Hancock v. State

• Decision Date: 13 October 1993
• Docket Number: No. A93A1151,A93A1151
• Parties: HANCOCK v. The STATE.
• Court: Georgia Court of Appeals

Page 610

437 S.E.2d 610

210 Ga.App. 528

HANCOCK v. The STATE.

No. A93A1151.

Court of Appeals of Georgia.

Oct. 13, 1993.

Daniel B. Kane, Atlanta, for appellant.

Stephen F. Lanier, Dist. Atty., C. Stephen Cox, Lisa W. Pettit, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Ricky Lee Hancock appeals his judgment of conviction of trafficking in cocaine, possession of cocaine, and possession of cocaine with intent to distribute, the sentence, and the denial of his motion for new trial. In State v. Hancock, 203 Ga.App. 577, 417 S.E.2d 381, the State appealed the trial court's grant of appellant's motion to suppress; we concluded the trial court erred in granting the suppression motion and reversed.

Certain police witnesses testified to the circumstances surrounding appellant's arrest and to the seizure of cocaine hidden under appellant's hat. Appellant testified in his own behalf, denied criminality, and asserted that the police were out to "bust" him and that he did not know where the cocaine could have come from. On cross-examination in response to questions posed by the State, appellant testified in a manner implying it could be shown the cocaine was planted because it was old cocaine (which appellant speculated may have come from the police evidence room) and that he knew about cocaine. Held:

1. Appellant claims, inter alia, he was denied effective assistance of counsel. His defense counsel testified at a post-trial hearing that she believes her representation of appellant was impaired by her medical condition, although she cannot be sure to what extent.

Pretermitting the issue of trial defense counsel's inadequacy is whether other reversible error occurred during appellant's trial. Although no timely specific objection was posed to the admission of certain evidence, we will not employ waiver to preclude appellate review of the merits of enumerations hereafter discussed. See generally Taylor v. State, 186 Ga.App. 113, 114-115(3), 366 S.E.2d 422; Kearney v. State, 184 Ga.App. 64, 66, 360 S.E.2d 633; see Ryals v. State, 186 Ga.App. 457, 459, 367 S.E.2d 309 (concurring opinion).

2. Appellant asserts the trial court erred in allowing the State to place his character in evidence by allowing him to be cross-examined over certain prior drug convictions pertaining either to cocaine or marijuana, and thereafter admitting records of such convictions in evidence.

The State asserted appellant opened the door for cross-examination by testifying he was aware of the properties of old cocaine as he had been previously in possession of it and had lied about where he had seen it, and that he likewise opened the door for admission of records of his prior drug convictions. The record reveals appellant did not testify that he previously had been in possession of cocaine, nor did he otherwise elect to place his character in issue either during direct or cross-examination. Rather, during cross-examination, appellant eventually stated he had previously seen cocaine "plenty of places" including "on TV, everywhere else." Contrary to the State's contention, appellant neither expressly nor by implication lied as to the source of his knowledge of cocaine. By testifying that he had seen it plenty of places, on TV and everywhere else, appellant did not rule out or exclude his own prior personal possession; however, neither did appellant, by his testimony, admit expressly or by implication that he had been engaged in any prior criminal misconduct.

Moreover, "only where the defendant makes an election to place his good character in issue may the State offer evidence of the defendant's general bad character or his prior convictions under the authority of OCGA § 24-9-20(b)." Jones v. State, 257 Ga. 753, 758(1), 363 S.E.2d 529. Further, "a defendant does not put his 'character in issue' within the meaning of OCGA § 24-9-20(b) by inadvertent statements regarding his own good conduct." Id. The State concedes in its brief that, under the holding of Jones, supra, "appellant did not place his character into issue in terms of 'opening the door' for the admission of general character evidence." Thus, "[w]here the defendant testifies in his own behalf and ' "falsely denies past criminal conduct (or past misdeeds), the State may introduce evidence reflecting negatively on the defendant's character only insofar as that evidence proves the falsity of specific testimony of the defendant." ' " Id. at 759(1a), 363 S.E.2d 529. Appellant did not falsely deny past criminal conduct; and even assuming he had falsely testified as to his prior possession of cocaine, appellant's prior convictions pertaining to possession or distribution of marijuana would not disprove and rebut that "specific testimony." Compare Bryant v. State, 204 Ga.App. 856, 860(3), 420 S.E.2d 801. Also, "[w]here the defendant testifies and admits prior criminal conduct, he has not placed his character 'in issue' within the meaning of OCGA § 24-9-20(b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. [Cit.] If, however, the defendant testifies he has committed a crime, implying that this is his only criminal record, his testimony is again subject to rebuttal by proof of other crimes he has committed." Jones, supra 257 Ga. at 759(1b), 363 S.E.2d 529. In this instance, appellant did not testify either on direct or cross-examination in such a way as to admit prior criminal conduct, within the meaning of this exception. Nor did he testify in a manner implying that he had no criminal record. Thus, this exception provides no assistance to the State. While sometimes evidence also can be offered, although not technically qualifying as similar transaction evidence due to its relevancy, to show a special relationship between an accused and a victim (Rainwater v. State, 256 Ga. 271, 347 S.E.2d 586), this is not such a case. Further, "when a witness gives a non-responsive [and even belligerent] answer to a question impacting negatively on the defendant's character, this does not place the defendant's character in issue under OCGA § 24-9-20(b)." Jones, supra 257 Ga. at 759(1c), 363 S.E.2d 529. Moreover, the Supreme Court overruled its holding in Phillips v. State, 254 Ga. 370, 329 S.E.2d 475 to the effect that where a defendant admits to any prior criminal conduct which is less than all his criminal offenses, he has put his character in issue within the meaning of OCGA § 24-9-20(b), by attempting to portray his bad character as better than it actually is. The Supreme Court concluded that when the petitioner admitted two crimes other than the crimes of which he was charged, the State could fully cross-examine him over this testimony, but was not entitled to introduce his prior felony convictions against him. Jones, supra 257 Ga. at 760, 363 S.E.2d 529. Thus, our prior precedent that was grounded solely upon the above rule in Phillips can no longer be relied upon as controlling. The trial court erred in admitting the records of appellant's previous convictions in this instance. Compare Mikle v. State, 236 Ga. 748, 225 S.E.2d 275; Houston v. State, 192 Ga.App. 73, 383 S.E.2d 571; Moses v. State, 190 Ga.App. 699(3), 379 S.E.2d 819; Hurston v. State, 189 Ga.App. 748, 750(3), 377 S.E.2d 519; Williams v. State, 187 Ga.App. 564, 566(2), 370 S.E.2d 821; Johnson v. State, 186 Ga.App. 117, 366 S.E.2d 424, citing Askew v. State, 135 Ga.App. 56(1), 217 S.E.2d 385 (State precipitated the issue).

Thrasher v. State, 204 Ga.App. 413(1), 419 S.E.2d 516 and Mitchell v. State, 158 Ga.App. 628, 281 S.E.2d 260, cited by the State, are not controlling, as these cases involve situations where appellant testified falsely as to certain specific facts and the prior convictions constituted "sufficient evidence," within the meaning of OCGA § 24-1-1(7), to refute such specific testimony.

The State argues that the records of conviction were admissible in evidence as defense's claim of drug planting was analogous to a claim of entrapment and that this type of evidence is admissible to show appellant's bent of mind. While we agree that a drug planting claim is analogous in a certain respect to an entrapment claim, in order to be admissible to show bent of mind such evidence must meet the so-called similar transaction test (see generally Williams v. State, 261 Ga. 640, 409 S.E.2d 649). Compare Sheppard v. State, 205 Ga.App. 373, 422 S.E.2d 66. The similar transaction requirements of Williams, supra, were not met in this instance.

Nor can we conclude, using the standard of Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869, the error was harmless.

3. Appellant asserts the trial court erred in imposing a life sentence because, as evidence exists only of the two bags of cocaine hidden together under his hat, the offenses of cocaine possession and cocaine possession with intent to distribute merged into the greater offense of cocaine trafficking, and a life sentence is not authorized for trafficking. At sentencing, appellant's defense counsel questioned whether possession and possession with intent to distribute would be a lesser offense of trafficking, and stated that trafficking does not carry a life sentence. (Assuming arguendo, appellant's counsel failed to object in proper form to this matter, the issue, in this instance, is still preserved for appellate review. Taylor, supra; Kearney, supra.) The State asserts that as appellant was convicted of possession of cocaine with intent to distribute, a life sentence is mandated by OCGA § 16-13-30(b), and that possession to distribute is the greater offense in this case, merely because it carries the greater punishment. But see Horne v. State, 192 Ga.App. 528, 533(6), 535, 385 S.E.2d 704 (majority and concurring opinions).

(a) OCGA § 16-1-7(a)(1) pertinently provides: "When the same conduct of an accused may establish the commission of more than one crime, the accused ... may not, however, be convicted of more than ...