Summerville v. the State , 332 Ga. App. 617 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
June 26, 2015
In the Court of Appeals of Georgia
A15A0489. SUMMERVILLE v. THE STATE.
MILLER, Judge.
Following a jury trial, Kent Summerville was convicted of marijuana
trafficking (OCGA § 16-13-31 (c) (2010)) and driving with a suspended license
(OCGA § 40-5-121 (a)). Summerville appeals from the denial of his motion for new
trial, contending that the evidence was insufficient to sustain his marijuana trafficking
conviction because the statute existing at the time of his offense required the State to
prove that he had knowledge the marijuana weighed more than ten pounds and the
State failed to prove this element of the offense. Summerville also contends that the
State withheld material evidence in violation of Brady v. Maryland, 373 U. S. 83 (83
SCt 1194, 10 LEd2d 215) (1963), and that he received ineffective assistance of
counsel. For the reasons that follow, we affirm.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to the jury’s verdict; the defendant no longer enjoys
the presumption of innocence; and we do not weigh the evidence or
determine witness credibility. The standard of review is whether, based
on the evidence of record, a rational trier of fact could have found the
essential elements of the charged offense beyond a reasonable doubt.
(Citations omitted.) Smith v. State, 289 Ga. App. 236, 237 (656 SE2d 574) (2008).
So viewed, the evidence shows that on the afternoon of June 30, 2010,
Summerville asked two friends, Ashley Brown and Mario Allen, to drive him from
Birmingham, Alabama to Atlanta. Brown and Allen agreed, and they picked up
Summerville at his apartment at about 7:30 p.m. Summerville drove Brown’s vehicle
and would not tell her where they were headed.
On the way to Atlanta, the trio smoked marijuana that Summerville provided.
Brown also took some Xanax, which caused her to “zone out” and fall asleep for most
of the trip.
Brown testified that she woke up when Summerville stopped at a gas station.
At the gas station, Summerville met an unidentified bald man driving a Chrysler 300.
After briefly talking to the bald man, Summerville drove away from the gas station
and followed the man to a house. Summerville entered the house with the man, and
he returned to the car a few minutes later to grab a bag. Sometime later, Summerville
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and the bald man exited the house. Summerville then returned to the vehicle and
opened and closed the trunk, causing Brown to wake up. Allen was sitting in the
backseat at the time playing on his phone. Allen testified that he could smell
marijuana after Summerville closed the trunk, but thought little of it because they had
previously smoked marijuana in the vehicle. Summerville then began driving back
to Birmingham.
At about 1:30 a.m., a police officer stationed along Interstate 20 observed that
Summerville was driving slowly and causing several tractor-trailers and a recreational
vehicle to back up behind him. Summerville did not yield to allow the larger vehicles
to pass, and at one point, he abruptly decelerated, causing a dangerous situation for
the vehicles behind him. Summerville then crossed the striped line and moved into
the right-hand lane, which was occupied by another vehicle. Observing this behavior,
the police officer turned on his patrol lights to initiate a traffic stop. Summerville
asked Brown if he should stop or keep driving. Brown told him to stop because their
small amount of marijuana could be hidden. Summerville responded that he had more
than a small amount of marijuana in the car.
Summerville ultimately stopped the vehicle. Upon approaching the vehicle, the
police officer smelled a strong odor of burnt marijuana and could see smoke hanging
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in the air when Brown rolled down the passenger window. The police officer asked
Summerville for his driver’s license, and Summerville responded that he did not have
one. Summerville handed the officer an identification card, and as he did, his whole
arm was trembling. Summerville exited his vehicle at the request of the police officer
and consented to a pat-down search. During the pat-down, the police officer smelled
a strong odor of burnt marijuana emanating from Summerville and he uncovered
approximately $450 in cash from Summerville’s front pocket. While discussing the
reason for the stop, Summerville admitted that his Alabama driver’s license had been
suspended.
The police officer began to write Summerville a citation and called for backup.
The police officer then asked Brown for consent to search her vehicle because he
smelled the odor of burn marijuana. When Brown failed to give a clear response, the
police officer asked his backup officer, who had since arrived at scene, to retrieve the
backup officer’s drug dog so the officers could conduct a free-air sniff of Brown’s
car. After the drug dog alerted to the presence of narcotics, the police officers began
searching the vehicle. During the search, the officers found marijuana debris scattered
inside of the vehicle, and they smelled fresh, or unsmoked, marijuana. The police
officers continued searching the vehicle and found a large brick of marijuana
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weighing about 21 pounds located under the spare tire cover. When the police
officers were about to place Summerville, Brown, and Allen into custody,
Summerville began to move towards traffic and appeared to be getting ready to run.
One of the police officers blocked Summerville and arrested him.
1. Summerville contends that the evidence was insufficient to sustain his
conviction because the State failed to prove that he had knowledge that the weight of
the marijuana was over ten pounds. We disagree.
Former OCGA § 16-13-31 (c) provided in pertinent part that “[a]ny person who
knowingly . . . has possession of a quantity of marijuana exceeding 10 pounds
commits the offense of trafficking in marijuana[.]” This former code provision was
substantially analogous to former OCGA § 16-13-31 (a) (1), the cocaine trafficking
provision in effect prior to July 2013.1 See Wilson v. State, 312 Ga. App. 166, 168 (2)
(718 SE2d 31) (2011); see also OCGA § 16-13-31 (a) (1) (2010) (“Any person . . .
who is knowingly in possession of 28 grams or more of cocaine . . . commits the
felony offense of trafficking in cocaine[.]”). The Supreme Court of Georgia has held
1
In 2013, the General Assembly deleted “knowingly” throughout OCGA § 16-
13-31, and the amended statute became effective on July 1, 2013. See Ga. Laws 2013,
Act 84, §§ 4, 21. Since the offense in this case occurred in 2010, the former statute
applies. See Scott v. State, 295 Ga. 39, 42 (2) (757 SE2d 106) (2014).
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that the plain language of former OCGA § 16-13-31 (a) (1) required that the State
prove knowledge of the quantity of the cocaine as an element of the crime. See Scott
v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014). Since the former marijuana
trafficking provision also contains the same “knowingly” language, it follows that the
reasoning of Scott applies to the former marijuana trafficking provision. Accordingly,
the State was required to prove that Summerville knowingly possessed more than ten
pounds of marijuana. Scott, supra, 245 Ga. at 40 (1).
In determining whether a defendant had the requisite knowledge, a jury may
consider
the words, conduct, demeanor, motive, and all other circumstances
connected with the act for which the accused is prosecuted. Indeed, both
knowledge and possession may be proved, like any other fact, by
circumstantial evidence.
(Footnotes omitted.) Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631)
(2014).
Contrary to Summerville’s argument, the State presented sufficient evidence
to show that he had knowledge of the weight of the marijuana. Notably, the evidence
shows that Summerville refused to provide Brown with driving directions, he met an
unidentified man at a gas station, and he followed that man to a house, where he
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retrieved something from the house and placed it into the trunk of Brown’s vehicle.
Additionally, Summerville’s trip was brief, as he left Birmingham at around 7:30
p.m., stopped in Atlanta only to meet this unidentified male, and then began the return
trip to Birmingham after retrieving marijuana from this individual. See Calixte v.
State, 197 Ga. App. 723, 724 (2) (399 SE2d 490) (1990) (generally, drug traffickers
have a short turnaround time on round-trip travel). The marijuana found in the trunk
of the car was shrink wrapped and weighed approximately 21 pounds, more than
twice the amount of the 10 pounds required to constitute trafficking. See former
OCGA § 16-13-31 (c); see also Freeman, supra, 329 Ga. App. at 432-433 (1) (the fact
that drug quantity was almost twice the trafficking threshold was a significant factor
in showing the defendant’s knowledge of drug quantity).
Moreover, when the police officer activated his patrol lights, Summerville
asked Brown whether to stop. When Brown responded that he should stop because
they could hide the small amount of marijuana, Summerville informed Brown that he
had more than just a small bag of marijuana in the car. Based on these circumstances,
the jury was authorized to conclude that Summerville had knowledge that the
recovered marijuana weighed more than ten pounds.
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2. Summerville contends that the trial court erred in denying his motion for a
new trial on the ground that the State committed a Brady violation by failing to
disclose prior to trial that it had attempted to lift fingerprints from the packaged
marijuana but no usable prints could be obtained. We disagree.
In order to demonstrate a Brady violation, Summerville had to show that: (1)
the State possessed evidence favorable to him; (2) he did not possess the evidence nor
could he obtain it with any reasonable diligence; (3) the State suppressed the
evidence; and (4) a reasonable probability exists that the outcome of the trial would
have been different had the evidence been disclosed. See Blackshear v. State, 285 Ga.
619, 622 (5) (680 SE2d 850) (2009). Summerville has failed to make such a showing.
First, the fact that there are fingerprints that cannot be processed is neither
exculpatory nor inculpatory. See Williams v. State, 303 Ga. App. 222, 226 (2) (692
SE2d 820) (2010). More importantly, even assuming arguendo that this information
was favorable to Summerville and that the State suppressed it, he has failed to
establish a Brady violation. In light of the overwhelming evidence that it was
Summerville who placed the marijuana in the vehicle, there is no reasonable
probability that the result of his trial would have been different had he known that no
usable prints were found on the marijuana package. See Blackshear, supra, 285 Ga.
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at 622 (5) (no reversible error because the disclosure of any suppressed information
would not have changed the outcome of the trial where there was overwhelming
evidence of guilt). Consequently, Summerville’s Brady claim fails.
3. Summerville also contends that trial counsel rendered ineffective assistance.
To establish an ineffective assistance claim, an appellant must
show not only that his counsel’s performance was deficient but also that
the deficiency so prejudiced him as to create a reasonable probability
that but for counsel’s errors, the outcome of the trial would have been
different. Failure to satisfy both requirements is fatal to an
ineffectiveness claim.
(Footnotes omitted.) Mitchell v. State, 250 Ga. App. 292, 295-296 (2) (551 SE2d 404)
(2001).
(a) Summerville contends that trial counsel was ineffective for failing to
request a jury charge that knowledge was a material element of the trafficking
offense. We disagree.
Trial counsel in this case testified at the new trial hearing that he did not
request a jury charge that the State was required to prove knowledge of the marijuana
weight because the law at the time did not support such a request. Summerville was
tried and convicted in January 2012. In October 2011, a few months before
Summerville’s trial, this Court issued Wilson, supra, which held that the State was not
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required to prove knowledge as an element of the marijuana trafficking offense.
Accordingly, the trial court did not err in charging the jury that a defendant’s
knowledge of the quantity of marijuana was not an element of the offense, and the
defendant’s trial counsel was not ineffective in failing to object to the jury charge.
See Wilson, supra, 312 Ga. App. at 168-170 (2), (3).
Subsequent to Summerville’s trial, the Georgia Supreme Court issued Scott,
holding that under former OCGA § 16-13-31 (a) (1), the State was required to prove
that the defendant had knowledge of the weight of cocaine in order to sustain a
conviction for cocaine trafficking. See Scott, supra, 295 Ga. at 42 (2) - (3). As
discussed above in Division 1, the reasoning of Scott applies equally to marijuana
trafficking, and the State was required to prove knowledge of the drug quantity for
offenses occurring prior to July 1, 2013. See id. at 41-42 (2).
Scott was issued after Summmerville’s trial, and
when addressing a claim of ineffectiveness of counsel, the
reasonableness of counsel’s conduct is examined from counsel’s
perspective at the time of trial. Thus, a new decision does not apply in
a manner that would require counsel to argue beyond existing precedent
and anticipate the substance of the opinion before it was issued. The
standard for effectiveness of counsel does not require a lawyer to
anticipate changes in the law.
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(Citations and punctuation omitted.) Maldonado v. State, 325 Ga. App. 41, 48 (3) (a)
(752 SE2d 112) (2013). Since the law at the time of Summerville’s trial did not
require the State to prove knowledge of the weight of the marijuana, trial counsel was
not deficient for failing to request a charge on this issue. Consequently,
Summerville’s claim that trial counsel was ineffective on this ground fails.
(b) Summerville next contends that trial counsel was ineffective for failing to
object to the trial court’s Allen2 charge to the jury. We disagree.
After about a day of deliberation, the jury sent a note stating that it was unable
to reach a unanimous decision. The State requested an Allen charge, and trial counsel
asked to review the charge before it was given to the jury. The trial court then
informed trial counsel that it planned to give the pattern Allen charge, and the court
gave that charge to the jury. See Suggested Pattern Jury Instructions, Vol. II: Criminal
Cases, § 1.70.70 (3rd ed. 2003). After the jury returned a guilty verdict, the trial court
polled the jury members on their verdict. Each juror confirmed that he or she reached
a verdict freely and voluntarily.
Summerville argues that the jury charge was impermissibly coercive, but he has
not identified any language in the pattern charge that was potentially coercive. See
2
Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LEd 528) (1896).
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Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012) (no error when defendant
fails to identify any language in pattern or modified Allen charge that was potentially
coercive). Although Summerville points to the short length of deliberations following
the Allen charge as proof of the charge’s coerciveness, the fact that the verdict was
apparently returned less than an hour later does not render it coercive. See Scott,
supra, 290 Ga. at 888 (6) (length of deliberations alone cannot make a charge
coercive). As a result, the trial court did not err in giving the pattern Allen charge to
the jury, and trial counsel cannot be said to have been ineffective for failing to object
to the charge. See Sharpe v. State, 288 Ga. 565, 570 (8) (707 SE2d 338) (2011) (trial
counsel not ineffective for failing to object to Allen charge where charge was not
coercive).
In sum, the trial court did not err in denying Summerville’s motion for new trial
because the State introduced sufficient evidence to sustain his conviction for
marijuana trafficking, there was no Brady violation, and trial counsel did not render
ineffective assistance.
Judgment affirmed. Andrews, P. J., and Branch, J., concur.
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