Malone v. State

• Decision Date: 20 December 1995
• Docket Number: No. A95A1840,A95A1840
• Citation: 466 S.E.2d 645,219 Ga.App. 728
• Parties: MALONE v. The STATE.
• Court: Georgia Court of Appeals

Page 645

466 S.E.2d 645

219 Ga.App. 728

MALONE v. The STATE.

No. A95A1840.

Court of Appeals of Georgia.

Dec. 20, 1995.

Drug violation. Chatham Superior Court. Before Judge Karpf.

Jackson & Schiavone, Mark E. Smith, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, Savannah, for appellee.

BEASLEY, Chief Judge.

Malone appeals from his conviction and sentence for selling cocaine. OCGA § 16-13-30(b).

Williams, the officer who made the undercover drug buy, testified his superior had informed him that a black male was selling drugs at a certain corner. He drove to the vicinity of the corner, parked his vehicle and approached Malone on foot. Malone, who was seated on the steps or bannister of a house on the corner, sold Williams a piece of crack cocaine for $20. During the transaction, Williams was observed by other officers. They did not arrest Malone that night so as to be able to make other undercover buys in the same manner.

After the purchase, the officers wished to obtain a photograph of Malone to aid identification. Another officer went to the corner and as a ruse told the four men there, including Malone, that a robbery had occurred nearby, they fit the description of the robbers, and if they would allow their pictures to be taken he would do a photograph line-up with the victim. The four agreed to have their photographs taken. Malone gave his name as Ernest Robinson. He was arrested about eight weeks after the undercover cocaine purchase.

1. Malone contends the evidence was insufficient to support the verdict under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), specifically asserting the State did not show the crack cocaine produced at trial was purchased from him. The indictment stated the offense took place "on or about June 4, 1993." Williams initially testified the buy occurred on June 4, but after examining the date on the plastic evidence bag containing the cocaine, he said it was June 3. After further questioning, Williams stated he was mistaken about the date. Although Williams' testimony shows some confusion about the exact date of the cocaine purchase, it does not show any confusion about whether the cocaine produced at trial was that purchased from Malone. Another officer testified the offense occurred on June 3.

Conflicts in the details of testimony concerning the chain of custody go to the weight, credit, and effect of the evidence, not its admissibility. Thomas v. State, 208 Ga.App. 476(1), 430 S.E.2d 849 (1993); Williams v. State, 213 Ga.App. 70, 71(2), 443 S.E.2d 696 (1994). There was sufficient evidence to allow a rational trier of fact to find Malone guilty beyond a reasonable doubt. Jackson, supra; Gunter v. State, 215 Ga.App. 517, 519(3), 451 S.E.2d 108 (1994).

2. Malone contends the court made an improper comment, in violation of OCGA § 17-8-57, in its pre-evidentiary statement to the jury by referring to Malone as "also known as Ernest Robinson." He also contends that, by telling the jury to "[w]ait until you hear both sides of this case before you begin to form an opinion about it," the court imposed on him a burden to present evidence and improperly shifted the burden of proof to him.

These assertions of error have not been preserved for appellate review. Malone did not object when the court made either statement, nor when the court's pre-evidentiary statement was completed. He never asked for a mistrial or a curative instruction. After the court gave its closing jury charge, he reserved objections to "the charge," but made no attempt to incorporate the court's pre-evidentiary statement into his reservation. It is clear the court's question asking for objections to "the charge" referred only to the main closing jury charge. "[A] pre-evidentiary statement is not the equivalent of a jury charge." Farmer v. State, 180 Ga.App. 720, 721(1), 350 S.E.2d 583 (1986). See also Hawkins v. State, 185 Ga.App. 837(1), 366 S.E.2d 222 (1988); Levesque v. State, 172 Ga.App. 760, 761, 324 S.E.2d 580 (1984).

Reservation of objections to the main charge does not encompass objections to the pre-evidentiary statement. While OCGA § 5-5-24(a) relieves a criminal defendant of the responsibility of objecting to jury charges at the time of trial and allows reservation of objections for a motion for new trial or appeal, it only concerns the charge given the jury at the end of the case. Foshee v. State, 256 Ga. 555, 557(2), 350 S.E.2d 416 (1986). A defendant still must make timely objection throughout the course of the trial. Id. Additionally, if a court does err in its pre-evidentiary remarks, that error is cured by thoroughly and correctly covering the law in the main charge. Farmer, supra; Hawkins, supra; Levesque, supra. To give the court the opportunity to correct any error at that time, or earlier, and to preserve review of any alleged error, Malone would have to object after the court concluded its pre-evidentiary remarks and before the main charge, which he did not do.

Even if these enumerations...