Boone v. State

• Decision Date: 23 September 2008
• Docket Number: No. A08A1300.,A08A1300.
• Parties: BOONE v. The STATE.
• Court: Georgia Court of Appeals

293 Ga. App. 654

667 S.E.2d 880

BOONE v. The STATE.

No. A08A1300.

Court of Appeals of Georgia.

September 23, 2008.

N. David Wages, for appellant.

Richard K. Bridgeman, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

MILLER, Judge.

A jury convicted David Wayne Boone of six counts in violation of the Georgia Controlled Substances Act: trafficking in methamphetamine, OCGA § 16-13-31(e) (Count 1); manufacture, distribution, and possession of methamphetamine with the intent to distribute, OCGA § 16-13-30(b) (Counts 2-4, respectively); possession of ephedrine/pseudoephedrine, OCGA § 16-13-30.3(b)(1) (Count 5); and possession of a firearm during the commission of a felony, OCGA § 16-11-106(b)(4), (5) (Count 6). The trial court entered its judgment of conviction upon the jury's verdict as to Counts 2-6 finding that Count 1 merged into Count 2 as alleging the same offense. Boone appeals from the denial of his amended motion for new trial, challenging the sufficiency of the evidence upon the general grounds, the admissibility of evidence seized in the police search of his premises, the admissibility of his custodial and noncustodial statements, and the trial court's ruling denying his Batson¹ motion. Boone also contends that the trial court erred in violating the rule of sequestration; in allowing into evidence the out-of-court statement of a State's witness; in allowing the State's lead investigator to testify as an expert and restricting his cross-examination of the same; and in allowing the State's forensic chemist to testify as to the nature of a substance based on another's analytical findings. Further, Boone maintains that the trial court erred in allowing one or more jurors to begin deliberating before the close of the case, in allowing certain testimony as to the hazardous nature of a meth lab and in allowing the prosecutor to make an improper comment on his character during closing argument. Discerning no error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, without affording the defendant the presumption of innocence. Pollard v. State, 230 Ga.App. 159, 495 S.E.2d 629 (1998). So viewed, the evidence shows that on December 19, 2003, while on routine patrol in Jackson County, Deputy Sheriff Charlie Timms noticed a Chevrolet truck driven by Leila Hilyer make a sharp left turn without using its turn signals. Deputy Timms pursued, and stopped the vehicle in front of a trailer home owned by the Boones. Hilyer and her passenger exited the vehicle, Hilyer then going to speak with Deputy Timms and the passenger walking quickly to the residence and entering without knocking. Upon being questioned, Hilyer told Deputy Timms that her driver's license had been suspended. Shortly thereafter, Boone's co-defendant Derwin Phillips, emerged from the residence and approached Hilyer and Deputy Timms. A records check revealed that Phillips' driver's license had also been suspended and warrants were outstanding as to Hilyer and Phillips. After the arrival of Captain Rich Lott and Investigator Jim Askey at the scene, Hilyer and Phillips were arrested.

During searches conducted incident to the arrests, Deputy Timms recovered a baggie containing what he believed to be methamphetamine under the passenger seat of the truck. Investigator Askey then knocked on the door of the Boones' residence. In response to Investigator Askey's request, Boone and his wife, Alethia, gave oral and written consent to a search of the residence and its curtilage.

Upon entering the trailer, the officers observed digital scales in plain view on the kitchen countertop. In the Boones' bedroom closet, Investigator Askey found approximately a dozen Mason jars, funnels, wooden spoons, and other utensils used in manufacturing methamphetamine. In a bureau next to the closet, Investigator Askey also found what appeared to be a 40-watt light bulb that had been altered to permit smoking methamphetamine. A total of 459 pills, containing ephedrine or pseudoephedrine, were recovered from multiple locations throughout the home.

Outside, the officers found an empty can of engine starter fluid. The can had been altered in a manner consistent with removing ether from the fluid, for use in making methamphetamine. The officers also found an electrical cord outside the trailer leading to a panel van on the property. When the officers entered the van, they found a sawed-off 12-gauge shotgun, with Boone's name, multiple swastikas, an Iron Cross, and the Confederate flag, carved into the stock. The names "Wayne" and "Alethia" were scrawled on one interior panel of the vehicle. Deputy Timms found a 50-gallon burn barrel, Coleman fuel bottles, chemicals, and propane tanks in the area beyond the trailer.

Investigator Askey testified that all items necessary for manufacturing methamphetamine had been found in and around the van, i.e., that the van housed a "meth lab." According to Askey, Boone explained that these items belonged to the person to whom he had rented the van. Boone's arrest and that of his house guest, David Gunter, followed. In related testimony, Georgia Bureau of Investigation ("GBI") forensic chemist, Deneen Kilcrease, testified that methamphetamine was being manufactured at that location, based on her observations of the physical evidence at the scene and the analytical findings of another forensic chemist. Mark Lavender, a GBI agent certified as a methamphetamine laboratory technician and site safety officer, testified that the number of Sudafed pills found at the residence alone could produce between 30 and 33 grams of methamphetamine and that he had observed methamphetamine suspended in a liquid jar inside the van. Agent Lavender also stated that when he interviewed Gunter after his arrest, Gunter told him that Boone had provided him methamphetamine earlier in the evening at Boone's trailer. According to Gunter, Boone indicated that he had plenty of it and that Gunter could have all he wanted.

1. Asserting the general grounds, Boone claims that his convictions must be reversed because the circumstantial evidence was insufficient to establish his guilt beyond a reasonable doubt. We disagree.

"When the general grounds are asserted, as here, only the sufficiency of the evidence can be considered. [Cit.]" Knox v. State, 254 Ga.App. 870, 871, 564 S.E.2d 225 (2002). In that regard,

[w]e view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or assess witness credibility, but merely determine whether the evidence is sufficient to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citations omitted.) Davis v. State, 272 Ga. App. 33, 611 S.E.2d 710 (2005).

Here, there was evidence that the panel van at issue belonged to Boone, had been modified as a meth lab, was located on Boone's property, and was powered by an electrical cord which ran to the van from his trailer; everything necessary to support the production of methamphetamine was present in the vicinity of the vehicle; Boone's name and that of his wife had been scrawled on an interior panel of the vehicle; Boone offered to provide any additional methamphetamine that Gunter wanted; and uncured methamphetamine and enough ephedrine was present at the scene to make 30 to 33 grams of methamphetamine. Further, by his custodial statement, Boone admitted that he had given methamphetamine to others and that he owned the sawed-off shotgun recovered from the panel van.

Notwithstanding the foregoing, Boone argues that his convictions are supported by insufficient circumstantial evidence given the fact that co-defendant Phillips had the key to his van. "To warrant a conviction on circumstantial evidence, [however,] the proved facts need exclude only reasonable hypotheses— not bare possibilities that the crime could have been committed by someone else. And questions of reasonableness are generally decided by the jury." (Citation and punctuation omitted; emphasis in original.) Daugherty v. State, 283 Ga.App. 664, 667(1)(a), 642 S.E.2d 345 (2007). Apart from admitting that he distributed methamphetamine and owned the firearm taken from the van (Counts 3 and 6), Boone proffers no more than bare possibility in opposition to the foregoing circumstantial evidence of his participation in the remaining crimes of which he was convicted, i.e., the manufacture and possession of methamphetamine with the intent to distribute (Counts 2 and 4), and the possession of ephedrine (Count 5). It follows that a rational trier of fact could have found Boone guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Boone argues that he withdrew his consent to search his residence, and, as a consequence, that the trial court erred in denying his motion to suppress the evidence seized during that search. In support of this argument, Boone cites to the testimony of Investigator Askey. Askey, however, testified only that Boone "got kind of upset a little bit ..." upon being questioned regarding the things which had been found at his trailer. "[A]ny action which purports to be a withdrawal of consent must be recognizable as such based upon an objective standard of reasonableness." (Citation omitted.) Whiting v. State, 275 Ga.App. 251, 253-254, 620 S.E.2d 480 (2005). We fail to see how this testimony demonstrates that Boone withdrew his consent.

3. Boone contends that the trial court erred in admitting his custodial and noncustodial statements, claiming that both were involuntary. We disagree.

"The standard for determining whether or not a confession was voluntary is the preponderance of the evidence standard. The trial court's decision on this point will not be disturbed on appeal unless there is obvious error." (Footnote omitted.)...