Mitchell v. State

• Decision Date: 13 March 1990
• Docket Number: Nos. A89A1688,A89A1689,s. A89A1688
• Citation: Mitchell v. State, 393 S.E.2d 274, 195 Ga.App. 255 (Ga. App. 1990)
• Parties: MITCHELL v. The STATE. ANDERSON v. The STATE.
• Court: Georgia Court of Appeals

Page 274

393 S.E.2d 274

195 Ga.App. 255

MITCHELL v.The STATE.

ANDERSON v.The STATE.

Nos. A89A1688, A89A1689.

Court of Appeals of Georgia.

March 13, 1990.

Rehearing Denied March 30, 1990.

Robert S. Lanier, Jr., Statesboro, for appellant(case no. A89A1688).

Francis W. Allen, Statesboro, for appellant(case no. A89A1689).

J. Lane Johnston, Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendants Mitchell and Anderson were jointly indicted for trafficking in cocaine.The evidence adduced at a joint jury trial revealed the following:

Shortly before noon on August 15, 1988, Agent Davis of the Georgia Bureau of Investigation ("GBI") received information from "a confidential, reliable informant" that "three black males and a black female were in a Chevrolet Beretta ..." automobile at a local motel; that "a large amount of cocaine was observed in the car with these [people] and that one of the black males went to a motel room ... with a portion of the cocaine...."The informant identified the suspect vehicle's Florida "tag number" and Agent Davis responded to the tip.

When Agent Davis arrived at the motel, he observed "a red Beretta vehicle with [the] same tag number that was described [by the confidential informant] parked in front of the registration desk at the office."Defendant Anderson was in the suspect vehicle and another unidentified black male "was inside the registration office talking to the clerk."Agent Davis discovered that the Beretta was a Florida rental car and he later summoned Detective Williams of the Statesboro Police Department for assistance.By the time Detective Williams arrived at the motel, the two suspects had left in the rented vehicle.A lookout for the Beretta was placed with officers of the Statesboro Police Department and, shortly thereafter, the vehicle was spotted and stopped.Agent Davis was summoned to the stop and, after arriving at the scene, he noticed that only defendant Anderson was at the car.Defendant Anderson's driver's license identified him as a resident of "Haynes City, Florida" and defendant Anderson informed the officers that "he was in that particular neighborhood looking for his uncle ... Spencer."Agent Davis was apprehensive that "Spencer" was the unidentified black male who had earlier accompanied defendant Anderson at the motel and Agent Davis was concerned that "Spencer" would alert the other suspects who had been observed by the confidential informant at the motel.Consequently, Agent Davis went back to the motel while other officers took defendant Anderson to the police station for questioning.

Agent Davis learned that the other two suspects had checked into a room at the motel and that the room was "registered to Vonnie McBride...."Agent Davis and Detective Williams went to the motel room and defendant Mitchell answered the officers' knocks.Ms. McBride was then summoned to the door and the officers informed the suspects of their "suspicions that there was cocaine in that room."Ms. McBride was advised of her Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966)) and she admitted "there [was] some crack cocaine in the room [and that she] and [defendant Mitchell were] in there smoking some crack."The officers searched the suspects and found $664.88 in cash in defendant Mitchell's back pocket.The officers also searched the motel room and found 10.2 grams of "crack" cocaine, "smoking devices" which are used to consume "crack" cocaine and paraphernalia which is used to separate or "cut" powdered cocaine.

Meanwhile, officers of the Statesboro Police Department discovered hidden in defendant Anderson's underwear 97.2 grams of a substance which was 95 percent pure cocaine (92 grams of pure cocaine).After receiving his Miranda warnings, when questioned about the substance, defendant Anderson made the following statement:

" 'This past Saturday me and Spencer were together in Haynes City, Florida.I saw Blank.He was driving the red Beretta.He told me his girlfriend or mother had rented it for him, I don't remember which he said.He asked me if I had a driver's license.He said he would pay me two hundred dollars to drive him to Georgia and come right back.We left that night.Spencer came along for the ride.We got to Statesboro this morning.Blank saw a girl and told me to stop the car.We went to her house.Blank handed me the package of cocaine and told me to hold it for him.I said no, I didn't want to.He kept asking me to hold the package because he was fixing to get a motel with her and he didn't want her to run off with the coc[aine].I took it from him and laid it on the console.Spencer said to move it and give it back to Blank, but I kept it because Blank said he wouldn't be long.Blank and the girl was walking down the road and then I took them to the motel.Blank and the girl got out of the car and walked around the building.Spencer walked around there too, so he would know where to come back to.Me and Spencer left.I was going to see my cousin Robert Procter in Sardis, Georgia.Spencer didn't want to go so I dropped him off a couple of blocks from the motel.I put the cocaine in my clothes after Spencer told me to move it.I was riding around looking for a bar when the patrolman pulled me over.[']"

Later, defendant Mitchell, after receiving his Miranda warnings, was questioned, and he made the following statement: " 'We left Florida Friday night, my mama rented the car for me.I don't have a license.I picked up [defendant Anderson] and Spencer.[Defendant Anderson] did the driving.We spent a couple of nights at some of Spencer's people's house in Byron, Georgia.We came to Statesboro this morning.We were just riding.I saw a girl on the street, I didn't know her.I got her, I got out of the car and started talking to her.We ended up at the motel, then the police came.I don't know anything about the cocaine.' "

A search of the red Beretta revealed 1.3 grams of marijuana, clothing which belonged to defendants Anderson and Mitchell and clothing which belonged to Ms. McBride.Defendants were found guilty of trafficking in cocaine.Defendant Mitchell now appeals in Case No. A89A1688 and defendant Anderson appeals in Case No. A89A1689.¹Held:

Case No. A89A1688

1.Defendant Mitchell first asserts the general grounds, arguing that the State failed to link him to possession of cocaine.

"Any person who knowingly ... brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine ... commits the felony offense of trafficking in cocaine...."OCGA § 16-13-31(a)(1).In the case sub judice, defendant Mitchell admitted that he had been traveling with defendant Anderson shortly before his arrest.There was also evidence that defendants Anderson and Mitchell were driving through Statesboro looking for areas where cocaine was available and where illegal drug use was prevalent.Further, defendant Anderson had over 97 grams of 95 percent pure powdered cocaine in the vehicle which defendant Mitchell's mother had rented and defendant Mitchell was found with drug paraphernalia which is commonly used to separate or "cut" powdered cocaine.Defendant Mitchell was seen distributing "crack" cocaine on the day of his arrest and a quantity of cash was found in his pocket at the time of his arrest.Finally, defendant Mitchell was arrested after being found in a motel room with over 10 grams of "crack" cocaine.The evidence adduced at trial was sufficient to authorize a finding, beyond a reasonable doubt, that defendant Mitchell was an active participant in the possession of over 28 grams of cocaine so as to be a party to the crime of trafficking in cocaine.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).SeeRiley v. State, 191 Ga.App. 781(1), 383 S.E.2d 172(1989).

2.Next, defendant Mitchell contends the trial court erred in denying his motion to sever.

"The denial of severance is within the discretion of the trial court and will not be reversed unless it can be shown the joint trial constituted a denial of due process.Carroll v. State, 147 Ga.App. 332(248 SE2d 702)(1978).In determining the severance issue, the trial court must consider the following: (1) Whether the joint trial will create confusion of the evidence and law applicable to each individual defendant; (2) Whether there is danger that evidence admitted against one defendant will be considered against another despite cautionary instructions by the court; (3) Whether the co-defendants will claim antagonistic defenses.Jones v. State, 243 Ga. 584, 586(255 SE2d 702)(1979).See alsoCain v. State, 235 Ga. 128, 129(218 SE2d 856)(1975)."Martin v. State, 189 Ga.App. 483, 487(3), 376 S.E.2d 888(1988).

Defendant Mitchell first argues that the volume of evidence against defendant Anderson prejudiced his case and that defendant Anderson's defense was antagonistic to his own.Defendant Mitchell does not specify how defendant Anderson's defense was antagonistic, nor does he cite specific evidence admitted against defendant Anderson which prejudiced his case.Instead, he makes general reference of how actual possession of cocaine is necessary for a conviction under OCGA § 16-13-31(a)(1)(A).In the context of this enumeration, we take this argument to mean that defendant Anderson's physical possession of more than 28 grams of cocaine adversely affected defendant Mitchell's defense, i.e., that he did not "know anything about the cocaine."

"The burden is on the defendant requesting the severance to make a clear showing of prejudice.He must show more than a 'possibility that a separate trial would give him a better chance of acquittal ...'[citations omitted.]"William W. Daniel's Ga. Criminal Trial Practice, (1989 ed.) § 14-46, p. 416.In the case sub judice, defendant Mitchell has failed to demonstrate that evidence of defen...