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BIRDSONG, Presiding Judge.
Drug violation. Bibb Superior Court. Before Judge Bell, Senior Judge.
Alberto Brewster appeals his conviction for possession of cocaine with intent to distribute.
The yellow packet, found partially balled-up under the car, was an M & M's candy wrapper. Inside was a piece of crack cocaine; two more pieces lay on the road about an inch and a half from the opening of the packet. The man in the army jacket escaped into the woods.
Appellant testified he went to Cochran Avenue to help a friend, Larry White, move Larry's girl friend from one apartment to another nearby. At about 6:00 p.m., appellant went out to the street and stood around to watch what was going on. He was there until about midnight. He did not know any of the other people standing on the street and did not notice the man in the army jacket approaching cars. When the police officers emerged from the woods, appellant had in his hand a napkin and a $20 bill, and he was eating M & M's. Held:
1. The evidence, construed in favor of the jury's verdict, is sufficient to enable a reasonable trier of fact to find appellant guilty of possession of cocaine with intent to distribute beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Appellant contends the officers found no cocaine directly within his possession, but this is a misconstruction of the evidence. A piece of cocaine was found in the yellow packet immediately after appellant dropped the packet, after appellant was seen to handle the contents of that same yellow packet by dumping them in his hand while participating In two apparent exchanges from that same packet. No one else was seen to handle the yellow packet. This evidence is at least circumstantial evidence of possession of the cocaine found in the balled-up candy wrapper, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. As to whether a hypothesis is reasonable, that is a jury question. Harris v. State, 236 Ga. 242, 244 (223 SE2d 643).
2. Appellant contends his constitutional rights and his rights under OCGA 24-9-20 (a) were violated by the trial court's allowing the prosecutor, over objection, to question him as to why he failed to subpoena his two friends.
Following cross-examination of appellant as to his helping his friends move, the prosecutor asked: "Q: These people . . . that you were going to move . . . where are they today? A: I don't know where they are. [Objection.] A: I couldn't answer that no way . . . I don't know where they're at. I've been in jail . . . THE COURT: Well, you can ask him where they are. Of course, he doesn't have to produce witnesses or testify or produce evidence or anything. He doesn't have to do anything. But you can ask him where a person is if you want to." All this was said in the presence of the jury.
As to the rationale and constitutional implications of the rule that the State may argue the inferences to be drawn from a defendant's failure to produce witnesses but the defendant may not comment on the State's failure to produce certain witnesses, see Wilson v. Zant, 249 Ga. 373, 384-385 (4) (290 SE2d 442); Shirley v. State, 245 Ga. 616, 617 (1) (266 SE2d 218); Contreras v. State, 242 Ga. 369, 372 (3) (249 SE2d 56). It is unreasonable to infer that witnesses not called by the State would exonerate the defendant, but, when the defendant alludes to the existence of persons who would corroborate his defense, yet he did not call them, it is reasonable to infer that there exists no such favorable evidence. Wilson v. Zant, supra.
Moreover, the issue arises in this case not in the context of commentary to the jury, but in the context of cross-examining appellant. Earlier appellant on direct examination was asked by his own counsel: "Q: Have you heard from or seen any of these people that were on the streets since that occasion? A: No. Q: Before or since? A: No." "These people" were those with whom appellant stood on the street from 6:00 until 12:00, and who would presumably have direct knowledge of the activities on the street. Having himself, on direct examination, raised as a defense the unavailability of witnesses who could corroborate his defense, he could not then object when, on cross-examination, the State asked the same question as to people who he concedes could not exonerate him.
Moreover, the prosecutor did not ask appellant why he did not subpoena these witnesses. Even assuming, contrary to the reasoning in Wilson v. Zant, supra, Shirley v. State, supra, and Contreras v. State, supra, that the questioning was improper, and even assuming that the questioning implied there was some burden on appellant to produce these witnesses, still the jury could not reasonably have made any inference detrimental to appellant. His friends' testimony, as appellant concedes, could not exonerate him. They were not witnesses to the crime and they could testify only as to why he originally came into the neighborhood. Appellant has proved no error; but assuming error, he has shown no harm. See Butts v. State, 198 Ga. App. 368, 370 (401 SE2d 763).
3. Appellant is therefore not entitled to a new trial.
Sell & Melton, Jeffrey B. Hanson, for appellant.
Thursday May 21 08:23 EDT

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