Hinson v. State , 229 Ga. App. 840 ( 1998 )

McMurray, Presiding Judge.

Defendant Fitzgerald Hinson a/k/a Columbus Hinson was tried before a jury and found guilty of trafficking in cocaine, violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute), and possession of a firearm during the commission of a crime. Defendant’s motion for new trial was denied, and this appeal followed. In 12 enumerations of error, he complains of the sufficiency of the evidence, the denial of his motion to suppress, the introduction of similar crimes evidence and the failure to give a contemporaneous limiting instruction, the denial of his motion for mistrial, the introduction of defendant’s incriminating statement, the failure to charge on a lesser included offense, and the effectiveness of trial counsel. Held:

1. (a) The denial of defendant’s motion to suppress will be considered first. “When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court [is] guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial [court] hears the evidence, and [its] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [those findings]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” (Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646).

At the hearing on defendant’s suppression motion, uniform Officer D. K. Byers of the DeKalb County Police Department testified that on February 6, 1994, he was dispatched to Eobin Hill Court at 2:00 a.m., to investigate a possible kidnapping, in response to William Hugh Bell’s complaint to police that “his wife, Kelly Bell, was being . . . held against her will . . . [by a man] known to carry a weapon. . . .” Mr. Bell identified that man by name as defendant, Columbus Hinson. “Mr. Bell said . . ., that’s him, indicating [a] car that had just pulled up.” Officer Byers observed as “Ms. Bell was brought home by [defendant] in a car [that defendant] parked at the adjacent house from where Ms. Bell lives.” Officer Byers “stopped the vehicle and stopped [defendant]. [Officer Byers] checked the vehicle for [his (Officer Byers’)] safety for weapons,” including those areas where, in his experience, weapons have been concealed, “which would be under the passenger seat, under the driver’s seat, between the seats, the glove box, et cetera.” Officer Byers had not yet had a “chance to talk to [Ms. Bell] until after he stopped [defendant].” “Under the front passenger seat, [Officer Byers] located a paper bag that contained ... 88 rocks, [that] is, little chunks of crack cocaine, each in their own separate plastic bags, [and also] located [18.7 grams of] powder cocaine, . . . and [further] located [30.3 grams of] suspected marijuana.” “In the glove box [Officer Byers] located a [Glock]. It was a Model 21. It was a semiautomatic pistol, .45 caliber.”

Defendant contends the trial court erred in denying his motion to suppress, arguing he was subjected to a warrantless arrest without probable cause when Officer Byers ordered him out of his car at gunpoint and placed him in the back of the patrol car.

(b) “A policeman making a reasonable investigatory stop may conduct a limited protective search for concealed weapons when he has reason to believe that the suspect is armed and dangerous, and if, during the search contraband is turned up, it may be used as evidence in a prosecution for its possession. Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612).” (Emphasis omitted.) Bethea v. State, 127 Ga. App. 97, 98 (192 SE2d 554). The question for decision in the case sub judice is whether Officer Byers had a reasonable suspicion that defendant was engaged in criminal activity to warrant a forcible stop of defendant’s car and a search of defendant’s person and vehicle for weapons. Based upon the information supplied to Officer Byers by William Hugh Bell, we conclude the forcible stop and protective search were justified under the circumstances.

(c) “To justify a brief ‘Terry’ stop [under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)], an officer must have an articulable, reasonable suspicion that the law is being violated. The reasons justifying an investigatory stop need not rise to the level of probable cause, but must be more than a mere hunch and must not be arbitrary or harassing.” (Footnotes omitted.) Sams v. State, 265 Ga. 534, 535 (1) (459 SE2d 551).

In the case sub judice, a reasonable, articulable suspicion that defendant was engaged in an armed kidnapping was supplied by William Hugh Bell. “[W]here the hearsay ... is [supplied by] an identified interested citizen[,] . . . the credibility is not as suspect and the analysis is not as stringent [as where information is supplied by an anonymous tipster].” Tuzman v. State, 145 Ga. App. 761, 764 (2) (A), 766 (244 SE2d 882). “[A] law-abiding citizen has a ‘built in’ credibility. [Cit.]” Miller v. State, 155 Ga. App. 399 (I) (A), 400 (270 SE2d 822). See also Devier v. State, 247 Ga. 635, 637-638 (5) (277 SE2d 729) (A hearsay declarant is deemed reliable upon a showing that “he or she is a police officer, the victim of the crime, a law-abiding and trustworthy citizen, or even a declarant against penal interest. [Cits.]”). “The Supreme Court [of the United States] has ‘recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.’ Michigan v. Long, 463 U. S. 1032, 1047 (III) (103 SC 3469, 77 LE2d 1201) (1983).” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321). Consequently, Officer Byers’ decision to detain defendant pending an accurate assessment of the situation was not unreasonable under the circumstances. Id. It follows that the protective search of defendant and his vehicle for weapons was authorized and that the trial court correctly refused to suppress the contraband discovered on defendant’s person and in his vehicle during the protective search for weapons.

2. Under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), the evidence adduced at trial was sufficient to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, of trafficking in cocaine, violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute), and possessing a firearm during the commission of a crime as alleged in the indictment.

3. Defendant’s fifth enumeration has merit. Under the controlling authority of the recent whole court decision in Belt v. State, 227 Ga. App. 425 (1) (489 SE2d 157), the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence. Consequently, we reverse the judgment of conviction for all three counts and remand for a new trial.

4. The defendant’s remaining enumerations have been considered and are found to be without merit or to present circumstances ■ unlikely to recur upon any retrial.

Judgment reversed.

Andrews, C. J., Birdsong, P. J., Smith and Eldridge, JJ., concur and also concur specially. Beasley and Ruffin, JJ., concur in Divisions 2, 3, 4, and in the judgment.