An Athens-Clarke County jury convicted Franklin Leon Wise of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and possession of a firearm by a convicted felon, OCGA § 16-11-131. Following the denial of his motion for a new trial, Wise appeals, contending the trial court erred in denying his motion to suppress, in denying his motion to vacate the order denying his motion to suppress, and in admitting certain opinion evidence. Wise also contends the evidence was insufficient to convict him of possession with intent to distribute. Finding no error, we affirm.
Viewed in the light most favorable to the jury’s verdict, 1 the evidence showed the following: on October 9, 1998, pursuant to a tip from a confidential informant, Athens-Clarke County police officers obtained a warrant to search Wise’s residence and his person. On October 15, 1998, police officers executed the search warrant and seized a solid slab of crack cocaine weighing four grams, 3.4 grams of powder cocaine, and a bag of marijuana from Wise’s person, as well as two handguns, three scales, and several razors from Wise’s residence. Wise filed a motion to suppress the evidence, contending the search warrant application, including the officer’s affidavit, failed to provide information material to the magistrate’s determination of the informant’s reliability. The trial court denied the motion to suppress.
1. Wise contends the trial court erred in denying his motion to suppress in that the magistrate issued the search warrant based on a misleading affidavit. Specifically, Wise contends the affidavit failed to reveal that the informant used drugs and received payment for the information.
When reviewing a trial court’s order concerning a motion to suppress evidence, we give substantial deference to the magistrate’s decision to issue the warrant, and we construe the evidence in favor
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of the court’s decision that probable cause existed.
Roberson v. State,
Where issuance of a search warrant is based primarily on an informant’s tip, the issuing magistrate must apply the “totality of the circumstances” test under
Illinois v. Gates,
The task of the issuing magistrate [under Gates] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
(Citation and punctuation omitted.)
State v. Stephens,
In this case, the affidavit showed that the informant previously supplied information about drug dealers at least ten times within the preceding ten months which resulted in the seizure of drugs, that
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officers had used the informant’s tips to obtain warrants which resulted in at least ten arrests, and that the information in the subject warrant application was only a few days old. The only information
not
provided to the magistrate was the officer’s payment of $20 for the information and the officer’s unproven “gut feeling” that the informant himself used cocaine. Moreover, the record contains no evidence that the affidavit contained deliberate falsehoods, that the officer made it with reckless disregard for the truth, or that he “consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable
cause.” Kessler v. State,
2. Wise contends the trial court erred in denying his motion to vacate the order denying his motion to suppress in that the trial judge who entered the order was disqualified. At a calendar call nearly four months after the trial court denied Wise’s motion to suppress, the prosecutor informed the first trial judge that in his prior employment before becoming a judge he had represented the State in proceedings against Wise. Specifically, the judge, in his previous employment as an assistant district attorney, appeared for the State when Wise entered a not guilty plea to a drug charge in 1991 — but did not represent the State when Wise later withdrew that not guilty plea and pled guilty. When apprised at the calendar call of his involvement in a prior prosecution of Wise, the first trial judge determined that he was disqualified from presiding over the case and recused himself. On the day of trial, Wise filed a motion to vacate the order denying his motion to suppress. The second trial judge denied Wise’s motion on the basis that the motion was untimely and lacking in merit.
First, we are not persuaded that the motion to vacate was untimely. Although a motion to recuse must be filed within five days of discovery of the basis for recusal, Uniform Superior Court Rule 25.1, we have found no authority applying this five-day limitation to the filing of motions collateral to a trial judge’s sua sponte recusal. Further, “a court retains broad discretion over interlocutory eviden-tiary rulings which may be modified at any time until entry of final judgment. See, e.g.,
Tucker v. State,
Secondly, a judge is not automatically disqualified from sitting or acting in criminal cases merely on the ground that the judge, in prior employment, has previously prosecuted the defendant in unrelated criminal proceedings.
Gillman v. State,
Furthermore, even if recusal had been required, Wise identified no authority, and we have found none, for the argument that recusal by a trial judge invalidates preliminary rulings entered before the judge became aware of the basis for recusal. To the contrary, recusal of a trial judge, for reasons other than bias or prejudice regarding the parties in the case, does not invalidate earlier pretrial rulings of that trial judge.
Morrow v. Vineville United Methodist Church,
3. Wise contends the trial court erred in admitting a police officer’s opinion evidence that the amount of cocaine seized would typically be intended for distribution rather than for personal use. “In our view, knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience. Therefore, the testimony was properly admissible under OCGA § 24-9-67.” (Citation omitted.)
Davis v. State,
4. Wise also contends the evidence was insufficient to convict him of possession with intent to distribute in that the evidence failed to exclude the hypothesis that Wise intended to consume, rather than to distribute, the cocaine. We disagree. The evidence, including the officer’s testimony that the amount of cocaine was more than one would generally possess for personal use and Wise’s possession of scales, weapons, and other items associated with the drug trade, was sufficient for a rational trier of fact to find Wise guilty beyond a reasonable doubt of possession with intent to distribute.
Bacon v. State,
Judgment affirmed.
Notes
Jackson v. Virginia,