Burrell v. State, 67981

• Citation: 171 Ga.App. 648,320 S.E.2d 810
• Decision Date: 26 June 1984
• Docket Number: No. 67981,67981
• Court: United States Court of Appeals (Georgia)
• Parties: BURRELL v. The STATE.

Page 810

320 S.E.2d 810

171 Ga.App. 648

BURRELL v. The STATE.

No. 67981.

Court of Appeals of Georgia.

June 26, 1984.

Rehearing Denied July 16, 1984.

Certiorari Denied Sept. 4, 1984.

Douglas W. McDonald, Sr., Cornelia, for appellant.

Linton K. Crawford, Sol., for appellee.

McMURRAY, Chief Judge.

On or about January 29, 1983, police officers and Georgia Bureau of Investigation (GBI) agents, acting on information supplied by a reliable informant, and pursuant to a valid search warrant, discovered two marijuana cigarettes and a yellow "bong" (i.e., a device used for smoking marijuana) (containing a residue which later tested positive for marijuana) in and about a house owned by defendant and occupied by defendant and his roommate. One of the marijuana cigarettes was found on top of a "chiffarobe or cabinet" in a room located adjacent to the kitchen. The other cigarette was found laying on a cushion of a sofa in a room which the GBI agent described as the den area of the house. The yellow "bong" was found on a shelf in the closet of a bedroom occupied by defendant.

At trial, defendant contended, among other things, that the evidence was insufficient to support a verdict of guilty based upon the proposition that persons other than the defendant had equal opportunity to commit the crime (e.g., GBI agent Henry testified that at the time of the search approximately ten other persons besides defendant were present in the house and that the persons present were located in the kitchen and den area of the house. Defendant testified that his roommate slept in his bedroom prior to the search and that persons other than himself had been in his bedroom on the night of the raid). Based on this contention, defendant moved for a directed verdict of acquittal. The trial court, however, denied defendant's directed verdict motion and upon submission of the case to the jury, defendant was convicted of the possession of not more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. Following a denial of his motion for new trial, defendant brought this appeal. Held:

1. Defendant contends that he was subjected to improper character impeachment by the admission into evidence of a conversation between an informer and a GBI agent which was not made in his presence. During trial a GBI agent testified over objection that the informant in the case had told him, "that he had observed drugs at the [Burrell] residence on more than one occasion [and] that there had been personal observations of drugs in the residence before." The officer further testified, "we received information [from the informant] that there was supposed to be a birthday party [at the Burrell residence] with a lot of drugs." The trial court admitted the agent's testimony for the limited purpose of explaining the agent's conduct and motives in assisting the Cornelia Police Department in its investigation of the Burrell residence for drugs. However, at this point in the trial (i.e., after opening statements had been made and upon direct examination of the State's first witness), the conduct and motives of the GBI agent in focusing the investigation on the Burrell residence were irrelevant since at the time no evidence had been introduced to support defendant's contention that he was being prosecuted for political reasons. As such, we are of the opinion that the admission of the testimony of the GBI agent relating his conversation with the informant for the limited purpose of explaining the officer's conduct and motives in assisting the Cornelia Police Department in its investigation of the Burrell residence for drugs was error. See Teague v. State, 252 Ga. 534, 314 S.E.2d 910, and cases cited therein. However, we do not believe, for the following reasons, that this error was harmful under the standards of Johnson v. State, 238 Ga. 59, 230 S.E.2d 869. First, defendant's counsel, in his opening statement, contended that the evidence would show that defendant was "the object of persecution because of his position in the county;" that defendant "[had] been the subject of tremendous political pressure;" "that the raid at [the Burrell residence] was not conducted until [the officers] knew that David Burrell was there;" and "that [the subject prosecution was] a political matter." Second, throughout the trial, defense counsel tried to infer that defendant was being prosecuted for political reasons. Third, counsel for defendant, in his closing arguments, argued that the prosecution was initiated simply because of defendant's position in the community (i.e., for political reasons). Moreover, it was brought out on cross-examination of the GBI agent that although the informant had seen drugs at the Burrell residence before, he had never seen defendant with drugs. Thus, it is highly probable that the error did not contribute to the judgment. See Johnson v. State, supra.

2. In his second enumeration of error, defendant contends that the trial court erred in overruling his motion for mistrial based upon the state court solicitor's redirect examination of a GBI agent which brought out the fact that the agent had testified previously in a motion to suppress hearing which lasted approximately three or four hours. Defendant argues that the fact that a suppression hearing had been held had no probative value and was highly prejudicial in that it might have had misleading connotations to the jury. However, "[o]ur review of the transcript reveals that the complained--of testimony was elicited as much by defense counsel as by the [state court solicitor]. Therefore, if there was any error in admitting this testimony, it was induced error, which cannot be complained of on appeal. See Threlkeld v. State, 128 Ga. 660, 58 S.E. 49 (1907) and cits." Perryman v. State, 244 Ga. 720 (2)-721, 261 S.E.2d 588. See also Westbrook v. State, 162 Ga.App. 130, 131(2), 290 S.E.2d 333.

3. On cross-examination of GBI agent Henry, defense counsel asked, "You recognize that when two people live in a house together and occupy that place together--equal access rule applies there, too, doesn't it?" The trial court correctly sustained the solicitor's objection on the ground that "[the question called] for an answer that is a matter of law and not a fact in this case." See McCaulla v. Murphy, 86 Ga. 475, 481, 12 S.E. 655.

4. Upon cross-examination of GBI agent Henry, defendant's counsel further inquired, "was a urine test, a blood test, or a breath test taken from David Burrell?" The trial court properly sustained the solicitor's objection on the ground that "the answer solicited would not be probative of the question before this jury, that is whether [defendant] was in actual or constructive possession of this marijuana."

5. Defendant contends "the trial court abused its discretion in preventing the defense on direct examination of [defendant] from fully developing the motivations which [defendant] contended fueled the entire proceeding against him." However, after careful examination of the record before us, we find that the court, in several instances, allowed defendant to adequately develop his contention that the prosecution against him was politically motivated. Thus, even assuming that the trial court erred in preventing defendant from going into further detail regarding his theory that he was being prosecuted for political reasons, it is highly improbable that such error contributed to the jury's verdict. See Johnson v. State, 238 Ga. 59, 230 S.E.2d 869, supra. Accordingly, this enumeration is without merit. See also Dill v. State, 222 Ga. 793(1)-794, 152 S.E.2d 741.

6. Defendant asserts as error the denial of his motion for a directed verdict of acquittal based upon insufficiency of the evidence. To this end, defendant argues that "[m]erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. [Cits.]" Gee v. State, 121 Ga.App. 41, 42-43, 172 S.E.2d 480. In the case sub judice, however, the evidence does not affirmatively show that anyone other than defendant had actual access to the closet of the bedroom where the "bong" containing the marijuana residue was found. "To make an affirmative showing of equal access, it is not enough to show that others might have had equal access but it must affirmatively appear that others did have equal access. It is not necessary that the state remove every possibility of the defendant's innocence [cit.], but only that the evidence be sufficient to convince the rational trier of fact of the defendant's guilt beyond a reasonable doubt. [Cit.]" Valenzuela v. State, 157 Ga.App. 247, 249(2)-250, 277 S.E.2d 56.

After reviewing the evidence in the light most favorable to the prosecution, we conclude that there was sufficient evidence to enable a rational trier of fact to reasonably find the defendant guilty of the offense charged beyond a reasonable doubt. See Lush v. State, 168 Ga.App. 740, 742(6)-743, 310 S.E.2d 287; Prescott v. State, 164 Ga.App. 671, 672(1)-673, 297 S.E.2d 362; Valenzuela v. State, 157 Ga.App. 247, 249(2)-250, 277 S.E.2d 56, supra. We find no error in the court's overruling of the defendant's motion for a directed verdict of acquittal.

7. Defendant contends the trial court erred in refusing to charge the provisions of OCGA § 24-9-85(b) (formerly Code § 38-1806), asserting that GBI agent Henry knowingly and deliberately lied under oath regarding the location of the defendant when agent Henry first saw him. However, before this statute is applicable, "it must manifestly appear, not only that the witness on one or the other occasion has sworn falsely to a material matter, but that he has done so wilfully and knowingly. [Cits.]" Duke v. State, 147 Ga.App. 101 (2)-102, 248 S.E.2d 176. A review of the transcript discloses that this Code section was...