Scott v. Hernandez-Cuevas , 260 Ga. 466 ( 1990 )

260 Ga. 466 (1990) 396 S.E.2d 900

SCOTT
v.
HERNANDEZ-CUEVAS.

S90A1282.

Supreme Court of Georgia.

Decided October 18, 1990.

Michael J. Bowers, Attorney General, Newton, Smith, Durden, Kaufold & McIntyre, Massie H. McIntyre, for appellant.

Michael M. Worth, James C. Bonner, Jr., for appellee.

CLARKE, Chief Justice.

The trial court granted this petition for a writ of habeas corpus. The state appeals. We affirm.

Marco Polo Hernandez-Cuevas was convicted of trafficking cocaine. The trial court instructed the jury that it could convict upon evidence of actual or constructive possession of cocaine. At the time of conviction, the Court of Appeals had ruled that evidence of constructive possession was sufficient to convict under the statute. See Lockwood v. State, 184 Ga. App. 262 (361 SE2d 195) (1987); Evans v. State, 167 Ga. App. 396 (306 SE2d 691) (1983). The jury charge was not raised as an error in the direct appeal. Five days after the direct appeal was decided, this Court issued Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), which overruled the Court of Appeals' cases that had held constructive possession to be sufficient.

In a well-reasoned decision, Judge Hugh Lawson determined that (1) the jury charge is reversible error under Lockwood v. State, supra; (2) Lockwood applies retroactively; see Chews v. State, 187 Ga. App. 600 (371 SE2d 124) (1988); and (3) Hernandez-Cuevas' claim is not procedurally defaulted under Black v. Hardin, 255 Ga. 239 (336 SE2d 754) (1985). Hernandez-Cuevas could not have been expected to raise the Lockwood issue in the direct appeal because Lockwood had not yet been decided. The court therefore granted a writ of habeas corpus. We find no error and affirm.

Judgment affirmed. All the Justices concur.