Ferrell v. State

• Court: Georgia Court of Appeals
• Writing for the Court: MIKELL
• Citation: Ferrell v. State, 11 FCDR 3293, 312 Ga.App. 122, 717 S.E.2d 705 (Ga. App. 2011)
• Decision Date: 18 October 2011
• Docket Number: No. A11A1176.,A11A1176.
• Parties: FERRELL v. The STATE.

11 FCDR 3293

312 Ga.App. 122

717 S.E.2d 705

FERRELL

v.The STATE.

No. A11A1176.

Court of Appeals of Georgia.

Oct. 18, 2011.

Peter D. Johnson, Augusta, for appellant.

Ashley Wright, Dist. Atty., Madonna Marie Little, Asst. Dist. Atty., for appellee.

MIKELL, Judge.

Sonya Ferrell, Michael Clark, and Elizabeth K. Durante were jointly indicted for trafficking in cocaine and possession of a controlled substance, MDMA.¹ Clark and Durante were also indicted for several misdemeanors. Following a jury trial, all defendants were found guilty on all charges. Ferrell appeals the denial of her motion for new trial. Finding no reversible error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).²

“As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.” ³

So viewed, the trial evidence shows that Deputy Billy Jones initiated a traffic stop because the driver and passenger of a car were not wearing seatbelts. The vehicle delayed pulling over but finally stopped. Clark was driving, Durante was in the front passenger seat, and Ferrell was in the back seat. Upon speaking with the driver, the deputy smelled a strong odor of marijuana. After questioning, Clark admitted that his driver's license was suspended, and Durante admitted that she had some marijuana in her purse, which was in the center console of the car. The deputy found a plastic bag with six grams of marijuana in Durante's purse, as well as a cell phone. The phone showed a picture of Clark and Durante with the phrase “Mike and Liz” on the top of the photo. The phone contained text messages referencing drugs and drug sales.

A search of the car revealed a Crown Royal bag on the front floorboard at the edge of the seat. Inside this bag were empty baggies, cocaine, and a digital scale commonly used for weighing drugs. The cocaine was packaged in one large bag, weighing 30.7 grams, and 17 individual baggies, weighing 6.4 grams total. The large bag of cocaine was 80.9 percent pure, and the smaller bags were about 60.7 percent pure. Also inside the Crown Royal bag was a pharmacy pill bottle labeled with Ferrell's anti-depressant prescription. The bottle contained two baggies, one holding five pills and the other holding one pill. GBI crime lab tests subsequently confirmed that the pills were MDMA.

1. Ferrell contends that the evidence summarized above was insufficient to sustain her convictions of trafficking in cocaine ⁴ and possession of MDMA,⁵ and that the circumstantial evidence failed to exclude every other reasonable hypothesis save that of her guilt. We disagree.

Ferrell was not in actual possession of the contraband, nor was she driving or in control of the car. Therefore, no presumption of control over the contraband attaches. “The issue before us is whether [Ferrell] was in joint constructive possession of the drug[s], and the question turns on whether [she] and the other defendants knowingly shared the power and intention to exercise dominion or control over them.” ⁶ A defendant's joint constructive possession of contraband with another will sustain a conviction.⁷ Ferrell argues that there was no evidence to show that she possessed the cocaine and MDMA, other than that she was a passenger in the vehicle at the time the drugs were found. Although it is true that “[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity,” ⁸ the MDMA pills were found in a prescription pill bottle belonging to Ferrell; and the pill bottle was found in the Crown Royal bag with the cocaine. “As long as there is slight evidence of access, power, and intention to exercise control or dominion over [the contraband], the question of fact regarding constructive possession remains within the domain of the trier of fact.” ⁹ Because the state presented evidence beyond Ferrell's mere presence in the car, the issue of her guilt was properly within the jury's discretion.¹⁰

Ferrell contends that the circumstantial evidence failed to exclude every other reasonable hypothesis save that of her guilt, as required by OCGA § 24–4–6. Her contentions are unavailing. When a constructive possession case “is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” ¹¹

As stated above, the evidence at trial showed that some of the contraband found in the Crown Royal bag was inside a prescription pill bottle bearing Ferrell's name. Ferrell testified at trial that the last time she saw the pill bottle was on the television stand in her home, and she had called the pharmacy to refill her prescription. She testified that although she had asked Clark to pick up the prescription refill from the pharmacy for her, she had not given him the prescription bottle found at the scene and that he would not have needed it to pick up the prescription for her.

“It is the jury's role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses based upon the circumstantial evidence.” ¹²

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.¹³

We conclude that the jury was authorized to find that Ferrell had joint constructive possession of cocaine and MDMA under the standard set forth in Jackson v. Virginia.¹⁴

2. Ferrell next argues that pursuant to Arizona v. Gant,¹⁵ the search of the vehicle that resulted in the discovery of the cocaine and MDMA was unlawful. However, Ferrell did not file a written motion to suppress, as required by OCGA § 17–5–30(b), which provides that a motion to suppress illegally seized evidence “shall be in writing and state facts showing that the search and seizure were unlawful.” Moreover, Ferrell did not object either to the admission of the cocaine and MDMA at trial or to the deputy's testimony thereon. Therefore, this issue is waived.¹⁶

Pretermitting whether this issue is properly before this Court, we find that, contrary to Ferrell's contentions, Gant did not invalidate the search at issue here, because the officer had reason “to believe the vehicle contain [ed] evidence of the offense of arrest.” ¹⁷ Thus, the search was authorized under the automobile exception to the warrant requirement.¹⁸ “The automobile exception provides that a police officer may search a car without a warrant if he has probable cause to believe that the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.” ¹⁹ Probable cause exists when

the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.²⁰

Additionally, the officer can search the entire vehicle, “including all containers and packages that may contain such contraband.” ²¹

In the case sub judice, the objective facts known to Deputy Jones after he lawfully stopped the car gave him probable cause to believe that the car contained contraband. These facts included the fact that the driver did not slow down immediately after the officer initiated the traffic stop; the smell of marijuana in the car; and the fact that Durante admitted to having marijuana in her purse. Thus, it was reasonable for the police officer to believe that there was evidence of contraband in the vehicle,²² and the warrantless search of the vehicle was therefore lawful.

3. Ferrell next argues that she was denied her Sixth Amendment right to confrontation when text messages from Durante's cell phone were admitted into evidence. However, Ferrell did not object on confrontation grounds to the admission of the evidence. Accordingly, this issue is waived.²³

4. During cross-examination, Ferrell's counsel asked Investigator Shannon Ryals if he had interviewed any of the defendants himself on the evening of the arrests. He responded, “Yes ma'am.... I tried to interview each one. First I Mirandized them. As soon as I Mirandized them, they invoked their right to remain silent.” Ferrell claims that this testimony improperly commented on her Fifth Amendment right to remain silent. However, Ferrell cannot complain about this testimony because the comment was elicited by defense counsel.²⁴

5. Ferrell contends that her right of confrontation was violated by inadmissible hearsay testimony by Lawrence Sullivan, the testifying GBI chemist, regarding another chemist's testing of the drugs. We disagree.

Sullivan testified at trial because Shelly Davis, the analyst who tested the drugs, was no longer with the GBI. Ferrell argues that this testimony was inadmissible hearsay, but the record does not support this argument. Rather than being a mere conduit for Davis's findings, Sullivan testified that he reviewed the examination, notes, and materials created by Davis during her analysis of the substances, and based on that, his expert opinion was that the solid material was positive for cocaine and...