Christopher v. State

• Decision Date: 21 February 1989
• Docket Number: 77550,Nos. 77549,s. 77549
• Citation: 379 S.E.2d 205,190 Ga.App. 393
• Parties: CHRISTOPHER v. The STATE. ADAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 205

379 S.E.2d 205

190 Ga.App. 393

CHRISTOPHER v. The STATE.

ADAMS v. The STATE.

Nos. 77549, 77550.

Court of Appeals of Georgia.

Feb. 21, 1989.

Richard E. Thomas, for appellant (case no. 77549).

Wright & Wright, G. Russell Wright, Cordele, for appellant (case no. 77550).

John C. Pridgen, Dist. Atty., for appellee.

POPE, Judge.

Defendants in these two related cases were indicted for trafficking in cocaine and possession of marijuana with intent to distribute after a search of defendant Ethel Christopher's house and the automobiles parked in the garage, conducted pursuant to a search warrant, yielded contraband and other evidence. Defendants were tried separately and defendant Willie Frank Adams was convicted of both offenses and defendant Ethel Christopher was convicted of trafficking in cocaine.

Case No. 77549

1. Defendant Ethel Christopher argues the court erred in denying her motion to suppress evidence seized in the search of her house because the search warrant was issued without sufficient probable cause and because the search exceeded the scope of the warrant.

The transcript of the hearing on defendant's motion to suppress shows that the officer affiant presented the magistrate with the following evidence: The informant was not anonymous but met with the affiant on more than one occasion. The informant was a relative of defendant Adams. The informant gave information against his own penal interests by admitting that he had purchased cocaine and marijuana from defendant Adams at defendant Christopher's house within the month preceding the issuance of the warrant and that on a previous occasion he had traveled with Adams to Florida to transport cocaine back to Georgia. The day before the warrant was issued, the informant was told by another relative of defendant Adams that Adams had left for Florida to pick up a load of marijuana. Afterwards, the informant had seen a motor home parked at Christopher's house and had seen garbage bags being unloaded from the vehicle similar to the bags from which Adams had sold the informant cocaine. The affiant, himself, had observed a motor home parked at Christopher's house. He was able to corroborate from his personal knowledge other information given by the informant.

The United States Supreme Court has held that probable cause to issue a warrant is to be determined in light of the totality of the circumstances made known to the issuing magistrate. See Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "Utilizing this standard of review ... we find that the information, viewed as a whole, provided a substantial basis for the magistrate's finding of probable cause to believe that contraband was located on the premises." Borders v. State, 173 Ga.App. 110, 112, 325 S.E.2d 626 (1984).

Defendant's reliance upon State v. Brown, 186 Ga.App. 155(2), 366 S.E.2d 816 (1988), is misplaced. In that case, the magistrate was given nothing other than the affiant's conclusory statement that the anonymous tipster was a "concerned citizen." Here, the tipster was not anonymous and specific examples were given whereby the affiant had corroborated information given to him by the informant.

We also reject defendant's argument that the searching officers exceeded the scope of the warrant by seizing firearms, money, food stamps, scales and jewelry. The affidavit presented to the magistrate showed that the informant stated that numerous automatic or semi-automatic weapons were kept on the premises to be searched. The search warrant recited that the affiant had shown reason to believe that cocaine and marijuana were located on the premises; it did not restrict the search to these particular items. The additional items seized in the search were reasonably related to the search and were, in fact, admitted at trial as circumstantial evidence.

2. Defendant also argues her conviction should be reversed because the trial court erred by instructing the jury that she could be convicted upon a finding of actual or constructive possession of contraband. Pursuant to the statute which was in effect at the time defendant was charged, the offense of trafficking in cocaine required actual possession. See OCGA § 16-13-31(a)(1) (prior to amendment effective March 28, 1988). Thus, in Lockwood v. State, 257 Ga. 796, 364 S.E.2d 574 (1988), the Georgia Supreme Court held it was erronous to charge in a cocaine trafficking case that the defendant could be convicted upon a finding that the defendant had actual or constructive possession. The legislature acted swiftly to amend OCGA § 16-13-31(a) by deleting the word "actual" before the word "possession," but that amendment, effective March 28, 1988, is an ex post facto law insofar as our consideration of this appeal is concerned. In the case now before us, defendant was charged with both trafficking in cocaine and possession of marijuana. Moreover, defendant had requested a charge on the lesser included offense of possession of cocaine. Because it was necessary for the court to charge different types of possession for the two different counts, it was not improper for the court to define the distinction between the two types of possession so long as the court charged that the statute governing the cocaine count specified actual possession. Partridge v. State, 187 Ga.App. 325(5), 370 S.E.2d 173 (1988).

In the case now before us, the court recited to the jury the pertinent portion of the statute setting forth the offense of trafficking in cocaine, including the language stating that the defendant must be "knowingly in actual possession." After giving the definitions of actual and constructive possession, the court stated near the end of the instruction: "You, the jury, would be authorized to convict only if you find, beyond a reasonable doubt, that the defendant knowingly had either actual or constructive possession, that is either alone or jointly with others, of the contraband in question." Here, two different types of contraband were in question in two different counts requiring two different types of possession for conviction. ¹ We find a substantial likelihood that the instruction could have been interpreted by the jury as authorizing a conviction for trafficking in cocaine on a finding of mere constructive possession. Therefore, we must reverse defendant's conviction.

Case No. 77550

1. Defendant Willie Frank Adams first argues the evidence was insufficient to support a conviction. The evidence revealed that cocaine, marijuana, cash, jewelry and drug-related paraphernalia such as scales were found in various rooms of a house belonging to Ethel Christopher. Defendant Adams was inside the house when the authorities arrived to conduct the search. At the time defendant was charged, conviction of trafficking in cocaine required proof of actual possession by the defendant. OCGA § 16-13-31(a)(1) (prior to amendment effective March 28, 1988); Lockwood v. State, 257 Ga. 796, 364 S.E.2d 574 supra. Defendant argues his mere presence at the house is insufficent to establish that he had actual possession of the contraband found in it.

However, far more than mere presence at the scene of the crime was shown by the evidence presented at trial. When first seen by one of the agents conducting the search, defendant was holding a clear plastic bag in his hand containing a white substance. When defendant saw the agent at the front door, he fled to the back of the house. When arrested at the residence, the appellant had in his wallet $2,143 in cash. Precisely the same amount of cash was found in a dresser drawer in the master bedroom. At the time defendant was arrested, a piece of paper was found in his wallet bearing notations which appeared to relate to a drug transaction. Defendant's driver's license showed his address to be that of the residence where the contraband was found. When interviewed after his arrest, defendant stated he lived at the residence half of the time and gave the phone number of that residence as his own. The garage at the residence had a specially designated parking place for defendant's automobile. Defendant's clothing was found in the dresser drawer in the master bedroom and defendant's boots were found in the closet next to a safe containing numerous pieces of jewelry and over $10,000 in cash. The owner of the residence, Ethel Christopher, was the mother of defendant's child. Defendant kept hogs on the property. Defendant was previously convicted in New Jersey on a guilty plea for possession of cocaine and possession of cocaine with intent to distribute. A small quantity of marijuana was found in an automobile driven by defendant. Thus, sufficient evidence was presented whereby the jury could conclude that defendant either had actual physical possession of the contraband or else that defendant aided and abetted in the crimes charged. See Barrett v. State, 183 Ga.App. 729(2), 360 S.E.2d 400 (1987); Latimer v. State, 134 Ga.App. 372(2) 214 S.E.2d 390 (1975). We find the evidence was sufficient to authorize a...