Griffin v. State

• Decision Date: 12 February 2015
• Docket Number: No. A14A1614.,A14A1614.
• Citation: 331 Ga.App. 550,769 S.E.2d 514
• Parties: GRIFFIN v. The STATE.
• Court: Georgia Court of Appeals

331 Ga.App. 550

769 S.E.2d 514

GRIFFIN

v.The STATE.

No. A14A1614.

Court of Appeals of Georgia.

Feb. 12, 2015.

Reconsideration Denied March 26, 2015.

Certiorari Denied June 15, 2015.

John Walter Kraus, for Appellant.

Elizabeth A. Baker, Tracy Graham Lawson, for Appellee.

Opinion

McFADDEN, Judge.

After a jury trial, Patrick Griffin was convicted of cocaine trafficking and possession of marijuana with intent to distribute. He appeals, raising six claims of ineffective assistance of counsel and four other enumerations of error.

He argues that trial counsel rendered ineffective assistance by failing to object to a question about Griffin's invocation of his right to counsel and his right to remain silent; by failing to object when lab reports, evidence labels, and evidence tags listing his name went out with the jury; by allowing an imperfectly redacted affidavit and search warrant to go out with the jury; by failing to show that a woman, not Griffin, was the lessee of the apartment in which the contraband was found; by failing to object to a jury charge on the presumption of possession; and by failing to request a jury charge on sole constructive possession. None of these claims of ineffective assistance of trial counsel has merit.

Griffin also argues that the trial court expressed an opinion on a witness's credibility in violation of OCGA § 17–8–57. But the trial court's comments were part of a brief, friendly exchange that did not express an opinion on the witness's credibility. Griffin argues that the trial court erred by excluding references to two codefendants' earlier acquittals. But Griffin was not entitled to present evidence of the acquittals. Griffin argues that the trial court wrongly excluded certain relevant evidence and wrongly included certain irrelevant evidence, but he has not shown an abuse of discretion. Finally, contrary to Griffin's argument, circumstantial evidence was sufficient to show that he knowingly possessed more than 28 grams of cocaine, and the evidence generally supports the convictions. We therefore affirm.

1. Sufficiency of the evidence.

Although it is Griffin's final argument, we begin with the sufficiency of the evidence. On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Morris v. State, 322 Ga.App. 682(1), 746 S.E.2d 162 (2013) (citation omitted). Viewed in this light, the evidence shows that on January 13, 2011, officers executed a search warrant at an apartment in Clayton County. Griffin and at least ten other people were inside the apartment. The officers found cocaine, marijuana, large sums of cash, digital scales, drug distribution paraphernalia, and guns throughout the apartment. Cocaine was being cooked into crack on the stove top. A bale of marijuana was in the open pantry. Officers found $4,335 on Griffin. In total, close to $30,000 in cash was found on the men who were present in the apartment. A codefendant testified that, shortly before the police executed the warrant, Griffin asked someone to go buy some batteries, ostensibly for one of the digital scales, and Griffin provided the funds for the batteries.

A chemist with the Georgia Bureau of Investigation testified about the results of her testing of several of the multiple bags of contraband seized from the apartment, including one bag that contained a chunky, solid material that was 24.7 percent pure cocaine and weighed 61.45 grams and several bags of a powdered material that was 49.4 percent pure cocaine and together weighed 235.83 grams.

The state presented as similar transaction evidence Griffin's prior convictions for cocaine possession and marijuana possession The state also admitted a statement Griffin made in connection with an incident in which he was not charged. Griffin admitted driving another person to a location where that person was intending to sell cocaine and watching that person weigh the cocaine in the back seat of his car.

Griffin's defense was that he was merely at the apartment to attend a party. But evidence, including Griffin's distinctively large clothing scattered in one of the bedrooms, a photograph of Griffin and his girlfriend found in that bedroom, and Griffin's admission that he “stayed” at that apartment with his girlfriend, linked Griffin to the apartment.

At the time of the crimes in 2011 and Griffin's trial June 11–15, 2012, former OCGA § 16–13–31(a)(1) provided, in relevant part:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine.

(The statute has since been amended to delete the word “knowingly.” See Scott v. State, 295 Ga. 39, 40–41 & n. 1(1), (2), 757 S.E.2d 106 (2014).) OCGA § 16–13–30(j)(1) provides, “[i]t shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” The evidence described above supports the jury's determination that Griffin committed the offenses of cocaine trafficking and possession of marijuana with intent to distribute.

Griffin argues that there was insufficient evidence that he had knowledge of the weight of the cocaine. See Scott, 295 Ga. at 42(3), 757 S.E.2d 106. But such knowledge may be proved by circumstantial evidence. Freeman v. State, 329 Ga.App. 429, 432(1), 765 S.E.2d 631 (2014). “Because the trafficking conviction in this case is based on the possession of a cocaine mixture that weighed far more than 28 grams, and because the evidence was overwhelming that [Griffin] had enough experience handling cocaine to know that the cocaine [ ] which, the jury evidently believed, was in his possession—weighed more than 28 grams,” the evidence was sufficient to establish that Griffin knew the weight of the cocaine in his possession exceeded 28 grams. Harrison v. State, 309 Ga.App. 454, 459(2)(b), 711 S.E.2d 35 (2011).

2. Griffin received effective assistance of counsel.

Griffin argues that he received ineffective assistance of counsel in six regards. To prevail on his claim of ineffective assistance of counsel, Griffin must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985). If he “fails to meet his burden of proving either prong, then we do not need to examine the other prong.”Works v. State, 301 Ga.App. 108, 114(7), 686 S.E.2d 863 (2009) (citation omitted). We “give[ ] deference to the trial court's factual findings, which are to be upheld unless clearly erroneous, and examine[ ] the lower court's legal conclusions de novo.” Dulcio v. State, 292 Ga. 645, 650(3), 740 S.E.2d 574 (2013).

(a) State's question to a detective.

Griffin argues that counsel rendered deficient performance during the state's examination of one of the detectives. The detective testified that after he read Griffin his Miranda rights, he questioned Griffin about where he lived, and they briefly discussed the investigation. The assistant district attorney next asked, “And then at that point in time did the defendant then request for an attorney and not wish to talk to you any further?” The detective responded, “Yes.”

Griffin argues that trial counsel rendered deficient performance by failing to object to this question, which, he contends, impermissibly commented on his invocation of his right to counsel and his right to remain silent. To its credit, the state concedes that the question was improper and objectionable.

But not all references to a defendant's invoking his right to remain silent require reversal: “In fact, to reverse a conviction, the evidence of the defendant's election to remain silent must point directly at the substance of the defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury.” Taylor v. State, 272 Ga. 559, 561(2)(d), 532 S.E.2d 395 (2000) (citation and punctuation omitted).

Here the state's question and the witness's answer did not “point directly at the substance of” Griffin's defense that he was at the apartment for a party. And the reference could not have “otherwise substantially prejudiced” Griffin in the eyes of the jury. The state's violation consisted of only a single reference to Griffin's invocation of his rights and the reference was isolated. See Qureshi v. State, 291 Ga.App. 708, 710, 662 S.E.2d 806 (2008). The assistant district attorney did not comment on Griffin's invocation of his rights in closing argument. Id. “[I]t appears that [the reference] was not intended to reflect on [Griffin's] guilt and it was not probative on that issue. Thus, the remark was not so fundamentally unfair as to deny him due process.” Hardy v. State, 301 Ga.App. 115, 116(2), 686 S.E.2d 789 (2009) (citations omitted).

And counsel had a reasonable explanation for his failure to object. At the motion for new trial hearing, counsel explained that:

Sometimes during the course of a trial when a question has been asked and the witness has already answered it, it does more harm than good to jump up and draw more, it does more harm than good to jump up and draw attention to a question that really didn't hurt your client to begin with.

Griffin has not shown that trial counsel's failure to object was deficient assistance of counsel. Taylor, supra, 272 Ga. at 562(2)(d), 532 S.E.2d 395. See also Martin v. State, 290 Ga. 901, 902–903(1)(a), ...