Evans v. State

• Decision Date: 15 February 1993
• Docket Number: No. A92A2253,A92A2253
• Citation: 207 Ga.App. 358,427 S.E.2d 837
• Parties: EVANS v. The STATE.
• Court: Georgia Court of Appeals

Page 837

427 S.E.2d 837

207 Ga.App. 358

EVANS v. The STATE.

No. A92A2253.

Court of Appeals of Georgia.

Feb. 15, 1993.

Mundy & Gammage, George E. Mundy, Cedartown, for appellant.

W.A. Foster III, Dist. Atty., George C. Turner, Jr., Asst. Dist. Atty., for appellee.

BLACKBURN, Judge.

Daryle Eugene Evans was tried before a jury and convicted of two counts of selling and distributing cocaine in violation of the Georgia Controlled Substances Act (OCGA § 16-13-1 et seq.). He appeals from the judgment entered on the jury's verdict of guilty.

1. Appellant enumerates the general grounds. The evidence adduced at trial established that on the night of February 2, 1991, Myra Mitchell was working in Polk County as an undercover agent with a multi-jurisdictional drug task force headed by GBI agent John Wakefield. Mitchell and a confidential informer were directed to go to locations the informer knew to be likely sites of drug activity and use cash supplied by the investigating officers to purchase drugs.

Mitchell testified that she and the informer arrived at Floyd's Tavern in the informer's car at about 11:30 p.m., and a man the informer addressed as "Johnny" approached them. She asked for crack cocaine and "Johnny" sold her a piece of crack for $40. Later in the evening, Mitchell and the informer returned to the same location and purchased $20 worth of crack cocaine from the same man. Mitchell testified that "Johnny's" face had been clearly illuminated by outdoor security lights and the car headlights, and she positively identified appellant as the man from whom she purchased the drugs.

Wakefield testified that he had observed these transactions from a parked car several hundred yards away and that he overheard the exchanges between Mitchell and the drug seller because Mitchell wore a concealed microphone. He confirmed Mitchell's description of the events, but could not identify appellant as the perpetrator because he never saw the man's face.

Appellant and the State stipulated to the chain of custody. A forensic chemist from the State Crime Lab testified that the substances Mitchell purchased tested positive for cocaine. Appellant did not testify.

We find this evidence sufficient to authorize a rational trier of fact to find appellant guilty of the charged offenses under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Hamilton v. State, 202 Ga.App. 649, 415 S.E.2d 196 (1992). Although appellant contends Mitchell's identification of him was not credible, the question of a witness's credibility is for the jury to decide. Cox v. State, 197 Ga.App. 240, 241 (5), 398 S.E.2d 262 (1990). An appellate court does not consider the weight of the evidence or the credibility of witnesses, but determines only the sufficiency of the evidence. Fitz v. State, 201 Ga.App. 83, 85, 410 S.E.2d 186 (1991). Accordingly, the trial court did not err by denying appellant's motion for directed verdict.

2. In his remaining enumeration, appellant contends he received ineffective assistance of counsel at trial. At the hearing on this issue, appellant testified that he had two brief meetings and several short telephone conversations with trial counsel before trial, and that a good portion of these conversations was devoted to discussion of other charges pending against appellant in another county. Appellant also testified that he identified potential witnesses who could establish that he had never been known as "Johnny," but that counsel failed to investigate. Appellant listed as additional grievances the fact that counsel was late for court the day of trial and that counsel prevented him from testifying at trial.

At the hearing, trial counsel testified that he met several times with appellant and had numerous telephone conversations with him, and that he felt he had sufficient contact with appellant to prepare for trial. He denied that appellant had given him any names of potential witnesses. Counsel explained further that he discouraged appellant from testifying at trial because he was volatile and hard to control, and that appellant agreed with this decision.

Under the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant must show that (1) trial counsel's performance was deficient in that he made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment; and (2) that the defense was prejudiced by the deficient performance so that appellant was deprived of a fair trial....