Burroughs v. State

• Decision Date: 08 February 1989
• Docket Number: Nos. 77589,77590,s. 77589
• Citation: 190 Ga.App. 467,379 S.E.2d 175
• Parties: BURROUGHS v. The STATE. KING v. The STATE.
• Court: Georgia Court of Appeals

Page 175

379 S.E.2d 175

190 Ga.App. 467

BURROUGHS v. The STATE.

KING v. The STATE.

Nos. 77589, 77590.

Court of Appeals of Georgia.

Feb. 8, 1989.

Rehearing Denied Feb. 27, 1989.

Certiorari Denied April 19, 1989.

J.M. Raffauf, Decatur, for appellants.

Robert E. Wilson, Dist. Atty., Eleni A. Pryles, Robert M. Coker, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Following the denial of their motions for new trial, Latashe Dee Burroughs appeals her bench conviction and sentence for trafficking in cocaine, OCGA § 16-13-31(a), and co-defendant Eugene King, Jr., appeals his bench conviction and sentence for possession of cocaine, OCGA § 16-13-30, in violation of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. Orders of nolle prosequi were entered on one count of trafficking in cocaine, OCGA § 16-13-31(a), and two counts of possession of a firearm by a convicted felon, OCGA § 16-11-131, as to King and on one count of possession of a firearm during commission of a crime, OCGA § 16-11-106, as to both defendants.

The defendants filed various pretrial motions, including ones to suppress and to reveal the identity of the informant. A hearing on the motions was held. King did not appear, so the trial court reserved ruling on his motions until such time as he was arrested and jailed. The court denied Burroughs' motions to suppress and to reveal the identity of the informant and reserved final ruling on severance. Defendants waived their rights to trial by jury.

Eight days after the motions hearing, another hearing was held at which time the trial court determined that the earlier rulings on Burroughs' motions would be the same with respect to King's. It also acknowledged that defendants had agreed to a bench trial, stipulating as facts those gleaned at the motions hearing, with a reservation of all rights by both defendants to appeal the ruling on the motion to suppress.

The stipulated evidence when viewed in a light most favorable to the verdict, Thomas v. State, 175 Ga.App. 873, 874(1), 334 S.E.2d 903 (1985), showed the following: Between 2:00 and 3:30 p.m., Atlanta police made two drug arrests. The arrests were made after the arrestees sold a police detective five ounces of cocaine. The arrestees told police that they had received cocaine from a black female named DeDee who was accompanied by a black male known as Gino. The arrestees had already gotten in the neighborhood of three to five ounces of cocaine from DeDee. They gave police DeDee's address in Decatur and the fact that she was known to drive a new maroon Subaru with a Boomershine drive-out tag. The police checked certain personal information that the arrestees had given about themselves, and a detective took the arrestees on a "ride-by" of the address of their alleged suppliers. The arrestees pointed out the location, the vehicle, and the apartment or condominium out of which DeDee and Gino were allegedly selling or distributing the drugs. The detective relayed the numbers and the vehicles that were there at that time. He then relayed the information to his supervisor who contacted the DeKalb County Police.

At approximately 3:45 or 4:00 p.m., the Atlanta police met with a DeKalb County detective. The detective learned that the arrestees said they could call DeDee and Gino and have four or five ounces of cocaine delivered just on a phone call. Around 5:30 or 6:00 p.m., the police had the arrestees call and arrange for a drug purchase. DeDee agreed to meet the arrestees at the Foto-Mat at South DeKalb Mall in about thirty minutes and to bring five ounces of cocaine.

Following the call, two officers did a surveillance of the suspects' location. They observed Burroughs and King exit, enter the maroon Subaru and leave. The officers followed them to Clarkston, temporarily lost them, and picked them back up again as they returned to I-285 and headed back towards South DeKalb Mall. Meanwhile, at the mall, the arrestees sat with police in an unmarked van from which arrestees could see but could not be seen.

At approximately 6:30 p.m., the maroon Subaru, driven by King with Burroughs as a passenger, entered the mall parking lot and pulled up to an unmarked vehicle in which a police officer sat. When the car drove into the lot, one of the arrestees yelled, "Here comes the car, here comes the car." One of the arrestees identified the male driver as Gino.

Defendants' car was stopped alongside the officer's unmarked car and defendants conversed with the officer. All of the officers in the parking lot began to exit their vehicles, move in, and identify themselves as police officers. The Atlanta police officers were wearing flak jackets that had "Atlanta Police, Narcotics" on the back and caps with "Atlanta Police" on top. One DeKalb County detective had his badge on his vest. All officers were yelling "police" as they approached the car.

Driver King attempted to reach for something beneath the seat. The officers drew their weapons. King put his car in reverse and backed into the nearby unmarked police vehicle. As defendants' car came to rest, the officers around the car saw a gun lying on the console. King and Burroughs were arrested and searched. Burroughs was carrying a purse that contained her driver's license, checkbook, other pertinent information, a little more than five ounces of cocaine and $624 in cash. Approximately one ounce of cocaine was found in King's pants pocket. A Smith & Wesson .357 was found in the car's glove box and a television was found in the backseat.

1. Appellants contend that the evidence was insufficient to uphold their convictions.

a) Burroughs claims that she was not in actual possession of any cocaine, that she was merely a passenger in a car in which a purse was found containing five ounces of cocaine and that there was no evidence indicating she knew there was cocaine in her purse. She further contends that she was not the owner or driver of the car and others had equal access to the car and its contents.

A conviction for trafficking in cocaine under OCGA § 16-13-31(a) does require a finding of actual and not constructive possession. Lockwood v. State, 257 Ga. 796, 798, 364 S.E.2d 574 (1988). "A person who knowingly has direct physical control over a thing at a given time is in actual possession of it." Id. at 797, 364 S.E.2d 574.

There was evidence that Burroughs had direct physical control over the purse containing the approximately five ounces of cocaine because there was evidence that she was found carrying it and that it held her driver's license, checkbook, and other pertinent information. See as persuasive Bonds v. State, 188 Ga.App. 135, 372 S.E.2d 448 (1988), wherein the defendant was convicted of, inter alia, violation of OCGA § 16-13-31(a) after defendant's purse containing the contraband was found a few inches away directly next to defendant, who was sitting on a couch alone. Here, there was much more than mere "spatial proximity" as appellant suggests. See McCann v. State, 137 Ga.App. 445, 446(2), 224 S.E.2d 99 (1976). Furthermore, the fact-finder was permitted to infer guilt from evidence of defendants' flight. Cohran v. State, 157 Ga.App. 551, 552(1), 278 S.E.2d 133 (1981).

Burroughs' equal-access argument also fails. She relies on the claims that she was accompanied by driver King and that the car belonged to a third party and was just temporarily loaned to defendants that day. But the contraband in dispute was not found in the general space of the car but rather in her purse over which there was evidence of her direct control and no evidence of access or control by others. The equal-access rule is inapplicable where the State's evidence is that the defendant actually and physically possessed the contraband. Marshall v. State, 153 Ga.App. 198, 200(5), 264 S.E.2d 718 (1980).

The evidence was sufficient to enable any rational trier of fact to find Burroughs guilty of trafficking in cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

b) King claims that there was no competent evidence that he was in possession of any amount of cocaine because the evidence consisted solely of hearsay and there was no expert testimony identifying the seized drugs as contraband, no stipulated crime lab report, and absolutely no testimony identifying any substance seized from him.

Contrary to appellant's assertion, there was testimony regarding the seized substance. On direct, a DeKalb County detective involved in the arrests testified that King was "searched on the scene by, I believe, Detective ... and approximately one ounce of cocaine was found in his pocket, pants pocket."

This statement about the contraband found on King was not shown to be hearsay because on its face the statement derives its value from the credit of the testifying detective. OCGA § 24-3-1. Although the testifying detective states that King was searched by another he does not indicate that the knowledge of the found contraband was anything other than personal knowledge. This evidence was not without probative value.

Furthermore, identification of a material or substance may be made by other than expert testimony. See, e.g., Wortham v. State, 158 Ga.App. 19, 20(2), 279 S.E.2d 287 (1981). But that is not even at issue because the detective was not rendering his opinion as an expert, see OCGA § 24-9-67, or otherwise, see OCGA § 24-9-65, about what the found substance was but rather was relating facts known or observed by him. King does not claim that the substance was anything other than cocaine. In fact, King stipulated the evidence adduced at the hearing. In any event, King did not object at the motions hearing to the detective's testimony about the contraband found on King; therefore, it was waived. Allen v. State, 152 Ga.App. 481, 482(2), 263 S.E.2d 259 (1979).

The evidence was sufficient to support King's conviction for possession of cocaine. Jackson v. Virginia, sup...