Pitts v. State
| Decision Date | 26 March 2003 |
| Docket Number | No. A02A2122.,A02A2122. |
| Citation | 580 S.E.2d 618,260 Ga. App. 553 |
| Parties | PITTS v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Franklin & Hubbard, Brooks S. Franklin, Cynthia G. Morris, for appellant.
Paul L. Howard, Jr., District Attorney, Amira A. Arshad, Assistant District Attorney, for appellee. ELDRIDGE, Judge.
A Fulton County jury found Orlando Pitts guilty of trafficking in cocaine, possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and possession of marijuana—less than an ounce, which charges arose after Pitts was stopped by Atlanta Police Officer J.L. Stafford for a traffic violation at the intersection of Metropolitan and Wells Street in Atlanta, and marijuana was discovered in plain view on the front driver's seat of Pitts' vehicle; from a subsequent search of Pitts, the passenger/co-defendant Darlene Harmon, and Pitts' vehicle, Stafford seized 69.5 grams of cocaine packaged in three separate bags, and twenty-eight grams of marijuana packaged in five separate bags. Pitts appeals and raises numerous claims of error and subparts thereto in a 70-page brief.1 Upon careful review of Pitts' contentions, we find as follows.
1. In his first claim of error, Pitts makes several arguments by which he attempts to demonstrate that the trial court erred in admitting all of the bags of drugs contained in State's Exhibits 1 and 2 without proper "authentication" of each bag.
(a) The record shows that State's Exhibit 1 contained the five seized bags of marijuana, and State's Exhibit 2 contained the three seized bags of cocaine. Only one bag in State's Exhibit 1 and one bag in State's Exhibit 2 were tested by the Georgia Bureau of Investigation Crime Laboratory ("GBI Crime Lab") and identified as marijuana and cocaine, respectively. Because of this, Pitts claims that seizing officer Stafford could not "authenticate" the contents of all of the bags contained in State's Exhibits 1 and 2, thereby rendering both exhibits inadmissible. We disagree.
No objection was made in the court below on the basis now urged; accordingly this claim is waived. Further, the actual contents of the several plastic bags recovered from the crime scene are irrelevant to the "authentication" established by seizing officer Stafford; his testimony went to the "chain of custody" of the bags containing suspected drugs, not the actual contents of the bags. In this instance, the issue is whether there is a reasonable certainty that the marked bags introduced are the same as those seized, without substitution or tampering.2
At trial, officer Stafford testified that, after he seized the bags of suspected drugs, he personally transported them to police property. There, Stafford separated the bags of suspected cocaine from the bags of suspected marijuana; he packaged the bags of suspected marijuana in one bag and marked it with his name and case identification number. He packaged the bags of suspected cocaine in another bag and marked it with his name and case identification number. He then packaged the two marked bags in a single bag, marked it with his name and case identification number, and turned the bag into police property by placing the bag in a secured "Drug Mailbox." Based upon appearance, his handwriting, his name, and the case identification number, Stafford identified at trial State's Exhibits 1 and 2 as containing the same bags he seized at the scene, packaged, and turned into police property.3 This testimony established with reasonable assurance the identity (as opposed to the contents) of the bags, which met the State's burden as to "authentication" from Stafford.4
(b) GBI Crime Lab forensic expert Michelle Young testified about the analysis she personally performed on a sample bag from State's Exhibit 1, which showed the contents thereof to be marijuana, and the analysis she personally performed on a sample bag from State's Exhibit 2, which showed the contents thereof to be cocaine. She also stated that, as a matter of Crime Lab standard procedure, a lab assistant performed a "mass spec"5 test on the contents of each sample bag to ensure the accuracy of the Crime Lab's analysis. Young testified that only after conducting her own tests and reviewing the results of the "mass spec" tests could she conclude that the contents of the tested sample bags were marijuana and cocaine, respectively. Pitts argues that, because Young did not personally perform the "mass spec" tests, her testimony regarding the results thereof was inadmissible hearsay, leaving the contents of the tested sample bags "unauthenticated" under the Crime Lab's own standard procedure and, thus, inadmissible.
Again, no objection was raised in the court below on the basis now urged, and this claim of error is waived. Further, Young's testimony was not hearsay.
Where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based in part on the other's findings.... Where, as here, the expert is available for full and searching cross-examination, the failure of the expert to test independently the control sample, after observing its analytical test results, goes only to the weight of the evidence and not to its admissibility.6
In addition, fulfillment of the GBI Crime Lab's standard operating procedures is not a condition precedent for evidentiary admission. "[M]ere contradiction of a recognized expert's method of conducting a scientifically acceptable test is not fatal to admissibility."7 Pitts' argument goes to weight not admissibility.
(c) Pitts also claims that each bag in State's Exhibits 1 and 2 was not individually "designated," thereby causing confusion and denying him a fair trial. Other than this conclusory statement, however, Pitts directs our attention to no example of due process— denying "confusion" engendered by the bags contained in State's Exhibits 1 and 2, and our review of the record reveals none. In fact, it appears that the bags were individually designated for the jury's consideration, rendering Pitts' contention factually meritless.
2. Next, Pitts contends the evidence was insufficient to support his conviction for trafficking in cocaine, and, thus, the trial court erred in denying his motion for a directed verdict thereon. We do not agree.
(a) Pitts' first claim is premised upon his earlier argument that the identification of State's Exhibit 2 as cocaine was based on hearsay concerning a lab assistant's "mass spec" test, making such identification inadmissible. This contention has been decided adversely to Pitts in Division 1(b), supra.
(b) Pitts' next claim is that, in order to support a conviction for trafficking in cocaine, "[t]he burden was upon the State at trial to prove beyond a reasonable doubt that the contents of every bag contained in State's Exhibit # 2 was cocaine[,]" and, thus, the testing of only one bag, State's 2-A, rendered the evidence insufficient to support his conviction for trafficking.
An appellate court determines only the legal sufficiency of the evidence adduced below. As long as there is some evidence to support each necessary element of the State's case, the verdict will be upheld.8 Here, Pitts was indicted for trafficking in that he possessed cocaine in excess of twenty-eight grams with a purity of at least ten percent. At trial, expert testimony established that the sample bag tested from State's Exhibit 2, State's 2-A, contained 54.3 grams of cocaine with a purity of 85 percent. This evidence was sufficient to sustain Pitts' conviction for trafficking in cocaine under the standard of Jackson v. Virginia,9 notwithstanding the failure to test the other two bags contained in State's Exhibit 2.
(c) At the time of the traffic stop, the passenger in Pitts' vehicle, co-defendant Harmon, told the police that the vehicle belonged to her. Thus, Pitts claims that the State presented "no evidence" that the trafficking amount of cocaine contained in State's 2-A, found under the front passenger seat of the vehicle, was in Pitts' actual or constructive possession. This argument ignores the fact that Harmon took the stand at trial and testified that the vehicle was, in fact, Pitts' car; that she introduced a receipt demonstrating Pitts' purchase of the car; that she testified that she was present when Pitts purchased the cocaine contained in State's 2-A; and that she only told the police that Pitts' vehicle was hers because she "was scared and ... panicked." Issues involving conflicts in the evidence and the credibility of witnesses are matters entirely within the province of the jury. Clearly, the jury found Harmon's version of events credible, since they acquitted her of each of the offenses for which they found Pitts guilty.10 This Court addresses only the sufficiency of the evidence, and "we do not weigh the evidence or determine the credibility of the witnesses."11 Accordingly, the instant claim provides nothing for us to review.
3. Pitts also claims the trial court erred in denying his motion for a directed verdict as to the offense of possession of marijuana with intent to distribute because the evidence was insufficient to establish beyond a reasonable doubt the element of "intent to distribute." We disagree.
To support a conviction for possession of marijuana with intent to distribute, the State must prove more than mere possession.12 Here, the twenty-eight grams of marijuana were divided into five individual packages, as opposed to a single bag.13 The five individual bags of marijuana were found with a large, distribution amount of cocaine. Harmon testified that both the marijuana and cocaine belonged to Pitts, and there was no evidence that the individual bags of marijuana were for a purpose other than distribution, just like the cocaine with which the marijuana was found. Pitts did not take the stand and presented no evidence that the marijuana was for personal use.14 Further, Harmon...
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