trafficking in heroin, and possessing heroin with the intent to distribute. Jones appeals from the trial court‘s denial of his motion for new trial, contending that (1) the State failed to present sufficient evidence to support his conviction for trafficking in heroin; (2) the court improp-erly admitted into evidence a recorded telephone call between Jones and a person who did not testify at trial; (3) the court erred by permitting a law-enforcement officer to testify about the effects of heroin; (4) the court failed to consider the conviction as the “thirteenth juror” when it denied his motion for new trial; and (5) the court erred in denying a motion for mistrial after an improper comment from a State witness. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury‘s verdict,1 the record reflects that in April 2012, law enforcement received information that, upon placing a phone call to a certain individual, a black Chrysler 300 would approach a Piggly Wiggly in Athens, Georgia, traveling from the east on Highway 78, for purposes of making a drug transaction. As a result of this information, law enforcement searched the area around the Piggly Wiggly and located a black Chrysler 300 parked in front of a nearby apartment.
With this information in hand, law enforcement engaged in surveillance of the black Chrysler 300 at the apartment complex, and an officer was instructed to stop the vehicle if it left the apartment and was en route to the Piggly Wiggly following a monitored phone call. A call was then placed by an informant and recorded by law enforcement, with a detective monitoring the call as it was made. During the call, a negotiation was made for a drug transaction. Then, after the call concluded, officers observed the black Chrysler 300 depart from the apartment complex and travel to the Piggly Wiggly with Jones driving. A stop was executed, and in addition to Jones, officers encountered a passenger, Nytasia Pope, who appeared to be “very nervous.” Officers found $3,100 in cash on Jones, and a small bag containing 1.89 grams of heroin was found hidden in Pope‘s private area. After interacting with Jones during the investigation, the detective who monitored the earlier call identified Jones and Pope‘s voices as those heard on the receiving end of the call placed by the informant.
After their vehicle was stopped, Jones and Pope were taken back to the apartment where the vehicle had previously been parked, and officers subsequently executed a search warrant at the residence. Inside the apartment‘s kitchen, officers located a tea box containing a bag of rice surrounding another plastic bag with 81.68 grams of heroin—the largest amount of heroin ever seized at one time in Athens-Clarke County. Additionally, officers found a small knife, a mortar, and a pestle, all with residue that was consistent with heroin. They also located tally sheets used to record drug transactions, a bottle of a cutting agent commonly used in the distribution of heroin, and three sets of digital scales. Finally, officers located a checkbook with Jones‘s name and the address of that apartment. Jones was subsequently tried for and convicted of the offenses enumerated supra. This appeal follows.
At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence,2 and the relevant question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”3 We are not at liberty to weigh the evidence or determine witness credibility, and the jury‘s verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State‘s case.4 With these guiding principles in mind, we turn now to Jones‘s enumerations of error.
1. First, Jones challenges the sufficiency of the evidence as to his conviction for trafficking in heroin. Specifically, Jones contends that the evidence was insufficient to show that he constructively possessed the heroin discovered in the apartment and that, even if he did possess the heroin, the evidence was insufficient to show that he knew the weight of the heroin. We disagree as to both contentions.
(a) Jones jointly and constructively possessed the heroin. Jones maintains that the evidence was insufficient to show that he constructively possessed the heroin discovered in the apartment‘s kitchen. We disagree.
At the time Jones was alleged to have committed trafficking in heroin (April 23, 2012),
of a thing if he or she “knowingly has direct physical control of it at a given time.”7 And a person who, though not in actual possession, “knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.”8 Finally, if one person alone has actual or constructive possession of a thing, that person has sole possession, but “if two or more persons share actual or constructive possession of a thing, possession is joint.”9
Here, Jones and Pope were jointly indicted for possessing more than 28 grams of heroin.10 And as we have previously held, the equal-access rule11 has no application when, as here, “all persons having access to the contraband are alleged to have been in joint, constructive possession of that contraband.”12 Of course, when constructive possession is based upon circumstantial evidence, the facts must both be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis.13 The proved facts, however, need exclude only “reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else,”14 and the jury generally decides questions of reasonableness.15
As previously noted, the 81.68 grams of heroin were discovered inside of a tea box in the kitchen of the apartment. And during a protective sweep performed before execution of the search warrant, officers did not locate any other individuals inside the apartment.16 Later, officers found a checkbook
(b) Jones knew the weight of the heroin. Jones also argues that even if the evidence was sufficient to show that he constructively possessed the heroin located in the kitchen, the evidence was insufficient to show that he knew the weight of the heroin exceeded 28 grams. Again, we disagree.
As previously noted, at the time Jones was alleged to have committed trafficking in heroin (April 23, 2012),
In Scott v. State, 295 Ga. 39 (2014), the Supreme Court of Georgia ruled that the plain language of the statute, as it then existed,21 “dictates the conclusion that knowledge of the quantity of the drug was an element of the crime.”22 In so holding, the Court explained that this (prior) version of the statute “contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it.”23 Thus, because “knowledge” was part of the offense, our Supreme Court held that the State had the burden of proving the defendant‘s guilty
Here, the quantity of heroin discovered in the kitchen weighed 81.68 grams—nearly three times the threshold weight of 28 grams under the relevant statute. And as discussed supra, although the heroin was hidden within a tea box in the kitchen, other items commonly associated with drug distribution were located in the kitchen in plain view—including a digital scale, a cutting agent, cutting tools, and a tally sheet to record amounts of drugs sold. This circumstantial evidence was sufficient to show that Jones knew that the heroin found in the kitchen weighed 28 grams or more.26
2. Next, Jones asserts that the trial court erred in permitting the State to play a recording of the monitored phone call between the informant and Jones when the informant did not testify at trial. Jones asserts both that the informant‘s statements amounted to inadmissible hearsay and that he was deprived of his Sixth Amendment right of confrontation.27 Yet again, we disagree.
The recording of the monitored phone call reflects that when the call was placed, Pope answered and then handed the phone to Jones when the informant asked for “TJ.” The informant then told Jones that he needed a “G,” and Jones replied, “Alright. I got you.” The informant also inquired as to whether Jones had another unintelligible substance available, and Jones replied, “No, not at all. Not right now.” The informant then asked about a price break on “two Gs,” to which Jones responded, “No, it‘s still $150. Let me know what you got [sic] toward the second one and I‘ll work with you.” Hearing this, the informant advised Jones that he could “throw you $75 now for the second one” or, in other words, pay “half of it.” Jones responded, “Oh yeah. Bring the other piece. Yeah, I could do that for you.” The detective who monitored the call testified that, based upon his training and experience, this conversation was a negotiation of a drug transaction, and that “G” is a slang term used to refer to a gram of heroin.
In admitting the recording,28 the trial court ruled that the informant‘s statements were admissible to provide context for Jones‘s responses to those statements, not that the informant‘s statements were admitted to prove the truth of the matter asserted.29 As
Jones‘s statements, the court determined that they were admissible as admissions of a party opponent.30 Jones argues that the trial court erred in making these determinations.
In a case that predates the decision of the Supreme Court of the United States in Crawford v. Washington, 541 U. S. 36 (2004), the United States Court of Appeals for the Eleventh Circuit held that the introduction of taped conversations did not violate a defendant‘s Sixth Amendment right to confrontation when “the trial court ruled that the tapes as they relate to [the nontestifying speaker] are not offered to prove the truth of the matter, and are therefore not hearsay.”32 And because the statements were not inadmissible hearsay, “but rather were offered to put into context those statements of [the defendant], [the nontestifying speaker] is not subject to impeachment[.]”33
Post-Crawford, the Eleventh Circuit has continued to hold that statements offered by a nontestifying speaker are not hearsay and do not violate the Confrontation Clause when the statements are “not offered for their truth, but only to place ... [the defendant‘s] statements in context.”34 And here, that is exactly what the informant‘s recorded statements did—provided context for Jones‘s portion of the telephone conversation, which entailed admissions of a party opponent.35 Thus, because the informant‘s statements were not
hearsay, “and because the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted,”36 the trial court did not err in admitting the recording, and this enumeration of error is without merit.37
3. Jones also argues that the trial court erred by permitting a law-enforcement officer to testify about the pernicious effects of heroin and addiction. We disagree that the trial court abused its discretion in this regard.38
The State‘s assertions as to the relevancy of the subject testimony are not especially convincing, but
prejudice”40 in order to be excluded.41 And in evaluating a trial court‘s ruling under
4. Next, Jones contends that the trial court failed to consider the conviction as the “thirteenth juror” when it denied his motion for new trial. Once again, we disagree.
On motion for new trial, even if the evidence is legally sufficient to sustain a conviction, the trial court may order a new trial if the “verdict of a jury is found contrary
evidence, the credibility of witnesses, and the weight of the evidence.”47 When the record reflects that the trial court failed to exercise this discretion, we will vacate and remand for the court to fulfill this obligation.48
Here, Jones argues that it cannot be determined by the trial court‘s order whether the court exercised its discretion as the “thirteenth juror.” But as the State correctly notes, nothing in the trial court‘s order indicates that it did not exercise its discretion or that it in any way applied the incorrect standard to its review.49 And as we have previously explained,
in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the trial judge agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.50
There being no such indication here, this enumeration of error is without merit.
5. Finally, Jones argues that the court erred in denying a motion for mistrial after an improper comment from a State witness. But because Jones failed to provide citations to the record and legal authorities in support of this contention, he has abandoned it for appellate review.51
For all of the foregoing reasons, we affirm Jones‘s convictions.
Judgment affirmed. Peterson, J., concurs. Phipps, P. J., concurs in Divisions 1, 2, 4, and 5 and in judgment only in Division 3.
DECIDED OCTOBER 13, 2016 RECONSIDERATION DENIED OCTOBER 27, 2016
Benjamin A. Pearlman, for appellant.
Kenneth W. Mauldin, District Attorney, Kalki Yalamanchili, Assistant District Attorney, for appellee.