Harrison v. the State., A11A0548.
| Decision Date | 12 September 2011 |
| Docket Number | No. A11A0548.,A11A0548. |
| Citation | 309 Ga.App. 454,711 S.E.2d 35 |
| Parties | HARRISONv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Brett Michael Willis, H. Bradford Morris, Jr., for appellant.Lee Darragh, Dist. Atty., Jennifer C. Bagwell, Asst. Dist. Atty., for appellee.
Brian Harrison and a co-defendant were tried by a Hall County jury and convicted of trafficking in cocaine in violation of OCGA § 16–13–31(a)(1). Harrison appeals from the judgment of conviction, asserting that the trial court erred when it failed to excuse a prospective juror for cause and when it refused to give a jury charge that Harrison requested. We see no reversible error and affirm.
1. Harrison contends that the trial court erred when it failed to excuse a certain prospective juror for cause after this juror said that she could not understand why an innocent person might not testify at trial in his own defense. A trial court should excuse a prospective juror for cause when it appears that the juror “holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the court's charge upon the evidence.” Daniel v. State, 296 Ga.App. 513, 521–522(6), 675 S.E.2d 472 (2009) (citation and punctuation omitted). A trial judge is uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge, unlike appellate judges, can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks. Accordingly, a trial court is vested with discretion to determine whether a prospective juror ought to be excused for cause, and we will disturb an exercise of this discretion only upon a showing of abuse. See Blankenship v. State, 301 Ga.App. 602, 605(3), 688 S.E.2d 395 (2009). We see no abuse of discretion in this case.
Here, during the voir dire of the prospective jurors, one juror wondered aloud why an innocent person might not want to testify in his own defense. This juror explained that, if she were wrongly accused of a crime, she would want to testify, and that she “wouldn't understand why [an innocent person] wouldn't want to [testify].” Upon further questioning, she admitted that good reasons unknown to her might cause an innocent person to decline the opportunity to testify, explaining that “I don't know all the legalities of ... why would you want to and why would you not.” This potential juror then stated that, if Harrison or his co-defendant chose not to testify and the court instructed the jury that it could not hold this choice against either defendant, she “would be okay with it,” although she still might wonder why they chose not to testify.
Harrison and his co-defendant both moved to excuse this potential juror for cause, but the trial court denied these motions, finding that this juror could follow the charge of the court, notwithstanding that she wondered why an innocent person would not testify. The trial court explained:
Well, my take on [this juror] was that she—if it were her in the defendant's shoes, she would be chomping at the bit to get on the stand. That's the point she was making. And so if he didn't, she would wonder why he didn't. But she said she could follow my instruction not to hold it against him for not doing it. And I think it is akin to, you know, I see people with purple hair, I wonder—I would never dye my hair purple and I wonder why they would do it, but I could not hold it against them if I was on the jury. Oh, the better example of that is all of these ... body piercings. I'm going to wonder why they do it, but I don't hold it against anybody. I wonder.
In light of the unique position of the trial court to observe and evaluate this prospective juror, we accept its assessment of the juror. As the trial judge said, that one might find the choices of another curious or strange does not mean that one necessarily would hold those choices against the other. Nothing in the record here shows that the prospective juror at issue had prejudged any issue in the case.1 And this prospective juror not only said that she could follow an instruction that the jury must not hold against a defendant his choice not to testify, but she also said that she would hold the State to its burden of proof. In these circumstances, the trial court did not abuse its discretion when it refused to excuse this prospective juror. 2
2. Harrison also contends that the trial court erred when it refused to charge the jury that it could convict Harrison of trafficking in cocaine only if the State proved beyond a reasonable doubt that Harrison knew that the cocaine in his possession had a weight of 28 grams or more. According to OCGA § 16–13–31(a)(1), a person commits the offense of trafficking in cocaine when he 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.” It is perfectly clear that, to prove a violation of this subsection of the statute, the State must prove that the defendant possessed a substance, that the substance was cocaine or a mixture with a purity of 10 percent or more of cocaine, and that the quantity of the substance was 28 grams or more. It also is perfectly clear that the State must prove that the defendant did so knowingly. But it is less clear whether this knowledge requirement pertains only to possession of the substance (that the defendant knew he had the substance, whatever it might be, in his possession), to the nature of the substance (that the defendant knew it was cocaine or a mixture with the requisite purity), to the weight of the substance (that the defendant knew it was 28 grams or more), or to all three.
In Barr v. State, 302 Ga.App. 60, 61–62(1), 690 S.E.2d 643 (2010), and Cleveland v. State, 218 Ga.App. 661, 663(1), 463 S.E.2d 36 (1995), we held that OCGA § 16–13–31(a)(1) requires proof that the defendant knew that he possessed a substance and knew that the substance contained some amount of cocaine, but it does not require proof that the defendant knew the purity or weight of the substance. But a reasoned analysis of the words of the statute appears nowhere in these opinions, notwithstanding that the words of a statute—at least when those words are clear and unambiguous—are the exclusive means of interpreting it, Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga.App. 573, 575(1), 707 S.E.2d 921 (2011), and notwithstanding also that, consistent with principles of due process, statutes defining the elements of crimes especially ought to be afforded their plain meaning. See United States v. Harriss, 347 U.S. 612, 617(I), 74 S.Ct. 808, 98 L.Ed. 989 (1954) ( ); see also State v. Luster, 204 Ga.App. 156, 157(1)(a), 419 S.E.2d 32 (1992) (...
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