Herman Lee Staples was tried by a jury on a four-count indictment involving possession of illegal drugs. He was acquitted on three counts and found guilty of one count of trafficking in cocaine. His motion for a new trial was denied.
1. Staples, who is black, joined in a co-defendant’s timely challenge to the prosecutor’s use of peremptory strikes, alleging a violation of
Batson v. Kentucky,
The prosecutor exercised a disproportionate number of strikes by using half against blacks in selecting from a venire which was only nineteen percent black (eight out of forty-two). This was a prima facie showing of discriminatory intent sufficient to require the prosecutor to explain her strikes. The mere fact that the trial jury containеd a greater percentage of black jurors (25 percent) than were in the qualified venire (19 percent) no longer is sufficient to rebut the inference of intentional discrimination arising from the prosecutor’s use of a disproportionate number of peremptory strikеs to remove black potential jurors.
Davis v. State,
The trial cоurt further erred in not making the additional factual determination of whether the prosecutor’s stated reasons for her strikes were sufficient to rebut that prima facie showing. However, a reversal of Staples’s conviction is not mandated by these omissions. The error may be сured by a post-trial hearing on the
Batson
chal
*803
lenge. There, the trial court is to make the appropriate findings on the record after determining the credibility of the reasons offered, (see
Tharpe v. State,
2. In several enumerations Staples urges the general grounds.
The evidence showed that Staples was a passenger in the rear of a vehicle stopped by the Georgia State Patrol. The driver consented to a search, and cocaine was found hidden in an area well up under the dashboard of the vehicle. There was testimony that the maneuvers necessary to hide cocaine in this inaccessible place could not have taken place during the brief time in which the car was followed and then stopped. Although he was not the owner of the vehicle, Staples was, as among the passengers, the leader and was in charge financially. He had sufficient private access to the vehicle during a time when the cocaine could have been hidden under the dashboard. Both Staples and the driver denied ownership of the cocaine. Staрles was forcibly prevented from swallowing a large number of heroin pills at the time of his arrest.
Contrary to Staples’s assertions, the equal access rule does not mandate reversal of his conviction. The equal access rule applies only where the sole еvidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of or control over the vehicle.
Wright v. State,
The evidence was sufficient to authorize a rational trier of fact to find Staples guilty of trafficking in cocaine under the standard set forth in
Jackson v. Virginia,
3. Prior to trial, appellant instructed the public defender to withdraw as his appointed counsel, on the ground that she was “racist” and uninterested in representing him. He declined the trial court’s *804 offer of further assistance from that office, choosing instead to represent himself. In related enumerations of error, appellant urges that he was forced to trial without counsel and without a valid waiver of thе benefit of counsel.
“A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. [Cits.] However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court. [Cits.]”
Burney v. State,
Staples previously had been informed by the public defender of the nature of the charges against him and of the statutory minimum and maximum penalties. The record reflects that the trial court, fulfilling its important responsibility in this area, repeatedly apprised him of the dangers to a layman in conducting his own defense. See
Clarke v. Zant,
4. The trial court denied Staples’s pretrial motions for a continuance in order to prepare for trial and to contact his witnesses, for the assistance of an investigator, and for the appointment of an independent expert witness. Although these rulings are enumerated as error, the record reflects that in response to Staples’s motions, the trial court ordered that he have access to the court’s law library and also to long distance telephone service at county expense. Inasmuch as these rulings are in substance the partial
grant
of the relief and assistance requested, we find no due process violation and no abuse of the trial court’s discretion by denying a continuance,
Bates v. State,
202
*805
Ga. App. 460, 461 (1) (
As to the trial court’s refusal to hire an expert chemist, appellant’s reliance upon
Sabel v. State,
Staples does not challenge the chemical properties of the substance identified as cocaine or claim that the seized contraband, by its nature, misidentifies him as the perpetrator. The cocaine is not critical within the meaning of
Sabel,
and its identification as cocaine by an expert is not challenged. The trial court did not abuse its discretion in refusing to appоint an independent expert witness.
Reinhardt v. State,
5. Over a chain of custody objection, the trial court admitted into evidence the cocaine seized from the vehicle in which Staples had been riding. This evidentiary ruling is enumerated as error.
The basis for Staples’s objection is that the arrеsting officer seized a package of white powder weighing 553 grams, whereas the chemist from the State Crime Lab tested 431 grams of white powder and that one of the sheriff’s deputies was under indictment for stealing from the evidence vault.
Where the State seeks to introduce evidеnce of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence as that seized and show that there has been no tampering or substitution.
Johnson v. State,
The powder came from the evidence vault, where it had been placed by the arresting officers. Although there was testimony that up to five keys to the evidence vault existed during the pertinent time period, a sheriff’s employee identified a photograph she had taken of the substance as she received it. The discrepancy in weight was attributed to the difference between weighing the bundle as packaged at the time of arrest and weighing only the substance to be tested at the crime lab, and any inference of tampering was rebuttеd by the explanation given and by the absence of any physical manifestation of an improper opening and resealing.
Langham v. State,
supra at 71-72
*806
(2). The possibility of complete substitution is rebutted by the testimony of the procedures employed to identify, store, and analyze items seized as suspected contraband.
Richards v. State,
6. Staples complains that he was subjectеd to selective prosecution. Even assuming this issue was timely raised before the trial court, Staples has failed to establish a prima facie case of unconstitutionally discriminatory enforcement or selective prosecution of the law, deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classifications.
State v. Agan,
7. Although Staples enumerates as error the failure to arraign him on a subsequent indictment, the record reflects that a plea of not guilty was entered on it. This generally amounts to a waiver of formal arraignment.
Preston v. State,
8. During voir dire, but out of the presence of the panel, a black venireman expressed his disagreement with a generalization on race rеlations made by appellant. The venireman was seated as a juror and ultimately became the foreman. “If known to a party or his counsel, any objections to a juror for cause shall be made before the jury is sworn in the case.” OCGA § 15-12-167. In the absence of a timely request, the trial court did not err by failing to strike this potential juror for cause. OCGA § 15-12-164 (c);
McKenzie v. State,
9. Staples enumerates as error the State’s alleged failure to disclose the felony conviction of a person listed as a witness for the State. This witness however, did not testify at trial. Moreover, this alleged conviction was known to Staples prior to trial, and he demanded that he be permitted to argue the fact of conviction despite the absence of a certified copy of that conviction. The evidence required was obtainable from public rеcords by Staples. The State was not required to provide it to aid his defense.
Johnson v. State,
10. Although represented on appeal by appointed counsel, Staples has nevertheless submitted a pro se filing, enumerating 45 errors allegedly committed by the trial court. Our State Constitution and thе Federal Constitution do not provide a criminal defendant
*807
with a right to simultaneous representation by counsel and self-representation. We therefore do not consider those errors raised or arguments- made by Staples himself. It is his obligation to bring his concerns to his counsel’s attention in a timely manner so counsel, in the exercise of professional judgment, may incorporate them in the enumerations of error and brief.
Coursey v. State,
Judgment of conviction affirmed and case remanded with direction.
Notes
Although mere colloquy between counsel and the court is insufficient to perfect the record for appellate review of a
Batson
claim,
Shaw v. State,