Barnes v. State

• Decision Date: 16 July 1985
• Docket Number: No. 69969,69969
• Citation: 175 Ga.App. 621,334 S.E.2d 205
• Parties: BARNES, et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 205

334 S.E.2d 205

175 Ga.App. 621

BARNES, et al. v. The STATE.

No. 69969.

Court of Appeals of Georgia.

July 16, 1985.

Rehearing Denied July 31, 1985.

Certiorari Granted Oct. 3, 1985.

Austin E. Catts, Atlanta, Donald F. Samuel, J. Britten Miller, Jr., Waleska, for appellants.

Darrell E. Wilson, Dist. Atty., Mickey R. Thacker, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Appellants Sherman Anthony (Tony) Barnes and Jimmy Lou Barnes were indicted for seven violations of the Georgia Controlled Substances Act. A verdict was directed by the trial court as to Counts 2 and 7, conspiracy to distribute marijuana and possession of dextropropoxyphene (Darvon). The jury acquitted them on Counts 3, 5, and 6 for possession of cocaine, hydroxyzine and phendimetrazine (Preludin). They were found guilty of Count 1 for maintaining a dwelling house where controlled substances are stored (OCGA § 16-13-42(a)(5)), and Count 4 for possession of less than one ounce of marijuana (OCGA § 16-13-2(b)), from which verdicts they appeal.

1. Appellants contend that their convictions must be reversed because the evidence was insufficient as a matter of law under the equal access doctrine.

The jury in this case heard a great deal of evidence over three days' time. Its twelve members were able to observe the witnesses, their mannerisms, their attitudes, their reactions to questions and answers and incidents occurring during the trial. They were able to hear the testimony as it was given, in the myriad of nuances in tone, inflection, gesture, and hesitation. They were able to take into account all of this and the other particulars surrounding the presentation of a live case.

We are unable to do that, to share the same sensory perceptions, when reviewing a written transcript of only the words that were said. The subtleties detectible by alert jurors whose sole attention is focused on the unfolding of the case as it occurs is lost to us. "This court has always recognized that the greatest weight and consideration should be paid to the verdicts of juries, and in many cases has held that while the verdict was different from what the judges would have rendered as men, the court would not interfere. So, too, where the evidence was conflicting, it would not disturb the finding, although it might think that the preponderance was in favor of the losing party. In testing the sufficiency of evidence this court can not consider the credibility of witnesses, that being a matter exclusively for the jury, who note their manner of testifying, and consider the thousand and one things transpiring during a trial, which can not be photographed or transcribed and transmitted to this court as a part of the record. But while it can not consider the credibility of a witness, it must consider the nature and character of his testimony, whether it is in accord with natural laws, or is improbable, incredible, or seeks to establish facts which are impossible, or which, if not impossible, must in their very nature be uncertain, vague, indefinite, and insufficient to remove reasonable doubts ... and often find verdicts contrary to the direct testimony of a witness, because their experience demonstrates that what the witness said could not have been true." Patton v. State, 117 Ga. 230, 234, 43 S.E. 533 (1902). "We will not speculate as to what evidence the jury chose to believe or disbelieve. On appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict. [Cit.]" Rhodes v. State, 168 Ga.App. 10, 11, 308 S.E.2d 33 (1983). " 'Weighing the evidence and finding the truth in an obscure or doubtful case is work that can usually be well done, best done, by a jury of the vicinage' and 'what they promulgate by their verdict as the value of the whole, and as the ultimate truth of the matter in controversy, ought to be accepted.' Smith v. State, 63 Ga. 90." Booker v. State, 50 Ga.App. 66, 68, 176 S.E. 917 (1934). "It is basic that after a verdict of guilty the appellate courts must draw every inference and presumption in favor of the verdict. [Cits.]" Sanford v. State, 129 Ga.App. 337, 338 (3), 199 S.E.2d 560 (1973).

Thus, the jury's function is to weigh the evidence and ascertain the credibility of the witnesses and of their testimony. Barton v. State, 40 Ga.App. 504, 150 S.E. 449 (1929); Burse v. State, 41 Ga.App. 364, 153 S.E. 91 (1930). They may accept or reject all or any part of the testimony of any witness. Burke v. State, 196 Ga. 702, 707, 27 S.E.2d 313 (1943); Davis v. State, 205 Ga. 248, 254 (5), 53 S.E.2d 545 (1949); Johnson v. State, 69 Ga.App. 663 (1), 26 S.E.2d 482 (1943). That is not our function. Williams v. State, 150 Ga.App. 852, 854, 258 S.E.2d 659 (1979); Clary v. State, 151 Ga.App. 301 (1), 259 S.E.2d 697 (1979). In our society we have delegated the task of determining the truth to lay citizens of the community in which crime occurs; they are not mere advisors to judges.

For these and perhaps other reasons, on appeal "[w]e are bound to take the evidence most strongly in favor of the jury's verdict. [cit.]" Webb v. State, 170 Ga.App. 115, 316 S.E.2d 561 (1984). We may not substitute our opinion of the evidence for the combined wisdom of those twelve persons.

The trial judge is often regarded as the thirteenth juror, in the context of his authority to grant a motion for new trial. Ricketts v. Williams, 242 Ga. 303, 304, 248 S.E.2d 673 (1978). "[W]here no error of law is shown and there is some evidence to support the finding of the jury, we have no power under the law to invade the province of the jury or overrule the trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful." Pittman v. State, 44 Ga.App. 204, 205, 161 S.E. 155 (1931). Rhodes v. State, supra. In this case, having sat and observed and heard the same, as the court did, it affirmed the jury's verdict and found the evidence sufficient to warrant it.

Taking all of this into account, on appeal as to the general grounds we must affirm if "any rational trier of fact could have found [defendants] guilty as charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979)." Webb v. State, supra at (3).

In that legal context, then, we affirm the convictions.

The Barneses operate a used car business in Ranger, on the site of which are located the office, the Barneses' personal residence (a double-wide trailer) and trailers where Mrs. Barnes' father and employees live. In the middle of the afternoon of May 18, 1984, a number of law enforcement officers and a dog trained to sniff out drugs arrived in five vehicles to execute a search warrant for the home and office. ¹

When the officers arrived at the premises, Jimmy Lou Barnes, the wife, ran towards the Barneses' home warning "raid" three or four times. Inside were Jennifer Silvers, a child, and Rita Fay Cronan, an employee and friend who, when officers entered, had a towel wrapped around her wet head. Cronan said she had been in the back bathroom which was connected by a door to the master bedroom through which one would have to first pass. The double-wide mobile home had another bath, the main one, and two other bedrooms, one of which was used as a spare room and was sometimes occupied by this or other employees when they returned late at night from car sales. The other bedroom was the Barneses' son's. On the vanity beside the sink in that back bathroom were scales, three boxes of Ziploc plastic bags (two labeled storage bags and one labeled sandwich bags), and a bag of brown paper bags labeled "lunch bags." On an open shelf was a canister of lactose ² and a money box with money, which Cronan said was usually in the amount of about $1,000. On the floor beside the vanity was a pocketbook, later claimed by Cronan. Drugs constituted its contents: two sacks of leafy material seed, several marijuana cigarettes, and residue at the bottom.

In a closet in the master bedroom was a grocery bag with numerous empty prescription bottles in it. ³ In the living room/den was a decorative wood stove into which two baggies with marijuana remains had been placed. Although defendant Tony Barnes, the husband, was not present at his business on the premises or at his home at that time, there was testimony that he or Mrs. Barnes was usually at the trailer when any employee went there.

Cronan, after invoking the Fifth Amendment at the trial when asked about the purse, was granted immunity at this juncture. She was the mother of defendant Tony's 6-year-old daughter. She and the little girl lived with Cronan's father but she stayed "occasionally" in the trailer's spare room so as not to have to go home in the early morning hours when they went to car sales. Cronan, who was 26, worked for defendants about seven years and, when pressed, guessed she had been there "40%" of her time in that seven years; she did not identify when that was, in relation to current time. Although there was testimony that other employees visited the trailer, there was no evidence whatsoever that any other employee had stayed there that day, the day before, or even recently. Several testified that they had been to the trailer at various times.

After having been granted immunity, Cronan said she was unaware of the marijuana and baggies in the stove but that the purse with the marijuana in it was hers. The items in the bathroom, i.e., the scales, baggies, lunch bags, canister of lactose, and money box with money were also not hers, she said. She claimed she bought the marijuana the day before from a "Diane" whose last name she did not know but had chanced upon in a department store in Dalton, after not seeing her since 1978 when they both worked for the...