Crutchfield v. State

• Decision Date: 17 August 1995
• Docket Number: No. A95A0966,A95A0966
• Citation: 461 S.E.2d 555,218 Ga.App. 360
• Parties: CRUTCHFIELD v. The STATE.
• Court: Georgia Court of Appeals

Page 555

461 S.E.2d 555

218 Ga.App. 360

CRUTCHFIELD v. The STATE.

No. A95A0966.

Court of Appeals of Georgia.

Aug. 17, 1995.

Certiorari Denied Nov. 17, 1995.

Brenda H. Trammell, Madison, for appellant.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, Milledgeville, Paul L. Groth, Assistant District Attorney, Madison, for appellee.

McMURRAY, Presiding Judge.

Defendant was charged in an indictment with possession of cocaine with intent to distribute and also with possession of a firearm by a convicted felon. The evidence adduced at his jury trial showed that defendant was arrested at his home during the execution of a search warrant, issued after defendant sold crack cocaine to an undercover officer. Therein, police found a small plastic bottle containing 3.8 grams of crack cocaine stowed in a roll of toilet paper, "[a] foot maybe ..." from where defendant was standing. After being cautioned of his rights, defendant was asked if he had "any other illicit substances on the premises...." He replied, "No, that's all right there." A marked $20.00 bill used to buy cocaine from defendant also was found "mixed in with some other currency inside [defendant's] wallet."

An order of nolle prosequi was entered on the weapon charge and the jury found defendant guilty of possession of crack cocaine with intent to distribute. This appeal followed the denial of his motion for new trial. Held:

1. In his 20th and 21st enumerations, defendant challenges the constitutionality of his mandatory life sentence imposed under OCGA § 16-13-30(d). The argument that this Code section violates his rights as protected by due process and equal protection is without merit. Cantrell v. State, 217 Ga.App. 641, 642(2), 459 S.E.2d 564. Defendant also renews the argument made in his amended motion for new trial, i.e., that "the mandatory life sentence provisions of [OCGA § 16-13-30(d) ] violate the proportionality and rationality requirements of the Eighth Amendment to the United States Constitution and the Constitution of Georgia...." The transfer of this appeal by the Supreme Court of Georgia to the Court of Appeals of Georgia is tantamount to a ruling that the mandatory life sentence for recidivist drug sellers is not excessive or disproportionate within the meaning of the Eighth Amendment to the United States Constitution or Art. I, Sec. I, Par. XVII of the 1983 Georgia Constitution. See Ryals v. State, 215 Ga.App. 51, 52(1), 449 S.E.2d 865. Consequently, defendant's 21st enumeration also is without merit.

2. The trial court did not err in admitting into evidence the marked $20 discovered in defendant's wallet at the time of his arrest, even though defendant's character may have incidentally been placed in issue. Hutson v. State, 216 Ga.App. 100, 101(5), 453 S.E.2d 130. Evidence of defendant's prior convictions for the sale of cocaine was properly admitted to corroborate proof of his intent to distribute as alleged in the indictment. Cole v. State, 216 Ga.App. 68, 70(1), 453 S.E.2d 495; Evans v. State, 209 Ga.App. 606, 607(2), 434 S.E.2d 148. The evidence is sufficient to authorize the jury's verdict that defendant is guilty, beyond a reasonable doubt, of possessing cocaine with the intent to distribute as alleged in Count 1 of the indictment. Whitfield v. State, 217 Ga.App. 402, 404(3), 457 S.E.2d 682; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

3. In his sixth, seventh, and eighth enumerations, defendant contends the trial court erred in ruling that defense counsel's peremptory challenges were not racially neutral. We agree.

The transcript of voir dire shows that the State's Attorney, invoking State v. Mayweather, 262 Ga. 727, 425 S.E.2d 659, objected after defense counsel used all six peremptory challenges to strike white venire from the petit jury. In response to defense counsel's explanations, the trial court reseated as jurors three venire struck by the defense after determining that the reasons given were not race neutral, under the following circumstances: "[DEFENSE COUNSEL]: [The first challenged white female is] a nurse and I'm afraid that because this is a drug case, the fact that she is a nurse she works with drugs, et cetera and knows what they do to people in the hospital and we did not want her to serve on the jury. [THE COURT]: I don't recall that being established on voir dire. [DEFENSE COUNSEL]: That she is a nurse? [THE COURT]: No, that she would know what drugs do to you. [DEFENSE COUNSEL]: Well, no, but, I mean, we are assuming I think we can extrapolate from what we are told. She is an R.N. and works for Newton General Hospital. [THE COURT]: Do you want to be heard on that? [STATE'S ATTORNEY]: Your Honor, we don't think that's a race neutral reason. If she knew that, but if she is just guessing or extrapolating from that, we would object. [THE COURT]: I agree. [This challenged juror] will go back on the panel--will go on the jury."

The second and third venire struck by the defense were reseated after the following transpired: "[DEFENSE COUNSEL]: I was aided by Mr. Nolan in my jury selection and he knows [a particular venireman] personally and feels that she is very pro law enforcement and would not be sensitive to any criminal defendant of any race and that's why she was struck. [THE COURT]: Do you want to be heard? [STATE'S ATTORNEY]: Your Honor, that's an opinion as to her disposition. It's not a fact of her background or experience or anything we know of. [THE COURT]: I agree. It's not race neutral. [This challenged juror] will go back on the jury.... Defendant's strike four was ... a white female. State your race neutral reason. [DEFENSE COUNSEL]: We don't have anything in particular about [this one], Your Honor. [THE COURT]: Do you want to be heard? [STATE'S ATTORNEY]: We object to...