Nelson v. State

399 S.E.2d 748, 197 Ga. App. 898, 1990 Ga. App. LEXIS 1505

• Court: Court of Appeals of Georgia
• Decided: December 5, 1990
• Docket: A90A0870
• Status: Published

Opinions

Pope, Judge.

Defendant appeals his conviction of possession of cocaine, OCGA § 16-13-30 (a), and possession of firearms during the commission of a crime involving possession of a controlled substance, cocaine, OCGA § 16-11-106 (b) (4). Defendant contends the evidence was insufficient to sustain the verdict and further argues the trial court erred in permitting the search warrant and supporting affidavit to go out with the jury.

1. Sufficiency of evidence.

After having a confidential informant make purchases from an upstairs apartment at 1955 Dunlap Avenue in East Point, the police obtained a warrant to search that address and an individual named “New York.” In order to execute the warrant, two officers broke into the apartment after knocking on the door and receiving no response. Defendant was seated in the living room in a chair on the arm of which was a loaded nine millimeter “Cobray machine pistol.” Attached to it was a 50-round clip. On a table within two feet “or less” of the chair was a loaded pistol-grip 12 gauge shotgun, crack cocaine and $780 in various denominations. Next to the chair was a loaded rifle. Ammunition, other weapons, drugs and drug paraphernalia were found scattered throughout the apartment. Most of the drugs were on the kitchen counter and in the refrigerator.

The evidence showed the apartment, was leased to a black man with a dark complexion from New York. The officer who obtained the search warrant testified the confidential informant described the suspect known as “New York” as having a light complexion. Defendant resided at another address but was the only one in the apartment when the raid occurred. Defendant argues that because he did not live at the apartment his mere presence was insufficient to warrant his convictions. But in addition to his presence, he had within arm’s reach contraband, the money and weapons. See OCGA § 16-11-106 (b) (4); McKelvey v. State, 185 Ga. App. 855, 857 (366 SE2d 231) (1988) [non-precedential]; Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985). Defendant was from New York and his wallet contained a photograph inscribed on the back “to New York.” During the search another individual sought entrance to the apartment in order to purchase crack.

A rational trier of fact was authorized to find defendant guilty of the two crimes beyond a reasonable doubt. Olsen v. State, 191 Ga. App. 763, 766 (4) (382 SE2d 715) (1989); Lewis v. State, 186 Ga. App. 349, 350 (1a) (367 SE2d 123) (1988).

2. Admissibility of evidence.

Over defendant’s objection, the search warrant and its accompanying affidavit and return were admitted into evidence. They contained a physical description of the suspect known as “New York.” Defendant argued these documents contained sworn testimony of a witness who was on the stand (the detective who obtained the search warrant) and to allow it to go out with the jury would be “like putting the witness in the jury room.”

Documents that substitute for testimony may not be taken into the jury room. Johnson v. State, 244 Ga. 295, 296 (3) (260 SE2d 23) (1979). “The reason given for not allowing them to be delivered to the jury is, that the testimony which they contain, if read and reread by the jury, would have an unfair advantage over oral testimony of the other side, by speaking to the jury more than once.” Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1904). Although we do not find a Georgia case involving a search warrant, in Cain v. State, 113 (5) (148 SE2d 508) (1966), this court held an arrest warrant and its affidavit may not go out to the jury. See also Spence v. State, 96 Ga. App. 19, 20 (3) (99 SE2d 309) (1957). The trial court erred in permitting the search warrant and affidavit to be sent into the jury room as an additional witness. The ruling of the trial court is not reversible, however, unless it was harmful to defendant.

In addition to the testimony of the detective who signed the search warrant affidavit, the evidence was overwhelming that defendant was the suspect known as “New York” and was in possession of the contraband and weapons, as set forth in Division 1. Thus, it is highly probable that the objectionable evidence did not contribute to the judgment and therefore the error does not require reversal. See Heard v. State, 169 Ga. App. 609 (314 SE2d 451) (1984).

Judgment affirmed.

Corley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., and Birdsong, J., concur. Sognier, Beasley and Cooper, JJ., dissent.