Aрpellants in these companion cases were indicted on a two-count indictment. Count 1 charged appellants with possession of more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. Count 2 charged them with possession of cocaine in violation оf the same Act. Both appellants originally pled guilty. Appellant-Thompson received a six-year sentence with three years to serve and three years on probation. Appellant-Amstutz received an eight-year sentence with five years to serve and three years on probation. Appellants thereafter moved to withdraw their guilty pleas, their motion was granted and they proceeded to a jury trial which was presided over by the judge who had allowed appellants to withdraw the guilty pleas. The jury returned guilty verdicts against appellants on both counts. They appeal.
1. Appellants enumerate error on the denial of their motion to suppress. The evidence shows that a part-time law enforcement officer observed an airplane on his neighbor’s property. He saw appellants unloading bales or bundles from the plane and reported the suspicious activity to the sheriff. The sheriff arrived to investigate. Amstutz fled. Thompson related to the sheriff that he had been hitchhiking when “some guy came by and picked him up and wanted him to help him unload some marijuana.” Thompson was arrested and Amstutz was apprehended shortly thereafter. On this evidence, it was not error to deny the motion to suppress. Appellants had no Fourth Amendment protection against the seizure of contraband in the open fields of another. Hester v. United States,
Appellants further urge that it was error to introduce the marijuana and cocaine into evidence beсause the state failed to prove chain of custody. We disagree. “The burden the state must carry to gain admission of evidence such as this is to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. [Cit.]... ‘[I]t is not necessary that the state nеgative all possibility of tampering but only that it show it is reasonably certain there was no alteration — when there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. (Cits.) ’ [Cits.] ”
Johnson v. State,
2. The trial court ordered counsel for appellants and counsel for the state to submit a list of proposed voir dire questions to be asked of prospective jurors excepting those set forth in Code Ann. § 59-806. Counsel was informed that any question not appearing on the list would not bе permitted and that, prior to trial, the court would advise counsel as to which of the proposed questions would be allowed and which would not. Appellants’ counsel submitted his list. The trial court entered an order setting forth which voir dire questions he would allow defense counsel to ask. This order disallowed and rewоrded certain questions which had been on the list submitted to the court. Appellants enumerate as error the disallowance of these voir dire questions.
“The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from biаs and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.” Whitlock v. State,230 Ga. 700 , 706 (198 SE2d 865 ) (1973). A review of the transcript of the voir dire in the instant case demonstrates that appellants were afforded a thorough and complete examination of prospective jurors. The entry of the order prescribing permissible inquiries did not constitute a “manifest abuse” of the discretion of the trial judge. Arguments to the contrary are meritless.
3. Error is enumerated on the trial judge’s refusal to give the following request to charge: “[Circumstantial evidеnce is evidence
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which only tends to establish the issue by proof of various facts sustaining by their consistency the hypothesis claimed. Circumstantial evidence alone will not support a conviction unless the evidence is
such that it excludes every hypothesis except that of guilt...
If the evidence points to one theory which is consistent with guilt and to another which is consistent with innocence, the evidence will not support a conviction and you would be authorized to return a verdict of not guilty.” It was not error to refuse to give this charge because it is not an accurate statement of the law. “ ‘ To sustain a conviction, it is not required that the evidence exclude
every possibility or inference
that may be drawn from proved facts. It is only necessary to exclude reasonable inferences and reasonable hypotheses which may be drawn from the evidence under all the facts and circumstances surrounding the particular case.’ [Cits.]” (Emphаsis supplied.)
Giles v. State,
Furthermore, the trial court did in fact instruct the jury on the definition of circumstantial evidence and then charged: “Now to warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of [guilt], but must exclude every other reasonable theory, save that of the guilt of the accused.” This was a рroper and sufficient charge on circumstantial evidence, substantially in the language of Code Ann. § 38-109.
Johnson v. State,
Appellants further contend that the trial judge originally indicated he would not charge on circumstаntial evidence; that, therefore, defense counsel did not address circumstantial evidence in his closing argument to the jury; that the judge then gave his above quoted instructions substantially in the language of Code Ann. § 38-109; and that when appellants’ counsel objected to being misled as to the court’s intentions to instruct on сircumstantial evidence and requested the right to reargue to the jury on this matter, this request was denied. It is urged that this constitutes reversible error.
Daniels v. State,
4. Appellants raised coercion as a defense. The trial court gave a full and fair charge on this defense which was in no way burden shifting.
Fox v. State,
5. Appellants Thompson and Amstutz originally pled guilty and received, respectively, total sentences of six years (three to serve and three on probation) and eight years (five to serve and three on probation). After their guilty pleas were withdrawn and their trial resulted in guilty verdicts, the judge imposed a six-year sentence on Thompson and eight-year sentence on Amstutz, without probation. Appellants contend that this action by the trial court violates the due process standards enunciated in North Carolina v. Pearcе,
In the instant case the trial judge has included his reasons for eliminating the probationary aspects of his оriginal sentence from the sentence imposed after trial. We believe this finding by the trial judge satisfies Pearce’s requirement that there be a showing that the harsher sentence is not “vindictive” but based upon identifiable conduct on the part of appellants occurring after their original sentencing. The trial judgе indicated that he had accepted the original guilty pleas as a demonstration of appellants’ “significant step toward rehabilitation” and that for that reason alone he had entered partially probated sentences. The judge stated that he
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would not have extended the leniency оf probation had appellants not pled guilty. Thus, the trial court’s statement affirmatively demonstrates that his sentence after the jury verdict was not based upon “vindictiveness” towards appellants for withdrawing their pleas but, rather, on the absence of the basis upon which his original probated sentencing was bаsed — appellants’ first step toward rehabilitation as evidenced by their willingness to plead guilty. “For those who plead [guilty], that fact itself is a consideration in sentencing, a consideration that is not present when one is found guilty by a jury.” Corbitt v. New Jersey,
Here, as in Corbitt, appellants were originally given the election to contest their guilt or to plead guilty and receive a partially probated sentence. They elected the latter but thеn withdrew their pleas and went to trial in the hopes of either being acquitted or receiving a lesser sentence. Having made that election and been found guilty by a jury, appellants should not now be heard to complain that that election also destroyed the basis upon which the original probated sentence was based. “It cannot be said that defendants found guilty by a jury are ‘penalized’ for exercising the right to a jury trial any more than defendants who plead guilty are penalized because they give up the chance of acquittal at trial. In each instance, the defendant faces a multitude of possible outcomes and freely makes his choice. Equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision.” Corbitt v. New Jersey,
Judgments affirmed.