Thompson v. State, s. 59468

• Decision Date: 02 September 1980
• Docket Number: Nos. 59468,59469,s. 59468
• Citation: 154 Ga.App. 704,269 S.E.2d 474
• Parties: THOMPSON v. The STATE. AMSTUTZ v. The STATE.
• Court: Georgia Court of Appeals

Page 474

269 S.E.2d 474

154 Ga.App. 704

THOMPSON v. The STATE.

AMSTUTZ v. The STATE.

Nos. 59468, 59469.

Court of Appeals of Georgia.

Argued Feb. 14, 1980.

Decided April 30, 1980.

Rehearing Denied May 21, 1980.

Certiorari Denied Sept. 2, 1980.

Alan C. Manheim, Marietta, John A. Nuckolls, Atlanta, for appellant.

H. Lamar Cole, Dist. Atty., for appellee.

CARLEY, Judge.

Appellants in these companion cases were indicted on a two-count indictment. Count 1 charged appellants with possession of more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. Count 2 charged them with possession of cocaine in violation of the same Act. Both appellants originally pled guilty. Appellant-Thompson received a six-year sentence with three years to serve and three years on probation. Appellant-Amstutz received an eight-year sentence with five years to serve and three years on probation. Appellants thereafter moved to withdraw their guilty pleas, their motion was granted and they proceeded to a jury trial which was presided over by the judge who had allowed appellants to withdraw the guilty pleas. The jury returned guilty verdicts against appellants on both counts. They appeal.

1. Appellants enumerate error on the denial of their motion to suppress. The evidence shows that a part-time law enforcement officer observed an airplane on his neighbor's property. He saw appellants unloading bales or bundles from the plane and reported the suspicious activity to the sheriff. The sheriff arrived to investigate. Amstutz fled. Thompson related to the sheriff that he had been hitchhiking when "some guy came by and picked him up and wanted him to help him unload some marijuana." Thompson was arrested and Amstutz was apprehended shortly thereafter. On this evidence, it was not error to deny the motion to suppress. Appellants had no Fourth Amendment protection against the seizure of contraband in the open fields of another. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Kennemore v. State, 222 Ga. 252, 149 S.E.2d 471 (1966). See also Anderson v. State, 133 Ga.App. 45, 209 S.E.2d 665 (1974); Patterson v. State, 133 Ga.App. 742, 212 S.E.2d 858 (1975); Frazier v. State, 138 Ga.App. 640, 227 S.E.2d 284 (1976). Since appellants have no standing to assert any Fourth Amendment rights as to items seized in the open fields of another, a showing of the reliability or credibility of the informant-observer is unnecessary. The requirement under the Fourth Amendment that searches be based on probable cause applies only to searches of constitutionally protected areas. Novak v. State, 130 Ga.App. 780, 204 S.E.2d 491 (1974); Anderson v. State, 133 Ga.App. 45, 209 S.E.2d 665, supra.

Appellants further urge that it was error to introduce the marijuana and cocaine into evidence because the state failed to prove chain of custody. We disagree. "The burden the state must carry to gain admission of evidence such as this is to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. (Cit.) . . . '(I)t is not necessary that the state negative all possibility of tampering but only that it show it is reasonably certain there was no alteration-when there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight. (Cits.)' (Cits.)" Johnson v. State, 143 Ga.App. 169, 237 S.E.2d 681 (1977). After a thorough review of the transcript in this case, we are convinced that the state met this burden. Henderson v. State, 145 Ga.App. 169, 243 S.E.2d 113 (1978). There was no error.

2. The trial court ordered counsel for appellants and counsel for the state to submit a list of proposed voir dire questions to be asked of prospective jurors excepting those set forth in Code Ann. § 59-806. Counsel was informed that any question not appearing on the list would not be permitted and that, prior to trial, the court would advise counsel as to which of the proposed questions would be allowed and which would not. Appellants' counsel submitted his list. The trial court entered an order setting forth which voir dire questions he would allow defense counsel to ask. This order disallowed and reworded certain questions which had been on the list submitted to the court. Appellants enumerate as error the disallowance of these voir dire questions.

"The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review." Whitlock v. State, 230 Ga. 700, 706, 198 S.E.2d 865, 868, (1973). A review of the transcript of the voir dire in the instant case demonstrates that appellants were afforded a thorough and complete examination of prospective jurors. The entry of the order prescribing permissible inquiries did not constitute a "manifest abuse" of the discretion of the trial judge. Arguments to the contrary are meritless.

3. Error is enumerated on the trial judge's refusal to give the following request to charge: "(C)ircumstantial evidence is evidence which only tends to establish the issue by proof of various facts sustaining by their consistency the hypothesis claimed. Circumstantial evidence alone will not support a conviction unless the evidence is such that it excludes every hypothesis except that of guilt . . . If the evidence points to one theory which is consistent with guilt and to another which is consistent with innocence, the evidence will not support a conviction and you would be authorized to return a verdict of not guilty." It was not error to refuse to give this charge because it is not an accurate statement of the law. " 'To sustain a conviction, it is not required that the evidence exclude every possibility or inference that may be drawn from proved facts. It is only necessary to exclude reasonable inferences and reasonable hypotheses which may be drawn from the evidence under all the facts and circumstances surrounding the particular case.' (Cits.)" (Emphasis supplied.) Giles v. State, 94 Ga.App. 655, 657, 96 S.E.2d 317, 319 (1956). Appellants' request states that circumstantial evidence must exclude every hypothesis save guilt; however, circumstantial evidence need only exclude every reasonable hypothesis save guilt. The request charge was an inaccurate statement of the law. See Taylor v. State, 44 Ga.App. 821(3), 163 S.E. 271 (1931).

Furthermore, the trial court did in fact instruct the jury on the definition of circumstantial evidence and then charged: "Now to warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of (guilt), but must exclude every other reasonable theory, save that of the guilt of the accused." This was a proper and sufficient charge on circumstantial evidence, substantially in the language of Code Ann. § 38-109. Johnson v. State, 133 Ga.App. 394(4), 211 S.E.2d 20 (1974). Appellants apparently urge on appeal that even though their request was not perfect the trial court should have given the last part of their requested instruction concerning the jury's duty to acquit if the circumstantial evidence pointed equally and consistently to both guilt and innocence. Appellants argue that where the court undertakes to charge the law on a particular subject it should charge all the law on the subject that is material and applicable to the case. We find this argument unpersuasive in the instant case. Rowland v. State, 51 Ga.App. 54, 179 S.E. 585 (1935); Hudson v. State, 237 Ga. 241(2), 227 S.E.2d 257 (1976). Furthermore, we find this portion of the refused request not applicable in this case. Such a charge is more apt "where only circumstantial evidence is involved. (Cit.)" (Emphasis supplied.) Fleming v. State, 137 Ga.App. 805, 806, 224 S.E.2d 792, 793, (1976). "In cases where the guilt of a defendant is dependent solely on circumstantial evidence it has been held error to fail to charge that if the proved facts are consistent with the theory of innocence, the defendant should be acquitted. (Cits.)" (Emphasis supplied.) Nolen v. State, 124 Ga.App. 593, 594, 184 S.E.2d 674, 676 (1971). As the trial court noted in the instant case the evidence relied on by the state was not solely circumstantial. Appellants cite Braden v. State, 135 Ga.App. 827, 219 S.E.2d 479 (1975), and the "equal access" rule in support of their argument that the instant facts present a theory of innocence. In light of the direct evidence in this case, coupled with the circumstantial, we find this contention to be without merit. Smith v. State, 152 Ga.App. 134, 262 S.E.2d 166 (1979); Tuggle v. State, 149 Ga.App. 634, 255 S.E.2d 104 (1979); Phillips v. State, 144 Ga.App. 690, 242 S.E.2d 343 (1978); Kenerleber v. State, 137 Ga.App. 618, 224 S.E.2d 476 (1976). It was not error, for any reason urged, to fail to give the "two theories" charge. Golson v. State, 130 Ga.App. 577, 579(2), 203 S.E.2d 917 (1974).

Appellants further contend that the trial judge originally indicated he would not charge on circumstantial evidence; that, therefore, defense counsel did not address circumstantial evidence in his closing argument to the jury; that the judge then gave his above quoted instructions substantially in the language of Code Ann. § 38-109; and that when appellants' counsel objected to being misled as to the court's intentions to instruct on circumstantial evidence and requested the right to reargue to the jury on this matter, this request was denied. It is urged that this constitutes reversible error. Daniels v. State, 137 Ga.App. 371, 373(4), 224 S.E.2d 60 (1976). Under the existing circumstances of this case, we disagree. First, the trial judge here did not...