Mitchell v. State

• Decision Date: 03 November 1997
• Docket Number: No. S97G1083,S97G1083
• Citation: 268 Ga. 592,492 S.E.2d 204
• Parties: , 97 FCDR 4017 MITCHELL v. The STATE.
• Court: Georgia Supreme Court

Page 204

492 S.E.2d 204

268 Ga. 592, 97 FCDR 4017

MITCHELL v. The STATE.

No. S97G1083.

Supreme Court of Georgia.

Nov. 3, 1997.

Timothy T. Herring, Atlanta, for Robert L. Mitchell.

Tommy K. Floyd, Dist. Atty., Thomas Rogers Berry, Mark S. Daniel, Asst. Dist. Attys., Jackson, for the State.

THOMPSON, Justice.

We granted certiorari in Mitchell v. State, 225 Ga.App. 520, 484 S.E.2d 271 (1997), to determine whether, under the facts of this case, the Court of Appeals erred by ruling that the evidence was sufficient to sustain Mitchell's conviction for trafficking in cocaine. We hold that the evidence was not sufficient and reverse the judgment of the Court of Appeals.

The police found cocaine in a vehicle driven by Hicks and owned by Hicks' girlfriend. Hicks lived with his girlfriend and they shared the use of the vehicle. On the day in question, Hicks picked up Mitchell in Union City. Hicks and Mitchell were on their way to a cookout in Macon when Butts County deputies pulled them over for a routine traffic stop--failure to maintain a proper lane.

Deputy Bishop gave Hicks a written warning. Meanwhile, Deputy Whitwell walked a police dog around the car. When the dog alerted to the presence of narcotics, Deputy Whitwell began to search the car. Both deputies testified that Hicks and Mitchell appeared to be extremely nervous.

Unable to find any contraband after searching the car for approximately five minutes, Deputy Whitwell asked Deputy Bishop to assist him. A couple of minutes later, Deputy Bishop found two small plastic bags containing cocaine under the front passenger side 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 wafers were brittle in nature and were essentially intact. However, each bag contained some broken pieces, one more than the other. No effort was made to test the bags for fingerprints.

After Deputy Bishop put the bags back under the floor mat, Deputy Whitwell observed that they made a visible hump on the surface of the floor mat. Deputy Whitwell acknowledged, however, that the hump could have been made by the spikes on the underside of the mat. And while Deputy Whitwell testified that Mitchell put his feet on the floor mat, there was no testimony as to the exact location of the cocaine in relation to Mitchell's feet.

The evidence against Mitchell was entirely circumstantial and it was insufficient to authorize a rational trier of fact to find that Mitchell was in constructive possession of the cocaine beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. OCGA § 24-4-6; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As in Reid v. State, 212 Ga.App. 787, 442 S.E.2d 852 (1994), there is no presumption of possession because Mitchell did not own or control the car--he was a mere passenger. And the fact that the cocaine was found on the passenger's side of the car is of no consequence. A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden. Reid v. State, supra at 788, 442 S.E.2d 852. See also Morrison v. State, 220 Ga.App. 151, 469 S.E.2d 686 (1996); In the Interest of C.A.A., 187 Ga.App. 691, 693, 371 S.E.2d 247 (1988).

The State contends that the jury was authorized to conclude that Mitchell was in constructive possession of the cocaine because it made a hump under the mat and remained essentially intact and brittle. In this regard, the State argues that (1) Mitchell must have seen the hump given the length of time he had been riding in the car and (2) the wafers would not have been intact unless Mitchell put them under the mat shortly before the deputies pulled the vehicle over. This argument ignores the facts that (1) Deputy Whitwell did not notice the hump until after Deputy Bishop found the cocaine and placed it back under the mat; (2) Deputy Whitwell conceded that the spikes on the under side of the floor mat, and not the cocaine, could have caused the hump; and (3) no evidence was introduced demonstrating where the cocaine was positioned in relation to Mitchell's feet.

Judgment reversed.

All the Justices concur, except CARLEY, J., who dissents.

CARLEY, Justice, dissenting.

To authorize a conviction on circumstantial evidence, the proved facts must exclude only other "reasonable" hypotheses. OCGA § 24-4-6. Thus, there is no requirement that the circumstantial evidence "remove every possibility of the defendant's innocence." Eason v. State, 217 Ga. 831(2), 125 S.E.2d 488 (1962).

"[Q]uestions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law."

Roper v. State, 263 Ga. 201(1), 429 S.E.2d 668 (1993).

"This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging the reasonableness of a hypothesis produced by...