Edwards v. State

480 S.E.2d 246, 224 Ga. App. 332, 97 Fulton County D. Rep. 100, 1997 Ga. App. LEXIS 8
CourtCourt of Appeals of Georgia
DecidedJanuary 7, 1997
DocketA96A1721
StatusPublished
Cited by17 cases

This text of 480 S.E.2d 246 (Edwards 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
Edwards v. State, 480 S.E.2d 246, 224 Ga. App. 332, 97 Fulton County D. Rep. 100, 1997 Ga. App. LEXIS 8 (Ga. Ct. App. 1997).

Opinion

Ruffin, Judge.

A jury found Oliver Edwards guilty of violating the Georgia Controlled Substances Act by possessing cocaine with intent to distribute. Edwards appeals his conviction, and we affirm.

Viewed in a light most favorable to uphold the verdict, the evidence showed that Officer Van Johnson observed Edwards operating a motorcycle on the sidewalks and in a playground area of Grady Homes. Edwards was driving “very fast” directly in front of apartment doors. Officer Van Johnson stopped Edwards and asked for his license and proof of insurance. When Van Johnson discovered that Edwards did not possess a proper class of license to operate a motorcycle, he placed Edwards under arrest for reckless driving and the license violation. After being arrested, Edwards told Officer Van Johnson that his insurance card was inside the small glove box on the motorcycle. Officer Van Johnson opened the glove box and discovered a medicine bottle containing 29 small packages of crack cocaine. Edwards testified he had recently purchased the motorcycle and was not aware of the pill bottle’s presence inside the glove box.

1. In his first enumeration of error, Edwards contends the trial court erred in failing to grant his motion for continuance. Prior to trial, Edwards moved for a continuance so that he could attempt to locate a material defense witness. According to Edwards, the witness was the individual who sold him the motorcycle, and he could probably locate the witness by the next trial calendar. The court denied the motion for continuance.

Pursuant to OCGA § 17-8-25, “[i]n all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by *333 the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.” “Each of the requirements of OCGA § 17-8-25 must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon an absent witness. [Cits.]” Vaughan v. State, 210 Ga. App. 381 (1) (436 SE2d 19) (1993).

In the present case, Edwards failed to meet each of the requirements of OCGA § 17-8-25. Edwards failed to show the witness was subpoenaed, and he failed to show the witness resided within 100 miles of the place of trial. Accordingly, we cannot find that the trial court erred in denying Edwards’ motion for continuance.

2. In his second enumeration of error, Edwards asserts the trial court erred by failing to give a charge on circumstantial evidence. While Edwards correctly points out that it is error for the trial court to fail to give a charge on circumstantial evidence, even absent a request, where the case against the defendant is based entirely on circumstantial evidence (see Jones v. State, 243 Ga. 584, 585 (1) (255 SE2d 702) (1979)), the present case was not based entirely on circumstantial evidence. “Because [Edwards] did not request a charge on circumstantial evidence, it was not incumbent upon the trial court to charge on the law of circumstantial evidence if the State’s case rested on both direct and circumstantial evidence. [Cit.]” Stubbs v. State, 265 Ga. 883, 884 (2) (463 SE2d 686) (1995).

According to Officer Van Johnson, Edwards was alone on the motorcycle, and the individuálly wrapped pieces of cocaine were located in the motorcycle’s glove box. In addition, Edwards admitted he was the owner of the motorcycle. In Stubbs, the Supreme Court held that the officer’s testimony that a metal bar was located in the defendant’s vehicle was direct evidence of the defendant’s possession of the bar. Id. at 886-887. This is true even though the defendant claimed that a man he did not know threw some items in his car and ran off. Id. Likewise, in the present case, Officer Van Johnson’s testimony that cocaine was located in the glove box of Edwards’ motorcycle is direct evidence of Edwards’ possession of the cocaine. This is true notwithstanding the fact that Edwards claimed he had recently purchased the motorcycle and did not know about the cocaine.

Since direct evidence of Edwards’ guilt was presented, the trial court was not obligated to give the unrequested charge on circumstantial evidence. Id.

3. In his third enumeration of error, Edwards contends he was *334 denied his right to effective assistance of counsel. Specifically, Edwards argues his trial counsel was ineffective because he (1) failed to file any pretrial motions objecting to prejudicial and inadmissible evidence illegally seized from him and (2) failed to request a jury charge on circumstantial evidence. After a hearing in which trial counsel testified, the court determined that trial counsel was effective. We agree.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makés both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). In addition, the trial court’s determination that a defendant has not been denied effective assistance of trial counsel will be affirmed on appeal unless that determination is clearly erroneous. Jones v. State, 217 Ga. App. 722, 723 (2) (458 SE2d 894) (1995).

(a) Edwards has failed to show trial counsel was ineffective because he did not file any pretrial motions objecting to the cocaine’s admissibility. “[I]t is clearly settled that the mere failure to file a suppression motion does not constitute per se ineffective assistance of counsel.” (Citation and punctuation omitted.) Avans v. State, 207 Ga. App. 329, 331 (3) (427 SE2d 826) (1993). “We will not presume a deficiency resulted merely from counsel’s failure to file standard pretrial motions. For example, it is not deficient to fail to file a motion which is frivolous. [Cits.]” Williams v. State, 219 Ga. App. 167, 168-169 (2) (464 SE2d 404) (1995). Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, Edwards’ burden “is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed.

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Bluebook (online)
480 S.E.2d 246, 224 Ga. App. 332, 97 Fulton County D. Rep. 100, 1997 Ga. App. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-state-gactapp-1997.