Lance v. State
| Decision Date | 26 May 1989 |
| Docket Number | No. A89A0726,A89A0726 |
| Citation | 191 Ga.App. 701,382 S.E.2d 726 |
| Parties | LANCE v. The STATE. |
| Court | Georgia Court of Appeals |
H. Bradford Morris, Jr., Gainesville, for appellant.
C. Andrew Fuller, Dist. Atty., Jessica K. Vaughn, Daniel A. Summer, Asst. Dist. Attys., for appellee.
Appellant James Lance appeals his conviction of possession of methamphetamine, no proof of insurance, and violation of the Drivers Licensing Act by driving a motor vehicle after being declared a habitual violator and having his license revoked; appellant also appeals his sentence.
On or about December 1-3, 1986, appellant negotiated the purchase of an automobile. He was given permission to test drive it for a few weeks apparently before finalizing the sale. As appellant was on the way home, the car developed transmission problems, and he parked it near a friend's house. On December 25, 1986, appellant and the co-defendant, Steve Dale, retrieved the vehicle. Appellant and Dale drove in the car to look at another transmission. En route, appellant was observed by Deputy Jessee McGee, Hall County Sheriff's Department, to make a wide turn in the vehicle and twice turning without giving a turn signal. Deputy McGee stopped appellant for these traffic infractions and discovered that appellant was a habitual violator who was driving, without a license, a vehicle for which proof of insurance could not be produced. Appellant's eyes were "extremely red" and dilated; he spoke with rapid sentences through gritted teeth. Although not formally charged with driving under the influence, appellant was arrested for driving as a habitual violator and for driving under the influence. Appellant was patted-down for weapons. The pat-down resulted in appellant's removing a knife and certain objects from his pocket, including plastic baggies. Appellant consented to a search of the glove compartment for insurance papers. As Deputy McGee was entering the vehicle, he observed a clear plastic container enclosing little plastic baggies containing white powder on the floorboard in front of the passenger seat. Further investigation revealed a compact containing white powder under the passenger seat. Laboratory testing confirmed that the white powder contained methamphetamine. Appellant declined to submit to a urine test. At trial, appellant judicially admitted to being "declared a habitual violator" and to knowing that he was not supposed to be driving. Held:
1. Appellant asserts that the trial court erred in refusing to grant a mistrial when a juror, during a deliberation recess, inadvertently overheard third parties discussing the co-defendant. The gist of the conversation was that, while the co-defendant may have committed past criminal acts, in this instance he was innocent. The juror informed the other jurors about this conversation, but apparently did not mention to them that the third-parties considered the co-defendant innocent.
Appellant moved for a mistrial claiming that if the jury believed the co-defendant innocent of drug possession it would per force find appellant guilty. Ultimately, the jury acquitted the co-defendant and convicted appellant.
The trial judge examined each juror individually and obtained from each assurance that the information obtained would not affect the juror's deliberations. The trial judge also ascertained that jurors would base their verdict solely upon the evidence and the charge. Thereafter, the trial judge recalled all jurors collectively and obtained substantially the same assurances from each juror. Although no curative instructions were requested, the trial judge then instructed the jurors in part as follows: "Please base ... your verdict solely on the evidence and the court's instructions."
"There should be no communication [with any juror] which would tend in any manner to prejudice the accused ... and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial...." Stewart v. State, 165 Ga.App. 428, 430, 300 S.E.2d 331. " Boy v. State, 187 Ga.App. 487, 488, 370 S.E.2d 787. We find that the trial court's prompt action in voir dire and in instructing the jury, as above discussed, established on the record that the presumption of prejudice was overcome. Compare State v. Newsome, 259 Ga. 187(2), 378 S.E.2d 125. Moreover, the subsequent acquittal of the co-defendant does not serve to impeach the jurors' responses to the trial judge. We will not speculate as to the basis for the jury's actual verdict. Dimauro v. State, 185 Ga.App. 524, 525, 364 S.E.2d 900. Accordingly the trial judge did not manifestly breach his discretion in denying appellant's motion for mistrial.
2. Appellant asserts that the trial court erred in refusing to charge on equal access.
On appeal, " 'evidence must be viewed in the light most favorable to the verdict.' " Watts v. State, 186 Ga.App. 358(1), 366 S.E.2d 849. Viewing the evidence in this light, it appears that between December 1-3, appellant drove the car from the place of negotiated purchase and parked it near his friend's home when the car developed mechanical problems. On Christmas day, appellant returned to the car, placed some property therein, and called the co-defendant to come and look at the car. No evidence was introduced as to whether the car was locked or unlocked during the period when it was parked, and no evidence was introduced that anyone had gained unauthorized access to the car while it was parked. At the time the drugs were seized, only appellant and the co-defendant were inside the vehicle. While the trial judge refused to give an equal access charge, he also elected not to give any charge pertaining to the presumption of possession of contraband flowing from vehicle ownership or operation. The jury was charged inter alia on the principles of circumstantial evidence, reasonable doubt, actual and constructive possession, joint possession, and that mere presence at the scene of the crime will not support conviction.
" 'The equal access rule, "as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the...
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Scanlon v. State
...breath test was performed. It is not error to decline to give a charge not reasonably raised by the evidence. See Lance v. State, 191 Ga.App. 701, 703(2), 382 S.E.2d 726 (1989). Second, although correct as an abstract principle of law, the requested charge was not adequately adjusted to the......
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