Mitchell v. State

• Decision Date: 24 June 1991
• Docket Number: No. A91A0697,A91A0697
• Parties: MITCHELL v. The STATE.
• Court: Georgia Court of Appeals

Page 115

407 S.E.2d 115

200 Ga.App. 146

MITCHELL v. The STATE.

No. A91A0697.

Court of Appeals of Georgia.

June 24, 1991.

Virgil L. Brown & Associates, Virgil L. Brown, Zebulon, Bentley C. Adams III, Eric D. Hearn, Thomaston, for appellant.

William G. Hamrick, Jr., Dist. Atty., Monique F. Kirby, Asst. Dist. Atty., for appellee.

COOPER, Judge.

Appellant was convicted by a jury of possession of cocaine and appeals the denial of his motion for new trial.

Officer R.J. Moon responded to an anonymous telephone call received by the Manchester police department about a disturbance being created by an intoxicated person at the Huddle House. Upon arriving at the restaurant, the officer observed appellant standing on the sidewalk. After appellant was identified by several patrons of the restaurant as the person who had caused the disturbance, Officer Moon went outside to talk to appellant. As the officer approached, appellant ran away from the restaurant, and the officer chased the appellant on foot. Shortly after a back-up officer arrived, appellant was apprehended. When both officers approached appellant, they noticed that he had a strong odor of alcohol and exhibited other signs of intoxication--his speech was slurred, and he was belligerent, foul-mouthed, and unsteady on his feet. Appellant was arrested for Pedestrian Under the Influence, and a pat-down search of his person was conducted subsequent to the arrest. Two metal pipes filled with a substance that was later identified as cocaine were found in a bag in appellant's pants pocket. At trial, the appellant admitted that he was drunk at the time of the incident but claimed that he did not know that the bag found in his pants pocket contained cocaine.

1. Appellant first enumerates as error the denial of his motion to suppress evidence on the grounds that the cocaine found on appellant's person was seized pursuant to a warrantless arrest without probable cause. " 'Whether [the] arrest was constitutionally valid depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [appellant] had committed or was committing an offense.' [Cit.]" Vaughn v. State, 247 Ga. 136, 137-138, 274 S.E.2d 479 (1981) citing Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). " 'Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. (Cits.) ... (F)light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search. (Cits.)' [Cits.]" State v. Billoups, 191 Ga.App. 834, 835, 383 S.E.2d 198 (1989).

In the present case, the police had received a telephone call that an intoxicated person was creating a disturbance at the restaurant, and appellant had been identified by several patrons as the individual creating the disturbance. These circumstances, coupled with the flight of appellant, provided probable cause for the officers' belief that appellant may have committed a crime. Moreover, once the officers had finally apprehended appellant, they personally observed appellant committing the offense of Pedestrian Under the Influence. This observation alone provided a sufficient basis for appellant's warrantless arrest. OCGA § 17-4-20(a). " 'It is settled law that an officer at the time of a lawful custodial arrest may, even without a warrant, make a full search of the person of the accused. (Cit.)' [Cit.]" Travis v. State, 192 Ga.App. 695, 696, 385 S.E.2d 779 (1989). Accordingly, the trial court did not err in denying appellant's motion to suppress.

2. Appellant next enumerates as error the refusal of the trial court to allow appellant to question Officer Moon about his possible racial bias towards the appellant. During the cross-examination of Officer Moon, appellant's counsel asked: "Have you heard anybody say that Gary Mitchell had to smile at night in order for anybody to be able to see him." After the State objected to this question on the grounds of relevancy, the court allowed appellant's counsel to ask Officer Moon whether he had ever made that statement. When Officer Moon responded in the negative, the trial court sustained the State's objection as to relevancy.

A defendant is entitled to a thorough and sifting cross-examination of the witnesses called against him. OCGA § 24-9-64. However, "[e]vidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded." OCGA § 24-2-1. " 'The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.... The trial court has a wide range of discretion in the control of cross-examination. (Cit.) That discretion will not be limited in the absence of obvious abuse. (Cits.)' [Cit.]" Elrod v. State, 195 Ga.App. 571, 592(4), 394 S.E.2d 548 (1990).

Appellant's counsel argued at trial that the purpose of his question was to inquire into Officer Moon's motivation, yet when pressed by the trial court as to what motivation counsel was attempting to prove, defense counsel replied, "I don't know." Defense counsel having failed to offer any explanation as to how this evidence was relevant or material, the trial court did not abuse its discretion in excluding the evidence. See, e.g., Williamson v. State, 186 Ga.App. 589, 590(2), 367 S.E.2d 863 (1988). Furthermore, " '[a]nything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced.' " Teasley v. State, 177 Ga.App. 554, 555(2), 340 S.E.2d 32 (1986). It appearing that defense counsel's question injected into the trial an improper element of racial bias, the trial court was authorized to exclude the evidence as irrelevant. Teasley v. State, supra.

3. Appellant enumerates as error the admission into evidence of the cocaine because the State failed to establish that the testing of the substance found in appellant's pocket was done in a scientifically reliable manner. At trial, a forensic chemist with the Georgia Bureau of Investigation Crime Laboratory was called to testify on behalf of the State as to his analysis of the substance found in appellant's pocket. Prior to his testimony about his analysis of the test results, the witness testified at great length about his qualifications as an expert witness and the nature of the various tests he performed on the substance found in appellant's pocket. He also testified that the tests he had performed in the present case were the same tests he had performed in some 5,000 other criminal cases in the State and that in each of these other criminal cases his testimony as to the test results had been allowed into evidence.

In Harper v. State, 249 Ga. 519(1), 292 S.E.2d 389 (1982), the...