Scott v. State

680 S.E.2d 482

298 Ga. App. 376

SCOTT v. The STATE.

No. A09A0608.

Court of Appeals of Georgia.

June 16, 2009.

John D. Rasnick, for appellant.

Peter J. Skandalakis, Dist. Atty., Monique L. Fouque, Lynda S. Caldwell, John B. Cunningham, Asst. Dist. Attys., for appellee.

MILLER, Chief Judge.

Following a jury trial, Justin E. Scott was convicted of a single count of trafficking in cocaine (OCGA § 16-13-31). He filed an amended motion for new trial, which was denied. Scott now appeals, alleging that the trial court erred in (i) admitting evidence of contraband absent a proper chain of custody; (ii) failing to grant a motion for continuance, or in the alternative, motion for mistrial; and (iii) failing to grant his motion for directed verdict. Scott also contends that he received ineffective assistance of counsel. For the reasons that follow, we disagree and affirm.

Viewed in the light most favorable to the jury's verdict (Drammeh v. State, 285 Ga. App. 545, 546(1), 646 S.E.2d 742 (2007)), the record shows that on September 11, 2007, Officer John Starnes of the Hogansville Police Department observed a 2002 Ford Mustang cross over into the emergency lane on Interstate 85 south. Officer Starnes stopped the vehicle, driven by Scott, and asked Scott for his driver's license and registration. Hands shaking and stuttering, Scott replied that he did not have the requested items. The passenger, Janah Spooner, looked straight ahead and made no eye contact with Officer Starnes. When asked by the officer where they were coming from, Scott stated that they had just come from Atlanta after visiting a friend. Officer Starnes asked Scott to step out of the vehicle to its rear, called a backup unit, and patted him down. When the officer inquired whether there was anything illegal in the vehicle, Scott stated that he "does not do drugs any more."

Thereafter, Officer Raymond Gates arrived on the scene and stood with Scott while Officer Starnes went back to talk with Spooner, who was still seated in the car. When Officer Starnes asked Spooner where they were coming from, she stated that they had been "riding around" in Newnan and were returning to Auburn, Alabama. After determining that the vehicle belonged to Spooner, Officer Starnes asked for her consent to search the vehicle, and Spooner agreed. As Spooner got out of the vehicle, she asked whether she could smoke a cigarette. Officer Starnes stated that she could but asked her to leave her purse in the vehicle. Upon searching her purse for weapons, Officer Starnes found a clear bag containing white powder, and subsequently arrested Scott and Spooner for possession of cocaine.

After being transported to the police station and Mirandized by Officer Starnes, Spooner agreed to speak with him and gave a written statement, which indicated that Scott had been given a bag of cocaine by a black male at a Newnan Zaxby's. Scott, in turn, had given it to her just prior to being pulled over. At trial, Spooner repeated this rendition of events, adding that she had loaned Scott her vehicle thinking that they were going to Newnan to purchase marijuana.

In other testimony at trial, Jessica Revis indicated that while she had allowed Scott to use her car on the day in issue, she had refused to loan it to him for a trip to Newnan because she did not want her car used for an illegal purpose. She believed that he was going there to get some cocaine or "white lady."

1. Scott argues that the trial court erred in admitting the cocaine into evidence absent a proper chain of custody. We disagree.

We review the trial court's decision on the adequacy of the chain of custody evidence under an abuse of discretion standard. Cowins v. State, 290 Ga.App. 814, 816-817, 660 S.E.2d 865 (2008).

To show a chain of custody adequate to preserve the identity of fungible evidence, the [S]tate must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The [S]tate is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence.

(Citations omitted.) Smith v. State, 291 Ga. App. 353, 354-355(3), 662 S.E.2d 176 (2008).

Here, the State met its burden through the testimony of the officers who collected and transported the evidence, and the Georgia Bureau of Investigation (GBI) Crime Lab forensic chemist who tested the cocaine. This evidence adequately established a proper chain of custody. Smith, supra, 291 Ga. App. at 354-355(3), 662 S.E.2d 176.

Assuming arguendo that the trial court erred in allowing Officer Randy Mobley to complete the chain, his testimony was not required to authorize admission of the contraband. "[T]he fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible." (Citation and punctuation omitted.) Gassett v. State, 289 Ga.App. 792, 795(3), 658 S.E.2d 366 (2008) (although the State failed to present testimony from the officer who transported the evidence to the Crime Lab, the evidence adequately established a proper chain of custody).

2. Scott contends that the trial court erred in failing to grant a continuance, or in the alternative, a mistrial, based on the State's non-disclosure of a chain of custody witness prior to trial. We are not persuaded.

"The decision whether to grant or deny a motion for continuance lies within the trial court's sound discretion and this Court will not interfere absent abuse of that discretion." (Citations and punctuation omitted.) Gassett, supra, 289 Ga.App. at 794(2), 658 S.E.2d 366 (2008); OCGA § 17-8-22. We also review the "denial of a motion for mistrial under an abuse of discretion standard." (Footnote omitted.) Hamilton v. State, 293 Ga.App. 297, 300(3), 666 S.E.2d 630 (2008).

During its case-in-chief, the State determined that Officer Mobley was the witness who took the drugs to the crime lab, a fact not previously established by Officer Starnes, and so informed trial counsel and the trial court. The prosecutor indicated that the witness was available for trial counsel to interview, and expressed her desire to complete the chain of custody with Officer Mobley since the issue of who took the drugs to the crime lab was raised during the cross-examination of Officer Starnes. Trial counsel objected to Officer Mobley's testimony and the admission of a new crime lab report because the witness' name was not previously provided to him in the State's witness list, in violation of discovery rules. Trial counsel moved for a continuance, which the trial court denied, but allowed trial counsel an opportunity to talk with Officer Mobley before he testified. Scott also moved for a mistrial on the same grounds, but the trial court denied the motion.

Upon learning of a discovery violation, the trial court, in its discretion, may order the [S]tate to permit ... [an] interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from ... presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

(Punctuation and footnote omitted.) Arnold v. State, 253 Ga.App. 307, 310(2), 560 S.E.2d 33 (2002). Here, the trial court's remedy to allow trial counsel an opportunity to interview Officer Mobley before he testified was a reasonable one. Id. (absent prejudice and bad faith, "an interview of the witness is the remedy for failure to comply with the requirement that a witness must be identified prior to trial") (punctuation and footnote omitted). The State apparently did not know about Officer Mobley's involvement in the case prior to trial, as the issue was raised during cross-examination of Officer Starnes. Scott also presented no evidence of bad faith. Given the foregoing, the trial court did not abuse its discretion in denying Scott's motion for continuance, or in the alternative, for a mistrial. Gassett, supra, 289 Ga.App. at 794(2), 658 S.E.2d 366; Hamilton, supra, 293 Ga.App. at 300(3), 666 S.E.2d 630.

3. Scott argues that the trial court erred in denying his motion for directed verdict. We discern no error.

"The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense." (Footnote omitted.) Hamilton, supra, 293 Ga.App. at 300(2), 666 S.E.2d 630.

The evidence in this case included eyewitness testimony from Spooner that Scott possessed the cocaine after receiving it from a black male at Zaxby's and that he subsequently gave it to her to hide it. Revis also testified that Scott intended to get cocaine in Newnan. Further, Scott's nervousness at the scene presented circumstantial evidence of his knowledge of the drugs. Given the foregoing, the trial court did not err in denying Scott's motion for a directed verdict where, as here, the evidence was sufficient to enable a rational trier of fact to find that Scott was guilty, beyond a reasonable doubt, of trafficking in cocaine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

4. Finally, Scott variously challenges the effectiveness of trial counsel. "To prevail on this claim, [Scott] has the burden to demonstrate that trial counsel's performance was deficient and that, but for that deficient performance, it is reasonably probable that the result of the trial would have been different." (Citation and punctuation omitted.) Johnson v. State, 275 Ga.App. 21, 25(7), 619 S.E.2d 731 (2005).

(a) Scott claims that his trial counsel was ineffective in failing to file a motion to suppress. We do not agree.

"It is not deficient to fail to file a motion which is frivolous." (Citation and punctuation omitted.) Shorter v. State, 239 Ga.App. 625, 626(1), 521 S.E.2d 684 (1999)....