Lockwood v. The State., 184 Ga. App. 262, 361 S.E.2d 195 (1987)
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Summary
Judgment affirmed. McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1, 2, 3, 5, and 6 and in the judgment.
Summary
Judgment affirmed. McMurray, P. J., concurs. Beasley, J., concurs in Divisions 1, 2, 3, 5, and 6 and in the judgment.
Text
David L. Lomenick, Jr., District Attorney, Amy Abernathy, David J. Dunn, James D. Franklin, McCracken K. Poston, Jr., Assistant District Attorneys, for appellee.John P. Pieri, John L. Taylor, Jr., John L. Schaub, for appellant.
Appellant was convicted of violating the Georgia Controlled Substances Act by trafficking in cocaine, speeding and improper lane change, and he appeals.
1. Appellant contends the trial court erred by denying his motion to suppress evidence. At a hearing on the motion Mickey Little, a Georgia State Trooper, testified that about 8:30 p.m., July 24, 1986, he stopped appellant on Interstate 75 after observing appellant make two improper lane changes and clocking appellant driving over 65 miles per hour. Little also verified the speed on his radar. After Little checked appellant's driver's license and vehicle registration, and learning that appellant had been in Orlando, Florida for about two weeks, Little went to appellant's vehicle to check the VIN and noticed for the first time that Curtis Phillips was in the car. Little was informed by Phillips that he and appellant had been in Kissimmee, Florida, for three days and were returning to New York. While talking to Phillips, Little observed that there were no seat belts visible in the back seat and the seat was not lodged firmly against the back as it should be. Because of the discrepancy between Phillips' and appellant's statements as to where they had been and for how long, and the fact that the back seat appeared to have been moved, Little returned to the rear of the car, told appellant of his (Little's) suspicions, and asked for permission to search the car. Appellant consented orally, and Little then prepared a written consent to search form which appellant read, stated he understood, and signed. Little testified that had appellant not consented to the search, Little would have issued a warning or a traffic ticket, and appellant would have been free to depart.
Appellant argues that Little had no "reasonable suspicion" to investigate possible drug activity and the alleged traffic violations merely provided a pretext to stop appellant and search his car. We do not agree. Although Phillips testified at the suppression hearing that appellant was speeding and changed lanes only because an "18-wheeler" that Little had stopped was obstructing one lane of the interstate highway, Little testified that when he first observed appellant's vehicle make improper lane changes the vehicle he had already stopped was completely off the travel lanes of the interstate highway. The trial court's decision on questions of fact and credibility of witnesses at a suppression hearing must be accepted unless clearly erroneous. Parker v. State,
As to the personnel records of Little, this court has held that "[t]he [police] officer's personnel file can have no relevance to the guilt or innocence of the defendant in this case and the trial judge was absolutely correct to deny appellant access to it . . ." Jinks v. State,
In regard to the records of arrests for speeding and improper lane changes made by Little which resulted in seizure of narcotics, a notice to produce cannot be used in a criminal case to require production of reports, memoranda and documents in the files of law enforcement officers. Wilson v. State,
3. Appellant alleges the trial court erred by charging the jury that it was authorized to convict appellant of trafficking in cocaine based on constructive possession of the cocaine. He argues that OCGA
4. Appellant next contends error in the trial court's failure to give his requested instructions on the State's burden of proof, equal access, and actual versus constructive possession. In regard to the requested charge on the burden of proof, appellant made no objection to the court's charge on the burden of proof when asked by the court for exceptions or objections to the charge of the court. Thus, he has waived his right to enumerate error in that charge on appeal. Henry v. State,
In regard to the court's failure to give appellant's requested charge on equal access," the evidence did not support such a charge. Curtis Phillips, a co-defendant and the passenger in appellant's car, testified that he and appellant were together the entire time they were in Florida except for a two-hour period when appellant left in the car, stating that he was going to visit his sick grandfather. Phillips also testified that while they were driving back from Fort Lauderdale, no one had an opportunity to put anything in the back seat.
The equal access rule provides that merely finding contraband on premises occupied by a defendant will not support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Gee v. State,
5. Appellant claims the evidence is not sufficient to support the verdict. As stated earlier, appellant was stopped for speeding and making improper lane changes. After being stopped he consented to a search of his vehicle, which resulted in finding four packages wrapped in brown tape hidden under the rear seat. The packages were taken to the State Crime Laboratory where they were opened and found to contain a white powdery substance. Analysis showed that the powdery substance was 80 percent pure cocaine, with a total weight of almost nine pounds (4064 grams). Appellant was charged with trafficking in cocaine by actually possessing more than 400 grams of cocaine; 80 percent of 4064 grams is over 3200 grams of pure cocaine found in appellant's possessIon.
As to the traffic offenses, Little testified that appellant was clocked at 65 miles per hour and this speed was confirmed by radar. Little also testified that appellant made two improper lane changes. Although Little's testimony was contradicted by the testimony of Phillips, the weight of the evidence and credibility of witnesses are questions for the jury. Bryant v. State,
6. Lastly, appellant complains of the trial court's failure to take proper corrective action after the prosecutor's "improper, inflammatory" closing argument, and in denying appellant's motion for a mistrial based on such improper argument. Appellant objected to certain remarks of the prosecutor in closing argument, and those objections were overruled. In one instance the court gave curative instructions to the jury, but appellant made no objection to the court's instruction. Further, appellant did not request that the court rebuke the prosecuting attorney or take other corrective action, and this court cannot consider issues raised for the first time on appeal. Tolbert v. State,
1987
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