Stevens v. State

• Decision Date: 17 March 1983
• Docket Number: No. 65043,65043
• Citation: 165 Ga.App. 814,302 S.E.2d 724
• Parties: STEVENS v. The STATE.
• Court: Georgia Court of Appeals

Page 724

302 S.E.2d 724

165 Ga.App. 814

STEVENS v. The STATE.

No. 65043.

Court of Appeals of Georgia.

March 17, 1983.

Lee R. Hasty, Hogansville, for appellant.

Arthur E. Mallory III, Dist. Atty., James M. Garcia, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

The defendants Milford Stevens and Randall Walls were jointly indicted, tried, and convicted of possession of cocaine. Officer Grizzard was on patrol at approximately 11:00 p.m. on the evening of October 28, 1981, in the parking lot of the Red and White Food Store and the Hunting Lodge in Troup County. There had been a burglary and several thefts at that location in recent weeks. He saw a Ford parked in front of the Hunting Lodge. He placed his spotlight on the car and saw that there was no one in the car. He circled the building and as he arrived back at the parking lot he saw a yellow Volkswagen (VW) enter the parking lot at a high rate of speed and stop alongside the Ford. He drove his patrol car to that location and saw defendant Walls with a beer in his hand as he exited the VW. When Walls saw the patrol car he started throwing beer cans under the Ford. Walls was obviously intoxicated. Officer Grizzard drove up behind the two cars and let his headlights shine upon them. He approached the VW and saw defendant Stevens in the driver's seat, with the engine running, and a beer in his hand. He detected the odor of alcohol in the car and ordered Stevens to leave the car and both defendants to go to the rear of the VW. Stevens turned his head away from the officer but Grizzard smelled the odor of alcohol on his breath and saw that he was unsteady on his feet. He placed Stevens under arrest for driving with his ability impaired by alcohol or drugs. Officer Grizzard then walked to the driver's side of the VW to check the VIN and NBI sticker. As he bent over to look into the car he observed defendant Walls fumbling with his jacket and drop "a white plastic bag." He returned to the rear of the car and saw a piece of plastic sticking out from under Wall's foot. He pushed Walls back and picked up a plastic bag containing a white powdery substance. He placed Walls under arrest and did a pat-down of his person and placed Walls in the back of his police car and called for a backup. Lt. Hunt and Deputy Arrington arrived shortly thereafter. Defendant Stevens was advised of his implied consent rights and taken to the hospital where a blood and urine sample were taken. The blood sample was negative for alcohol and the urine sample was positive for the presence of cocaine. The Crime Laboratory specialist testified that five separate tests were run on the urine and each one showed the presence of cocaine. Stevens appeals his conviction for possession of cocaine. Held:

1. Defendant contends the evidence is insufficient to support the findings of guilty. We do not agree. The Georgia Crime Laboratory ran five tests on defendant's urine and all five were positive for presence of cocaine. This is direct positive evidence that the defendant had ingested cocaine and that at sometime within the immediate past the defendant had possessed the cocaine he subsequently ingested. The Crime Laboratory specialist testified that "cocaine is a relatively fast-acting drug ... You would be talking about 24 hours ... Q. In other words, the drug would pass through a person's body completely within 24 hours? A. On that order. It's variable ... This is dependent upon how it was ingested. If it's ingested versus sniffing versus taken orally, anywhere from thirty to forty minutes to maybe an hour, in that order." Hence, defendant's guilt does not depend entirely upon circumstantial evidence. The results of the laboratory tests were direct, positive evidence that defendant had recently possessed the cocaine he subsequently ingested. Construing the evidence in the light most favorable to the verdict reached by the trial court, as we must under Jackson v. Virginia, 443 U.S. 307(1), 99 S.Ct. 2781, 61 L.Ed.2d 560, we find there was sufficient evidence for any rational trier of fact to have found the defendant guilty of the offense charged beyond a reasonable doubt. Id.

2. The trial court was authorized by the evidence, and did correctly charge the jury upon the issues of actual and constructive possession and sole and joint possession of the cocaine found in possession of defendant Walls. Wisdom v. State, 234 Ga. 650, 654, 217 S.E.2d 244; Dalton v. State, 249 Ga. 720(2), 292 S.E.2d 834; State v. Lewis, 249 Ga. 565, 567, 292 S.E.2d 667 3. Defendant Stevens moved to sever his trial from that of Walls. His motion was denied. He argues that the trial court should have granted separate trials as "there was a danger that the evidence admissible against co-defendant Walls would be considered against Appellant Stevens despite any admonitory precautions of the court." He also asserts that their defenses are antagonistic to each other and each other's rights. The basis for this defense is that Walls was in possession of the cocaine and he was not--and that these defenses are antagonistic.

In the hearing on the motion to sever the counsel for Stevens and Walls attempted to show that Stevens wanted to call Walls as a witness and that Walls would claim the Fifth Amendment privilege at their joint trial but would testify for Stevens in a separate trial that Walls was in possession of the cocaine.

Our Code provides that "[w]hen two or more defendants are jointly indicted ... for a felony less than capital ... defendants may be tried jointly or separately in the discretion of the trial court ..." Code Ann. § 27-2101 (Code § 27-2101); OCGA 17-8-4. Our Supreme Court, in addressing a similar problem, in Cain v. State, 235 Ga. 128, 218 S.E.2d 856, cited "relevant American Bar Association Minimum Standards relating to joinder and severance" and found that the trial judge must exercise his discretion in each particular case, "[b]ut the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. [Cit.] He must make a clear showing of prejudice and a consequent denial of due process." 235 Ga. at 129, 218 S.E.2d 856. They set forth a three-part standard: (1) "Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precautions of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other's rights?" 235 Ga. 128 at 129, 218 S.E.2d 856. We answer each question in the negative.

The grant or denial of a motion for severance lies within the sound discretion of the trial court and its ruling will not be reversed absent clear abuse of such discretion. To warrant a severance, the defendants must show the probability of prejudice and may not present just argument that there is a better probability a separate trial would give them a better chance of acquittal. To obtain a new trial at the appellate level they must show actual prejudice and denial of due process. Johnson v. State, 159 Ga.App. 819, 821, 285 S.E.2d 252. The critical issue in this case is possession of the cocaine discarded by Walls. This joint trial had no adverse effect upon that issue. There were only two accused and the evidence was short, simple, and uncomplicated. We find no danger of confusion. Kelley v. State, 248 Ga. 133(3), 281 S.E.2d 589. We see no danger in considering evidence admissible against one party being considered against the other party. Neither can we discern antagonism between the State's evidence showing one defendant in actual possession of cocaine and the other defendant's urine test being positive for cocaine. Even if these "defenses" were antagonistic, "[w]ithout a clear showing of prejudice and harm by movant, the mere fact that co-defendant's defenses are antagonistic is not sufficient in itself to warrant separate trials. [Cits.]." Smith v. State, 155 Ga.App. 657, 658, 272 S.E.2d 522. There could be no harm to appellant Stevens from a showing that cocaine was possessed by his co-defendant Walls. "The mere fact that testimony as to one of two co-defendants is stronger than that linking the other to the crime does not demand a finding that the denial of a motion to sever is an abuse of discretion." Martin v. State, 162 Ga.App. 703, 704, 292 S.E.2d 864. Thus, following the test of Cain, supra, we find no error.

However, the issue of the failure to sever the trial so that one defendant could call the other co-defendant as a witness is more complex. In Cain, supra, the Supreme Court stated: "if the defendant wishes to call his co-defendant as a witness, he will not be able to do so in a joint trial because of his co-defendant's Fifth Amendment rights. In order to have his motion for severance granted, however, the defendant must show not only that his co-defendant will probably not testify at trial where he could cross-examine him or elicit the testimony desired, but also that the testimony of the co-defendant would tend to exculpate the defendant. The trial judge should also consider whether the co-defendant would be more likely to testify if they were tried separately." 235 Ga. at 129-130, 218 S.E.2d 856. We note that the American Bar Association Standards, referred to in Cain, supra, state: "... it may be relevant that the moving defendant desires the testimony of a codefendant, which would be unavailable at a joint trial but which might be obtained if the defendant were severed and tried later. This, by itself, has not been viewed as grounds for severance." ABA Standards Relating to Joinder and Severance (Standards with commentary) § 2.3(b).

We have found little precedent in Georgia treating this issue, however Federal courts appear to have faced the same question on numerous occasions. One of the...