Fоllowing a jury trial, Stevie Latawn McNeal was convicted of trafficking in cocaine (OCGA § 16-13-31 (a)); possession of marijuana with, intent to distribute (OCGA § 16-13-30 (j)); obstruction of an officer (OCGA § 16-10-24(a)); andfailuretomaintainlane (OCGA § 40-6-48). McNeal appeals from the denial of his motion for new trial, contending that the evidence is insufficient to support his drug convictions; the trial court erred in instructing the jury; and his trial counsel was ineffective. We discern no harmful error and affirm.
On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [the defendant] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.Jackson v. Virginia[, 443 U. S. 307 , 319 (III) (B) (99 SCt 2781 , 61 LE2d 560) (1979)].
(Citation, punctuation and footnotes omitted.) White v. State,
So viewed, the evidence was that, on February 13, 2006, a Spalding County sheriff’s corporal, who was a supervisor in the narcotics unit, special operations, was patrolling Interstate 75 southbound when he observed a tan Ford F-150 crossing the fog line
At this point, the corporal began to search the truck. In the middle of the back seat, he observed something large cоvered by two jackets. Lifting the jackets, the corporal saw a large dark plastic bag. He put his hand on the bag and immediately recognized the contents as suspected marijuana. The corporal went to McNeal and started to place him under arrest. McNeal attempted to break away and ran toward the driver’s side of the truck. After wrestling with McNeal, the corporal pulled his Taser and told McNeal if he did not quit fighting, he was either going to taser him or release his patrol dog on him. McNeal then got down on the ground, and the corporal handcuffed him while his partner handcuffed Walters.
After securing the two men, the corporal returned to the truck and opened the black plastic bag in the back seat. He found eight one-gallon ziplock bags containing marijuana, along with several sandwich size bags of marijuana. The corporal also recovered two more plastic baggies of marijuana from a shopping bag. The marijuana had a total weight of 9.75 pounds. Behind the driver’s seat on the floorboard, the corporal found a tan leather bag similar to a bowling bag. Inside the leather bag, the corporal found a large brick, wrapped in two plastic bags, which proved to be a kilogram (2.2 pounds) of 75.6 percent pure powder cocaine. In one of the jackets from the back seat, which was claimed by Walters, the corporal found a small bag of marijuana. While the officers and the two men were waiting for transport, Walters asked, if he claimed all the “dope,” would they let McNeal go. The corporal responded negatively and cautioned Walters about any statements he made because the corporal had not yet advised the men of their rights.
1. In his first two enumerations, McNeal argues that the circumstantial evidence was insufficient to support his convictions
[T]he law recognizes that possession can be actual or constructive, sole or joint.... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. 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. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.
(Citation and punctuation omitted.) Holiman v. State,
In this case, both McNeal and Walters were charged with trafficking in cocaine and possession of marijuana with intent to distribute. Therefore, the State was not required to show that McNeal was in sole constructive possession of the cocaine and marijuana, but rather that McNeal and Walters were in joint constructive possession of the drugs.
“A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Mere presence without proof of participation is insufficient.” (Citation omitted.) Vines v. State,
Here, McNeal’s “presence, companionship, and conduct before and after the offenses are circumstances from which his participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Jackson v. State,
In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law.
(Punctuation omitted; emphasis in original.) Able v. State,
2. In his third enumeration, McNeal contends that the trial court erred by instructing the jury on the permissive presumption of possession against him as the driver of the vehicle, where there was clear evidence of
As an initial matter, the record shows that McNeal never objected to the trial court’s charge. Where no objection is made to a jury charge at trial, “appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” (Footnote omitted.) State v. Kelly,
The “plain error” test adopted by this Court in [Kelly] authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.
(Citation omitted.) Smith v. State,
Evidence that McNeal was the driver of the car gave rise to a rebuttable presumption that he exercised possession and control of the drug contraband found inside the car. See Ramirez v. State,
It is true... that the presumption of possession flowing from a defendant’s status as driver of a vehicle maybe rebutted if the driver presents evidence that other persons had equal access to the vehicle and contraband. Notably, however, the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.
(Citations and punctuation omitted; emphasis supplied.) Id. at 4 (1); see also Gamble v. State,
Since both McNeal and Walters were charged with joint possession of the marijuana and cocaine, the equal access rule did not apply. Even though the presumptive possession charge was requested by Walters instead of the State, we do not find that the trial court plainly erred in giving it. Cf. Delavega v. State,
3. In his fourth and sixth enumerations, McNeal argues that the permissive presumption charge initially given by the trial court and then recharged to the jury upon their request was а misstatement of the law, was burden shifting, not tailored to the facts of the case, and placed too much emphasis on the presumption.
Even assuming that the charge and recharge as given
4. McNeal’s seventh enumeration is that the trial court erred by making an improper comment as to the circumstantial evidence of possession. We disagree.
During the trial, the prosecutor asked the corporal “[w]as there any doubt in your mind thаt this stuff, the cocaine and the marijuana, belonged to these two individuals?” The trial court sustained defense counsels’ objections, but then stated that “I’m not necessarily sustaining it because I don’t think there’s
OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” “To constitute an improper comment under OCGA § 17-8-57, the trial court’s statement must express an opinion about whether the evidence had proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.” (Punctuation omitted.) Anthony v. State,
We have explained before, however, that this rule
does not generally extend to colloquies betwеen the judge and counsel regarding the admissibility of evidence. Furthermore, we have previously determined that remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.
(Citations and punctuation omitted.) Butler v. State,
Here, the statement at issue was made by the trial judge in the context of a colloquy concerning an evidentiary objection and the ruling of the court on that objection. Accordingly, the statement did not amount to an expression of an opinion of the proof or the guilt of the accused. See Ellis v. State,
nothing I have said or done during this trial was intended to suggest, hint or intimate to any of you which side should prevail. I have no leanings in this case. My job is to see that this case be fairly presented to you according to the law and that your verdict speak the truth as you determine the truth to be from the evidence that’s been presented to you.
See Butler, supra,
5. In his final seven enumerations, McNeal contends that his trial counsel provided constitutionally inadequate assistance in a number of instances. They are considered together.
To establish deficient performance, a person challenging a conviction must show that “counsel’s representation fell below an objective standard of reasonableness.” A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. . . .
With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Harrington v. Richter,
To show that the performance of his lawyer was deficient, McNeal must prove that his lawyer performed her duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. This burden, although not impossible to carry, is a heavy one. Jones v. State,
(a) McNeal asserts that trial counsel was ineffective for failing to object to the trial court’s comment and for failing to request a charge on equal access. As discussed above in Divisions 2 and 4, there was no improper comment by the trial court, and a charge on
(b) McNeal contends that trial counsel inadequately prepared for trial beсause she did not personally or through an investigator examine the physical evidence prior to trial. At trial, during her cross-examination of the corporal, trial counsel asked the corporal to remove a set of keys from the leather bag containing the cocaine and display them to the jury. The corporal did so and testified that there was nothing in the bag containing identification.
Trial counsel testified at the motion for new trial hearing that, during her closing argument,
During her cross-examination, however, trial counsel equivocated as to whether there had been one or two key chains in the leather bag, finally stating “maybe it was the sаme key chain, maybe there was a second key chain.” Neither of the key chains was produced by McNeal during the hearing on the motion for new trial.
When a defendant alleges ineffective assistance of counsel based on the failure to introduce certain evidence claimed to be exculpatory, the defendant must produce that evidence at the motion for new trial hearing. Cf. Jones, supra,
Because McNeal failed to produce the key chain or chains at his motion for new trial hearing, his claim of ineffectiveness is wholly speculative, and he cannot show that the outcome of his trial would have been different. Jones, supra,
(c) McNeal claims ineffеctive assistance for trial counsel’s failure to object to the corporal’s statement that he arrested the two men because they possessed narcotics; failure to object to testimony regarding the rental documents that were not introduced into evidence; failure to object to the corporal’s explanation of why he did not believe a statement of McNeal; and failure tо object to the corporal’s statement that he would arrest McNeal even if Walters claimed the narcotics.
The question regarding possession of the narcotics was objected to by Walters’s counsel, joined in by McNeal’s counsel, and sustained by the trial court.
The corporal’s answer to the question of what the rental documents show was unclear as to which of the two men’s names appeаred on the documents. The corporal’s opinion that McNeal was not truthful when he said he did not know drugs were in the truck was elicited by Walters’s counsel, not the State, as was the corporal’s statement that he would arrest McNeal even though Walters claimed the narcotics.
Trial counsel’s opinion five and one-half years
We conclude that McNeal has failed to show a reasonable probability that, but for trial counsel’s unprofessional errors, the result of the proceeding would have been different. Therefore, there was no error in the trial court’s denial of his motion for new trial on this ground.
Judgment affirmed.
Notes
The outermost solid white line on the side of the interstate.
Lamont Walters’s conviction of trafficking in cocaine and possession of marijuana with intent to distribute was affirmed in an unpublished opinion, Case No. A10A2206, 307 Ga. App. XXIV (2010).
The bills totaled $2,400.
Flight is circumstantial evidence of consciousness of guilt, and the weight to he given to such evidence is for the jury to decide. Brooks v. State,
“I further charge you, ladies and gentlemen, that the contents of an automobile are inferred to be those of one who operates it and is in charge of it.” Thereafter, in response to a jury question, the trial court recharged this instruction.
Closing arguments were not taken down or transcribed.
McNeal’s trial occurred in October 2006 and the hearing on the motion for new trial occurred five and one-half years later in May 2012 and was conducted by a judge who did not conduct the trial.