Taylor v. State

• Decision Date: 06 June 2007
• Docket Number: No. A07A0084.,A07A0084.
• Parties: TAYLOR v. The STATE.
• Court: Georgia Court of Appeals

285 Ga. App. 697

647 S.E.2d 381

TAYLOR v. The STATE.

No. A07A0084.

Court of Appeals of Georgia.

June 6, 2007.

Brian Steel, The Steel Law Firm, P.C., Atlanta, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

ANDREWS, Presiding Judge.

Kevin Alan Taylor was jointly tried with two co-defendants, Robert Nathaniel Hall, Jr. and Norval Patten, and found guilty by a jury of possession with intent to distribute marijuana and trafficking in cocaine. He appeals on various grounds from the judgment of conviction entered on the guilty verdicts, and for the following reasons, we affirm.

1. Taylor contends that the evidence was insufficient to support a guilty verdict on either of the charged offenses. Construed in favor of the guilty verdicts, evidence produced at the trial showed the following: After United Parcel Service (UPS) alerted police to the suspicious nature of a package shipped from "Helen White" in California to "Kate White" in Augusta, a police investigation at the UPS facility revealed an open package which contained suspected marijuana wrapped in red cellophane and surrounded by substances commonly used to mask the odor of marijuana. Posing as a UPS agent, a police officer called an Augusta phone number given to UPS and arranged with a person called "Dante White" for the package to be picked up at the UPS location. Prior to the pickup, the officer also went to the Augusta address listed on the package, 2814 Ridgecrest Drive, and observed two cars located at the address. On the day of the pickup, Taylor and Hall rented a car which they supplied to another co-indictee, Joseph Scurry, Jr., who used the car to pick up the UPS package. When Scurry arrived at UPS, he was followed by Taylor and Hall in a car previously seen by the officer at the 2814 Ridgecrest Drive address. Police arrested Scurry as he walked out of the UPS facility with the package, which evidence showed contained 40.1 pounds of marijuana with a street value of about $200,000. Officers stopped Taylor and Hall as they attempted to drive away immediately after Scurry was arrested. Observing two cell phones in the car occupied by Taylor and Hall, an officer used a police cell phone to call the phone number at which he had previously spoken to "Dante White," and both cell phones in the car rang simultaneously. The officer answered the cell phone adjacent to Hall and discovered that he was speaking to himself on the police cell phone.

Police then took Taylor and Hall to an apartment at the 2814 Ridgecrest Drive address to accompany officers during execution of a search warrant. As the officers approached the door to the apartment, Hall broke away from the officers and ran, and Taylor collapsed to the floor screaming, "Lord, please save me. Don't let them take me in here." Although the apartment was rented in Patten's name, officers gained entry through the locked apartment door with a key they found on Taylor's person. In their search of the apartment, officers found 1,000 grams of suspected powdered cocaine (later tested and proved to be 73 percent pure cocaine) wrapped in the same red cellophane used to wrap the marijuana found at the UPS facility, along with $98,864 in cash. The apartment search also produced documents showing that Taylor, Hall, and Patten occupied the apartment. In addition to various men's clothing found in the apartment, police found a California birth certificate for Taylor's child, a check showing Taylor's payment of child support, and numerous other personal documents belonging to Hall and Patten. In a separate search of Taylor's car, police found a digital scale under the driver's seat like scales commonly used for weighing contraband, along with a piece of paper displaying the address from which the marijuana was shipped by UPS from California.

There was ample evidence to support the jury's finding that Taylor was guilty of possessing with intent to distribute the 40.1 pounds of marijuana in the package at the UPS facility. Taylor rented the car used by Scurry to pick up the marijuana; gave the rented car to Scurry immediately before he drove the car to the UPS facility to pick up the marijuana; followed Scurry to the UPS facility and watched the pickup; police found the address from which the marijuana was shipped written down in Taylor's car, and Taylor occupied the apartment where the marijuana was being shipped. Taylor's intent to distribute was proved by evidence that the amount of marijuana was far in excess of that possessed for personal use. The circumstantial evidence showed a connection between Taylor and the marijuana other than spatial proximity; it was sufficient to exclude every reasonable hypothesis save that of guilt, and was sufficient for the jury to find beyond a reasonable doubt that Taylor had joint constructive possession of the marijuana and was guilty as a party to the charged offense. OCGA § 16-13-30(j); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wilson v. State, 256 Ga.App. 741-743, 569 S.E.2d 640 (2002); Castillo v. State, 166 Ga.App. 817, 822, 305 S.E.2d 629 (1983).

As to the trafficking in cocaine charge, the State sought to prove that Taylor, Hall, and Patten jointly occupied the apartment where the cocaine was found and that they had joint constructive possession of the cocaine. The State produced evidence sufficient for the jury to find joint occupancy by showing that the apartment was filled with men's clothing, that Taylor had a key to the apartment and had personal papers in the apartment, and that both Patten (who leased the apartment) and Hall had numerous personal papers in the apartment. In Patten v. State, 275 Ga.App. 574, 575-576, 621 S.E.2d 550 (2005), we affirmed Patten's conviction for trafficking in cocaine finding that the evidence was sufficient to prove that he had constructive possession of the cocaine and "was a participant in the large-scale cocaine trafficking operation taking place from the apartment he leased." Id. at 576, 621 S.E.2d 550. The State also produced evidence sufficient for the jury to find that Taylor had joint constructive possession of the cocaine found in the apartment and was guilty of trafficking in cocaine. In addition to evidence that 1,000 grams of cocaine (with a purity of 73 percent) was found in the apartment occupied by Taylor, the State produced evidence connecting Taylor to the cocaine by more than mere spatial proximity. Wilson, 256 Ga.App. at 741-743, 569 S.E.2d 640. The State showed that scales similar to those commonly used to weigh contraband were found under the driver's seat of Taylor's car, and that, when Taylor was led toward the door of the apartment just prior to execution of the search warrant, he exhibited extremely fearful and nervous behavior. Under the circumstances, it was reasonable for the jury to infer that Taylor used the scales to weigh the cocaine, and that his behavior at the door to the apartment was caused by his guilty knowledge that there was cocaine in the apartment. See Fernandez v. State, 275 Ga.App. 151, 155, 619 S.E.2d 821 (2005). Furthermore, evidence showed that the 40.1 pounds of marijuana (wrapped in red cellophane) seized at the UPS facility was being shipped to the apartment occupied by Taylor where the cocaine (wrapped in the same red cellophane) was found. Evidence showing that Taylor was in joint possession of the marijuana being shipped to the apartment supported the State's charge that Taylor was also knowingly involved in the cocaine trafficking operation at the apartment. Again, the circumstantial evidence was sufficient to exclude every reasonable hypothesis save that of guilt and was sufficient for the jury to find that Taylor was guilty beyond a reasonable doubt of trafficking in cocaine. OCGA § 16-13-31(a); Jackson, 443 U.S. 307, 99 S.Ct. 2781; Wilson, 256 Ga.App. at 742-743, 569 S.E.2d 640.

2. Taylor claims the trial court erred by denying his motion to sever his trial from that of his co-defendants because their defenses were antagonistic, and because there was a danger that similar transaction evidence admitted against Hall was improperly considered by the jury against him. "[In a non death penalty case], the severance of defendants' trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4." Dixon v. State, 268 Ga. 81, 83, 485 S.E.2d 480 (1997). "[T]he 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. [Cits.]" Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856 (1975).

In support of his claim that defenses were antagonistic, Taylor makes the general assertion that he was "attacked by his co-indictees" during the trial, that he was prejudiced by association with Hall after Hall fled during the trial and was tried "in absentia," and he points to testimony given by his trial counsel at the hearing on his motion for a new trial that, "We had threats . . . Mr. Taylor was concerned there were people looking in the courtroom from California, which we communicated privately to both the district attorney and to the Court." Taylor does not elaborate on his counsel's reference to threats, nor does he cite to any evidence in the record on this claim. Hall did not testify or present any evidence, and Patten testified that he never engaged in any drug related activity with Hall and first met Taylor at a pre-trial hearing in the case. Even if there were antagonistic defenses, the mere fact of such is not sufficient in itself to warrant severance absent a showing of prejudice, and Taylor has failed to carry his burden to show clear prejudice and denial of due process resulting from any antagonistic defenses....