Acierno v. State

337 S.E.2d 39, 176 Ga. App. 600, 1985 Ga. App. LEXIS 2929

• Court: Court of Appeals of Georgia
• Decided: October 8, 1985
• Docket: 70951
• Status: Published

Opinions

Banke, Chief Judge.

The appellant, Veronica Acierno, was jointly tried with Lee Pip-kins on a 4-count indictment charging them with unlawful possession of the drugs diazepam, cocaine, dyclonine, and lidocaine, with intent to distribute. Pipkins moved for and was granted a directed verdict of acquittal at the close of the evidence, while the appellant was convicted on all four counts. This appeal followed.

At about 11:00 p.m. on the night of January 2, 1984, two Gwinnett County police officers, responding to a report of a disturbance at an establishment called Bennigan’s on Jimmy Carter Boulevard, arrived at the establishment and confronted one Jerry Harris, who appeared to have been in a fight. Harris testified at trial that he had been drinking and watching football at Bennigan’s since 1:30 p.m. that afternoon and had made the acquaintance of another patron who asked him if he “would like to go over to a girl’s apartment.” Harris accepted the invitation and, upon his arrival at the apartment, was introduced to a woman named Veronica. Harris testified that he saw this woman go to a closet door, unlock it with a set of keys, and return with some cocaine on a small mirror. Harris’ acquaintance from Bennigan’s offered to pay for the cocaine if Harris would pay him back when they returned to Bennigan’s, and Harris agreed. Harris testified that he inhaled the cocaine and also accepted two white pills offered to him which were marked “Lemmon 714.” Upon their return to Bennigan’s, Harris told his companion he had no money to give him for the drugs, thereby prompting the disturbance which led to the summoning of the police.

Based on information provided by Harris, the police obtained a warrant for the search of the appellant’s apartment, and upon executing the warrant, seized from a locked utility closet the drugs which were the subject of the indictment. Also seized from the closet at this time were an assortment of small amber vials, plastic baggies, straws, razorblades, some cash, the appellant’s passport, and a ledger book containing what could reasonably be interpreted as a record of drug sales to various individuals. The appellant and co-defendant Pipkins were both present at the apartment when the search was conducted and were both arrested at this time. However, no contraband was found on the immediate person of either of them. Held:

1. The appellant contends that the state’s attorney improperly disclosed to the jury during his opening statement that she had exercised her right to remain silent at the time of her arrest. She further contends that during closing argument improper reference was made to her failure to take the witness stand on her own behalf. However, in neither instance did defense counsel move for a mistrial or request that any corrective instructions be given to the jury. Accordingly, the statements in question establish no ground for reversal. See generally Keen v. State, 164 Ga. App. 81, 88 (296 SE2d 91) (1982); Roberson v. State, 157 Ga. App. 60 (2) (276 SE2d 114) (1981).

2. The appellant contends the court further erred in allowing the state to argue certain facts allegedly not in evidence which had the effect of impugning her character before the jury. Although appellant’s counsel did interpose an objection to the offending comments in this instance, he again failed to move for a mistrial or request curative instructions. Accordingly, this enumeration of error also establishes no ground for reversal. See Keen v. State, supra; Roberson v. State, supra.

3. The appellant contends she was denied effective legal representation due to a conflict which developed during the trial between her retained counsel’s obligations to her and his obligations to her co-defendant, Pipkins, whom he was also representing. As previously indicated, the trial court granted a directed verdict to Pipkins based on the absence of any evidence connecting him with the drugs found in the utility closet. The appellant contends on appeal that it may have been in her interest to testify against Pipkins on this issue but that she may have been prevented from doing so because of her attorney’s joint representation of Pipkins. We find this argument to be without merit. The appellant’s connection with and control over the drugs was established by overwhelming evidence showing that she was the lessee of the apartment, that the utility closet containing the drugs also contained personal papers belonging to her, and that she was in possession of a key to the closet. While it is conceivable that, if she had chosen to testify, she might have been able to incriminate Pipkins by establishing that he was in joint possession of the drugs with her, it does not appear likely, under these circumstances, that such testimony would have in any way tended to exculpate her.

Where a co-defendant does not object to multiple representation until after trial, a conflict of interest will not be presumed; and in order to establish a sixth amendment violation, it must be shown that an actual conflict existed which adversely affected the attorney’s performance. Cuyler v. Sullivan, 446 U. S. 335, 348-349 (100 SC 1708, 64 LE2d 333, 346-347) (1980). “[T]o justify separate counsel, the conflict may not be merely theoretical or speculative, but must have some substantial basis in fact.” Davis v. State, 129 Ga. App. 796, 799 (201 SE2d 345) (1973). No such substantial basis in fact was established in the present case, and we accordingly find this enumeration of error to be without merit.

4. The appellant contends that the court erred in refusing to charge that mere presence at the scene of a crime is not sufficient to support a conviction. However, it appears from an examination of the record that such a charge was in fact given. This enumeration of error is accordingly without merit.

Judgment affirmed.

McMurray, P. J., concurs. Benham, J., concurs specially.