Tate v. StateTate v. State
Odell Tate was indicted by a Floyd County grand jury for the offenses of possession of cocaine with intent to distribute,
1. Tate asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that a police officer on foot patrol saw Tate driving a cаr on the street adjoining the Rome Housing Authority public housing project. Because the officer knew that Tate did not have a valid driver’s license, he followed him to a unit in the housing project and arrested him for driving with a suspended license. After briefly patting Tate down for weapons, the officer escorted him to his patrol car. Before placing Tate in the patrol car, the officer lifted up the rear seat to make sure the rear seat area contained no contraband or other objects. The officer had checked his patrol car when his shift began for any “out of the ordinаry” objects in the rear seat area, as required by police department policy.
After Tate was placed in the patrol car, the officer conducted an impound and inventory of Tate’s vehicle. During this time, the officer observed Tate making unusual movements inside the patrol car. Tate stopped moving several times when he noticed the officer watching him. Once they arrived at the county jail, the officer lifted the rear seat and found a small plastic bottle containing 12 pieces of suspected crack cocaine. A forensic chemist testified that the material tеsted positive for cocaine. Tate testified and denied any knowledge of the cocaine in the back seat of the patrol car.
(a) In asserting the general grounds, Tate contends the Stаte failed to foreclose the possibility that the cocaine was placed in the patrol car by some other person. After the jury’s verdict of guilty Tate can no longer rely on the presumption of innocence, and this Court
cannot weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence was sufficient to enable any rational trier of fact to find Tate guilty of the crime charged beyond a reasonable doubt.
Clark v. State,
(b) But mere possession of cocaine, without more, will not support a conviction for рossession with intent to distribute.
Wright v. State,
Here, the State offered two types of proof of intent to distribute: Tate’s earlier guilty plea tо possession of cocaine with intent to distribute and sale of cocaine, along with the testimony of two police officers that the amount of cocaine discovered in this case was inсonsistent with personal use. Tate enumerates as error the admission of the similar transaction and the testimony of one of the officers.
2
We disagree; both the similar transaction and the testimony werе properly
2. The trial court properly admitted Tate’s 1988 plea of guilty to one count of a five-count indictment, alleging that he “did . . . possess with intent to distribute, dispense, administer, sell and deliver cocaine.” An undercover officer testified thаt Tate in the earlier incident sold him $475 worth of cocaine within a few blocks of the site of his arrest in this case. Both arrests occurred in the same area, but Tate did not live there. When Tate took the stand, he testified that he came to the housing project to ask a friend to play on a basketball team with him.
While Tate argues there was insufficient similarity between the two incidents, the earlier offense “invоlved a violation of the Georgia Controlled Substances Act and the sale or intent to sell cocaine. Accordingly, the offenses were substantially similar to justify admission as it is the factual similarity of the defendant’s possession of drugs on different occasions which renders it admissible to show his identity. On the question of similarity, the trial court’s findings will not be disturbed unless clearly erroneous. Further, the similar transaction evidence was being introduced to show motive, intent, and knowledge, purposes deemed appropriate and exceptions to the general rule of inadmissibility.” (Citations and punctuation omitted.)
Cantrell v. State,
In Tate’s case, the earlier incident involved an actual sale of cocaine within a few blocks of the arrest in this case, althоugh Tate did not live in the area. The earlier incident involved powder rather than crack cocaine, but the arresting officer testified that crack cocaine was “not that prevalent hеre in Rome” at that time. The finding of similarity is not clearly erroneous under the standard of Cantrell and Collins, and the trial court did not err in admitting the evidence.
3. We also find the arresting officer properly testified that the amount of cocaine found was inconsistent with persоnal use and consistent with sale. As in
Bacon v. State,
Moreover, the officer who testified to the similar transaction was also questioned regarding his experience in drug enforcement and knowledge of the habits of crack cocaine users. He testified without objection regarding the amount of crack cocaine customarily carried for personal use. The testimony to which appellant objected was therefore at mоst simply cumulative of other testimony admitted without objection. “Evidence is harmless where admissible evidence of the same fact is before the jury. Accordingly, any error in overruling defendant’s objection wоuld have been harmless.” (Citations and punctuation omitted.)
Maher v. State,
4. Tate also enumerates as error the trial court’s refusal to grant a mistrial based on the unsolicited remark of a forensic chemist on crоss-examination that he had testified in “probation court” regarding the same cocaine sample. After Tate objected, the trial court offered to give an immediate curative instruction to the jury, but noted that it “might call too much attention” to a term that the trial court correctly described as not having “any particular meaning.” Tate’s
“[Ajppellant refused the offer of curative instructions, thus making it impossible for the trial court to repair the alleged prejudice and waiving the grounds to assert mistrial error on appeal.” (Citatiоns and punctuation omitted.)
Shelton v. State,
5. In his final enumeration of error, Tate asserts he was denied effective assistance of counsel. In order to show he was denied the constitutional right to counsel, Tate must show that his trial counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability thаt the result of the proceeding would have been different. The record shows that this issue was raised in a timely fashion in the amended motion for new trial filed by Tate’s appellate counsel. The record further shows that the amended motion for new trial was denied after a hearing. However, no transcript of the hearing on the amended motion for new trial has been included in the record on appeal. “Accordingly, we must presume that [Tate] failed to meet his burden of proving the ineffectiveness of his trial counsel and that the trial court correctly denied the motion for new trial on this ground.” (Citation omittеd.)
Sorrells v. State,
Judgment affirmed.