Pittman v. State
Decision Date | 21 May 1987 |
Docket Number | No. 74227,74227 |
Parties | PITTMAN v. The STATE. |
Court | Georgia Court of Appeals |
O. Hale Almand, Jr. and Lori L. Chapman, Macon, for appellant.
Willis B. Sparks III, Dist. Atty., and Jennie E. Rogers, Asst. Dist. Atty., for appellee.
Defendant was tried before a jury for possession of cocaine and commercial gambling. The following evidence, construed most favorably to support the jury's verdict, was adduced at trial: A confidential informant informed Officer Martin Ursitti, of the Bibb County Sheriff's Office, that defendant was selling cocaine. On December 17, 1985, pursuant to a search warrant, Officer Ursitti and other law enforcement officers conducted a search of defendant's parent's house, where defendant then resided. Officer Ursitti discovered in defendant's bedroom, "on top of the dresser," a substance which was identified as cocaine. One hundred seven dollars in cash was found "in the dresser drawer" and a "fully loaded" .357 magnum revolver was discovered "laying on the floor at the head of the bed or right up under the edge of the bed." On "the headboard of the bed" there "was a two-ounce bottle of Mannitol," which was "about half full." ("Mannitol" is a substance which is commonly used as an "additive" to "cut" or dilute cocaine.) Next to the bottle containing "Mannitol," there were three lottery tickets and $2,000 in cash bound together with a "rubber band." From this and other evidence adduced at trial, defendant was found guilty of possession of cocaine and not guilty of commercial gambling.
On August 4, 1986, defendant filed a motion for new trial based upon the general grounds and newly discovered evidence. After a hearing, in an order filed November 13, 1986, defendant's motion for new trial was denied. On December 11, 1986, defendant filed a motion entitled: "MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, A MOTION FOR RECONSIDERATION OF THE DENIAL OF DEFENDANT'S MOTION FOR NEW TRIAL AND AMENDMENT TO THE NEW TRIAL AND AMENDMENT TO THE NEW TRIAL MOTION." On December 12, 1986, defendant filed a notice of appeal to the Court of Appeals. The trial court did not rule on defendant's motion filed December 11, 1986. We now consider defendant's appeal. Held:
1. In his first three enumerations of error defendant asserts the general grounds. In his fourth and fifth enumerations of error defendant contends the trial court erred in denying his motion for directed verdict because evidence presented at trial showed that other persons had "equal access" to his bedroom and that defendant did not sleep in his bedroom the night before the search.
" ' Lane v. State, 177 Ga.App. 553(1), 554, 340 S.E.2d 228. In the case sub judice, we find the evidence sufficient to authorize the jury's finding that defendant was guilty beyond a reasonable doubt of the crime, possession of cocaine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Ramsay v. State, 175 Ga.App. 97, 99(7), 100, 332 S.E.2d 390.
2. Next, defendant contends the trial court erred in failing to grant his motion for new trial based on newly discovered evidence. In support of his motion for new trial filed on August 4, 1986, defendant submitted the affidavit of his brother, Rocky B. Pittman, dated June 12, 1986, and filed September 30, 1986, who deposed in pertinent part, as follows:
(Emphasis supplied.) Timberlake v. State, 246 Ga. 488, 490(1), 491, 271 S.E.2d 792.
In the case sub judice, defendant testified that he did not stay at his parent's house during the night before the search which revealed the cocaine in his bedroom. Defendant also testified that his brother had access to his bedroom the night before the search. However, upon cross-examination, defendant testified that he did not know if the cocaine belonged to his brother. Defendant also admitted that he did not question his brother before trial concerning the status of the cocaine which was found unconcealed, "on top of the dresser," in defendant's bedroom. Under these circumstances, we find the trial court properly denied defendant's motion for new trial based on the alleged newly discovered evidence because defendant failed to exercise "due diligence" in inquiring of his brother as to the status of the contraband found in defendant's bedroom. This conclusion is further supported by other evidence adduced at trial showing that defendant was aware prior to trial that his brother had been arrested in Florida for possession of cocaine. Consequently, the trial court did not err in denying defendant's motion for new trial filed on August 4, 1986.
3. Defendant contends the trial court erred in allowing inadmissible hearsay into evidence at trial. More specifically, defendant complains that Officer Martin Ursitti testified that a confidential informant "told him that the bedroom where the cocaine was found was the Defendant's bedroom."
Assuming Officer Ursitti's testimony was inadmissible hearsay, we find admission of this testimony into evidence harmless because other admissible evidence presented at trial showed that the room where the cocaine was discovered was occupied primarily by defendant. In this regard, defendant testified that he used the room where the cocaine was discovered "consistently to sleep in." Further, evidence showed that the room in question contained clothing, business papers and other personal items belonging to defendant. Riggins v. State, 179 Ga.App. 179(2), 180, 345 S.E.2d 897. This contention is without merit.
4. Defendant's remaining arguments relate to alleged error based on evidence submitted in support of his motion filed December 11, 1986, entitled: "MOTION FOR JUDGMENT OF ACQUITTAL OR ALTERNATIVELY, A MOTION FOR RECONSIDERATION OF THE DENIAL OF DEFENDANT'S MOTION FOR NEW TRIAL AND AMENDMENT TO THE NEW TRIAL AND AMENDMENT TO THE NEW TRIAL MOTION." This motion was filed after the trial court's ruling on defendant's motion for new trial, filed August 4, 1986, and can be characterized only as an extraordinary ...
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