Stubbs v. State

• Citation: 452 S.E.2d 571,215 Ga.App. 873
• Decision Date: 05 December 1994
• Docket Number: No. A94A1767,A94A1767
• Parties: STUBBS v. The STATE.
• Court: Georgia Court of Appeals

Page 571

452 S.E.2d 571

215 Ga.App. 873

STUBBS v. The STATE.

No. A94A1767.

Court of Appeals of Georgia.

Dec. 5, 1994.

Reconsideration Denied Dec. 20, 1994.

Certiorari Granted May 5, 1995.

Lewis R. Lamb, Albany, for appellant.

Britt R. Priddy, Dist. Atty., Johnnie M. Graham, Gregory W. Edwards, Asst. Dist. Attys., for appellee.

PER CURIAM.

Appellant, Freddie Stubbs, was convicted of burglary, possession of tools for the commission of a crime and a misdemeanor traffic charge of operating a vehicle with an improper tag and appeals from that judgment.

The evidence showed that at approximately 6:00 a.m., a police officer on patrol noticed a parked car approximately 50 feet away from a furniture store. The police officer testified he saw a man standing beside the car holding a television set. When the officer approached the parked car, the man put the television down and ran away. The officer did not pursue the fleeing man (later identified as Bryant), but approached the parked car and asked Stubbs to get out. Shortly thereafter, the burglar alarm from the furniture store sounded. The officer found a metal bar and a padlock with pry marks on it in the back of Stubbs's car. The owner of the furniture store testified that the padlock was the one used to lock the store's door and identified the television as having come from her store.

Stubbs testified that he had been out all night drinking and playing cards and the combination of alcohol and his prescription medication made him feel sick as he was driving home. He therefore pulled over to get himself together and had a small blackout. He was awakened by Bryant knocking on the windows of his car asking if he was all right. Stubbs testified that Bryant told him he was trying to get into a boarding room for a week and that he had a television he could sell. Bryant then walked towards the building to get the television, and when he returned with it, the police officer drove up. Stubbs stated that when the officer approached, Bryant threw something into the back of his car and ran off down the street.

1. Stubbs contends the trial court erred, even in the absence of a request, in failing to charge the jury on the law of circumstantial evidence as required by OCGA § 24-4-6. That Code section provides 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." For the reasons set forth in the opinions below, we reject Stubbs's argument.

2. In his second enumeration of error, Stubbs claims that the trial court erred in submitting the case to the jury since the evidence presented was not sufficient to authorize conviction. The standard of reviewing the denial of a motion for directed verdict is that from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Harvey v. State, 212 Ga.App. 632, 634(2), 442 S.E.2d 478 (1994). Here, we find that a rational trier of fact could find from the evidence adduced at trial proof of Stubbs's guilt beyond a reasonable doubt.

Judgment affirmed.

BIRDSONG and BEASLEY, P.JJ., and ANDREWS, JOHNSON and SMITH, JJ., concur specially.

Pope, C.J., McMURRAY, P.J., and BLACKBURN, J., concur in part and dissent in part.

RUFFIN, J., dissents.

BIRDSONG, Presiding Judge, concurring specially.

Because appellant failed to request the trial court to give a specific instruction to the jury utilizing the statutory language of OCGA § 24-4-6, and because the trial court did give detailed instructions defining, inter alia, circumstantial evidence, properly placing the burden of proof on the State, and charging that mere presence at the crime scene was insufficient to support conviction, I would affirm.

The time has come to clarify this area of the law in a manner compatible with the recent holdings of the Supreme Court of Georgia in Mims v. State, 264 Ga. 271, 443 S.E.2d 845 and Robinson v. State, 261 Ga. 698, 410 S.E.2d 116. In Mims, supra 264 Ga. at 272, 443 S.E.2d 845, the Supreme Court held: "Since a jury could consider circumstantial evidence in every instance where it has been introduced, upon request, the trial court must give the charge so that the jury will be familiar with how to weigh that circumstantial evidence." (First emphasis supplied.) In Dunaway v. State, 214 Ga.App. 128, 129(1), 447 S.E.2d 153, it was further clarified that "[w]henever the State introduces circumstantial evidence of a defendant's guilt, OCGA § 24-4-6 must be charged if the defendant requests it." (Emphasis supplied.) The only reasonable legal corollary to this rule is that it is not error to fail to give an OCGA § 24-4-6 charge in the absence of a timely request to do so. Compare Brown v. State, 214 Ga.App. 481, 482(2), 448 S.E.2d 259 (physical precedent only), citing Jenkins v. State, 209 Ga.App. 19, 432 S.E.2d 270.

The rule of Mims, supra, and Dunaway, supra, should be construed as follows: Whenever the State introduces circumstantial evidence of the defendant's guilt, it is error not to give an OCGA § 24-4-6 charge if such has been timely requested; however, it is not error to fail to give an OCGA § 24-4-6 charge in the absence of a timely request where, as here (as clearly established in fact recitation of the majority's opinion), the State's case depends both upon direct and circumstantial evidence. This is not a case where the State's evidence was solely circumstantial. It is well-established that, even absent a request to charge, where the case against the defendant is doubtful and is composed solely of circumstantial evidence, it is reversible error for a trial court not to charge substantially in the statutory language of OCGA § 24-4-6. Jenkins v. State, supra 209 Ga.App. at 20, 432 S.E.2d 270.

Whether a particular charging error would be harmless, of course, would depend upon the circumstances of the case then under consideration in light of existing law pertaining to the doctrine of harmless error.

In Croker v. State, 101 Ga.App. 742, 115 S.E.2d 413, the facts are distinguishable, as there was only opinion evidence offered that certain items found in the automobile were items commonly used as burglary tools. In this case, the arresting officer personally observed in the car not only a bar with pry marks on it but also a lock, which was later identified as coming from the burglarized premises. Secondly, neither Hogan v. Atkins, 224 Ga. 358, 162 S.E.2d 395, nor Croker, supra, expressly address the legal issue here before us. It is well established that questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedent. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89(1), 114 S.E.2d 529; Chives v. State, 214 Ga.App. 786, 788, 449 S.E.2d 152. Thus, Croker, supra, does not constitute binding precedent for the proposition that an instruction as to the statutory language of OCGA § 24-4-6 must be given in the absence of a timely and specific request for such charge. Incidentally, although Croker, supra, was decided over 34 years ago, it has never been cited previously as authority by any appellate court of this state.

As the record reveals that appellant failed to tender a timely request for a charge in the statutory language of OCGA § 24-4-6, I would find that no charging error has occurred as enumerated. Accordingly, there exists no need to determine whether appellant failed to present a reasonable hypothesis save that of his guilt, thereby rendering any charging error harmless, by his testimony that a fleeing stranger who apparently had just committed the burglary threw the metal bar and padlock into the back seat of his car.

BEASLEY, Presiding Judge, concurring specially.

1. I concur in the judgment because it was not reversible error for the court to omit charging the language of OCGA § 24-4-6, which was not requested by defendant. Charging such language should be abolished. See the reasons therefor in Roura v. State, 214 Ga.App. 43, 447 S.E.2d 52 (1994).

The court charged on the definitions of direct and circumstantial evidence and that the weight of either is a question for the jury. The court fully instructed the jury on burden of proof, presumption of innocence, reasonable doubt, the essential elements of the crimes, and other usual instructions. The omission of OCGA § 24-4-6 was not prejudicial.

2. The dissent states that OCGA § 16-7-20 requires direct proof of "intent to use the tools in the commission of a crime." This overlooks the law that "the trier of facts may find [criminal] intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." OCGA § 16-2-6. See Suggested Pattern Jury Instructions, Vol. II, p. 10. Rarely, if ever, is there direct proof of what was in a defendant's mind when he or she committed the act charged as being criminal. The court in this case gave the pattern charge, as well as a further explanation of what is meant by the element of intent and what may be used to prove it. Moreover, defendant was charged as a party to the crimes, and the court so instructed the jury. OCGA §§ 16-2-20; 16-2-21.

3. As to Croker v. State, 101 Ga.App. 742, 743(2), 115 S.E.2d 413 (1960), the quotation comes from a civil case in the very first volume of this court's reports, Ga. R. & Elec. Co. v. Harris, 1 Ga.App. 714, 57 S.E. 1076 (1907). Croker also cites another civil case (Camp v. Emory Univ., 95 Ga.App. 442, 98 S.E.2d 66 (1957)), which quotes that first volume civil case and another civil case (White v. Executive Comm. of Bapt. Convention, 65 Ga.App. 840, 842, 16 S.E.2d 605 (1941)). The history of the circumstantial evidence charge used in criminal cases and found in OCGA § 24-4-6 is substantially set forth in Roura, supra....