Cook v. State

• Decision Date: 19 January 1988
• Docket Number: No. 75478,75478
• Parties: COOK v. The STATE.
• Court: Georgia Court of Appeals

Page 912

364 S.E.2d 912

185 Ga.App. 585

COOK v. The STATE.

No. 75478.

Court of Appeals of Georgia.

Jan. 19, 1988.

Hubert E. Hamilton III, Rossville, for appellant.

David L. Lomenick, Jr., Dist. Atty., David J. Dunn, Jr., Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Appellant Gordon W. Cook was convicted of burglary and of a charge of driving while intoxicated. As a recidivist, he was sentenced to serve 20 years for burglary, and 12 months concurrent for DUI.

The conviction for burglary was founded upon evidence that appellant was several times seen driving by the victim's house about the time of the burglary and stopped to speak to several young men nearby. After visiting awhile with these persons and smoking a "joint" of marijuana, he left; a short time later one of the young men went to the victim's house to rouse his friend (the victim's son) and discovered the burglary. Forced entry had been attempted at five windows of the house and a latch was broken off a frame. Within two hours of the discovery of the break-in, appellant's car, with him and another person in it, was stopped in LaFayette for suspected DUI, and a search of the car uncovered several items later identified as taken from the burglary victim's house, including a knife. Appellant denied having seen this property before, with the exception of the knife, the possession of which he attempted to explain innocently. Evidence was allowed at trial of 11 prior burglary guilty pleas of the appellant within a few miles of the location of this burglary and which were perpetrated in a similar fashion, i.e., through a window or door, including one burglary of this same victim when he lived elsewhere.

Cook enumerates three errors below. Held:

1. Appellant contends the trial court erred in failing, upon request, to charge the jury that a conviction may be had upon circumstantial evidence only if the proved facts are consistent with the hypothesis of guilt, and exclude every reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6. That the evidence in this case is all circumstantial, there is no doubt. The evidence of similar crimes points to appellant as having committed this one, as does his possession of stolen property, and his having been in the vicinity of the burgled house. The proof of theft by proof of recent, unexplained possession of stolen property is inference only, however strong the inference may be. OCGA § 24-1-1(4); Bankston v. State, 251 Ga. 730, 309 S.E.2d 369. It is circumstantial evidence. Campbell v. State, 129 Ga.App. 836, 837, 201 S.E.2d 666.

In Price v. State, 180 Ga.App. 215(2), 348 S.E.2d 740, we held: "In a burglary prosecution where the only evidence tending to connect the accused with the alleged offense is his unsatisfactorily explained possession of recently stolen goods, it is error for the trial court to fail to give, with or without request, a charge on the principle contained in OCGA § 24-4-6. See generally Turner v. State, 40 Ga.App. 662 (151 SE 120)." In Price, the failure to give, in the exact language of OCGA § 24-4-6, the charge as to when circumstantial evidence will authorize conviction, was not reversible error because the trial court charged the jury the equally or more beneficial principle as to acceptance of a reasonably deduced theory of innocence. See also Booker v. State, 156 Ga.App. 40, 42(4), 274 S.E.2d 84, rev'd on other grounds 247 Ga. 74, 274 S.E.2d 334.

We have carefully studied the jury charge in this case in light of Price, supra, and Booker, supra, and we find no comparable charge that would meliorate the refusal to advise this jury that it could convict appellant upon circumstantial evidence only if the crime is proved beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. While the trial court charged repeatedly upon the presumption of innocence, it nevertheless advised the jury this protective "cloak" was removed by evidence sufficient to convince the jury beyond a reasonable doubt as to the guilt of the accused. This was not enough. While the due process test of sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, is proof "beyond a reasonable doubt," insofar as the appellate standard of review is concerned, the jury must be charged that it cannot convict on circumstantial evidence unless it excludes every other reasonable hypothesis. This is pursuant to statutory law in Georgia. A charge in the exact language of OCGA § 24-4-6 is not required, but there is nothing in this charge that warns the jury of the special limitations of circumstantial evidence. We are compelled to say this jury charge was deficient.

The State contends this case was not merely a case of circumstantial evidence, but that direct evidence was given that witnesses in the vicinity saw a car they recognized as appellant's with three people in it, saw it pass by again with one person in it, and then return with the appellant getting out and producing a marijuana "joint" which he shared with the witnesses. While the group smoked the marijuana, the victim's house was out of the group's line of sight. After about 15 minutes, appellant drove off, making a "U" turn and again passing the victim's residence. A short time later, one of the witnesses discovered the burglary. The State contended appellant thus had created a diversion and suggests on appeal (and, apparently below) that it was during this diversion that the burglary was committed, obviously, by Hammock who was with appellant when appellant's car was stopped two hours later. It is difficult to say this evidence is direct evidence that appellant was a party to the burglary; however strongly it suggests the fact, particularly when put with the other circumstantial evidence, nevertheless it does not immediately point to the conclusion that appellant committed the burglary. It only "tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed." This is...