Presley v. State
| Decision Date | 22 February 2008 |
| Docket Number | No. A07A2440.,A07A2440. |
| Citation | 290 Ga. App. 99,658 S.E.2d 773 |
| Parties | PRESLEY v. The STATE. |
| Court | Georgia Court of Appeals |
On this appeal from his conviction for cocaine trafficking, Eric Presley argues that the evidence was insufficient, that the trial court erred when it closed voir dire proceedings to the public and when it instructed the jury not to open a package of cocaine during its deliberations, and that trial counsel was ineffective. We find no error and affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.1 We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.2
So viewed, the record shows that Presley was under surveillance in the course of a police buy-and-bust operation when he left a Wendy's parking lot and drove onto a nearby interstate. Four officers in pursuit saw a white puff rise from the area of Presley's car, pulled over to investigate, and found powder and chunks of suspected cocaine. Two of the officers scraped the white substance off the pavement. The other two officers apprehended Presley, who had bailed out of his car and fled on foot, at his residence. The white substance retrieved from the pavement was later identified as 40.86 grams of 72 percent pure cocaine.
1. The evidence outlined above was sufficient to sustain Presley's conviction for cocaine trafficking.3
2. Presley argues that the trial court violated his right to a public trial when it excluded the public from the courtroom during voir dire. We disagree.
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 bias 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.4
The record shows that before conducting voir dire, the trial court asked Presley's uncle to wait outside the courtroom because the limited available seats would be filled with prospective jurors. The trial court told the uncle that although he was "welcome to come in after we complete selecting the jury," he could not "sit and intermingle with members of the jury panel." At the hearing on Presley's motion for new trial, a bailiff testified that the county courtrooms become very crowded during voir dire, that it is difficult to maintain security under those circumstances, and that only one deputy is assigned to each courtroom when a defendant is not in custody. Presley was not in custody at the time of his trial.
There was no abuse of discretion here, when the trial court explained the need to exclude spectators at the voir dire stage of the proceedings and when members of the public were invited to return afterward.5
3. Presley argues that the trial court erred when it instructed the jury not to open the package containing the recovered cocaine. Specifically, he asserts that the jury
should have been free to open the package in order to conduct "its own review of the physical evidence." The jury was not equipped to do anything more than scrutinize the package of cocaine, however, and the trial court did not abuse its discretion when it instructed the jury not to open the package.6
4. Presley argues that trial counsel was ineffective when he (a) failed to argue that the state's testing of the cocaine was inadequate and neglected to highlight gaps in the chain of custody of the cocaine; (b) failed to object to hearsay evidence concerning the weight of a package of cocaine unrelated to the charge on which Presley was convicted; and (c) failed to object to the court's instruction not to open the package of cocaine. We disagree with these contentions.
To show ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense.7 The question of ineffectiveness is a mixed one of both law and fact: "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."8
To show deficient performance, a defendant must overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct and that counsel's decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case.9
(a) At the hearing on Presley's motion for new trial, trial counsel testified that he did not cross-examine the state's laboratory analyst concerning her testing of only a small portion of the cocaine because an attack on the analyst's methodology would have been "ludicrous" and likely to alienate a jury. Counsel also testified to his judgment that there had been no significant problems with the chain of custody and that additional cross-examination on the issue might have undermined the credibility of Presley's case. We will not second-guess the trial court's conclusion that these tactical decisions concerning the scope of cross-examination were reasonable.10
(b) One of the officers testified that police were surveilling the Wendy's restaurant as part of their buy-and-bust "operation ... for a kilo[gram]" of cocaine. A kilogram of the drug was later recovered at Presley's residence after his arrest. The trial court granted a directed verdict on charges relating to possession of this material, and twice instructed the jury to disregard all evidence related to those charges.
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Harper v. State
...Co. v. Superior Court of California , 464 U.S. 501, 503, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ; Presley v. State , 290 Ga. App. 99, 100-101, 658 S.E.2d 773 (2008) (subsequent case history omitted). Harper also points to OCGA § 5-6-41 (d), which he says supports his reading of OCGA § 17-8-5 ......
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Presley v. Georgia
...spectators at the voir dire stage of the proceedings and when members of the public were invited to return afterward.” 290 Ga.App. 99, 100–101, 658 S.E.2d 773, 775 (2008). The Supreme Court of Georgia granted certiorari and affirmed, with two justices dissenting. After finding “the trial co......
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