O'NEILL v. State

674 S.E.2d 302, 285 Ga. 125, 2009 Fulton County D. Rep. 765, 2009 Ga. LEXIS 73

• Court: Supreme Court of Georgia
• Decided: March 9, 2009
• Docket: S08G0708
• Status: Published

Opinions

HUNSTEIN, Presiding Justice.

We granted Brian O’Neill’s petition for writ of certiorari to review whether the Court of Appeals erred by finding the evidence was sufficient to uphold O’Neill’s conviction for possession of methamphetamine. Bryant v. State, 288 Ga. App. 863 (2) (655 SE2d 707) (2007). Because the Court of Appeals improperly relied on a statement by O’Neill’s co-conspirator that was not admissible against O’Neill pursuant to OCGA § 24-3-52 and the admissible evidence in the record failed to exclude every other reasonable hypothesis except the guilt of the accused, OCGA § 24-4-6, we reverse.

The law is well-established that “to warrant a conviction based on circumstantial evidence, the State must prove not only that the evidence is consistent with the hypothesis of guilt, but that every other reasonable hypothesis of nonguilt is excluded.” (Footnote omitted.) Carr v. State, 251 Ga. App. 117, 118 (1) (553 SE2d 674) (2001).

“‘When the circumstantial evidence supports more than one theory, one consistent with guilt and another with innocence, it does not exclude every other reasonable hypothesis except guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable doubt.’ [Cit.] ‘Circumstantial evidence is worth nothing in a criminal case, if the circumstances are reasonably consistent with the hypothesis of innocence, as well as the hypothesis of guilt.’ [Cit.]” [Cit.]

Johnson v. State, 159 Ga. App. 497, 499 (283 SE2d 711) (1981). The evidence in this case¹ established that law enforcement officers, acting on information obtained after a drug arrest, knocked on a motel room in Stapleton. Three men were in the room: Bryant, who answered the door; Horton, who had rented the room and was awake on the bed; and O’Neill, who was passed out on the bed. Bryant admitted the officers into the room. Because the first officer saw several knives, including one within a few feet of O’Neill’s hand, the officers asked Horton and O’Neill to get off the bed. When Horton complied, officers saw on the bed an ashtray containing two glass pipes of a type used for smoking methamphetamine. In response to seeing the pipes, the officers placed all three men in handcuffs and searched them. O’Neill was difficult to rouse and so “out of it” that he had to be “sat up” while the officers searched him. Nothing incriminating was found on O’Neill. However, after a packet with suspected methamphetamine in it was found in Horton’s front pocket, the officers searched other containers in the room. Boxes claimed by Bryant and Horton were found to contain methamphetamine and other illegal drugs. Additionally, a ring-sized jewelry box containing 2.8 grams of methamphetamine was found “close to [O’Neill] . . . between where [O’Neill and Horton] were laying [sic] on the bed.”

In regard to the charge against O’Neill, the Court of Appeals upheld his conviction for possession of methamphetamine relying on three evidentiary items: O’Neill’s unconscious condition on the bed in the motel room; his proximity to the jewelry box and glass pipes on the bed; and a statement Bryant or Horton made to a law enforcement officer² “attribut[ing] O’Neill’s unconscious state to the fact that he was having marital problems and had been drinking or smoking the entire night.” Bryant v. State, supra, 288 Ga. App. at 868 (2). However, for the reasons that follow, we find that the last item was inadmissible as evidence against O’Neill and the remaining items failed to exclude the reasonable hypothesis that O’Neill had no knowledge of and did not possess the methamphetamine in the jewelry box, inasmuch as his physical condition was due to excessive alcohol consumption or other legal means and the methamphetamine in the jewelry box and the pipes was possessed and smoked by Bryant and/or Horton.

Turning first to the “drinking or smoking” statement, OCGA § 24-3-52 expressly provides that “[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” “[A] conspirator’s post-arrest statement to police incriminating a co-conspirator terminates the conspiracy, rendering the statement admissible only against the declarant.” (Footnotes omitted.) Fetty v. State, 268 Ga. 365, 371 (7) (489 SE2d 813) (1997). Accord Brooks v. State, 281 Ga. 14 (2) (635 SE2d 723) (2006), Crowder v. State, 237 Ga. 141, 152 (227 SE2d 230) (1976) (incriminating statement made to police ends conspiracy). The evidence establishes that the officers took Horton and Bryant into custody upon spotting the glass pipes on the bed, at a time when the officers did not know whether O’Neill was actually sleeping or just “playing possum.” The “drinking or smoking” statement to the officers came as the officers struggled to search and handcuff the unresponsive O’Neill, i.e., after the defendants had been taken into custody.³ Thus, whether the incriminating statement was made by Horton or Bryant, it was made after the conspiracy was terminated and, pursuant to OCGA § 24-3-52, was admissible only against the declarant. The Court of Appeals erred by considering this statement as evidence against O’Neill in assessing the sufficiency of the evidence to support his conviction.

Moreover, even if consideration of this statement were not precluded by OCGA § 24-3-52, the statement positively supports a reasonable hypothesis other than O’Neill’s guilt. The officer’s testimony is that Bryant or Horton claimed that O’Neill “had been either drinking or smoking the entire night.” The use of the disjunctive “or” provides a reasonable alternative to explain O’Neill’s condition so as to indicate that he may have passed out as a result of “drinking . . . the entire night.”

The Court of Appeals also relied upon evidence of O’Neill’s condition even though no evidence was introduced that his unconscious state was the result of smoking methamphetamine.⁴ The State introduced no evidence of any laboratory test results that may have been conducted to prove the presence of methamphetamine in O’Neill’s body. No expert testimony was introduced regarding the effects of methamphetamine and none of the law enforcement officers testified that O’Neill’s condition appeared consistent with that of a person under the influence of methamphetamine. Compare, e.g., Allison v. State, 293 Ga. App. 447 (667 SE2d 225) (2008) (upholding officer’s search of defendant whose behavior was consistent with person under influence of methamphetamine); Stewart v. State, 291 Ga. App. 846 (663 SE2d 278) (2008) (officers testified defendant appeared to be under influence of methamphetamine). Nor was any evidence introduced that excluded the possibility that O’Neill was passed out on the bed for a reason unrelated to methamphetamine, such as from an excessive consumption of alcohol. Not one of the three officers and two co-defendants who testified was asked about the presence or absence of any alcohol containers in the room or the presence or absence of any smell of alcohol on O’Neill. Under these circumstances, the fact that O’Neill was “passed out” on the bed could not establish that he had smoked methamphetamine as this fact did not exclude the reasonable possibility that O’Neill’s condition resulted from alcohol intoxication, exhaustion or the ingestion of some legal substance, rather than methamphetamine.

O’Neill’s conviction cannot be sustained by his proximity to the jewelry box containing methamphetamine and the glass pipes used for smoking the drug⁵ found on the bed between where he and Horton were lying. As to the jewelry box, the record reflects the complete absence of evidence that O’Neill made any claim to or exerted any dominion or control over the box. See Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988) (constructive possession shown where person has “‘both the power and the intention at a given time to exercise dominion or control over a thing’ ”). It is well established that a finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity. Mitchell v. State, 268 Ga. 592 (492 SE2d 204) (1997). The three officers who testified were never questioned whether they had asked Horton and Bryant about their possible ownership of the jewelry box. Although both Horton and Bryant testified and variously claimed ownership of other containers in the room, neither defense counsel on direct nor the prosecutor during his cross-examination asked either of them about the jewelry box. In the absence of any denial of ownership, the evidence did not exclude the reasonable hypothesis that the jewelry box belonged to either Bryant or Horton, who had equal access to it and who, unlike O’Neill, were found with methamphetamine either on their person or in their belongings.

As to the two glass pipes, the State introduced no evidence of any laboratory test results that may have been conducted to prove O’Neill used either of the pipes or, as noted earlier, to prove the presence of methamphetamine in his body. Nor was there any evidence regarding where Bryant had been located in the motel room in relation to the glass pipes before he went to answer the door to the officers’ knock so as to indicate he lacked equal access to the pipes. Given that there were three men in the room and only two glass pipes, the evidence adduced failed to exclude the reasonable possibility that only Bryant and Horton smoked the pipes.

Davis v. State, 270 Ga. App. 777 (1) (607 SE2d 924) (2004), cited by the Court of Appeals, does not support its affirmance of O’Neill’s conviction based on his “joint possession” of the methamphetamine with Horton and Bryant because, in that case, the persons convicted were all conscious when police officers found them in possession of contraband. There may exist factual situations where possession of contraband can be established notwithstanding the defendant’s unconscious or asleep condition at the time the contraband was found by police. E.g., Combs v. State, 271 Ga. App. 276 (609 SE2d 198) (2005) (conviction for possession of methamphetamine upheld where defendant found unconscious in driver’s seat of parked vehicle with drug paraphernalia in lap); United States v. Tyler, 2006 U. S. Dist. LEXIS 5348 (M.D. Fla., February 13, 2006) (although defendant was unconscious when police found him in car with cocaine and firearm, fact that defendant’s car was running, transmission was in drive and doors locked supported conclusion that defendant had recently and consciously transported firearm and cocaine so as to sustain convictions). See also Kirby v. State, 275 Ga. App. 216 (620 SE2d 459) (2005) (although defendant asleep when methamphetamine was being manufactured, evidence that defendant leased the home, that manufacturing process created strong and immediately apparent chemical smell and that defendant ingested meth was sufficient to uphold conviction for possession of methamphetamine). In the instant case, however, where there is only O’Neill’s spatial proximity to the contraband, with nothing more to show his participation in any illegal act, and where there are two co-defendants who had equal access to the contraband and equal opportunity to possess it, the proved facts failed to exclude every other reasonable hypothesis save that of O’Neill’s guilt. OCGA § 24-4-6.

Accordingly, we reverse the Court of Appeals’ affirmance of O’Neill’s conviction for possession of methamphetamine.

Judgment reversed.

All the Justices concur, except Carley, Thompson and Hines, JJ., who dissent.

1 The evidence, as adduced at the bench trial in this case, consisted of three stipulations by counsel: (1) to venue; (2) to the admissibility of a written crime laboratory report in lieu of the crime lab employee’s live testimony concerning the identification of the alleged controlled substances; and (3) to the trial court’s use of the transcript from the hearing on defendants’ motion to suppress, which contained the testimony of the three law enforcement officers involved in the arrests and the two co-defendants, Bryant and Horton, plus documents regarding the motel room registration.

2 The Court of Appeals incorrectly identified the witness who gave this testimony as Officer Lemacks. The record establishes it was actually Officer Marlow who so testified.

3 The transcript reveals the following testimony by the officer:

either Mr. Bryant or Mr. Horton, we were commenting on the fact that Mr. O’Neill was so incapacitated. We asked [Bryant or Horton] what the problem was and if I’m not mistaken [O’Neill] was separated from his wife or something had happened in his personal life and he had been either drinking or smoking the entire night was the reason he was in the condition he was in.

4 The trial judge, at the hearing on the motion for new trial, also jumped to the same conclusion, as indicated when he stated that it was “obvious to me they were all in there smoking meth and [O’Neill] smoked until he passed out.”

5 Crime laboratory test results, admitted by stipulation, established the presence of methamphetamine residue in at least one of the pipes.