Bowen v. State

417 S.E.2d 18, 203 Ga. App. 371, 38 Fulton County D. Rep. 24, 1992 Ga. App. LEXIS 423
CourtCourt of Appeals of Georgia
DecidedFebruary 10, 1992
DocketA91A1898
StatusPublished
Cited by16 cases

This text of 417 S.E.2d 18 (Bowen v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowen v. State, 417 S.E.2d 18, 203 Ga. App. 371, 38 Fulton County D. Rep. 24, 1992 Ga. App. LEXIS 423 (Ga. Ct. App. 1992).

Opinion

Cooper, Judge.

Appellant was convicted of possession of cocaine with intent to distribute and appeals from the denial of his motion for new trial.

A county deputy, who had a warrant for appellant’s arrest for battery, located appellant at an apartment complex. Appellant was a passenger in a vehicle that was leaving the complex, and the deputy flagged the vehicle to a stop. The deputy walked to the passenger side of the car and asked appellant to get out. As appellant exited the car, he took a plastic bag and put it on the console of the car. The driver of the car covered the bag with his hand but upon request of the deputy, gave the bag to the deputy who determined that it contained several smaller bags of suspected cocaine. The substance in the bags tested positive as cocaine. The deputy testified that he took appellant to the sheriff’s department and read appellant his rights, after which appellant told the deputy that the cocaine belonged to appellant. The deputy testified that he did not record or write down appellant’s statement because he had known appellant all of appellant’s life and they had a very short conversation because they were going to “shoot straight” with each other. The driver of the vehicle testified that as appellant exited the car to talk to the deputy, appellant threw the bag back into the car, told the driver to hold onto it for him, and the driver then attempted to cover the bag with his hand. The driver stated that the cocaine was not his.

1. In his first enumeration of error, appellant argues the general grounds, emphasizing equal access of the cocaine by the driver of the vehicle. The case against appellant includes the testimony of the deputy who observed appellant in actual possession of the cocaine, appellant’s confession and the statement of the driver. Based on that evidence, a rational trier of fact could have found appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Appellant’s reliance on the equal access rule as a defense is misplaced. “The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had re *372 cently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle. [Cit.]” Wright v. State, 194 Ga. App. 739 (2) (391 SE2d 791) (1990). “ ‘It is simply a defense available to the accused to whom a presumption of possession flows. Because [in the case sub judice] the (S)tate did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.’ [Cit.]” Akins v. State, 184 Ga. App. 441 (1) (361 SE2d 707) (1987). Here, the State did not rely on a presumption to prove appellant’s guilt; the State presented direct evidence of such, and the equal access rule was not implicated. Nor did the court err in failing to charge on equal access as contended in appellant’s eighth enumeration of error.

2. In the second enumeration of error, appellant contends the trial court erred in allowing appellant to be cross-examined at the Jackson-Denno hearing about statements made by defense counsel to the prosecutor during plea negotiations. The trial court conducted a Jackson-Denno hearing outside the presence of the jury to determine the voluntariness of appellant’s confession to the deputy. The deputy testified that he read appellant his rights; that appellant made the confession; and that the deputy made no threats or promises of reward. Appellant testified that he did not tell the deputy that the cocaine was his; , that he denied the cocaine belonged to him; and that the deputy did not read him his rights at the police station. The prosecutor then asked appellant whether he had told anyone, and specifically whether he had told his attorney, that he was bringing the cocaine to his wife. The prosecutor revealed to the court that, during plea negotiations, defense counsel said that appellant had stated that he was bringing the cocaine to his wife. In response to objections by defense counsel, the prosecutor stated that the questioning was an attempt to test the credibility of appellant because the prosecutor was concerned that appellant was committing perjury on the stand. The trial court allowed the questioning to test appellant’s credibility. After a review of the Jackson-Denno hearing, we conclude that the line of questioning pursued by the State was not relevant to the issues of whether appellant did or did not make the confession to the police and whether that confession was voluntarily made. Appellant was not questioned on whether he talked to his attorney about what he said to the deputy, and any statement made to his attorney about his ownership of the drugs does not reflect on, and is not relevant to, whether he made a voluntary confession to the deputy. Consequently, the questioning went beyond the scope of the Jackson-Denno hearing. Nevertheless, we do not conclude that the irrelevant line of questioning rendered the court’s decision to admit the confession clearly erro *373 neous. “Findings by the trial court, as to factual determinations and credibility relating to the admissibility of a confession, will be upheld on appeal unless clearly erroneous. [Cit.] Existence of conflicting evidence at a Jackson-Denno hearing . . . does not automatically cause the trial court’s findings to be clearly erroneous that the confession was freely and voluntarily given. [Cit.] In determining whether the trial court’s ruling . . . was clearly erroneous, an appellate court may look to all the evidence contained in the record. [Cit.]” Gadson v. State, 197 Ga. App. 315, 316 (1) (398 SE2d 409) (1990). Considering the officer’s testimony at the hearing, the court’s credibility determination was not clearly erroneous. This enumeration is without merit.

3. Appellant next contends that an error occurred when the court and the prosecutor threatened appellant with a perjury indictment in order to coerce him to forfeit his right to testify. When the State rested, defense counsel told the court that he had advised appellant not to take the stand and suggested that the court verify with appellant that he was declining to testify voluntarily. The prosecutor then indicated that, if appellant testified, the State would view his testimony toward the possibility of a perjury investigation. The court then proceeded to question appellant in detail regarding his decision not to testify, eliciting from appellant that he was voluntarily making this decision and he did not want to testify because he had been under a lot of strain. Neither appellant nor his counsel objected at trial that appellant was being coerced to forfeit his right to testify. Appellant only indicated that he was knowingly making this decision and was making it voluntarily. “ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)’ [Cit.]” Hight v. State, 195 Ga. App. 727 (6) (394 SE2d 636) (1990). Moreover, the record does not confirm appellant’s characterization of the prosecutor’s statements of intent as threats. See

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Bluebook (online)
417 S.E.2d 18, 203 Ga. App. 371, 38 Fulton County D. Rep. 24, 1992 Ga. App. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowen-v-state-gactapp-1992.