Stephens v. State

• Decision Date: 22 November 2002
• Docket Number: No. A02A0997.,A02A0997.
• Citation: 575 S.E.2d 661,258 Ga. App. 774
• Parties: STEPHENS v. The STATE.
• Court: Georgia Court of Appeals

575 S.E.2d 661

258 Ga. App. 774

STEPHENS v. The STATE.

No. A02A0997.

Court of Appeals of Georgia.

November 22, 2002.

Reconsideration Denied December 10, 2002.

Certiorari Denied March 10, 2003.

Gregory A. Hicks, James K. Luttrell, Woodstock, for appellant.

Patrick H. Head, Dist. Atty., Dana J. Norman, Patricia G. Hull, Amelia G. Pray, Asst. Dist. Attys., for appellee.

BARNES, Judge.

A jury convicted Kenneth Michael Stephens of one count of violation of the Georgia Controlled Substances Act for possession of crack cocaine. Stephens filed a motion for new trial and thereafter a motion for an out-of-time appeal, which was granted.

On appeal, Stephens argues that the trial court erred by denying his motion to suppress a statement, which he alleges was the fruit of an illegal arrest, and by admitting similar transaction evidence. He also argues that the trial court erred in allowing certain expert testimony, and that the evidence was insufficient to support his conviction. Because there is no evidence which connects Stephens to the cocaine found in his coat, we reverse.

On appeal, we view the evidence in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court only determines evidence sufficiency, not credibility or weight. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See, e.g., Lester v. State, 226 Ga.App. 373, 376(2), 487 S.E.2d 25 (1997). Under Jackson, the test is whether, based on the evidence as construed in favor of the verdict, any rational trier of fact could have found Stephens guilty beyond a reasonable doubt of possessing cocaine.

So construed, the evidence reflects that for twenty-four hours beginning June 18, 1999, and ending June 19, 1999, three officers with the Crime Interdiction Unit of the Marietta Police Department conducted taped surveillance of an area of Allgood Road in Marietta commonly known as "Charlie Hunter's." The purpose of the surveillance was to gain intelligence on drug buyers and dealers around the two businesses located in Charlie Hunter's, Mann's Grocery Store and Charlie Hunter's liquor store.

On June 19, the officers videotaped a juvenile suspect conducting what they suspected were numerous drug transactions and arrested him. During the course of the surveillance and ensuing arrest, the officers located and searched a black jacket lying on a wall-mounted air conditioner near one of the buildings. The officer who located and searched the jacket testified that he did so because it was near where the juvenile suspect was sitting and because he was searching the area where the suspect spat out rock cocaine and so he "kept looking in the area because usually when there's a little bit there's more." He found suspected crack cocaine in a plastic bag in one of the jacket's pockets. The drugs were removed from the jacket, but the jacket was placed back on the air conditioner to see who would claim it. The substance was later tested at the crime lab, and a chemist verified that the substance was 2.2 grams of crack cocaine.

Approximately ten minutes later, Stephens arrived, picked up the jacket, and walked away. One of the surveilling officers radioed Stephens' description to a nearby patrol officer and told him to place Stephens under arrest. Stephens was carrying the jacket and was approximately 100 to 150 yards away when he was stopped. After the officer told Stephens that he was under arrest for cocaine, Stephens was searched and taken to the Cobb County Adult Detention Center. No drugs were found on him. While Stephens was being processed he mumbled, "[t]hat dope ain't mine. That girl that was out there put it in my pocket." The officer testified that he had not explained the circumstances surrounding his arrest to Stephens, nor was the statement in response to any questioning.

1. We agree with Stephens' contention that the evidence was insufficient to support his conviction. "[A] conviction [based upon] circumstantial evidence [is authorized only when] 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." OCGA § 24-4-6. "In a case entirely dependent on circumstantial evidence, however, the State's evidence must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. Even when the circumstantial evidence creates a strong suspicion of guilt, mere suspicion is insufficient to support a conviction." (Citations and punctuation omitted.) Locklear v. State, 249 Ga.App. 104, 105, 547 S.E.2d 764 (2001). The evidence, which was entirely circumstantial, simply does not exclude every other hypothesis save guilt. Id.

Here, no direct evidence ties Stephens to the drugs found in his jacket. While the State argues that there is direct and circumstantial evidence to support Stephens' conviction, it presents only the following: (1) Stephens picked up the jacket and walked away; and (2) he established that he knew the jacket had cocaine in it by his statement at the detention center. This evidence, however, does not tie Stephens to the drugs that were found in the jacket earlier.

The State maintains the cocaine was found in Stephens' jacket, but the videotaped excerpts showing the police finding and then retrieving drugs from the jacket were mistakenly erased.¹ The area was videotaped for twenty-four hours, resulting in some four videotapes and approximately twelve hours of tape, but there is no evidence showing who put the jacket on the air conditioner. Additionally, despite the area being monitored for that extensive period, there is no evidence placing Stephens in the area before his picking up the jacket, which occurred at approximately 1:00 p.m. on the second day of the surveillance. The evidence, however, shows at least two other people, the juvenile suspect and an unidentified woman, in close proximity to the jacket. Additionally, the officers surmised that the woman was attempting to distract them from...