Zackery v. State

586 S.E.2d 346, 262 Ga. App. 646, 2003 Fulton County D. Rep. 2456, 2003 Ga. App. LEXIS 974
CourtCourt of Appeals of Georgia
DecidedAugust 4, 2003
DocketA03A1313
StatusPublished
Cited by6 cases

This text of 586 S.E.2d 346 (Zackery 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
Zackery v. State, 586 S.E.2d 346, 262 Ga. App. 646, 2003 Fulton County D. Rep. 2456, 2003 Ga. App. LEXIS 974 (Ga. Ct. App. 2003).

Opinion

Mikell, Judge.

A jury convicted Darrell Zackery of possession of cocaine. The trial court denied his motion for new trial. Zackery appeals, contending that there was insufficient evidence to support his conviction, and that the trial court erred in admitting police officers’ testimony regarding Zackery’s incriminating exclamation. We disagree and affirm.

[647]*647On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the evidence shows that on February 1, 2000, Officers Hyatt Hall, Duncan Matthews, and Jerry Galloway of the Macon Police Department executed a search warrant at 444 Fort Hill Street, Macon, Georgia. When the officers entered the apartment they found Zackery and Kwashelda Thomas inside. During the search officers recovered a Georgia driver’s license and a Georgia identification card issued to Zackery. Both documents listed 444 Fort Hill Street as his address, but Zackery and Thomas testified that he did not live there.

At trial, Zackery and Thomas testified that officers entered the apartment and handcuffed them. Officers then searched the living room and bedrooms and recovered a box of nine millimeter bullets, a Ruger nine millimeter pistol, and police scanners. During a search of the bathroom, Officers Hall and Matthews recovered a single piece of cocaine that had fallen behind a bathroom cabinet. After more searching, Officer Hall testified:

I saw a jacket on the back of the door. The door was opened. Right at the end of the search, I saw the jacket and I searched it. I was fixing to go in the pocket and Mr. Zachery [sic] hung his head down and said, ‘You’ve got me.” And I reached into the pocket and pulled out the crack.

On cross-examination, Officer Hall testified as follows:

Q: I mean, is it at least possible that — what is it that you say exactly he said? I’m talking about Darrell Zachery [sic].
A: In the bathroom?
Q: Well, the thing about he hung his head and said — .
A: He said, ‘You’ve got me.”
Q: Is it possible that what you heard was, “What have you got,” or “What did you say you got?” Is it possible that you misunderstood him in some significant way?
A: No sir. This has nothing to do with the time period of us making entry. This was an hour, hour and a half later. Everything was calm at that time.

[648]*648When cross-examined further, Officer Hall testified:

Q: But you are not sure what else was said or what else was doing [sic] on, but you’re sure he said “you’ve got me”?
A: I have it in my report. That one statement is in my report, yes, sir. That’s pretty self-incriminating to me when someone says that.

On redirect, Officer Hall testified:

Q: Just to make this clear: So, before you pulled the drugs out of the pocket, before you even knew there were drugs in the pocket, he said “You’ve got me.” Darrell Zachery [sic] said, ‘You’ve got me”?
A: Yes, sir.

Officer Matthews substantiated Officer Hall’s testimony:

Q: And were you present when Officer Hall started reaching into a jacket?
A: Hyatt started looking into a jacket at that time and came out with a — I don’t remember exactly how many pieces of crack it was. And I told Mr. Zachery [sic] that I’d found dope; and then when Hyatt pulled out the largest one, I looked at Zachery [sic] and he pretty much said, “Well you’ve got me.”
Q: He said that?
A: Yes, sir. He said, “I guess you’ve got me.”

On cross-examination, Officer Matthews testified:

Q: I’ll ask you the same thing that I asked Officer Hall. Is it at least possible that you misunderstood — let me ask this. It sounds like this dropping of the head and saying, “You’ve got me” — this was something that was said very low and, I guess, with sort of just resignation: “You’ve got me.” Is that how it was said?
A: Well, sir, we were in a bathroom. It wasn’t a real big bathroom. And to the best of my memory, he dropped his head and said, “You’ve got me.” And he added, “Do what you need to do.”

When asked if she ever heard Zackery say “you’ve got me,” Thomas testified that she did not. Zackery also denied making the statement. Officer Galloway testified that during the search, Thomas admitted to him that Zackery had been selling drugs or crack cocaine [649]*649out of the apartment since he got out of jail. At trial, Thomas denied making this statement to Officer Galloway.

Zackery and Thomas were charged with possession of cocaine with intent to distribute, violation of the Georgia drug-free public housing act, and possession of a firearm during the commission of a felony. Thomas pled guilty to the drug charge and gun charge. Zackery’s case was originally scheduled for trial in June, 2000; however, he left the courthouse prior to voir dire and did not return. The trial was rescheduled, and on August 14, 2001, the jury convicted Zackery of the lesser included offense of possession of cocaine; the trial court entered a directed verdict on the remaining counts.

1. This appeal was docketed on March 3, 2003. We granted Zackery’s motion for an extension of time and ordered him to file a brief and enumerations of error on April 21, 2003. Zackery filed his brief and enumerations of error on April 23, 2003. The state moves to dismiss his appeal as untimely. We deny the motion. “Notwithstanding appellant’s failure to comply with the rules and order of this court, we decline to dismiss his appeal, but instead we will review the record . . . and make a decision based upon the merits of the case. [Cit.]” (Punctuation omitted.) Bullard v. State, 198 Ga. App. 603 (1) (402 SE2d 539) (1991), citing Cleveland v. State, 193 Ga. App. 621 (1) (388 SE2d 748) (1989).

2. In his first enumeration of error, Zackery contends that the trial court committed plain error by improperly admitting the officers’ testimony regarding his statement “you’ve got me” because he was not given a Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)) warning prior to questioning. In the alternative, Zackery asserts the following contradictory argument: Because the statement was a “spontaneous utterance” not made in response to any interrogation, it was inadmissible. We disagree.

“It is settled that the safeguards prescribed by Miranda

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619 S.E.2d 809 (Court of Appeals of Georgia, 2005)
Rambo v. State
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Maness v. State
593 S.E.2d 698 (Court of Appeals of Georgia, 2004)
Zachery v. State
586 S.E.2d 346 (Court of Appeals of Georgia, 2003)

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Bluebook (online)
586 S.E.2d 346, 262 Ga. App. 646, 2003 Fulton County D. Rep. 2456, 2003 Ga. App. LEXIS 974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zackery-v-state-gactapp-2003.