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MORRIS v. THE STATE.
A99A0695.
MCMURRAY, Presiding Judge.
Motion to suppress. Lamar Superior Court. Before Judge Craig.
Defendant William R. Morris was tried before a jury and found guilty of a single count of violating the Georgia Controlled Substances Act by possessing cocaine. Viewed in the light most favorable to the verdict, the evidence adduced at trial revealed that, after a traffic stop and during a weapons pat-down of defendant's person, defendant consented to a search of the contents of his shirt pocket. There, police found a match box containing three small plastic bags of cocaine. Defendant's motion for new trial was denied, and this appeal followed. Held:
1. Defendant moved to suppress the cocaine found on his person, arguing that the police had no reasonable basis for stopping his vehicle, and that the search of the match box exceeded the justifiable scope of a weapons pat-down as authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889). In two related enumerations, defendant assigns error to the denial of that motion.
Where the evidence is uncontradicted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to the undisputed facts is subject to de novo appellate review. State v. Hall, 229 Ga. App. 194-195 (1) (493 SE2d 718). At the suppression hearing, the only witnesses were Deputies Brad White and Chris Webster of the Lamar County Sheriff's Office. Their uncontradicted testimony authorized the following facts:
Deputy White spoke with the driver, defendant, while Deputy Webster spoke with the cashier. Defendant explained "he was trying to get bread." While asking defendant for his license and proof of insurance, Deputy White "detected an odor of alcohol on [defendant's] breath," and detained defendant for "just a roadside evaluation [with] the Alcosensor." When defendant exited the truck, Deputy White patted defendant down for weapons. Deputy Webster "patted [defendant's] shirt pocket because [the officer] noticed it had a bulge in it." Defendant said it was a pack of matches. When Deputy Webster inquired whether defendant minded if the deputy examined the matches, defendant said "no, go ahead." Deputy Webster "handed it to Deputy White and continued to pat [defendant] down. Shortly after, Deputy White advised [Deputy Webster] to place [defendant] under arrest." Inside the match box, Deputy Webster "found three clear, plastic bags containing a white powdery substance" that subsequently tested positive for cocaine.
(a) Even though defendant appears somewhat unsteady on his feet, the videotape of this traffic stop corroborates the consensual nature of the search yielding the cocaine sought to be suppressed.
" 'Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. (Cits.)' Mallarino v. State, 190 Ga. App. 398, 403 (2) (379 SE2d 210) (1989). ' "A valid consent eliminates the need for either probable cause or a search warrant. (Cit.)" ' Wright v. State, 189 Ga. App. 441, 444 (1) (375 SE2d 895) (1988)." Boggs v. State, 194 Ga. App. 264 (390 SE2d 423). If [Deputies White and Webster were] authorized to stop defendant's vehicle and approach, the consent is not invalid.
McDaniel v. State, 227 Ga. App. 364, 365-366 (2) (489 SE2d 112) (whole court). Thus, defendant's argument that the search of his match box exceeded the bounds of a Terry-type frisk for weapons simply is not germane to the lawfulness of that consensual search. Hunter v. State, 190 Ga. App. 52-53 (1) (378 SE2d 338).
(b) In our view, the articulated ground for stopping defendant's vehicle in the parking lot was neither arbitrary nor harassing but was specific and reasonable under the totality of the circumstances.
A police officer is authorized to make a brief, but nevertheless forcible, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity. United States v. Place, 462 U. S. 696, 702 (II) (103 SC 2637, 77 LE2d 110). What is demanded of the police officer, as the agent of the State, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. Brisbane v. State, 233 Ga. 339, 341 (211 SE2d 294).
In the case sub judice, the frightened cashier reported conduct arguably amounting to disorderly conduct in violation of OCGA 16-11-39 (a). It is not necessary that reasonable cause for a stop and frisk be based only upon an officer's personal observation, rather than information supplied by another person. Graves v. State, 138 Ga. App. 327, 328 (226 SE2d 131), citing Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612). A concerned citizen or victim of a crime is accorded a presumption of credibility. Sayers v. State, 226 Ga. App. 645, 646-647 (487 SE2d 437); Hinson v. State, 229 Ga. App. 840, 842 (1) (c) (494 SE2d 693), rev'd on other grounds, State v. Hinson, 269 Ga. 862 (506 SE2d 870). When the police arrived at the closed convenience store minutes after the late-night complaint, they found only a black pickup as mentioned by the cashier, with no other vehicles in sight. Since
defendant's [black pickup truck, the only vehicle in sight,] "roughly fit the description given [by the complaining citizen], this provided the basis for an articulable suspicion justifying the stop. Terry v. Ohio, 392 U. S. 1[, supra]; Brisbane v. State, 233 Ga. 339[, supra]." McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836).
McDaniel v. State, 227 Ga. App. at 366 (2), supra. Neither the Fourth Amendment nor Art. I, Sec. I, Par. XIII of the 1983 Georgia Constitution requires a policeman who lacks the precise level of information necessary for probable cause simply to shrug his shoulders and allow a crime to occur or a criminal suspect to escape. On the contrary, Terry, supra, recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be the most reasonable in light of the facts known to the officer at the time. Graves v. State, 138 Ga. App. at 328, supra. See also State v. Carter, 240 Ga. 518 (242 SE2d 28). That reasonable and brief, intermediary detention to establish identity and maintain the status quo is precisely what occurred in this instance. The trial court correctly denied defendant's motion to suppress made on the ground that the traffic stop was unauthorized.
2. Proof that defendant carried a match box on his person containing cocaine was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury's verdict that defendant is guilty, beyond a reasonable doubt, of violating the Georgia Controlled Substances Act as alleged in the accusation. Reeves v. State, 194 Ga. App. 539, 540 (2) (391 SE2d 35).
3. The trial court granted the State's motion in limine to show the jury only that portion of the videotape of defendant's arrest that depicted the initial stop, search, and the discovery of cocaine. Defendant contends the court erroneously excluded the remainder of the tape, which depicted the search of a passenger and defendant's booking at the jail. He does not, however, adequately explain the relevancy of these events to the issues to be tried.
As a general rule, the admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Hood v. State, 216 Ga. App. 106, 108 (4) (453 SE2d 128). In particular, questions of relevancy are generally matters within the trial court's discretion, and it is not error to exclude evidence that is not related to an issue at trial. Sleeth v. State, 197 Ga. App. 349, 350 (3) (398 SE2d 298). In our view, the trial court did not abuse its broad discretion in excluding the remainder of the videotape as irrelevant.
4. Defendant next contends the trial court erred in limiting the scope of his cross-examination of Deputy White. Defense counsel questioned Deputy White during trial about the reasons for the investigative stop, attempting to impeach him with prior inconsistent statements about his reasons for stopping defendant's truck. The court advised counsel that many of the questions posed, pertaining to the legality of the initial stop, were settled in the motion to suppress hearing and therefore were not relevant to the issues to be tried. After giving defendant some latitude to demonstrate the relevance of this line of questioning, the trial court instructed him to move on to another topic. Counsel made no exception to this ruling and turned to the chain of custody of the cocaine seized from defendant.
5. Defendant next contends the trial court erred in failing to give his requested charge on circumstantial evidence tracking the language of OCGA 24-4-6. Instead, the charge as given includes the word "alone" following the words "circumstantial evidence."
We note the Suggested Pattern Jury Instructions, Vol. II: Crim. Cases, Part 2, (J) (2), p. 11, does not include the term "alone" in explaining the law of circumstantial evidence. Nevertheless, the trial court need not track the exact language of OCGA 24-4-6 in order to satisfy the requirement that the jury be instructed on the principle of the sufficiency of circumstantial evidence to warrant a conviction. Lowe v. State, 267 Ga. 180, 181 (3) (476 SE2d 583), applying Price v. State, 180 Ga. App. 215 (2) (348 SE2d 740). Defendant certainly has not shown how any circumstantial evidence points to a reasonable hypothesis that he innocently carried cocaine in a match box he knew was in his shirt pocket. See Sellers v. State, 36 Ga. App. 653 (137 SE 912); Reynolds v. State, 23 Ga. App. 369 (98 SE 246). We find no error in this instance.
6. Finally, defendant contends the trial court erred in charging the jury that "proof of the general good character of the witness may be shown and the effect of the evidence is to be determined by the jury." He argues this was an unauthorized charge on the good character of the State's witnesses. The complained-of language was given as part of the court's charge on impeachment, which tracked the Suggested Pattern Jury Instructions, Vol. II: Crim. Cases, Part 2, (R), p. 27. An instruction on impeachment must be read in conjunction with the entire charge "and provides no cause for reversal if the court's instruction in its entirety makes it plain that the jury is the sole judge of witness credibility." Berry v. State, 267 Ga. 476, 480 (4) (c) (480 SE2d 32). In the case sub judice, the court's charge plainly stated that matters of witness credibility were exclusively within the jury's province. Because the charge, taken as a whole, was unlikely to mislead a jury of ordinary intelligence, we find no error. Id. See also Green v. State, 177 Ga. App. 577, 579 (4) (340 SE2d 234).
RUFFIN, Judge, dissenting.
I respectfully dissent from the majority opinion because I do not believe, as the majority finds, that the police officers had reasonable suspicion that Morris either was engaged or was about to be engaged in criminal conduct.
44, 45 (491 SE2d 116) (1997); State v. Goodman, 220 Ga. App. 169, 172 (2) (469 SE2d 327) (1996); Oboh v. State, 217 Ga. App. 553, 555 (458 SE2d 177) (1995). Here, the only basis the officers provided for their decision to stop Morris is that they believed Morris was the individual who had been "beating on the door" of the convenience store, trying to gain entry after the store had closed. The convenience store closed from 2:00 a.m. until 4:00 a.m. When asked his reason for trying to get into the store, Morris explained that he wished to purchase bread. This explanation is entirely plausible, and I am confident that many law abiding citizens have attempted to convince a cashier to let them into a store after hours to make a purchase.
Of course, Morris could have broken the law in his attempt to gain entry into the store. However, there is no indication that he damaged store property while pounding on the door. Although the police officers testified that the store clerk said that she was afraid, the clerk did not testify either at the suppression hearing or at trial. Thus, there is no evidence that she asked Morris to leave. Also, there is no evidence suggesting that Morris threatened the clerk to convince her to open the door. Here, the only activity Morris engaged in was banging on the door of the store. Unquestionably, this does not constitute a crime. 1 We cannot assume criminality based on conduct which may reflect what someone thought was a crime -- whether the officers or the store clerk -- but which is, in fact, not a crime, without more. We cannot assume criminality based upon such innocuous conduct. See Johnson v. State, 231 Ga. App. 273 (498 SE2d 359) (1998) (physical precedent only) (no suggestion that defendant's conduct in knocking on doors to solicit a ride was illegal). Regardless of whether either the officers or the store clerk thought Morris' actions were criminal, absent objective evidence of criminal conduct, the officers lacked reasonable suspicion to detain Morris. Rogers v. State, 206 Ga. App. 654, 659 (3) (426 SE2d 209) (1992) (a reasonable suspicion of criminal conduct must be based on more than a subjective suspicion).
Moreover, there was no evidence suggesting that Morris was about to commit a crime as he was leaving the premises. The State presented no evidence that Morris committed any traffic violations while attempting to leave. To the contrary, one of the arresting officers acknowledged that there was nothing unusual about either Morris' truck or the manner in which the truck was being driven. Under these circumstances, where there is no evidence of criminal conduct of any kind, I do not believe the police were justified in stopping Morris. See State v. Goodman, supra (officer did not have reasonable suspicion of criminal conduct where defendant made a legal U-turn); State v. Canidate, 220 Ga. App. 276, 277 (469 SE2d 710) (1996) (officer not justified in investigating defendant after seeing him drive away from a house that had previously been raided only to pull quickly into a parking lot).
Accordingly, contrary to the majority conclusion, I do not believe the officers' stop of Morris was based on an articulable suspicion. Because the stop was improper, I believe that Morris' consent to search the match box the officers found in his pocket was tainted and, thus, the trial court should have suppressed evidence of the cocaine contained therein. See Tarwid v. State, 184 Ga. App. 853, 856 (1) (363 SE2d 63) (1987); Bowers v. State, 221 Ga. App. 886, 888 (473 SE2d 201) (1996) (physical precedent only).
Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.
Notes
1  The majority asserts that Morris' "conduct arguably [amounted] to disorderly conduct in violation of OCGA 16-11-39." I disagree. There is no evidence that Morris' actions were directed toward another person, that he used "opprobrious or abusive words," or that he used vulgar or profane language.
Virgil L. Brown & Associates, Virgil L. Brown, Russell B. Mabrey, Jr., Eric D. Hearn, Bentley C. Adams III, Larkin M. Lee, for appellant.
DECIDED JULY 1, 1999 -- RECONSIDERATION DENIED JULY 14, 1999 -- CERT. APPLIED FOR.
Thursday May 21 02:48 EDT


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