Chester v. State

• Decision Date: 19 March 1982
• Docket Number: No. 62737,62737
• Citation: Chester v. State, 290 S.E.2d 117, 162 Ga.App. 10 (Ga. App. 1982)
• Parties: CHESTER et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 117

290 S.E.2d 117

162 Ga.App. 10

CHESTER et al. v. The STATE.

No. 62737.

Court of Appeals of Georgia.

March 19, 1982.

Jeffrey B. Bogart, Jeffrey P. Rothenberg, Atlanta, for appellants.

Robert Keller, Dist. Atty., Michael Anderson, Asst. Dist. Atty., Jonesboro, for appellee.

McMURRAY, Presiding Judge.

Defendants Chester and McCoy were charged by indictment with certain violations of the Georgia Controlled Substances Act. Count 1 charged possession of methaqualone. Count 2 charged possession of marijuana. However, Count 3 charged defendant Chester only with possession of oxycodone.

The jury returned a verdict of guilty as to both defendants on Counts 1 and 2. Defendant Chester was acquitted as to Count 3. Defendants' motion for new trial was filed and denied. Defendants appeal. Held :

1. Relying upon the reasoning of Hayes v. State, 141 Ga.App. 706, 234 S.E.2d 360; State v. Brassell, 144 Ga.App. 279, 241 S.E.2d 57; and Wyatt v. State, 151 Ga.App. 207, 208-211(1), 259 S.E.2d 199, defendant Chester contends that as he was not named in the search warrant and there were no circumstances authorizing the search of a person not named in the search warrant, the search of his closed suitcase labeled with his name was an impermissible personal search, and the resulting evidence should have been suppressed. However, the black case labeled "Chester" in which drugs were found was located in an office of defendant Chester's property and residence as disclosed by evidence. The trial court did not err in denying the motion to suppress. The above cases generally involve visitors on the premises and not the owner, hence they are inapposite and not controlling.

2. Defendants argue that they were denied effective assistance of counsel because their trial counsel failed to litigate the scope of the search in the case sub judice. "When retained counsel is a goodstanding member of the State Bar, a prima facie cause of competence is made out." Hudson v. State, 156 Ga.App. 281, 282(2), 274 S.E.2d 675. The record and transcript show that the defendants' trial counsel made pretrial motions, cross-examined witnesses, objected to the admission of certain evidence, and made a closing argument. "The fact that another attorney may have handled appellant's defense differently is not indicative of trial counsel's ineffective assistance. See, e.g., Suits v. State, 150 Ga.App. 285(1), 257 S.E.2d 306: (sic) Chapman v. State, 154 Ga.App. 532, 533, 268 S.E.2d 797; Robinson v. State, 150 Ga.App. 642(8), 258 S.E.2d 294." Hammond v. State, 157 Ga.App. 647, 649, 278 S.E.2d 188. See also Whitt v. State, 157 Ga.App. 10, 12(5), 276 S.E.2d 64; and Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515.

3. The trial court in his order overruling the defendants' motion to suppress, expressly predicated his decision upon consideration "of the motion as amended, the evidence presented, and the arguments of counsel ..." Set forth as a clearly independent basis for overruling the motion to suppress as to defendant McCoy was an additional reason, a lack of standing to bring such a motion. Although this independent additional reason for overruling defendants' motion to suppress may, as is argued, be erroneous, such error is harmless in view of the trial court's separate adverse ruling on the merits of the motion to suppress evidence and our approval thereof. Harm as well as error must be shown before reversal is appropriate. Wood v. State, 243 Ga. 273, 274(5), 253 S.E.2d 751.

4. Defendants' fifth enumeration of error complains of the admission into evidence of certain testimony. As to two of the three items of testimony listed by defendants no objection was made at trial and therefore no issue was framed in the trial court appropriate for appellate review. As a court for the correction of errors of law we may not consider an issue raised for the first time on appeal. Jefferson v. State, 157 Ga.App. 324, 326(2), 277 S.E.2d 317.

As to the third item, the evidence adduced by the state as to the street value of the drugs seized was relevant and admissible evidence of the intent and state of mind of the defendants. Also see Stephens v. State, 157 Ga.App. 414(2), 278 S.E.2d 70.

5. Defendant McCoy was not in actual possession of a controlled substance. The state's case against this defendant was predicated upon constructive possession by reason of evidence showing she was a resident of the dwelling. As evidence of defendant McCoy's residence at the address in question the state was allowed to introduce into evidence an envelope and a copy of a storage rental agreement. Both of these documents show defendant McCoy's address as that which was raided by law enforcement officers and where the drugs were found which are the basis of this case. As to the storage rental agreement the defense later introduced into evidence the original of this document through the testimony of a witness who identified the signature thereon as defendant McCoy's. Any error in the admission of the state's copy of this document was rendered harmless by the subsequent introduction by the defense of the original of the same document. Daniels v. State, 158 Ga.App. 476, 481(7), 282 S.E.2d 118. The remaining document, an envelope furnished by a photograph company for the purpose of mailing photographs, had written on it defendant McCoy's name and gave her address as the residence where the controlled substances were found in the search in the case sub judice. There was no evidence presented by the state as to the scrivener of the words on this envelope. This document contains only hearsay and should not have been admitted. However, this error is rendered harmless by the subsequent introduction by the defense of an acknowledged sample of defendant's handwriting thus permitting comparison by the jury. See Martin v. State, 135 Ga.App. 4, 7(3), 217 S.E.2d 312; Huskins v. State, 245 Ga. 541, 543(6), 266 S.E.2d 163.

6. Defendant McCoy contends that the trial court's charge on the head of household was ambiguous and not properly adjusted to the evidence presented at trial. The argument in support of this contention is that the charge does not clearly require that defendant McCoy have been a resident of the address searched on the date of the search and seizure, as opposed to an earlier date, in order for the head of household presumption to apply. The requirement of residence at the time of search and seizure adequately expressed by the language charged: "... if you should find the defendant, Patricia Ann McCoy, resided at the residence of the defendant, Joseph Anthony Chester, and if you further find from the evidence presented that they were not husband and wife, then I charge you that the presumption that the substance was possessed by the head of the household may be applied equally to both residents if you so find." The charge authorized but did not require equal application of the head of the household presumption. That the jury requested a recharge as to the residence issue is not alone indication of a confusing charge.

No objection was made to the validity of the longstanding general rule of law as to the rebuttable presumption that contraband found in a residence is possessed by the head of household. See Code § 53-501. The head of the household statute's contraband presumption has been held to be unconstitutional in Knighton v. State, 248 Ga. 199, 282 S.E.2d 102.

7. During the trial the state offered in evidence a certified copy of the documents which were the civil condemnation proceedings with reference to the $50,940 seized at the alleged residence of the defendant Chester, including an answer to the petition to seize and condemn the money. The defendant Chester, by and through his attorney (incidentally the same attorney who represented him in this criminal trial) claimed the money and admitted the allegations that the "residence is the home of the Defendant ... Chester." In lengthy arguments counsel for both defendants...