Wood v. State

• Citation: 283 S.E.2d 79,159 Ga.App. 221
• Decision Date: 09 July 1981
• Docket Number: No. 61784,61784
• Parties: WOOD v. The STATE.
• Court: Georgia Court of Appeals

Page 79

283 S.E.2d 79

159 Ga.App. 221

WOOD v. The STATE.

No. 61784.

Court of Appeals of Georgia.

July 9, 1981.

Certiorari Denied Sept. 8, 1981.

Edward D. Tolley, Athens, for appellant.

Harry N. Gordon, Dist. Atty., Robert N. Elkins, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of criminal damage to property.

1. Appellant's motion to suppress certain evidence was denied. Citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), appellant urges that he had "standing" to challenge the validity of the seizure of the evidence from the back seat and floorboard of an automobile owned by another. Appellant's reliance on Jones is misplaced since it was overruled in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The Supreme Court has "discarded reliance on concepts of 'standing' in determining whether a defendant is entitled to claim the protections of the exclusionary rule. The inquiry, ..., is simply whether the defendant's rights were violated by the allegedly illegal search or seizure." Salvucci, 448 U.S. 83, 87, fn. 4, 100 S.Ct. 2547, 2551, fn. 4, 65 L.Ed.2d 619, supra. Where neither a property nor a possessory interest in the automobile nor an interest in the property seized is asserted, the fact that one was " 'legitimately on (the) premises' in the sense that [he was] in the car with permission of its owner is not determinative of whether [he] had a legitimate expectation of privacy in the particular areas of the automobile searched." Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978). See also Meyer v. State, 150 Ga.App. 613, 616(3), 258 S.E.2d 217 (1979).

In the instant case appellant's rights were not violated by the seizure of the evidence from the automobile. He was not even "legitimately on the premises" at the time of the seizure since the automobile was discovered under circumstances which would support the conclusion that it had been abandoned. See Fears v. State, 152 Ga.App. 817, 818(1), 264 S.E.2d 284 (1979); Marshall v. State, 153 Ga.App. 198(1), 264 S.E.2d 718 (1980). Moreover, appellant's "claim is one which would fail even in an analogous situation in a dwelling place, since [he] made no showing that [he] had any legitimate expectation of privacy in the [back seat and floorboard] of the car in which [he had been] merely [a passenger]. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy." Rakas, 439 U.S. at 148-149, 99 S.Ct. at 433, supra. "This being so, the disputed search and seizure did not infringe on an interest of the appellant which the Fourth Amendment was designed to protect." Meyer v. State, 150 Ga.App. 613, 617-618, 258 S.E.2d 217, supra. Indeed, the evidence was observed in plain view under circumstances which authorized its immediate seizure without a warrant. Gainey v. State, 132 Ga.App. 870, 871(2), 209 S.E.2d 687 (1974).

The motion to suppress was not erroneously denied for any reason urged on appeal.

2. Appellant urges that it was error to introduce into evidence a spent bullet because no chain of custody had been established. "Distinct physical objects which can be identified upon mere observation require no custodial proof for their admission. [Cit.]" Ewald v. State, 156 Ga.App. 68, 69(2), 274 S.E.2d 31 (1980). A showing of an unbroken chain of custody is necessary only if the bullets which are offered for admission into evidence "are not distinct and recognizable objects that can be identified ..." Blair v. State, 245 Ga. 611, 613, 266 S.E.2d 214 (1980). Applying this rule in the instant case, the distinctive bullet was sufficiently identified as the one removed from the victim's house so that a further showing of the chain of custody was not a necessary prerequisite to its admission into evidence. Sims v. State, 243 Ga. 83, 85(3), 252 S.E.2d 501 (1979). There was no error.

3. Appellant urges that it was error to deny his motion for mistrial after the district attorney in his closing argument made a comment on appellant's failure to testify. The comment which appellant contends violated Code Ann. § 38-415 and his Fifth Amendment rights is as follows: "[Y]ou heard all of the evidence, and you have seen the witnesses. We asked where the other people were. Mickey Rooker, Greg Patton, and Keith Hammond, and whoever else didn't testify. I guess we could be here three days if we want to bring them all in. They are out here and they are available. [Defense counsel] could have called them if he had wanted you to hear what they had to say." While the motion for mistrial was denied, the trial court instructed the jury to disregard the remark and polled the jurors to insure that they had "cast it aside."

"The district attorney may not comment upon the defendant's right to testimonial silence. [Cits.] However, there is no error for the...