Obiozor v. State

• Decision Date: 09 June 1994
• Docket Number: No. A94A1409,A94A1409
• Parties: OBIOZOR v. The STATE.
• Court: Georgia Court of Appeals

Page 553

445 S.E.2d 553

213 Ga.App. 523

OBIOZOR v. The STATE.

No. A94A1409.

Court of Appeals of Georgia.

June 9, 1994.

David J. Walker, Sr., Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Todd E. Naugle, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Godfrey Okechukwu Obiozor appeals his conviction of trafficking in heroin of more than 28 grams and unlawfully having under his control marijuana of less than one ounce in weight. Held:

1. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, establishes the proper test to use when sufficiency of the evidence is challenged when "the challenge arises from the overruling of a motion for directed verdict ... based upon alleged insufficiency of the evidence." Humphrey v. State, 252 Ga. 525, 527(1), 314 S.E.2d 436. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which convicted. Jackson v. Virginia, supra. Haxho v. State, 186 Ga.App. 393, 367 S.E.2d 282 is physical precedent only and, also, is distinguishable from this case; it is not controlling.

2. Appellant's claim of denial of his statutory and constitutional rights of speedy trial are not persuasive.

(a) Appellant failed to file timely his request for speedy trial under OCGA § 17-7-170. Also, at the motion hearing, appellant's counsel expressly abandoned on the record any claim of violation of appellant's statutory speedy trial rights. As this issue was not effectively litigated before the trial court, it has not been preserved on appeal. See Nodvin v. West, 197 Ga.App. 92, 95(3a), 397 S.E.2d 581. Further, an appellant cannot complain of a ruling which his own trial conduct or procedure aided in causing (Williams v. State, 205 Ga.App. 445, 446(2), 422 S.E.2d 309); and, in no situation, will a trial judge's ruling be reversed for not going further than requested. Lyon v. State, 262 Ga. 247, 248(3a), 416 S.E.2d 523.

(b) We also find appellant's claim of violation of his constitutional right to a speedy trial to be without merit. Mere passage of time, standing alone, does not compel a finding of denial of due process. Simpson v. State, 150 Ga.App. 814, 815, 258 S.E.2d 634. Nevertheless, the delay in bringing appellant to trial was sufficient, for purposes of determining whether his Sixth Amendment speedy trial rights were violated, to invoke the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. An original indictment was returned and filed against appellant on October 2, 1991; he was brought to trial November 1, 1993, and verdict was returned on November 2, 1993. In the interim, on January 8, 1992, a federal indictment was entered against appellant who ultimately pled guilty on June 4, 1992, and was sentenced in the United States District Court of the Southern District of Texas. The term of confinement was 210 months. Subsequently, appellant was transferred to Louisiana for federal incarceration. On March 3, 1993, appellant, while in federal confinement, filed pro se a motion to dismiss or, in the alternative, an order that he be brought to trial on the State charges forthwith. His application for appointment of counsel for indigent defendant was filed August 26, 1993. On September 13, 1993, appointed defense counsel filed a notice of appearance. On that same day, defense counsel filed a motion for extension of time to file additional motions, asserting, inter alia, that he could not adequately represent appellant without a reasonable time extension to file defense motions. That same date, defense filed a self-stylized Brady motion for discovery of certain specified reports, documents, and witness information; and in the alternative requesting an in camera inspection of the documents therein identified. There exists no evidence of record that the delay in this case was attributed to a "serious abuse" by means of a " 'deliberate attempt' " on the part of the State to delay trial to hamper the defense. Compare Perry v. Mitchell, 253 Ga. 593, 594-595, 322 S.E.2d 273. Although the State had a duty, under the Sixth Amendment as made applicable by the Fourteenth Amendment, to make a diligent, good-faith effort to bring petitioner to trial in Georgia notwithstanding his trial and incarceration for a federal offense (Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607), the record is void of any evidence that the State failed timely to initiate a request for appellant's release, especially after the date when appellant filed his demand to dismiss or for immediate trial. Further, appellant does not claim any actual prejudice in the presentation of his defense arising from the delay; any other harm flowing to appellant was minimal within the meaning of Barker v. Wingo, supra, 407 U.S. at 534, 92 S.Ct. at 2194. Assuming appellant has suffered some degree of anxiety and concern as a result of the pending public accusation--even though he was confined miles away in another jurisdiction for a violation of federal law--nevertheless, some of the delay in prosecuting this case was attributable to his confinement by federal authority and some of the delay was attributable to his own trial procedure (for example, in filing the motion for extension of time and indicating a lack of ability to effectively proceed to trial at that instant). Compare Perry v. Mitchell, supra, with Smith v. Hooey, supra, and Hill v. Wainwright, 617 F.2d 375 (5th Cir.). Applying the balancing factors of Barker v. Wingo, supra, we find that appellant was not deprived in this instance of his due process right to a speedy trial. Compare Foster v. State, 211 Ga.App. 22, 23, 437 S.E.2d 872 (anxiety and concern arising from incarceration will not, standing alone, create prejudice sufficient to compel a dismissal).

3. (a) Appellant asserts that the trial court erred in admitting similar transaction evidence which erroneously placed appellant's character in evidence. However, material evidence is not rendered inadmissible merely because it incidentally places a defendant's character in issue. Greer v. State, 199 Ga.App. 106, 107, 403 S.E.2d 825. Once the three affirmative showings required by Williams v. State, 261 Ga. 640, 642(2a), 409 S.E.2d 649 have been met, evidence of similar transactions is admissible even though the defendant's character is incidentally placed in evidence thereby (see Boyce v. State, 258 Ga. 171, 366 S.E.2d 684). Any danger arising from this incidental placing of an appellant's character in evidence is offset when a balancing test is applied to determine whether the relevance of the similar transaction evidence outweighs its prejudicial impact. See generally Oller v. State, 187 Ga.App. 818(2), 371 S.E.2d 455; see also Williams v. State, 194 Ga.App. 822, 392 S.E.2d 297. To insure that the evidence of similar transaction is not being introduced solely to raise an improper inference as to an accused's character, we have tested it for legal relevance. Adams v. State, 208 Ga.App. 29, 34(3a), 430 S.E.2d 35 (physical precedent only as to Division 3). For reasons hereinafter discussed, we find the evidence of appellant's conviction in federal court, following a plea of guilty to conspiracy to import into the United States heroin in excess of one kilogram, was admitted without error as similar transaction evidence. (Note: Testimony establishes the weight of the imported heroin as being approximately five kilograms or twelve-and-one-half pounds; heroin has a street value of about $1,000,000 a pound, and uncut heroin has a wholesale value of about $220,000 a kilo.) We further find that the probative value of this similar transaction evidence outweighs any potential for prejudice arising by incidentally placing appellant's character in issue.

(b) Appellant enumerates as error that the standards for admission of similar transaction evidence were not sustained by the State. At trial appellant conceded the State had satisfied both the first and second affirmative requirements of Williams v. State, 261 Ga., supra at 642(2a), 409 S.E.2d 649. Appellant also concedes in his brief that the State satisfied the requirement of presenting evidence that the appellant/defend...