Roura v. State

• Decision Date: 23 June 1994
• Docket Number: No. A93A0794,A93A0794
• Citation: 447 S.E.2d 52,214 Ga.App. 43
• Parties: ROURA v. The STATE.
• Court: Georgia Court of Appeals

Page 52

447 S.E.2d 52

214 Ga.App. 43

ROURA v. The STATE.

No. A93A0794.

Court of Appeals of Georgia.

June 23, 1994.

Reconsideration Denied July 15, 1994.

Certiorari Denied Oct. 28, 1994.

John H. Tarpley, Antje R. Kingma, Melissa M. Nelson, Decatur, Abbi S. Taylor, Atlanta, for appellant.

J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Nancy B. Allstrom, Stacy Y. Cole, Asst. Dist. Attys., for appellee.

BEASLEY, Presiding Judge.

A combined decision in this appeal of Alcibiades Roura and in the appeal of appellant's co-defendant, his brother Humberto Roura (Case No. A93A0795), was originally issued on July 13, 1993. On reconsideration of the two cases, the court denied the motion of Humberto, but substituted an opinion on July 30, and the remittitur in his case was issued on October 22. In the case of Alcibiades, there arose an equal division of the judges, one judge not participating. The judgment in the combined decision of July 13 was vacated, a new opinion was issued on July 30, and insofar as it related to Alcibiades, Case No. A93A0794 was transferred to the Supreme Court of Georgia in accordance with the Georgia Constitution, Art. VI, Sec. V, Par. V. That Court remanded the case to this court to render a decision when the full court was present.

1. We adopt the opinion set out in the new opinion of July 30, with respect to Alcibiades Roura, except as to Division 2.

First, though, with respect to Division 1 regarding the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we confirm that the evidence against Alcibiades was sufficient to prove he was a party to the crimes of trafficking in cocaine and possession of cocaine with intent to distribute. He drove his brother Humberto's car to the gas station after Humberto called his home to arrange for the preparation and delivery of the cocaine for the transaction. He was driving the car when the phone call was made enroute to inquire about progress. He went into the station when the cocaine package was carried in by his passenger, their nephew, and put on top of a bureau. He went out again to move the car when asked by Carballo, because it was impeding the transaction. Carballo handed the package of cocaine to Arrugueta because Humberto did not want to do it. Alcibiades was standing with his brother Humberto while the exchange between Carballo and Arrugueta took place and immediately thereafter, until the police arrived a few minutes later.

2. With respect to Division 2, further developments and study since the opinion of July 30 convince us that, like Humberto, Alcibiades is not entitled to a new trial. Alcibiades, as did Humberto, asserts that the court erred in failing to give two charges on circumstantial evidence. It refused to charge the rule found in OCGA § 24-4-6, which defendants requested verbatim, that "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." The court also rejected what is known as the "two theories" charge. Defendants quoted the version found in Johnson v. State, 159 Ga.App. 497, 499-500, 283 S.E.2d 711 (1981).

In the charge conference, the court rejected the first after a debate about whether there was any direct evidence involving Alcibiades, it being implicitly conceded that there was direct evidence against Humberto. Defense counsel acknowledged that there was direct evidence that Alcibiades drove the car which transported the cocaine when it was summoned and that he moved that car, which witness Carballo testified was impeding the transaction, and that he was present at the scene. Carballo testified that the car which Alcibiades drove was Humberto's and that both he and the passenger, a nephew, came into the gas station with the package of cocaine. The package was put on top of a bureau, from which it was taken a few minutes later and given to Arrugueta.

The court did instruct the jury that there were two kinds of evidence, direct and circumstantial, and it charged on the definitions of the two and the distinction between them. In addition it charged on the presumption of innocence, the necessity for the State to prove every material allegation and every essential element beyond a reasonable doubt, and the definition of a reasonable doubt. It charged that such a doubt is one that a fair-minded, impartial juror, who is honestly seeking the truth, would have, based on common sense and reason, after considering all the evidence, the lack thereof, and the conflict in it. It described such a doubt as being what is present when a mind is wavering, unsettled, or unsatisfied.

After the jury was charged, the court asked if there were any objections. Counsel for defendants responded, "No objections, Your Honor."

New counsel filed a motion for new trial but did not reference the omission of either of the charges as a ground. ¹ Trial counsel wrote to the court following the trial and asked to be relieved of representing defendants on appeal. He stated that he knew of no grounds upon which an appeal would likely succeed.

(a) The omission of the two charges was waived. As held in Jackson v. State, 246 Ga. 459, 460, 271 S.E.2d 855 (1980), defense counsel waived the right to raise the issue on appeal "by stating he had no objection to the charge." He did not avoid waiver, which Jackson prescribes may be done, by stating the objections in response to the court's inquiry or following "the procedure ... of reserving the right to object on motion for new trial or on appeal."

This is an exception to "[t]he general rule ... that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. [OCGA § 5-5-24(a).]" Rivers v. State, 250 Ga. 288, 309(7), 298 S.E.2d 10 (1982). As stated in Rivers, "[w]here objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge." Id. at 309, 298 S.E.2d 10. This is true even under the Unified Appeal Procedure and where certain jury instructions were cast in terms of presumptions, a repeatedly disapproved practice, which was the case in Rivers.

This procedural rule has been followed in numerous cases. See, e.g., Fraley v. State, 256 Ga. 178, 179(1), 345 S.E.2d 590 (1986); Henderson v. State, 182 Ga.App. 513, 518(3), 356 S.E.2d 241 (1987); Taylor v. State, 174 Ga.App. 323(1), 329 S.E.2d 625 (1985). The opinion in Allen v. State, 177 Ga.App. 600, 603, 340 S.E.2d 246 (1986), refers to the declination of an express, court-issued invitation to object as being "the clearest example of waiver." Id. at 603, 340 S.E.2d 246.

The rule has been applied where, as here, the court rejects requests to charge. Wilson v. State, 259 Ga. 55, 58(6), 376 S.E.2d 676 (1989); Seidel v. State, 197 Ga.App. 14, 15(2), 397 S.E.2d 480 (1990); Spivey v. State, 193 Ga.App. 127, 131(3), 386 S.E.2d 868 (1989). That stands to reason because, after a request is rejected without exception and after the whole charge is actually given and counsel affirmatively indicates no objection to it, there is nothing to preserve the point. This is not waiver by mere silence but rather waiver by active expression. The trial court is given to understand, at a time when there is opportunity to correct any error in the charge, that defendants are satisfied to have the case submitted to the jury for its deliberations on the instructions as given. Thus, invoking the right to request certain instructions in writing, as authorized in OCGA § 5-5-24(b), does not avoid the waiver which occurs when, after the whole charge is given, express acceptance of it is stated.

It is not a mere technical rule but rather a means to avoid reversible error and so to promote the sound administration of justice by the achievement of a fair trial the first time. Here, then, there was a waiver because counsel did not object or state that the right to object in a motion for new trial or appeal was reserved. White v. State, 243 Ga. 250, 251, 253 S.E.2d 694 (1979).

(b) Alcibiades contends, as did Humberto, that even if they waived the omission, it is reviewable because it was "a substantial error ... which was harmful as a matter of law." OCGA § 5-5-24(c). What this has been construed to mean is that an omission "fails to provide the jury with the proper guidelines for determining guilt or innocence." Spear v. State, 230 Ga. 74, 75(1), 195 S.E.2d 397 (1973). The erroneous charge must be blatantly apparent and prejudicial to the extent that it raises a question whether the defendant has been deprived, to some extent, of a fair trial. Maynard v. State, 171 Ga.App. 605, 606(2), 320 S.E.2d 806 (1984); Ancrum v. State, 197 Ga.App. 819, 820(2), 399 S.E.2d 574 (1990) (failure to instruct on the law of possession, an essential element of the offenses, was error); Gaines v. State, 177 Ga.App. 795, 800(1), 341 S.E.2d 252 (1986) ("the nature of the charge possibly authorized a conviction for a crime not charged [and] [t]hus ... the error is of such an egregious nature as to invoke ... OCGA § 5-5-24(c)"); Phelps v. State, 192 Ga.App. 193, 195, 384 S.E.2d 260 (1989) ("[s]ubstantial errors in the charge on the essential elements are usually harmful as a matter of law so as to invoke OCGA § 5-5-24(c). [Cit.]"). In Barnett v. State, 178 Ga.App. 685(1), 344 S.E.2d 665 (1986), the trial court's failure to instruct the jury to disregard the testimony of appellant's general character or conduct in other transactions was a "blatantly apparent" and "highly prejudicial" error which, this court concluded, deprived defendant of his right to a fair trial.

Rejection of the charges here does not require reversal in this case.

(1) The "two theories" charge is not one the absence of which deprives a defendant of a fair trial. In fact, it has been criticized...