Lamons v. State, 70489

Decision Date12 September 1985
Docket NumberNo. 70489,70489
Citation335 S.E.2d 652,176 Ga.App. 290
PartiesLAMONS v. The STATE.
CourtGeorgia Court of Appeals

Edward C. Stone, Atlanta, for appellant.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, James F. Morris, Asst. Dist. Attys., for appellee.

DEEN, Presiding Judge.

A Cobb County jury found appellant Lamons guilty on one count of violating the Dangerous Drug Act, OCGA § 16-13-70 et seq., by selling pills containing amitriptyline; and on one count of violating the Georgia Controlled Substances Act, OCGA § 16-13-1 et seq., by selling ephedrine (a non-scheduled drug) on the express representation that it was a controlled substance, methamphetamine. Lamons was sentenced to a total of ten years' imprisonment, with probation after seven years, plus a fine. On appeal Lamons enumerates eleven errors having to do with the allegedly impermissible placing of his character in evidence; the denial of his motions for mistrial, a directed verdict of acquittal, judgment notwithstanding the guilty verdict, and a new trial; and the general grounds. In reviewing these enumerations we have treated together those that are related to one another. Held:

1. Examination of the trial transcript reveals that a witness' unsolicited remark might arguably have been construed as reflecting adversely on the defendant's character when the defendant himself had not placed his character in issue: the witness stated that during one of the alleged drug transactions the defendant "appeared to be under the influence and said he had been taking the [amitriptyline] pills." The trial court sustained defense counsel's objection and gave the jury curative instructions. In view of the other competent evidence adduced, it seems highly probable that this error did not contribute to the conviction. Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976); Chester v. State, 144 Ga.App. 717, 242 S.E.2d 356 (1978). Therefore, neither a mistrial nor a new trial was warranted on this ground, and appellant's seventh and eighth enumerations are devoid of merit.

2. Scrutiny of the record indicates that appellant's case did not meet the statutory criteria for a directed verdict of acquittal. OCGA § 17-9-1. Moreover, as the trial court correctly pointed out in its order of February 6, 1985, a motion for judgment notwithstanding the verdict is inappropriate in a criminal proceeding and when, as in this case, it is made in the alternative with a motion for new trial, it amounts only to the latter and should be treated as the equivalent of a motion for new trial on the general grounds. Deen v. State, 216 Ga. 387, 116 S.E.2d 595 (1960); Russell v. State, 155 Ga.App. 555, 271 S.E.2d 689 (1980). The record further reveals that the court below correctly denied appellant's motion for new trial. The first, second, tenth, and eleventh enumerations of error are without merit.

3. The record reveals that sufficient competent evidence was presented at trial to authorize a reasonable trier of fact to find appellant guilty as charged beyond a reasonable doubt. Hampton v. State, 250 Ga. 805, 301 S.E.2d 274 (1983). The appellate court assesses the sufficiency of the evidence, not its weight. Barnes v. State, 171 Ga.App. 478, 320 S.E.2d 597 (1984). Appellant's third and fourth enumerations of error are also without merit.

4. Study of the trial transcript reveals that the alleged misconduct involving a conversation between a prosecution witness and a juror was thoroughly explored by the court outside the jury's presence. Both the witness (who had called the conversation to the court's attention) and the juror were questioned, and it was established to the court's satisfaction that the conversation was unrelated to the case sub judice. See Hardy v. State, 242 Ga. 702, 251 S.E.2d 289 (1978); Smith v. State, 218 Ga. 216, 126 S.E.2d 789 (1962). No mistrial or new trial was authorized, and the fifth and sixth enumerations are without merit.

5. Also without merit is appellant's ninth enumeration of error, as examination of the entire record in this case reveals no reversible error of law.

Judgment affirmed.

BANKE, C.J., McMURRAY and BIRDSONG, P.JJ., and CARLEY, SOGNIER, POPE and BENHAM, JJ., concur.

BEASLEY, J., dissents.

BEASLEY, Judge, dissenting.

With respect to Division 4, I respectfully dissent.

On the second day of trial, after all the evidence was in and the court had denied defendant's motion for a directed verdict, and after defendant had rested without offering evidence and discussion began about charges, the district attorney brought to the attention of the court a phone conversation which the agent had with someone who had been present in court the day before but remained unidentified. The agent was the primary witness, had participated in the drug transactions being tried, and assisted the district attorney throughout the trial. The person had called the agent's office and left a number, and the agent called back. The caller provided drug information, and although the agent was unable to learn from the tipster her name, he had reasoned that it was a juror. He did not remind her they could not converse during trial. Pursuing his theory as to identity, inquiry was made at court and it was found that juror Watson had made the call. She explained in chambers that she wanted to give the agent information about drug possession involving her ex-boyfriend and others and did not want to wait until the trial concluded; she had refused to disclose her identity because she did not think it would be proper to reveal it in the course of the call, but she said she did intend to introduce herself to the agent following this trial.

After determining not to declare a mistrial, the court instructed the juror not to discuss with the other jurors the matter of the phone call or the nature of the court's inquiry. She returned to the jury, closing arguments were made, and the court charged the jury. Since the juror had been late that morning, it was thought that the jury would understand that subject to have been the reason for the conference.

The impartiality of the jury is paramount to a fair trial and is scrupulously protected by the court, both by the often lengthy voir dire procedures in choosing a jury in the first place and in guarding the climate surrounding the jury while it is serving. The object is to assure that no influence, direct or indirect, can invade that zenith of impartiality.

"The policy of the law is to protect jurors from all [public opinion] influences and temptations in the trial of criminal cases as well as defendants who may be injured thereby." Daniel v. State, 56 Ga. 654, 655 (1876). While in that case the principle was applied to the possibility that the juror heard expressed the opinion of members of the public gathered at the courthouse, the principle would apply to any influences outside the evidence presented at the trial which might affect the impartiality of the jurors' decision-making process. Because influences on human minds are numberless, often subtle, frequently undiscernable, and effective to different degrees and in different ways on each mind, much is done to insure against the introduction of any extraneous fact or pressure which might affect the impartial, reasoned, and grounded decision of the jury. The...

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6 cases
  • Brown v. State
    • United States
    • Georgia Court of Appeals
    • October 30, 1997
    ...264 Ga. 176, 442 S.E.2d 742 (1994); State v. Bilal, 192 Ga.App. 185, 186, 384 S.E.2d 253 [229 Ga.App. 91] (1989); Lamons v. State, 176 Ga.App. 290, 335 S.E.2d 652 (1985), rev'd on other grounds, 255 Ga. 511, 340 S.E.2d 183 (1986). When "made in the alternative with a motion for a new trial ......
  • Davis v. State, 77762
    • United States
    • Georgia Court of Appeals
    • November 29, 1988
    ...therefore outweighed by their prejudicial effect, the trial court committed reversible error in admitting them. In Lamons v. State, 176 Ga.App. 290, 335 S.E.2d 652 (1985), a witness made an unsolicited remark suggesting drug use by defendant, and the trial court sustained counsel's objectio......
  • Gibson v. Pierce
    • United States
    • Georgia Court of Appeals
    • September 13, 1985
    ... ... Co. v. Ferguson, 63 Ga. 84, 85 (1879) and quoted in Quaid v. State, 132 Ga.App. 478, 483, 208 S.E.2d 336 (1974), by Judge Sol Clark ...         Judgment ... ...
  • Lamons v. State
    • United States
    • Georgia Supreme Court
    • March 11, 1986
    ...whether the juror misconduct warranted the grant of a mistrial or new trial. The Court of Appeals held it did not. Lamons v. State, 176 Ga.App. 290, 335 S.E.2d 652 (1985). We Lamons was convicted of selling pills containing amitriptyline and ephedrine at his home to undercover police detect......
  • Request a trial to view additional results

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