Edwards v. State, A95A1469

• Decision Date: 30 November 1995
• Docket Number: No. A95A1469,A95A1469
• Citation: 219 Ga.App. 239,464 S.E.2d 851
• Parties: EDWARDS v. The STATE.
• Court: Georgia Court of Appeals

Page 851

464 S.E.2d 851

219 Ga.App. 239

EDWARDS v. The STATE.

No. A95A1469.

Court of Appeals of Georgia.

Nov. 30, 1995.

Certiorari Denied March 8, 1996.

Richard A. Coleman, Coleman & Associates, Atlanta, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

RUFFIN, Judge.

Johnnie Edwards was convicted of one count of trafficking in cocaine. Without conducting a presentence hearing, the court sentenced Edwards to 25 years to serve and a one million dollar fine. Edwards enumerates nine errors. For the reasons which follow, we affirm.

Just before midnight on February 11, 1992, Lieutenant Robbie Bishop observed a Chevrolet Caprice passing his parked patrol car at a very slow speed on Interstate 75 North. Bishop followed the vehicle and determined it was proceeding at 45 mph in a 65 mph zone. Bishop testified that the reason he decided to pull the car over was because it had no tag, and that he routinely stopped cars traveling without license tags displayed. Upon stopping the vehicle, Bishop noticed the hands of Frederick Rawls, the driver, were trembling and his whole body was shaking. Bishop testified that based on his experience, the behavior of an individual stopped for suspected possession of drugs differs from the behavior of someone stopped for an improper display of a tag. He also observed a peculiar bulge in the back seat cushion. Because of the apparent nervousness of the driver, the unusual bulge in the back seat, and the discovery that the driver and the vehicle were from different states, Bishop requested consent to search the vehicle and Edwards, the sole passenger and the vehicle owner, consented to the search. Through a cursory search Bishop was able to determine that the bulge was not caused by a broken spring and radioed for help. Bishop testified Edwards and Rawls agreed to wait while his back-up arrived. Bishop testified Edwards also gave his consent to Officer Johnson's assistance with the search for drugs. Their subsequent search disclosed that the rear seat was bolted down, by special star type screws. A blue coat discovered in the trunk contained a star socket that matched the bolts in the rear seat. After both men had been read their Miranda rights, a deputy asked who owned the blue coat, and Edwards stated it belonged to him. Officers discovered 11 kilograms of cocaine concealed behind the rear seat.

1. Edwards contends the court's failure to conduct a presentence hearing violated OCGA § 17-10-2(a).

Without holding a presentence hearing, the trial court imposed the mandatory minimum sentence, 25 years, for cocaine trafficking under OCGA § 16-13-31(a)(1)(C). The State claims the court's noncompliance with OCGA § 17-10-2(a) was harmless error because the remedy would be to remand the case for resentencing, which would be a waste of judicial resources given that the court would be required to resentence Edwards to the same sentence already imposed.

A court is required to conduct a presentence hearing in a felony case under OCGA § 17-10-2(a). "The judge is to give opportunity for the parties to offer additional evidence and argument in extenuation, mitigation, and aggravation of punishment. It is mandatory. [Cits.]" Jefferson v. State, 205 Ga.App. 687(2), 423 S.E.2d 425 (1992). In this case, however, because the sentence which the court imposed was the statutory minimum sentence under OCGA § 16-13-31(a)(1)(C), the court did not err.

2. Edwards claims the court erroneously denied his motion for a mistrial because the State made numerous comments concerning his failure to testify and also made improper inflammatory remarks. Edwards challenges the propriety of eight statements used in the State's closing arguments.

(a) First, we examine the alleged references to Edwards' failure to testify. Two of the prosecutor's statements alluded to Edwards' failure to respond to statements made by the investigating officer at the scene of the investigatory traffic stop. ¹ The record indicates that while Bishop was conducting the stop, he told Edwards that he noticed "a large bulge, sticking way out." Edwards was not under arrest and elected to say nothing in response. In his closing argument, the prosecutor twice referred to Edwards' failure to respond to the officer's statement. The prosecutor pointed out that Edwards neither professed his ignorance about the bulge nor asked the officer what he was talking about when the officer said he noticed a large bulge.

The State contends the two statements should not be construed as comments on Edwards' silence because Edwards had not invoked his right to remain silent but instead, had volunteered information and engaged in conversation with Bishop, the investigating officer.

Pre-arrest silence has not been accorded the same federal constitutional protection as post-arrest silence. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that the government cannot use post-arrest silence against a defendant because Miranda warnings give implicit assurances that silence will not be used against a person, and accordingly, it would be fundamentally unfair and a violation of due process to allow a defendant's silence to be used to impeach him at trial); Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 2129-30, 65 L.Ed.2d 86 (1980) (holding that the government can use pre-arrest silence for impeachment purposes against a defendant because no government action induced the silence). Based on Jenkins, supra, there is no federal constitutional basis for excluding the State's use of Edwards' pre-arrest silence against him. Accordingly, the State's references to Edwards' pre-arrest silence were properly permitted.

Edwards also contends Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991) entitles him to a mistrial. In Mallory, the trial court permitted the State to introduce the defendant's pre-arrest statement, made without Miranda warnings, as to why he had not come forward to explain his innocence when he knew he was under investigation. Id. In his pre-arrest statement, Mallory responded that he was waiting for the police to come to him. The Supreme Court determined this statement was improperly used against Mallory on cross-examination. Id. "OCGA § 24-3-36 provides that 'Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.' We take this opportunity to hold that in criminal cases, a comment upon a defendant's silence or failure to come forward is far more prejudicial than probative. Accordingly, from the date of publication of this opinion, December 26, 1991 ... such a comment will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense." Id. at 630(5), 409 S.E.2d 839.

However, Mallory is distinguishable because it analyzed impeachment of a defendant by the use of a defendant's failure to contact police prior to an arrest. In this case, Edwards did not take the stand in his own defense and was not, therefore, improperly confronted with his pre-arrest silence and failure to supply an explanation regarding the bulge in the rear seat of his vehicle. Accordingly, we do not find Mallory dispositive.

Further, "[r]eversal for improper comment by the prosecutor requires a finding either that 1) the prosecutor's manifest intention was to comment on the accused's failure to testify, or 2) the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused's failure to testify. Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1983) [ (1982) ]." LeMay v. State, 265 Ga. 73, 75(4), 453 S.E.2d 737 (1995). In this case, the prosecutor did not comment on Edwards' failure to testify, but rather, on Edwards' failure to respond to the officer's initial questions prior to arrest about the obvious bulge in the back seat of his vehicle. Our review of the record and transcript does not show a manifest intention to comment on Edwards' failure to testify at trial or that the jury would have naturally and necessarily interpreted the remarks in that manner.

(b) Next, we examine the State's references to Edwards' failure to present certain evidence. The transcript indicates that Edwards contended he was an innocent man being unwittingly used by Rawls and that he had no idea cocaine was concealed in his vehicle. During closing argument, the prosecutor made four references to Edwards' failure to present evidence about his relationship with Rawls and the purported purpose of the trip. The State noted Edwards did not offer: 1) an explanation as to why he needed to give Rawls a ride, 2) any evidence of Rawls' relationship to him, 3) any evidence that the bulge was not visible to him, and 4) any evidence from or about his daughter, whom he told police he had dropped off in Atlanta.

It is permissible for the State to "argue to the jury the inferences to be drawn from the defendant's failure to produce witnesses ... who allegedly would give evidence favorable to the defendant." (Citations omitted.) Shirley v. State, 245 Ga. 616, 618, 266 S.E.2d 218 (1980). Thus, it was entirely appropriate for the prosecution to point out inconsistencies in Edwards' defense strategy.

(c) Edwards argues the State improperly commented on his objection to the admission of the cocaine into evidence. At the outset, we reject the State's contention that Edwards failed to preserve this objection because the transcript shows defense counsel objected. See Hall v. State, 180 Ga.App. 881, 350 S.E.2d 801 (1986). However, even assuming the State's comment was improper, we cannot say it is highly probable that the improper remark contributed to the verdict. Id. at 885, 350 S.E.2d 801. Thus, even if we were to determine the State's argument was improper and inflammatory, such argument did not likely affect the verdict and Edwards' conviction must...