Recoba v. State

• Decision Date: 23 April 1986
• Docket Number: No. 71879,71879
• Parties: RECOBA v. The STATE.
• Court: Georgia Court of Appeals

Page 81

345 S.E.2d 81

179 Ga.App. 31

RECOBA v. The STATE.

No. 71879.

Court of Appeals of Georgia.

April 23, 1986.

Rehearing Denied May 7, 1986.

Certiorari Denied June 3, 1986.

Victoria D. Little, Decatur, for appellant.

Thomas J. Charron, Dist. Atty., Nancy I. Jordan, Debra H. Bernes, James F. Morris, James T. Martin, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant was tried before a jury on a three-count indictment. Count I alleged the offense of trafficking in cocaine, Count II alleged possession of diazepam, a controlled substance, and Count III alleged possession of marijuana. The jury returned verdicts of guilty as to all three counts. Appellant appeals from the judgments of conviction and sentences entered on the jury verdicts.

1. The instant appeal was filed in this court pursuant to a notice of appeal which stated "that this is a criminal case, wherein no constitutional issues have been raised...." At oral argument, however, appellant's counsel requested that the case be transferred to the Supreme Court because constitutional questions had been raised in the trial court with regard to OCGA § 16-13-31, which is the controlling statutory provision as to the crime of trafficking in cocaine. A review of appellant's constitutional challenges shows that they are not such as to invoke the jurisdiction of the Supreme Court. "Under present authorities, we conclude that [OCGA § 16-13-31] is immune from appellant's constitutional challenge[s]. [Cit.]" Flynt v. State, 153 Ga.App. 232, 246, 264 S.E.2d 669 (1980). See Paras v. State, 247 Ga. 75(1), 274 S.E.2d 451 (1981); Lavelle v. State, 250 Ga. 224(1), 297 S.E.2d 234 (1982); Brugman v. State, 255 Ga. 407, 411(5), 339 S.E.2d 244 (1986). Accordingly, we will retain jurisdiction. See generally Grantham v. State, 151 Ga.App. 707(1), 261 S.E.2d 445 (1979), aff'd 244 Ga. 775, 262 S.E.2d 777 (1979).

2. The evidence adduced at trial shows that, while appellant was being lawfully detained for purposes of undergoing a field sobriety test, he fled the scene. By so doing, he abandoned not only his car but also several bags which he had placed on the ground in order that the test could be administered. After appellant fled, the bags were opened and the officers found cocaine, marijuana, diazepam, and approximately $8,700 in cash. Several of appellant's enumerations of error are predicated upon the provisions of OCGA § 16-13-3: "Any person who shall abandon, in a public place, any dangerous drug, poison, or controlled substance as defined by Article 2 or Article 3 of [Chapter 13 of the Criminal Code] shall be guilty of a misdemeanor." Appellant first asserts that he should have been granted a directed verdict of acquittal as to the trafficking and possessory offenses because the evidence showed only that he had "abandoned" the contraband.

The statutory provisions pursuant to which appellant was indicted, tried and convicted proscribe the act of possessing certain contraband substances. It may be entirely possible that, under the evidence, appellant's subsequent act of fleeing the scene did constitute the commission of the separate crime of "abandonment" as defined in OCGA § 16-13-3. That would not, however, have any mitigating effect on appellant's potential criminal culpability for the previous act of possessing those contraband substances. "The two crimes ... occurred at different times and involved statutes that have differing behavioral postulates." Kitchens v. State, 159 Ga.App. 94, 96(4), 282 S.E.2d 730 (1981). " 'Although occurring sequentially, one after the other, each of [the] transactions [would constitute] a separate offense since each [would be] established by proof of differing facts.... [Cits.]' [Cit.]" Talley v. State, 164 Ga.App. 150, 153(7), 296 S.E.2d 173 (1982), aff'd 251 Ga. 42, 302 S.E.2d 355 (1983). With regard to the crimes for which appellant was actually indicted, tried and convicted, we have reviewed the entire record and find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trial court did not err in denying appellant's motion for a directed verdict of acquittal.

It follows that the trial court did not err in refusing any of appellant's requests to charge in connection with the entirely separate crime of abandonment as defined in OCGA § 16-13-3. "[W]here the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense. Criminal indictments are not deemed amendable to conform to the evidence. [Cit.]" State v. Hightower, 252 Ga. 220, 223, 312 S.E.2d 610 (1984). "[T]he defendant may tender whatever defense he believes to be appropriate, but it will not be error for the trial court to refuse a requested charge when the defendant's theory of defense is that he is guilty of a separate, less serious crime." State v. Hightower, supra at 223, fn. 2, 312 S.E.2d 610.

3. Several enumerations of error are predicated upon asserted instances of communication between the trial court and the jury, which communications occurred during the jury's deliberations and without the knowledge, consent or presence of appellant. Before addressing the merits, it is necessary to establish exactly what did occur. Contrary to appellant's assertions, the record does not indicate any misconduct on the part of the bailiff. "The record reveals that the only communication by the bailiff was at the direction of the trial judge, which is precisely when the bailiff is authorized to communicate with the jury. [Cit.]" Williams v. Douglas County School Dist., 168 Ga.App. 368(1), 309 S.E.2d 386 (1983). Moreover, there is nothing to support the assertion that, among the communications, was a direction by the trial court that the jury interrupt its deliberations and take a vote. What the record does indicate is that, on more than one occasion during the several days of deliberations, the trial court did direct that the bailiff inquire as to whether a vote had been taken, as to the numerical standing of the most recent vote, and as to whether the jury was making progress. There was no inquiry as to whether the majority was in favor of acquittal or conviction.

Communication between trial court and jury, undertaken without the knowledge and presence of the defendant, cannot be condoned as a general practice. "[A]ll communications with the jury are to be discouraged except in open court with all persons present.... [Cits.]" Berryhill v. State, 235 Ga. 549, 554(12), 221 S.E.2d 185 (1975). " '[T]he communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused (for instance, to hasten a verdict against him, or to induce jurors who might be for him to yield their convictions); and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the accused would be entitled to another trial.' [Cits.]" Stewart v. State, 165 Ga.App. 428, 430(2), 300 S.E.2d 331 (1983).

However, the only inquiries shown to have been made in the instant case are of a "presumptively harmless" character. See Huffaker v. State, 119 Ga.App. 742(2), 168 S.E.2d 895 (1969). So long as there is no effort to establish the number of jurors for conviction and the number for acquittal, a trial court may inquire as to the existing numerical division of the jury. See generally Wilson v. State, 145 Ga.App. 315, 319(4b), 244 S.E.2d 355 (1978). Accordingly, a reversal of appellant's convictions would have to be based solely on the ground that the presumptively harmless inquiries were not made in open court as they should have been. " 'In considering the right of the accused to be present at every stage of the trial, and to have his counsel present, we must not lose sight of the further principle, equally well established, that a new trial will not be granted on account of an error which manifestly caused no injury to the accused. It would be trifling with justice to set aside a verdict clearly and strongly supported by the evidence, solely on the...