Davis v. State

• Decision Date: 16 July 1993
• Docket Number: No. A93A0257,A93A0257
• Citation: 434 S.E.2d 132,209 Ga.App. 572
• Parties: DAVIS v. The STATE.
• Court: Georgia Court of Appeals

Page 132

434 S.E.2d 132

209 Ga.App. 572

DAVIS v. The STATE.

No. A93A0257.

Court of Appeals of Georgia.

July 16, 1993.

David L. Whitman, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Anita Wallace, Nancy A. Grace, Asst. Dist. Attys., for appellee.

POPE, Chief Judge.

Defendant Michael Davis was convicted by a jury of possession of heroin with intent to distribute. He appeals the denial of his motion for new trial.

1. Relying on Pope v. State, 256 Ga. 195(17), 345 S.E.2d 831 (1986) and Gadson v. State, 197 Ga.App. 315, 398 S.E.2d 409 (1990), defendant argues the trial court erred by allowing the State to introduce into evidence certified copies of guilty pleas he entered on previous drug charges because the State failed to establish, upon objection by the defendant, that defendant's pleas were freely and voluntarily given. Defendant acknowledges, however, that this court previously has "reject[ed] defendant's argument that the requirements of Pope and Gadson should be extended to include any instance where the State intends to use a prior guilty plea in a criminal prosecution. The holdings of Pope and Gadson specifically apply to the State's introduction of a prior guilty plea during the sentencing portion of a criminal prosecution, and we will not extend the holdings in the manner suggested by defendant. It is well settled that in order for similar crime evidence to be admissible there must be 'some evidence establishing that the independent crime was committed by the defendant. The evidence may be circumstantial but it must be more than mere speculation. (Cits.)' (Emphasis supplied.) Chastain v. State, 260 Ga. 789, 790(3), 400 S.E.2d 329 (1991)." McCann v. State, 203 Ga.App. 880, 882, 418 S.E.2d 144 (1992). Moreover, in this case, as in McCann, there was evidence in addition to the certified copies of the guilty pleas establishing that the defendant was the perpetrator of the prior offenses. ¹ Consequently, this enumeration is without merit.

2. Defendant also contends the trial court erred by allowing the arresting officer to testify that the quantity of drugs in defendant's possession at the time of his arrest was more than a person would possess for personal consumption, arguing that such testimony impermissibly invades the province of the jury on the ultimate issue to be decided in this case, to wit, whether defendant committed the crime of possession of heroin with intent to distribute. In Davis v. State, 200 Ga.App. 44(2), 406 S.E.2d 555 (1991) this court held that "knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman's knowledge and experience," id. at 46, 406 S.E.2d 555, and that, therefore, expert opinion testimony is admissible on this issue under OCGA § 24-9-67. However, in this case, unlike in Davis where the witness was qualified as an expert "on the 'uses and activities of drugs on the street ...,' " id. at 45, 406 S.E.2d 555, the trial court refused the State's request to qualify the witness as an expert in "narcotics investigation," and the State did not otherwise attempt to lay a foundation which would demonstrate that the witness was qualified to testify in the manner allowed. The trial court thus erred in overruling defendant's objection to the officer's testimony, and defendant's conviction must be reversed.

The dissent argues that the trial court, by allowing the complained-of testimony over defendant's objection, "implicitly" ruled that the witness was qualified as an expert. However, there is absolutely nothing in the record to support such a conclusion. As the dissent acknowledges, when the State initially sought to qualify the witness as an expert the defendant objected on grounds of relevancy and that the State had failed to lay a sufficient foundation as to the witness' qualifications. The trial court sustained the objection without specifying the basis for its ruling, and this court can only speculate or guess if the court sustained the objection based on lack of relevancy, insufficient foundation or both. All we know from the record is that the court refused the State's tender of the witness as an expert, and that the trial court never stated or otherwise indicated a retreat from that ruling.

Moreover, even assuming, as the dissent finds, that the record establishes the officer's qualifications as an expert in narcotics investigation, there is absolutely nothing in the record which demonstrates that the witness was qualified to testify as an expert on drug use. To the contrary, the record shows that before moving to have the witness qualified as an expert in "narcotics investigation" the State merely elicited the fact that the officer attended bi-monthly training sessions, consisting of formal classes and hands-on training, encompassing team deployment and tactical tasks. Before stating his objections to the witness' qualifications, the defendant requested to voir dire the witness, who testified as follows as to his training as a drug squad officer: "We update ourselves on the basic laws of drugs and we train ourselves, you know, twice a month and stuff. We just go out, like somebody from the academy might come out and give us update classes and stuff [where] they update us on drugs and the different ways that drugs are being distributed throughout the state and the streets and stuff, ..., the national laws and stuff, ..., the overall picture of drugs itself, because drugs are constantly changing everyday, things are different. We find out new stuff everyday about how drugs are stored or hidden...." This testimony clearly establishes that the officer's training, such as it was, was fairly limited in scope and that it did not relate to "the 'use[ ] ... of drugs on the street.' " Davis v. State, 200 Ga.App. at 45, 406 S.E.2d 555.

Lastly, the dissent finds that defendant waived this issue on appeal because none of the stated objections to the testimony at trial went to the officer's qualifications as an expert. However, as noted by the dissent, the defendant objected, inter alia, on the basis that "[t]he officer is in no position to make a statement like that." This objection clearly raised the officer's qualifications to answer the question posed.

3. In light of our holding in Division 2, it is unnecessary for us to address defendant's remaining enumerations of error.

Judgment reversed.

McMURRAY, P.J., BIRDSONG, P.J., and COOPER, BLACKBURN and SMITH, JJ., concur.

BEASLEY, P.J., and ANDREWS, J., dissent.

JOHNSON, J., not participating.

ANDREWS, Judge, dissenting.

I respectfully dissent. The trial court did not err by overruling the defendant's objection to the officer's expert opinion testimony that ten "hits" of heroin found on the defendant's person was more than a heroin user would carry for personal consumption.

The State's first witness was a City of Atlanta police officer, who had been assigned to the "Red Dog" anti-drug squad for over two years. The officer testified that during this assignment he had received formal training in drug law enforcement as well as hands-on tactical experience in narcotics investigation. Based on this testimony, which was the only evidence introduced by the State at the time, the State moved the trial judge to qualify the officer as an expert in narcotics investigation. After being allowed, upon request, to cross-examine the witness, defense counsel objected to the motion on...