Little v. State

• Decision Date: 26 February 1998
• Docket Number: No. A98A0123.,A98A0123.
• Citation: 498 S.E.2d 284,230 Ga. App. 803
• Parties: LITTLE v. The STATE.
• Court: Georgia Court of Appeals

498 S.E.2d 284

230 Ga. App. 803

LITTLE v. The STATE.

No. A98A0123.

Court of Appeals of Georgia.

February 26, 1998.

Williams A. Adams, Jr., Thomaston, for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

The defendant, Hugh Little, appeals his conviction for the offenses of sale of cocaine and theft by taking.

1. In his first enumeration of error, the defendant asserts that the trial court erred by denying the defendant's motion for directed verdict in that there was insufficient evidence to support a conviction for the alleged sale of cocaine. Specifically, the defendant asserts that the State failed to introduce sufficient evidence to establish that the appellant was a party to the crime committed by Joyce Alexander.

Viewed in the light most favorable to the verdict, the evidence shows the following: on the evening of July 25, 1991, Beth Tessmer, an undercover officer with the Barnesville Police Department who was attached to the Narcotics Task Force for Monroe, Lamar Upson, and Pike Counties, was conducting an undercover drug investigation. A confidential informant drove Officer Tessmer to a residence at 612 Old Talbotton Road, Thomaston, Georgia. This residence was the home of defendant Hugh Little and Joyce Alexander, who had lived with each other for 14 years.

Officer Tessmer testified that the defendant, who was wearing blue work clothes with the name "Hugh" over the shirt pocket, exited the residence and approached the vehicle in which the confidential informant and she were sitting. Officer Tessmer advised the defendant that she needed a "twenty," i.e., a $20 rock of crack cocaine. The defendant stated he did not have any drugs, but that Joyce Alexander, who was at that point coming out of the residence, could go get some for them. Alexander approached the vehicle and engaged in a conversation with Officer Tessmer. The defendant stated to both Officer Tessmer and Alexander that Alexander would get the crack cocaine, and it would be okay for Officer Tessmer and the confidential informant to remain parked in the yard. Officer Tessmer handed Alexander $20, and Alexander left with the money to obtain crack cocaine. Approximately five to ten minutes later, Alexander returned with a small package containing what was later identified as a rock of crack cocaine.

On July 30, 1991, at approximately 10:30 p.m., Officer Tessmer and the confidential informant returned to the defendant's residence. On this occasion, Officer Tessmer was driving the vehicle. The defendant leaned into the vehicle and spoke with Officer Tessmer concerning another drug purchase. Officer Tessmer asked if the defendant could get a "twenty." The defendant said yes, but indicated he would have to go and get the cocaine. Officer Tessmer gave the defendant $20 and waited for him to return. While Officer Tessmer and the confidential informant were waiting, Alexander exited the residence and engaged in conversation with the officer. As this conversation was occurring, another car pulled into the driveway, and the defendant's mother, who lived next door, came into the yard where Officer Tessmer was waiting and began screaming for everyone to leave the residence. Officer Tessmer and the confidential informant left, drove down the street, and approached the defendant as he was walking back toward his residence. Officer Tessmer stopped and asked the defendant if he had obtained the drugs. The defendant shook his head no. When Officer Tessmer asked the defendant if he was going to get the drugs, he indicated no, and when Officer Tessmer asked the defendant to return the money, he refused.

"On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citations and punctuation omitted; emphasis in original.) Browning v. State, 207 Ga.App. 547, 548(1), 428 S.E.2d 441 (1993). Furthermore, "[t]he determination of a witness' credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. [Cit.]" Norris v. State, 258 Ga. 889, 890(1), 376 S.E.2d 653 (1989). "This [C]ourt determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility." (Citations and punctuation omitted.) Browning v. State, supra at 548(1), 428 S.E.2d 441. In light of Officer Tessmer's testimony, the jury was authorized to and did reject the testimony of Alexander that the defendant was not home on the night of July 25, 1991, and that she was the only one involved in the sale of cocaine.

"Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20(a). Furthermore, "[a] person is concerned in the commission of a crime only if he: (1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime." OCGA § 16-2-20(b). "The theory that one may act as a conduit or procuring agent of the purchaser and thereby escape culpability as a seller has been considered and rejected by this Court." (Citations and punctuation omitted.) Gay v. State, 221 Ga.App. 263, 265(1)(a), 471 S.E.2d 49 (1996).

The evidence in this case is sufficient for a rational trier of fact to have found the defendant guilty beyond a reasonable doubt of the offense of being a party to the sale of cocaine under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Gay v. State, supra; Turner v. State, 216 Ga.App. 896, 456 S.E.2d 241 (1995); Chappell v. State, 215 Ga.App. 596, 451 S.E.2d 491 (1994).

2. In the defendant's second enumeration of error, he alleges that the trial court erred in denying his motion for new trial as to the issue of the trial court's failure to charge at the conclusion of the evidence on the law concerning the presumption of innocence, the burden of proof, and the definition of reasonable doubt.

At the beginning of the trial in this case, the trial court instructed the jury on several points of law, including presumption of innocence, reasonable doubt, and burden and standard of proof. After closing arguments at the conclusion of the evidence, the trial court gave additional charges, but did not recharge on these points of law, even though the defendant had filed requests to charge on these specific points of law.

OCGA § 5-5-24(b) requires that the trial court shall instruct the jury in the law after the closing arguments are completed. While "[i]t is commendable that the trial judge here gave the jurors preliminary instructions, before evidence was presented, to acquaint them with the nature of their duties and the basic principles of law they would apply during their deliberations[,] ... it cannot serve as a substitute for a complete jury charge, as the statute requires, after the evidence is closed and arguments concluded." Blandburg v. State, 209 Ga.App. 752, 753-754(2), 434 S.E.2d 510 (1993). The failure of the trial court to recharge the jury on the presumption of innocence and burden of proof after closing argument has been held by the Supreme Court to be error. Griffith v. State, 264 Ga. 326(2), 444 S.E.2d 794 (1994).

In several cases, the appellate courts have dealt with the trial court's failure to repeat preliminary instruction on the presumption of innocence, the burden of proof, and the standard of proof being beyond a reasonable doubt in the trial court's charge given after the closing arguments. See Griffith v. State, supra at 327, 444 S.E.2d 794; Loyd v. State, 222 Ga.App. 193, 474 S.E.2d 96 (1996); Dennard v. State, 216 Ga.App. 446, 454 S.E.2d 629 (1995); Blandburg v. State, supra. While the appellate courts have found in some instances, under the facts and circumstances of a particular case, that the failure to recharge on the presumption of innocence, the burden of proof, and the standard of proof after the closing argument was harmless error, a judicial determination of harmless error can be made only on a case-by-case basis. LaRue v. State, 137 Ga.App. 762, 224 S.E.2d 837 (1976). Therefore, we find that the better practice is to completely recharge the jury on such issues in the post-argument charge. "It is indeed difficult to imagine a more serious omission from a charge to the jury in a criminal case. It is no reply that a correct statement of [these] fundamental principle[s] was given to the jury in preliminary instructions. OCGA § 5-5-24(b) requires the trial court to give the jury comprehensive instructions after closing arguments, even at the cost of extensive repetition." (Citations and punctuation omitted.) Dennard v. State, supra at 448(1), 454 S.E.2d 629. A trial court's failure to repeat such charges after closing argument flirts with reversal. This case exemplifies why this is so.

The presumption of innocence, the burden of proof, and the standard of proof are the fundamental doctrines of American criminal jurisprudence and the bedrock of determining guilt or innocence in a criminal case. The failure of the trial court to give such charges would be a violation of the defendant's state and federal constitutional due process rights. "The landmark decision of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 [(1967),] established [the] principles to be followed in determining whether constitutional errors may be deemed harmless. Rejecting the contention that all federal constitutional errors must always...