Zellner Montgomery, Jr., was convicted for trafficking in cocaine. He was sentenced to serve ten years and fined $200,000.
At about 11:30 p.m. on April 17, 1991, police received a report of a robbery in DeKalb County. Officer Goodrum went to Applewood Apartments, which he knew were a mile or mile-and-a-half from the robbery site and had a link to the robbery site. The description of the robbery vehicle was a four-door red Toyota with three black males in *535 it. Goodrum saw a four-door red Toyota with two occupants. About 100-150 feet from the exit of the apartments, the vehicle stopped and a passenger got out and walked quickly toward the back of an apartment building. The driver (appellant) started to drive away, but turned into a parking space when Goodrum turned on his police lights. Appellant emerged, leaving the engine running and lights on, and walked away from the police car. Goodrum jumped out and yelled for appellant to stop, but appellant did not stop until after Good-rum yelled a second time. Goodrum smelled alcohol on appellant’s person and breath. When Goodrum asked appellant where he lived, appellant first said he lived in Countryside Apartments but could not remember his address or apartment number. He also told Goodrum he lived at Applewood Apartments but could not remember the apartment number. Appellant was “very, very nervous and jittery and kept looking around” and was evasive, and appeared “aggressive.” Detective Holmes arrived as a back-up. Goodrum frisked appellant for weapons; he felt a roll of money in appellant’s pocket but did not remove the money. Goodrum placed him in the patrol car, closed the car door, and went to search the Toyota. In the right front floorboard was a Hardee’s bag which held plastic bags containing a powdery substance and a rock-like substance. Goodrum returned to the police car and advised appellant he was under arrest for possession of cocaine; he read appellant his Miranda rights and searched him, but the roll of money he had felt earlier was gone; it was later found in the area of appellant’s buttocks, and amounted to $109.
Officer Goodrum stated he originally placed appellant in the police car as a robbery suspect. Larry White, Jr., who reported the robbery, was brought to the scene but appellant was not charged with robbery. The State’s expert testified the powdery substance weighed 183 grams and tested positive for cocaine, as did the hard rock-like substance.
In a statement appellant said he had given an unknown person a ride; the person had a Hardee’s bag and jumped out of the car after the police stopped them. Appellant testified he came to Atlanta from Butler, Georgia, and was staying at a motel and at Applewood Apartments; when he was arrested he was headed to the motel to meet his girl friend; as he was leaving Applewood Apartments he picked up another man; when the police drove up the man ran; appellant got out to see what the officer wanted; when the officer asked where he was staying, he was confused and could not remember. Held:
1. Appellant contends the trial court erred in failing to direct a verdict of acquittal on grounds of equal access. Merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the of
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fense.
Nelson v. State,
2. The trial court did not err in denying appellant’s motion to suppress the evidence, which motion was made after the State rested its case, and was made on grounds that because the robbery report was false there was no probable cause to stop appellant. The motion to suppress was untimely.
Moss v. State,
3. The trial court did not err in allowing the State to impeach appellant with a computer printout of previous arrests. Appellant tes
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tified on direct examination that' he had never been arrested before. Certified copies of convictions are required to impeach a witness by proof of crimes of moral turpitude
(Clarke v. State,
4. The trial court did not err in disallowing appellant’s testimony as to results of a test for use of illegal drugs. Whether appellant tested negative for drug use at any time is not relevant to, and did not tend to prove or disprove, whether he trafficked in or possessed cocaine as charged in the indictment. OCGA § 24-2-1;
Guest v. State,
5. Appellant contends the trial court erred in allowing hearsay of what a non-testifying witness said to a police officer. In response to questions about Larry White, Detective Holmes said, “[White] stated to me earlier he had been with [appellant] and —” Defense counsel objected. The trial court ruled: “I will tell the jury to disregard any comments that were made. . . . This certainly hasn’t been any secret. . . .You both [said] in your opening statements that Mr. White was charged along with Mr. Montgomery.” The trial judge instructed the jury to “disregard any statement as to what this witness said Mr. White said.” Following these curative instructions, appellant made no further complaint and did not move for mistrial. He is therefore precluded from raising this issue on appeal.
Callahan v. State,
6. Appellant complains the trial court did not give the requested charge that possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses of trafficking in cocaine “and you may find defendant guilty of the lesser offenses without making a finding as to his being guilty or not guilty of the greater offense.” We find no error. The jury was instructed that if they did not find appellant guilty of trafficking in cocaine, they could “consider the question of possession of cocaine with intent to distribute, or of the lesser included offense of possession of cocaine.” “It is well
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settled that the trial court is not obligated to instruct the jury in the exact language requested and that, where the same principle of law is covered in another instruction, failure to give the requested charge is not error.”
Coleman v. State,
7. We have reviewed the evidence and find it sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt.
Jackson v. Virginia,
Judgment affirmed.