Mika v. State
| Decision Date | 16 July 2002 |
| Docket Number | No. A02A0685.,A02A0685. |
| Citation | 568 S.E.2d 818,256 Ga. App. 546 |
| Court | Georgia Court of Appeals |
| Parties | MIKA v. The STATE. |
OPINION TEXT STARTS HERE
Jackson & Schiavone, Steven L. Sparger, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., George R. Asinc, Asst. Dist. Atty., for appellee. ANDREWS, Presiding Judge.
Richard P. Mika was found guilty by a jury of selling cocaine in violation of the Georgia Controlled Substances Act. Finding no reversible error in the enumerations raised on appeal, we affirm the judgment of conviction.
1. The State produced eyewitness testimony from three witnesses who saw Mika sell the cocaine. Two police officers working undercover in a nightclub testified that from a distance of about seven yards they saw Mika accept money from Christopher Cash and give Cash a plastic bag containing a white powder that appeared to be cocaine. During the sale, one of the officers walked up directly behind Cash, closely observed the apparent cocaine in Cash's hand, and watched Cash place the apparent cocaine in his pocket. Shortly thereafter, Cash was taken by the officers outside the nightclub where he consented to a search of his person. The officers found the bag of apparent cocaine in Cash's pocket. Tests conducted by the Georgia State Crime Lab confirmed that the substance in the bag was cocaine. Cash, who was charged as a co-defendant with possession of cocaine and pled guilty prior to trial, testified for the State that Mika sold him the cocaine at the nightclub in exchange for two $20 bills. Cash and Mika were arrested at the nightclub, and at least two $20 bills were found in Mika's possession in a search of his person incident to the arrest. Although Mika did not testify, the defense asserted on his behalf at trial was that he did not sell the cocaine, and that Cash gave him money to buy drinks, not to buy cocaine.
The State produced overwhelming evidence in support of its case that was more than sufficient to allow the jury to conclude that Mika was guilty of selling cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Mika contends the trial court erred by admitting over his objection a statement he made to police which was obtained by illegal police interrogation.
After Mika was taken into custody and informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he invoked his right not to speak without counsel present. Under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), all police interrogation was required to stop at that point and could not resume without counsel present, unless Mika initiated further conversation with the police and waived the invoked right. Nevertheless, without counsel present, a police officer told Mika that he saw Cash give him money, to which Mika responded,
Assuming Mika's response should have been excluded because the officer's statement was improper interrogation and the officer should have known it was likely to elicit an incriminating response (see Cottingham v. State, 206 Ga.App. 197, 200-201, 424 S.E.2d 794 (1992)), the admission of the response was harmless error under the circumstances. Two undercover police officers testified they saw Mika sell the cocaine in exchange for money from Cash, and Cash testified he bought cocaine from Mika and handed him money. This eyewitness testimony was overwhelming evidence of Mika's guilt. Mika's defense was to admit Cash handed him money to buy drinks, but to deny it was for the sale of cocaine. Mika's response to the officer was merely cumulative of other evidence showing he accepted money from Cash, and it was not necessarily inconsistent with his defense that Cash gave him the money to buy drinks. Under the circumstances, the error, although of constitutional dimension, was harmless because the record establishes beyond a reasonable doubt that it did not contribute to the guilty verdict. Cox v. State, 274 Ga. 204, 205-206, 553 S.E.2d 152 (2001).
3. Contrary to Mika's contention, the trial court did not err by allowing the State to introduce similar transaction evidence showing he was convicted of selling cocaine eight years prior to the present charge.
After a hearing held pursuant to Uniform Superior Court Rules 31.1 and 31.3, the trial court found pursuant to Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991), that there was sufficient similarity between the earlier offense and the present offense so that the former tends to prove the latter, and the former was admissible to show intent, course of conduct, bent of mind, and mode of operation of Mika in the present offense. The evidence showed that in both offenses Mika sold about one-half gram of powdered cocaine packaged in a similar manner to an individual for cash.
A trial court's admission of similar transaction evidence will be upheld on appeal unless the ruling is clearly erroneous. Garrett v. State, 253 Ga.App. 779, 781, 560 S.E.2d 338 (2002). Here, the prior offense was sufficiently similar to the charged offense and at a minimum showed a similar bent of mind and mode of operation. Moreover, the lapse of eight years between the offenses does not render the prior offense too remote.
Mere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility. It is ... the similarity of the offenses within the meaning of Williams v. State, 261 Ga. at 640, 409 S.E.2d 649, that determines the admissibility of such evidence, not whether the span of time between offenses is brief.
(Citation and punctuation omitted.) Id. at 782, 560 S.E.2d 338; Mullins v. State, 269 Ga. 157, 158, 496 S.E.2d 252 (1998). The trial court was not clearly erroneous in admitting the prior offense as similar transaction evidence.
4. Mika contends the trial court committed reversible error in its instructions to the jury regarding impeachment of a witness convicted of a crime of moral turpitude.
(Emphasis supplied.) The first quoted instruction clearly informed the jurors that they were entitled to conclude Cash was impeached by proof that he was convicted of a crime of moral turpitude. The second quoted instruction informed the jurors with respect to impeachment by proof of prior contradictory statements but inserted, apparently by mistake, the reference (emphasized above) to impeachment by conviction of a crime of moral turpitude which has nothing to do with the instruction on impeachment by prior contradictory statements. Mika contends this had the effect of improperly imposing requirements applicable to impeachment by prior contradictory statement on impeachment by conviction of a crime of moral turpitude. We disagree. Although the mistaken insertion created some confusion, it imposed no such requirements, and the instructions taken as a whole clearly informed the jurors they were entitled to conclude Cash was impeached by his prior conviction. The error was nonconstitutional, and, because it was highly improbable it contributed to the guilty verdict, it was harmless. Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976).
5. There is no merit to Mika's contention that the trial court gave an instruction which erroneously implied to the jurors that he could be convicted on the basis of "grave suspicion" or "mere speculation or conjecture."
In the complained-of instruction, the trial court informed the jurors that facts and circumstances which merely place upon the defendant a grave suspicion of the crime charged, or which merely raise a speculation or conjecture of the defendant's guilt are not sufficient to authorize conviction of the defendant, but only if the facts and circumstances of this case and all legal deductions thereof—strike that.
Contrary to Mika's contention, the trial court's statement of "strike that" following this instruction could not possibly have given the jurors the impression that they were entitled to convict him on the basis of "grave suspicion" or "mere speculation or conjecture." Moreover, the trial court gave other instructions which...
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