Staples v. State, A93A0167

• Decision Date: 15 July 1993
• Docket Number: No. A93A0167,A93A0167
• Citation: 209 Ga.App. 802,434 S.E.2d 757
• Parties: STAPLES v. The STATE.
• Court: Georgia Court of Appeals

Page 757

434 S.E.2d 757

209 Ga.App. 802

STAPLES v. The STATE.

No. A93A0167.

Court of Appeals of Georgia.

July 15, 1993.

Reconsideration Denied July 30, 1993.

Certiorari Denied Oct. 29, 1993.

Waymon Sims, Atlanta, Randolph E. Wynn, Macon, for appellant.

Herman L. Staples, pro se.

Edward D. Lukemire, Dist. Atty., Shelley S. Howard, Asst. Dist. Atty., for appellee.

SMITH, Judge.

Herman Lee Staples was tried by a jury on a four-count indictment involving possession of illegal drugs. He was acquitted on three counts and found guilty of one count of trafficking in cocaine. His motion for a new trial was denied.

1. Staples, who is black, joined in a co-defendant's timely challenge to the prosecutor's use of peremptory strikes, alleging a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He contends the trial court erroneously overruled this challenge. The record reveals that the prosecutor stated for the record that peremptory challenges were used to strike five of the eight qualified black persons in the venire of 42. Three black jurors were selected and served. ¹ The trial court ruled, based strictly on a mathematical analysis, that Staples had failed to make a prima facie showing of a Batson violation. The prosecutor then placed her reasons for striking the black jurors on the record. However, the trial court made no further ruling, resting on its prior ruling that no prima facie case of discrimination had been made.

The prosecutor exercised a disproportionate number of strikes by using half against blacks in selecting from a venire which was only nineteen percent black (eight out of forty two). This was a prima facie showing of discriminatory intent sufficient to require the prosecutor to explain her strikes. The mere fact that the trial jury contained a greater percentage of black jurors (25 percent) than were in the qualified venire (19 percent) no longer is sufficient to rebut the inference of intentional discrimination arising from the prosecutor's use of a disproportionate number of peremptory strikes to remove black potential jurors. Davis v. State, 263 Ga. 5, 7, n. 3, 426 S.E.2d 844 (1993). The trial court erred in concluding that no prima facie case of discriminatory jury selection had been made, based only on the relative percentages of black jurors in the jury as selected and in the venire. Weems v. State, 262 Ga. 101, 416 S.E.2d 84 (1992).

The trial court further erred in not making the additional factual determination of whether the prosecutor's stated reasons for her strikes were sufficient to rebut that prima facie showing. However, a reversal of Staples's conviction is not mandated by these omissions. The error may be cured by a post-trial hearing on the Batson challenge. There, the trial court is to make the appropriate findings on the record after determining the credibility of the reasons offered, (see Tharpe v. State, 262 Ga. 110, 112(6), 416 S.E.2d 78 (1992)) as well as the facial validity of those reasons under the Equal Protection Clause as a matter of law (see Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). In the event the trial court determines that the prima facie inference of intentional discrimination has not been rebutted by the prosecutor's use of her peremptory challenges for legitimate, race-neutral, and case related reasons, neutrally applied, a new trial must be granted. In the event that Staples's challenge is again overruled, that ruling may be reviewed on direct appeal, enumerating as error the denial of the challenge.

2. In several enumerations Staples urges the general grounds.

The evidence showed that Staples was a passenger in the rear of a vehicle stopped by the Georgia State Patrol. The driver consented to a search, and cocaine was found hidden in an area well up under the dashboard of the vehicle. There was testimony that the maneuvers necessary to hide cocaine in this inaccessible place could not have taken place during the brief time in which the car was followed and then stopped. Although he was not the owner of the vehicle, Staples was, as among the passengers, the leader and was in charge financially. He had sufficient private access to the vehicle during a time when the cocaine could have been hidden under the dashboard. Both Staples and the driver denied ownership of the cocaine. Staples was forcibly prevented from swallowing a large number of heroin pills at the time of his arrest.

Contrary to Staples's assertions, the equal access rule does not mandate reversal of his conviction. The equal access rule applies only where the sole evidence of possession of contraband found in the vehicle is the defendant's ownership or possession of or control over the vehicle. Wright v. State, 194 Ga.App. 739, 741(2), 391 S.E.2d 791 (1990). The fact that Staples had access to the vehicle for a time sufficient to take the necessary steps to place the cocaine in an area far up under the dashboard was additional evidence to support the jury's verdict against him. Moreover, his attempt to destroy other evidence at the time of his arrest is circumstantial evidence of his guilty knowledge. See generally Langham v. State, 196 Ga.App. 71, 72(2), 395 S.E.2d 345 (1990).

The evidence was sufficient to authorize a rational trier of fact to find Staples guilty of trafficking in cocaine under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

3. Prior to trial, appellant instructed the public defender to withdraw as his appointed counsel, on the ground that she was "racist" and uninterested in representing him. He declined the trial court's offer of further assistance from that office, choosing instead to represent himself. In related enumerations of error, appellant urges that he was forced to trial without counsel and without a valid waiver of the benefit of counsel.

"A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. [Cits.] However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court. [Cits.]" Burney v. State, 244 Ga. 33, 35(1), 257 S.E.2d 543 (1979). The trial court was authorized to conclude that Staples was attempting to use the demand for a change of counsel as a dilatory tactic, Hibbard v. State, 208 Ga.App. 457, 430 S.E.2d 824 (1993), which was the functional equivalent of a knowing and voluntary waiver of appointed counsel. In such instances, the trial court may proceed to trial with the defendant representing himself. Mercier v. State, 203 Ga.App. 494, 495(2), 417 S.E.2d 430 (1992).

Staples previously had been informed by the public defender of the nature of the charges against him and of the statutory minimum and maximum penalties. The record reflects that the trial court, fulfilling its important responsibility in this area, repeatedly apprised him of the dangers to a layman in conducting his own defense. See Clarke v. Zant, 247 Ga. 194, 196, 275 S.E.2d 49 (1981). He was well aware his own defense and that of his co-defendant were mutually antagonistic. Moreover, an attorney was made available during trial to respond to any questions of law or procedure that he might have. See Williams v. State, 192 Ga.App. 317, 318-319(2), 384 S.E.2d 877 (1989). We find no error in the trial court's determination that Staples waived his right to appointed counsel and that he voluntarily and intelligently elected to proceed pro se after being fully apprised of the possible consequences. Durham v. State, 185 Ga.App. 163, 164(1), 363 S.E.2d 607 (1987). Compare Kirkland v. State, 202 Ga.App. 356(1), 414 S.E.2d 502 (1991) (relinquishment of a right to counsel cannot be inferred from silent record).

4. The trial court denied Staples's pretrial motions for a continuance in order to prepare for trial and to contact his witnesses, for the assistance of an investigator, and for the appointment of an independent expert witness. Although these rulings are enumerated as error, the record reflects that in response to Staples's motions, the trial court ordered that he have access to the court's law library and also to long distance telephone service at county expense. Inasmuch as these rulings are in substance the partial grant of the relief and assistance requested, we find no due process violation and no abuse of the trial court's discretion by denying a continuance, Bates v. State, 202 Ga.App. 460, 461(1), 414 S.E.2d 691 (1992), or in refusing to hire an investigator. Smith v. State, 245 Ga. 168, 171(9), 263 S.E.2d 910 (1980).

As to the trial court's refusal to hire an expert chemist, appellant's reliance upon Sabel v. State, 248 Ga. 10, 282 S.E.2d 61 (1981) is misplaced. Sabel held that the trial court erred in refusing to grant the accused's retained expert witness access to "critical evidence whose nature is subject to varying expert opinion." Sabel, supra at 18(6), 282 S.E.2d 61. The evidence in Sabel that was both critical and subject to varying expert opinion consisted of paint samples taken from Sabel's hands as well as from defaced public property, which in an expert's opinion matched paint on defaced monuments, identifying Sabel as the perpetrator of the crime.

Staples does not challenge the chemical properties of the substance identified as cocaine or claim that the seized contraband, by its nature, misidentifies him as the perpetrator. The cocaine is not critical within the meaning of Sabel, and its identification as cocaine by an expert is not challenged. The trial court did not abuse its discretion in refusing to appoint an independent expert witness. Reinhardt v....