Barrow v. State, No. A04A1429
| Decision Date | 16 September 2004 |
| Docket Number | No. A04A1429, No. A04A1430. |
| Citation | 269 Ga. App. 635,605 S.E.2d 67 |
| Parties | BARROW v. The STATE. Williams v. The State. |
| Court | Georgia Court of Appeals |
David E. Slemons, McDonough, for appellant (case no. A04A1429).
Lloyd J. Matthews, McDonough, for appellant (case no. A04A1430).
Tommy K. Floyd, District Attorney, Blair D. Mahaffey, James L. Wright, III, Assistant District Attorneys, for appellee.
A jury found Erick Barrow guilty of possessing cocaine with intent to distribute and attempting to elude a police officer. The same jury found his co-defendant, Elkanah Williams, guilty of possessing cocaine with intent to distribute. In Case No. A04A1429, Barrow appeals, and Williams appeals in Case No. A04A1430. Because both cases involve the same facts, we have consolidated them for review. For reasons that follow, we affirm.
On appeal from a criminal conviction, a defendant no longer enjoys a presumption of innocence, and we view the evidence in a light most favorable to support the jury's verdict.1 Viewed in this light, the evidence demonstrates that on April 16, 2002, Henry County Police Officer Kenneth Freeman was patrolling traffic on the interstate, and his police car was stopped in the median. While monitoring southbound traffic, Officer Freeman saw Barrow driving a gray Mustang with Williams sitting in the passenger seat. Immediately after passing the police car, the Mustang braked so quickly that the front of the car dipped, which made Officer Freeman think that Barrow might be driving under the influence.
Officer Freeman pulled into traffic behind the Mustang, and he saw the driver change lanes without using any turn signals. Officer Freeman activated his blue lights to stop the Mustang, but Barrow did not stop. Officer Freeman then turned on his siren, and Barrow still failed to stop. According to Officer Freeman, he could see Williams "making a lot of furtive movements." Williams began throwing "white blocky substances" out of the car window. Officer Freeman noted various spots along the interstate where the substance landed, and he radioed Mark Amerman, another officer patrolling the same interstate, telling him that drugs were being discarded from a car being pursued. Barrow eventually exited the highway, and Officer Freeman saw Williams throw out "a bunch of bags and stuff," which littered the exit ramp. Barrow finally stopped in a parking lot.
Officer Freeman and Officer Amerman retrieved some of the items thrown from the car, including a block of white substance that did not disintegrate upon hitting the ground. The substance proved to be 24.91 grams of cocaine. Barrow and Williams were subsequently charged with possessing cocaine with intent to distribute, and Barrow was charged with attempting to elude a police officer.
On appeal, Barrow challenges the sufficiency of the evidence that he possessed cocaine with intent to distribute. He also contends that the trial court erred in: denying a motion to suppress; failing either to exclude evidence or postpone the trial; and permitting the State to bolster its witnesses. Finally, Barrow argues that the form of the verdict was improper. We address each argument in turn.
1. According to Barrow, the evidence was insufficient to show that he possessed cocaine with the intent to distribute. Specifically, Barrow points to the absence of evidence such as "weighing devices," "large sums of cash," or individually wrapped small baggies of cocaine. Although his argument is not entirely clear, it appears that Barrow contends the State proved, at best, that he merely possessed cocaine, not that he intended to distribute it.
"Although mere possession of cocaine cannot serve as the basis for a conviction for intent to distribute, the intent can be established with expert testimony that the amount of cocaine found was greater than would normally be had for individual use."2 Here, the trial court certified Officer Amerman as an expert with regard to the delivery and packaging of narcotics for distribution. Officer Amerman testified that the street value of cocaine is over $100 per gram and that the amount of cocaine found by the officers was consistent with distribution of the drug, rather than personal use. Such evidence is sufficient to support the jury's finding that Barrow possessed the cocaine with intent to distribute.3 This is particularly true here, where the police recovered 24.91 grams of cocaine, but the evidence shows that Barrow threw away blocks of suspected cocaine that the officers were unable to recover.
2. Barrow also contends that the trial court erred in denying his motion to suppress. Specifically, Barrow argues that Officer Freeman had no basis for initiating a traffic stop. We disagree.
In reviewing a trial court's ruling on a motion to suppress, we construe the evidence in a light most favorable to the lower court's judgment, and we accept that court's findings of fact unless they are clearly erroneous.4 "Furthermore, on appeal from the denial of a motion to suppress, we may consider the evidence presented at the hearing on the motion to suppress, as well as that adduced during trial."5
So viewed, the evidence establishes that, after Barrow passed Officer Freeman's patrol car, he braked so suddenly that the front of his car dipped, which made Officer Freeman suspect Barrow of driving under the influence. And Officer Freeman testified that when he pulled behind Barrow, Barrow changed lanes without signaling. According to Officer Freeman, traffic was "medium" at the time, and a turn signal was needed for safety. Although failing to utilize a turn signal does not automatically provide a basis for stopping a motorist,6 an officer may pull over a motorist for failing to signal when traffic conditions require the use of such signal.7 Under the circumstances of this case, Officer Freeman was authorized to initiate a traffic stop, and the trial court did not err in denying Barrow's motion to suppress.8
3. On the morning of trial, the prosecutor informed Barrow's attorney that he had a videotape from Officer Amerman's patrol car that showed Officer Freeman chasing the Mustang and the plastic bags flying from the car window. Barrow moved to exclude the videotape, arguing that because he opted into reciprocal discovery, the State was required to provide it sooner.9 In the alternative, Barrow requested a continuance, arguing that he needed time "to deal with [the] tape."
The prosecutor responded that he was unaware of the tape's existence until that morning, that he brought it to the attorney's attention as soon as he learned of it, and that he played the video for Barrow's counsel. The prosecutor further stated that the tape simply reflected what was set forth in the incident report, and thus Barrow was not harmed by the introduction of new evidence. The trial court agreed with the prosecutor and denied Barrow's motion. Barrow challenges this ruling on appeal.
When the State fails to timely provide evidence pursuant to a reciprocal discovery request, the trial court may order the State to permit examination of the evidence, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the State from tendering the evidence.10 The trial court retains discretion in determining what remedy, if any, is required to ensure a fair trial.11 Here, the record shows that the prosecutor showed the video to the defense upon learning of its existence. And the video merely confirmed the details of the police report. Under these circumstances, the trial court did not abuse its discretion in admitting the tape.12
4. Barrow argues that the trial court erred in permitting the State to bolster its witnesses. Barrow points to Officer Amerman's testimony, in which he said, "Officer Freeman said that the vehicle he was following...." Before Officer Amerman could finish his sentence, Barrow's attorney objected as follows: Although the trial court overruled the objection, Officer Amerman never finished his sentence. Nonetheless, Barrow contends that Officer Amerman's testimony constituted improper bolstering.
Given that Officer Amerman never finished his answer, we fail to see how his testimony could be construed as bolstering. Moreover, Barrow does not argue that he was harmed by Officer Amerman's testimony. It follows that this enumeration of error presents no basis for reversal.13
5. Finally, Barrow contends that the form of the verdict was improper. However, Barrow failed to object to the form of the verdict at trial, and he has thus waived this issue on appeal.14
According to Williams, the trial court erred in denying his Batson challenge. He also asserts that the trial court erred in: admitting the audio portion of a videotape as part of the res gestae; permitting a witness for the State to make prejudicial statements in front of jurors; and improperly "intimating" a judicial opinion that Williams possessed drugs. Williams also challenges the sufficiency of the evidence. We address each argument in turn.
6. Williams first argues that the trial court erred in denying his Batson15 challenge. After the jury was impaneled and dismissed for the day, Williams' attorney challenged the State's strike of the only African-American in the jury pool. The prosecutor objected to the motion as untimely. The prosecutor nonetheless explained that he struck the potential juror because the juror was not present in the courtroom during jury selection.16 The trial court denied Williams' motion, and we find no error. As noted by the trial court, a Batson challenge made after the jury has been impaneled and sworn is untimely.17 Furthermore, even though it was not required, the prosecutor gave a race-neutral reason for the strike. Accordingly, this...
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