Rhodes v. State

• Decision Date: 26 June 1991
• Docket Number: No. A91A0123,A91A0123
• Parties: RHODES v. The STATE.
• Court: Georgia Court of Appeals

Page 442

407 S.E.2d 442

200 Ga.App. 193

RHODES v. The STATE.

No. A91A0123.

Court of Appeals of Georgia.

June 26, 1991.

Edwards & McLeod, Jennifer McLeod, Douglasville, for appellant.

Frank C. Winn, Dist. Atty. and William H. McClain, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Defendant appeals his conviction for selling cocaine, OCGA § 16-13-30(b), the nolle prosequi of a charge of possessing methamphetamine with intent to distribute, OCGA § 16-13-30(b), and the denial of his motion for new trial. He enumerates seven errors.

On February 15, 1989, appellant was arrested when a co-defendant, Hayes, sold cocaine to an undercover narcotics officer. The appellant had driven Hayes to the site of the sale, was present during the transaction, and was observed by officers writing in a notebook. The notebook contained information about the manufacture of methamphetamine.

On February 23, appellant and the co-defendant were indicted for trafficking in cocaine, possession of methamphetamine with intent to distribute, and use of a communication facility in the commission of a felony. On March 20, a superseding indictment was returned which charged the defendants with sale of cocaine rather than trafficking, the crime lab having reported that the cocaine weighed 27.9 grams, less than the trafficking requirement of 28 grams. OCGA § 16-13-31(a). At the calendar call on Friday, April 21, appellant stated he was not ready for trial because he had not been informed of the superseding indictment seven days before trial and because he had prepared only a technical defense based on the insufficiency of 27.9 grams for a trafficking offense. The court reset the case for Monday, April 24.

When the case was called on April 24, appellant requested a continuance, reclaiming insufficient time for preparation. The motion was denied. Appellant was convicted of the sale of cocaine and was acquitted of the use of a communication facility during the commission of a felony. OCGA § 16-13-32.3. The amphetamine count was not submitted to the jury. Appellant received a maximum sentence of 30 years, 20 years in confinement and the remainder on probation.

1. The first error asserted is the denial of a continuance. Appellant argues that he should be granted a new trial since, because of the State's substitution of indictments, he did not receive the seven days' notice of trial he is entitled to under USCR 32.1 or the time to sufficiently prepare a defense mandated by the due process guarantees of the United States and Georgia Constitutions.

"All applications for continuance are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice require." OCGA § 17-8-22. "A motion for a continuance predicated on the basis that counsel has not had sufficient time to prepare for trial addresses itself to the sound discretion of the trial judge," Cantrell v. State, 154 Ga.App. 725(2), 270 S.E.2d 12 (1980), "and the refusal to grant a continuance will not be disturbed unless there is a clear abuse of discretion." Young v. State, 237 Ga. 852, 855, 230 S.E.2d 287 (1976).

In the exercise of discretion, the trial judge "has to consider the facts and circumstances of each case to determine what the ends of justice require," since "[a] statement by counsel for the defendant that he has not had sufficient time to investigate and prepare the defense is a mere conclusion." Foster v. State, 213 Ga. 601 603(1), 100 S.E.2d 426 (1957). The trial court considered the circumstances of this case, concluding that a charge of selling cocaine would be a lesser included offense of the trafficking charge and that an attorney, in preparing a defense to trafficking, would anticipate the necessity to defend the lesser included offense of sale.

The applicant for a continuance must show due diligence. OCGA § 17-8-20. The trial court's denial of the motion for a continuance was not a manifest abuse of discretion. Mack v. State of Ga., 125 Ga.App. 639, 640(2), 188 S.E.2d 828 (1972); Young, supra.

2. The second assigned error is the denial of Rhodes' motion for severance.

OCGA § 17-8-4 provides that defendants indicted for a non-capital felony "may be tried jointly or separately in the discretion of the trial court." "As a general matter, courts should grant severance 'whenever it appears "necessary to achieve a fair determination of the guilt or innocence of a defendant." ' " Glover v. State, 188 Ga.App. 330, 331, 373 S.E.2d 39 (1988). It sets out four factors and the further requirement that movant must show harm or prejudice from the failure to sever. Appellant's burden is to show "that any of the named criteria are applicable so as to prejudice his defense." Causey v. State, 192 Ga.App. 294, 297(4), 384 S.E.2d 674 (1989).

Appellant argues that there was no direct evidence that he participated in the transaction but that his co-defendant's participation was clear, circumstances that place appellant in the position of having to point out to the jury, in an attempt to prove his own innocence, facts which would implicate his co-defendant. Appellant states in his brief that "[s]uch a tactic might well have worked to his detriment, if the jury felt that his association with [co-defendant] under these circumstances implicated [appellant]."

Nothing appears in the record to demonstrate that this argument was urged at trial. It has been held that this court will not consider "issues and grounds for objection which were not raised and passed upon in the trial court." Jefferson v. State, 157 Ga.App. 324, 326(2), 277 S.E.2d 317 (1981); Kress v. State, 195 Ga.App. 519(2), 394 S.E.2d 139 (1990). Even considering the argument, it does not render the trial court's refusal to sever an abuse of its discretion. Causey, supra.

3. Appellant asserts error on the trial court's admission, after a Jackson v. Denno hearing, of certain statements he made in response to interrogation.

The evidence showed that the appellant was notified of his Miranda rights immediately upon arrest. The sheriff then drove appellant to the jail. The next day appellant was questioned by a detective who did not again advise or remind the appellant of his Miranda rights. He had been present when the warnings were given and Rhodes indicated he understood his rights. Appellant contends that he was entitled to be reminded or readvised of his rights prior to questioning, and that his statements should have been suppressed since they were not knowingly made.

The statements made by appellant are: (1) When asked why he was studying methamphetamine, he replied, "it was interesting." (2) When asked where he got the contraband, he stated that he had found a vial later determined to contain cocaine residue and mannitol "in a garbage dump."

Where an interrogation is continuous, or where there is a relatively short time span between the warnings and statements, reminding an accused of his Miranda rights is not required. See Akers v. State, 179 Ga.App. 529, 530, 346 S.E.2d 861 (1986); Watson v. State, 227 Ga. 698, 700(1), 182 S.E.2d 446 (1971); McKenzie v. State, 187 Ga.App. 840, 371 S.E.2d 869 (1988).

Appellant relies upon Bragg v. State, 162 Ga.App. 264, 266(1), 291 S.E.2d 112 (1982), where this court said that "[a]fter an individual in custody on criminal charges has been given the complete Miranda warnings, it is not necessary that subsequent incidents of questioning the arrested person be preceded by repetition of the complete warning if that full warning is reinforced prior to subsequent interrogation by reminding the individual in custody that he was previously advised of his rights." See Anglin v. State, 244 Ga. 1, 3(2), 257 S.E.2d 513 (1979) (overruled on other grounds Welch v. State, 254 Ga. 603, 606, 331 S.E.2d 573 (1985)); Moten v. State, 231 Ga. 642, 643, 203 S.E.2d 527 (1974).

In Hubbard v. State, 187 Ga.App. 542, 543(4), 371 S.E.2d 116 (1988), a new trial was ordered because the prior warning was not reinforced at the time the incriminating statement was made.

In Gregg v. State, 233 Ga. 117, 125(4), 210 S.E.2d 659 (1974), the Supreme Court held that Miranda warnings had not become "stale" after a period of 14 hours. In Watson, supra, the Supreme Court found that a second statement made seven hours after the first statement constituted continued interrogation. The totality of the circumstances support the determination that the statements were voluntarily made.

Even if error, the admission of the statements was harmless. " 'A constitutional error is harmless, if there is no "reasonable possibility that the evidence complained of might have contributed to the conviction." [Cit.] The test is not "whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of," id., but whether the evidence complained of may have influenced the factfinder's deliberations. [Cits.]' " Vaughn v. State, 248 Ga. 127, 131, 281 S.E.2d 594 (1981). Ellis v. State, 256 Ga. 751, 755, 353 S.E.2d 19 (1987). Given the limited nature of these statements, there is no reasonable possibility that their admission might have contributed to the conviction.

4. Rhodes enumerates error in the denial of his motion for mistrial and in failing to take any curative action after he claimed that jurors had the opportunity to see him in handcuffs while being brought to court by a sheriff's deputy.

Defendant has a right to appear for trial free from all shackles and bonds, and in an atmosphere free of partiality. McKenzey v. State, 138 Ga.App. 88, 225 S.E.2d 512 (1976) (then physical precedent). "However, the mere fact that a handcuffed defendant is seen by jurors or prospective jurors is not a ground for the automatic grant of a challenge to the array of jurors or of a mistrial. [Cits.]" Carter v. State, 155 Ga.App. 840, 841, 273 S.E.2d 417 (1980). There are circumstances which will justify the jury's...