Mitchell v. State

• Decision Date: 05 March 1997
• Docket Number: A96A1891,Nos. A96A1890,s. A96A1890
• Citation: 225 Ga.App. 520,484 S.E.2d 271
• Parties: , 97 FCDR 1122 MITCHELL v. The STATE. HICKS v. The STATE.
• Court: Georgia Court of Appeals

Page 271

484 S.E.2d 271

225 Ga.App. 520, 97 FCDR 1122

MITCHELL v. The STATE.

HICKS v. The STATE.

Nos. A96A1890, A96A1891.

Court of Appeals of Georgia.

March 5, 1997.

Reconsideration Denied March 18, 1997.

Certiorari Granted July 11, 1997.

Timothy T. Herring, Atlanta, for appellant (case no. A96A1890).

Hemmann & Hemmann, Paul E. Hemmann, Tacoma, WA, for appellant (case no. A96A1891).

Tommy K. Floyd, District Attorney, Mark S. Daniel, Thomas R. McBerry, Assistant District Attorneys, for appellee.

McMURRAY, Presiding Judge.

Defendants Mitchell and Hicks appeal their convictions of a violation of the Georgia Controlled Substances Act, trafficking in cocaine. Held:

1. Mitchell was a passenger and Hicks the driver of a vehicle pulled over in Butts County for a routine traffic stop for failure to maintain their proper lane. The car belonged to Hicks' girl friend with whom he resided and shared the use of the vehicle.

As one deputy issued Hicks a warning citation, a second deputy walked his police dog around the car. After the police dog alerted to the presence of narcotics, the deputies commenced a search of the car, initially finding nothing, but later finding cocaine under the passenger side floor mat. The cocaine was "under the floor mat, on the flat part before the floor board goes up." The cocaine made a visible hump on the surface of the floor mat. Mitchell was observed to have had his feet on the floor mat.

The cocaine was in the form of two wafer or cookie shaped pieces, each about one fourth of an inch thick and three inches in diameter. The pieces of cocaine were more intact than when later introduced into evidence at trial and there was testimony as to the brittle nature of the substance. The two pieces were packaged in separate plastic bags.

Both defendants question the sufficiency of the evidence to authorize their convictions. Mitchell argues that the evidence shows only his proximity to the contraband and fails to establish that he had any knowledge of its presence beneath the floor mat. The State notes that defendants had traveled from Union City in Fulton County en route to Macon, Georgia and argues that in view of the brittle nature of the cocaine cookies it is impossible that they would have remained intact beneath Mitchell's feet for the time this journey required, and thus that both defendants were aware of the presence of the contraband. While the first deputy searching the car did not notice the visible hump in the floor mat, a jury could have determined that such would not go unnoticed over this length of journey, particularly when beneath one's feet. Furthermore, there was evidence of extremely nervous conduct by both defendants during the traffic stop and prior to the dog alerting on the car. The evidence included a videotape and a photograph which better enabled the jury to assess defendants' conduct and the condition of the cocaine when discovered.

Hicks argued that there was no evidence connecting him to the contraband other than the fact that it was found beneath the floor mat of the car he was driving. Hicks maintains that no inference of possession should arise from his control over the car because Mitchell and Hicks' girl friend had equal access to the car. But once more the determinative factor is the inferences which may be drawn from the condition of the brittle pieces of cocaine when discovered beneath the floor mat. The girl friend had no access to the car for some time prior to the beginning of the trip. Hicks testified as to a stop at a gas station after picking up Mitchell during which Mitchell was alone in the car, but this stop was apparently made before any significant progress on the journey was made. Thus, the jury could have inferred from the evidence at trial that the cocaine was placed beneath the mat shortly before it was discovered by the deputies and at a time when it must have been visible to both defendants.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Scott v. State, 223 Ga.App. 479, 480(1), 477 S.E.2d 901. We conclude that the evidence was sufficient to authorize a rational trier of fact to find both defendants guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Cannon v. State, 211 Ga.App. 835, 836, 440 S.E.2d 723.

2. Hicks' first enumeration of error maintains that the trial court erred in refusing his request for a continuance and requiring him to proceed to trial unassisted by counsel. The transcript contains a colloquy of about six pages in which it is established that Hicks was originally provided court-appointed counsel and that he fired the court-appointed counsel because he wished to employ counsel. Yet, no employed counsel has made an appearance in the case on his behalf. Hicks...