Smith v. State
| Citation | 628 S.E.2d 722,278 Ga. App. 315 |
| Decision Date | 21 March 2006 |
| Docket Number | No. A05A2020.,A05A2020. |
| Parties | SMITH v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
Phillips & Kitchings, Richard Phillips, Joseph C. Kitchings, Ludowici, for appellant.
Tom Durden, District Attorney, Lewis M. Groover, Jr., Assistant District Attorney, for appellee.
Roger Hymie Smith was found guilty of selling cocaine, possessing cocaine with intent to distribute, possessing cocaine with intent to distribute within 1,000 feet of a school, and possessing cocaine with intent to distribute within 1,000 feet of a public park. He was found not guilty of a second count of possessing cocaine with intent to distribute. He appeals, challenging the sufficiency of the evidence, asserting a claim of double jeopardy, and alleging various errors by the trial court in admitting evidence and charging the jury. He also objects to his recidivist sentencing and contends that he received ineffective assistance of counsel. For reasons that follow, we affirm in part and reverse in part.
1. Preliminarily, we address the State's motion to dismiss the appeal because of Smith's untimely filing of his appellate brief. Smith's brief was initially due on July 13, 2005. On July 12, 2005, he filed a motion for an extension of time in which to file his brief, which was granted through July 25, 2005. On July 21, 2005, Smith filed another motion for an extension, which was denied on July 26, 2005. Nonetheless, Smith did not file his brief until August 8, 2005.
We are authorized to dismiss Smith's appeal and hold counsel in contempt for failure to timely file a brief.1 Because the fault appears to lie with Smith's counsel rather than with Smith, we elect not to dismiss the appeal in this instance. However, "we expect all counsel practicing in this Court to know and to follow its rules."2 We thus require by separate order that Smith's counsel "show cause why he should not be cited for contempt for failure to comply with this Court's rules."3
2. In three enumerations of error, Smith challenges the sufficiency of the evidence. Specifically, he contends that he was entitled to directed verdicts on Count 3, possessing cocaine with intent to distribute; Count 4, possessing cocaine with intent to distribute within 1,000 feet of a school; and Count 5, possessing cocaine with intent to distribute within 1,000 feet of a public park. On appeal from a criminal conviction, Smith "no longer enjoys the presumption of innocence, and we view the evidence in a light most favorable to the verdict to determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt."4
Viewed in this manner, the evidence shows that in May 2002 a confidential informant, Gary Deloach, told Detective Jeff Hein that he could introduce Hein to someone who could purchase cocaine from Smith. On May 15, 2002, Hein — who was undercover — and Deloach asked Glenda Curtis to purchase cocaine for them. Glenda agreed, but then changed her mind after speaking with her husband, Mike Curtis. Mike's reason for not allowing Glenda to purchase cocaine for them was that he did not know Hein.
Hein then obtained an anticipatory search warrant for Smith's residence. The warrant was to be served if five "triggers" occurred: that Deloach would be searched to ensure that he had no contraband; that he would be observed making contact with one or both of the Curtises; that he would ask one of the Curtises to purchase cocaine using marked money; that the person or persons going to Smith's residence would be followed; and that the person or persons would be searched upon leaving Smith's residence and, if drugs were found, the search warrant would be served.
On May 22, 2002, Hein and Deloach made another attempt to have the Curtises purchase cocaine. Hein testified that he searched Deloach and then gave him two marked $20 bills. He took Deloach to the Curtises' apartment. Deloach gave Glenda Curtis the marked money. While under surveillance by law enforcement officers, she went to Smith's residence, where she bought $40 of crack cocaine from Smith. After Glenda left Smith's residence, she was stopped by a member of the drug task force. She had cocaine in her vehicle, and she told Hein that she had purchased it from Smith.
Law enforcement officers executed the search warrant at Smith's residence immediately thereafter. As Hein entered the residence, he saw Smith exiting the bathroom attached to the master bedroom and heard the toilet filling up with water after being flushed. Hein found a rock of crack cocaine inside the toilet. The two marked $20 bills were found, along with Smith's food stamp card, in a Bible in the master bedroom.
Officers also found a pill bottle containing three pieces of crack cocaine in a nearby yard. Witnesses had seen Smith's son, Wesley, run from the area behind the Smith residence as officers approached and throw something into the yard.
Referring to a certified tax map of Long County, which was admitted into evidence, Hein identified the location of Smith's residence and confirmed that it is within 1,000 feet of both Annie Phillips Park and the Faith Baptist Day School. Another officer familiar with the area also testified that Smith's residence was within 1,000 feet of the park and the school.
Based on this evidence, Smith was found guilty of: Count 1, selling cocaine (for the cocaine recovered from Glenda Curtis); Count 3, possessing cocaine with intent to distribute (for the cocaine in the pill bottle); Count 4, possessing cocaine with intent to distribute within 1,000 feet of a school; and Count 5, possessing cocaine with intent to distribute within 1,000 feet of a public park. He was found not guilty of Count 2, possessing cocaine with intent to distribute (for the cocaine found in the toilet).
(a) Smith asserts that the trial court should have granted him a directed verdict on Count 3, which relates to the cocaine found in a pill bottle in a yard near his residence, because the State presented no evidence that he had any connection with the bottle. The State argues that the fact that Smith's minor son ran from the vicinity of Smith's residence as the search warrant was being executed and threw something into a neighboring yard, coupled with similar transaction evidence that Smith had attempted to discard a pill bottle of crack cocaine during a previous arrest, provided enough circumstantial evidence to overcome a motion for a directed verdict.5
We will uphold the trial court's denial of a motion for directed verdict if there is sufficient evidence that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.6 While we agree that the eyewitness testimony provided sufficient evidence to connect Smith's son, Wesley, with the pill bottle containing cocaine, the relevant inquiry is whether there was sufficient evidence that the pill bottle was ever possessed by Smith himself. In the absence of any evidence that Smith had actual possession of the cocaine in the pill bottle, the State must rely on circumstantial evidence to show constructive possession.7 Mere proximity to contraband is not enough to prove constructive possession.8 The State must demonstrate some meaningful connection between the defendant and the contraband; this connection may be made by evidence "that the contraband was discovered on premises occupied and controlled by the defendant with no right of equal access and control in others."9
At most, the evidence here shows that the cocaine in the pill bottle was in Wesley's possession in the area behind the Smith residence. And while Smith occupied the residence, others had equal access to and control of both the residence and the area surrounding it. Two of Smith's teenage children lived with him, and an adult daughter lived next door. At the time the search warrant was executed, another of Smith's daughters and her boyfriend were visiting and were outside Smith's residence.
When a conviction depends upon circumstantial evidence, that evidence must be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis.10 Under these circumstances, the evidence does not exclude the possibility that the cocaine belonged to someone other than Smith, and the trial court should have granted Smith a directed verdict on Count 3.11
(b) Smith contends that the trial court should have granted him a directed verdict on Counts 4 and 5 because there is a fatal variance between the indictment and what was proven at trial, and, alternatively, the State did not conclusively establish the distance from his home to either the school or park. It is unlawful to "manufacture, distribute, dispense, or possess with intent to distribute" cocaine within 1,000 feet of a school or a public park.12 Smith argues that he was specifically charged with possession with intent to distribute in violation of these Code sections, and therefore the State must prove possession with intent to distribute rather than sale of cocaine in order to obtain a conviction.
Where an indictment charges that a crime was committed by one method, the State is required to prove commission of the crime by that particular method.13 The indictment charges that Smith "did ... unlawfully possess with intent to distribute [c]ocaine" within 1,000 feet of a school and a public park. Because Smith was found not guilty on Count 2 and we have held that he is entitled to a directed verdict on Count 3, we must determine whether evidence related to the sale of cocaine to Glenda Curtis provides the requisite proof for these charges.14
We "do not follow an overly technical application of the fatal variance rule, but focus instead on materiality"; that is, whether the variance between the indictment and proof at trial affected the defendant's substantial rights.15 Under Georgia law, the indictment must
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