Brown v. State , 245 Ga. App. 149 ( 2000 )

Eldridge, Judge.

Fred Brown appeals from a DeKalb County jury’s verdict finding him guilty of possession of cocaine with intent to distribute. We affirm his conviction.

Viewing the facts in a light most favorable to the verdict,¹ the charge arose when a concerned citizen telephoned the Atlanta Police Department to report that a male wearing jeans, a black leather jacket, and a purple hat was standing beside a white car at the corner of Meadowlake Drive and Walton Lane in the Eastlake Meadows Housing Development, selling drugs from the car. Officer W. C. Jones arrived at that location to find defendant Brown dressed in jeans, a black leather jacket, and a purple hat. Brown was standing “right next to a white automobile.” Brown was the only person standing near the car. Brown was the only person dressed in jeans, a black leather jacket, and purple hat. When he saw the officer, Brown started to walk away. The officer stopped him; the car was investigated. There was a broken backseat window where Brown had been standing. A plastic bag containing 58 hits of crack cocaine, packaged in individual ziplock baggies, was in plain view and accessible on the backseat of the car. The car belonged to Brown.

1. Brown contends that the trial court erred in permitting the officer to testify as to the content of the concerned citizen’s tip, because such was “double hearsay.” We disagree. The content of the citizen’s tip was substantively admissible as original evidence to explain the officer’s conduct in going to Eastlake Meadows and in briefly detaining Brown, specifically for further investigation.²

2. We find no merit to Brown’s three claims of error with regard to the admission of a similar transaction guilty plea to possession of cocaine.

(a) Brown contends that “there was no evidence presented that demonstrates that Appellant committed the independent offense,” per Williams v. State.³ At trial, however, there was no dispute whatsoever that Brown committed the similar transaction offense to which he pled guilty: “[Defense counsel:] He admitted his guilt to that, one hit, where it was in his possession. He admitted it was in his possession.” To the extent that Brown now tries to raise on appeal an identity issue under Williams v. State, it is waived.⁴

(b) Brown claims insufficient similarity between the instant offense and the prior act. However, the facts of the prior offense were sufficiently similar to the instant offense so that proof of the one tends to prove the other. The prior act involved the same type of drug, crack cocaine; the prior offense occurred at precisely the same locale, standing outside at 315 Meadowlake Drive in Eastlake Meadows Housing Development; and the prior offense involved a lesser included offense to the one now charged, possession of cocaine/possession of cocaine with the intent to distribute. The trial court’s finding of similarity was not clearly erroneous.⁵

(c) The State called Atlanta Police Detective A. Lee to present a factual basis for Brown’s 1990 guilty plea to possession of cocaine. Lee was one of the officers who arrested Brown for the prior offense. He had no independent recollection of the event. The State put forth the facts contained in the police report of the prior incident under the business records exception to the hearsay rule.⁶ Defense counsel conceded the prosecutor’s position that case law would permit admission of the facts contained in a police report under such exception:

[Defense counsel:] I think she’s [prosecutor] right. Here’s another one just like it, another case. But she [prosecutor] has to follow the rules. . . . And if there is an officer — if there is anyone that works in that section or who is familiar with the operations of that section, then that’s necessary to lay the foundation.⁷

Thereafter, the prosecutor laid a proper foundation for the admission of the report through the testimony of Detective Lee. Lee identified the police report, testified that he is familiar with the method of keeping such reports, testified that such reports are made in the regular course of business, and testified that such police reports were made at the time of the event or shortly thereafter.⁸

On appeal, Brown contends that the foundation was insufficient because Lee did not write the report and had no personal knowledge of the incident.⁹ However, Lee “d[id] not have to have personal knowledge of the correctness of the records or have made the entry himself” in order to lay the foundation for the admission of the report under the business records exception to the hearsay rule.¹⁰

At trial, Brown objected to the introduction of the police report on the basis of foundation. He did not object to the specific contents of the report as inadmissible. Our review shows the content of the police report to be factual:

On the 15th of August, Officer Little, Lee and myself were driving through Eastlake Meadows when Mr. Smith [co-defendant] flagged us down. I then exited the vehicle and walked toward Mr. Smith. Mr. Smith asked me how many did I want, and I told him five sacks. Mr. Smith then told me to drive around the horseshoe and take the man — and talk to the man in the red shirt and red hat.¹¹ . . . When I approached Mr. Brown, he had a plastic hag in his hands with several hits of suspected crack inside. Mr. Brown was in the process of selling drugs to another suspect standing next to him. Mr. Brown asked me how many did I want. I told him one. Mr. Brown handed me one hit of suspected crack cocaine and in return I gave him $10 cash. We then advised Mr. Brown that we were the police and that he was under arrest. Mr. Brown then threw down the plastic hag.

(Emphasis supplied.) This first person recitation of the facts by the officer who witnessed and conducted the transactions referred to in the police report contained no opinions or conclusions about what the officer saw.¹² Brown pled guilty to the offense. At trial, Brown did not dispute the facts as stated in the police report. Under these circumstances, the police report was admissible under the business records exception to the hearsay rule. The trial court did not err in admitting the similar transaction evidence.¹³

3. Next, Brown claims ineffective assistance of trial counsel, because his defense attorney failed to call two witnesses: (a) Brown’s girlfriend, Janice Whitmore; and (b) Vanessa Clifton, who claimed to be the “concerned citizen” who called the police.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington¹⁴ asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different but for counsel’s deficiency. A trial court’s finding on motion for new trial that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.¹⁵

(a) At the motion for new trial, Brown’s trial attorney testified that he was very familiar with Brown’s girlfriend, Whitmore: “I have known her a long time, and she can get a little hostile, and I didn’t want to put her in front of the jury.”

(b) Trial counsel testified that he interviewed Clifton. Trial counsel prepared a videotape of Clifton and decided not to call her at trial because:

anytime I asked her a question, she would look up in outer space. She has some kind of mental problem or I don’t know emotional problem or what. I thought the jury would think all of the movements, no eye contact, etcetera [sic], would mean she was lying.

The decision of which defense witnesses to call is a matter of trial strategy for the attorney and does not constitute ineffective assistance of counsel.¹⁶ Accordingly, the trial court’s finding that Brown received effective assistance of counsel at trial was not clearly erroneous.

4. Finally, we reject Brown’s contention that “this case is controlled by the equal access rule.”

The “equal access” rule applies only where the sole evidence of possession of contraband found in a vehicle is the defendant’s ownership of the vehicle.¹⁷ Here, Brown’s possession of the cocaine was not based solely upon the fact that he owned the car in which it was found. Rather, Brown was the only person standing beside the car; the cocaine was in plain view and visible in the backseat of the car; Brown was the only person with immediate access to the drugs plainly visible and accessible through the broken backseat window; Brown was the only person who fit the description of the reported drug seller; and Brown attempted to leave the car when the police arrived.¹⁸ In this case, there was circumstantial evidence to support the jury’s determination that went beyond the inference of constructive possession which arises from ownership, alone. “Under these circumstances, the evidence was sufficient to connect the defendant to the possession of the cocaine though the evidence would have authorized the jury to find that others had equal access to it.”¹⁹

Further, “whether the equal access evidence is sufficient to rebut the inference of possession is a question for the jury.”²⁰ The trial court charged the jury on equal access, the jury rejected such defense, and its verdict is supported by the evidence in that a rational trier of fact could have found Brown guilty beyond a reasonable doubt of possession of cocaine with intent to distribute.²¹

Judgment affirmed.

Johnson, C. J., Pope, P. J, Blackburn, P. J., and Mikell, J., concur. Barnes and Phipps, JJ, dissent.

1 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2 OCGA § 24-3-2. See Ross v. State, 210 Ga. App. 455, 456 (436 SE2d 496) (1993); Scruggs v. State, 227 Ga. App. 35, 36 (2) (488 SE2d 110) (1997).

3 261 Ga. 640, 641 (409 SE2d 649) (1991).

4 Kight v. State, 242 Ga. App. 13, 18 (528 SE2d 542) (2000); Kincer v. State, 208 Ga. App. 360 (1) (430 SE2d 597) (1993).

5 Tate v. State, 230 Ga. App. 186, 188 (2) (495 SE2d 658) (1998); Cantrell v. State, 210 Ga. App. 218, 220-221 (435 SE2d 737) (1993); Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992).

6 Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

OCGA § 24-3-14 (b).

7 The facts contained in a police report are admissible under the business records exception to the hearsay rule. Gann v. State, 190 Ga. App. 82, 83 (1) (378 SE2d 369) (1989); Reed v. Heffernan, 171 Ga. App. 83, 84 (1) (318 SE2d 700) (1984); Johnson v. State, 168 Ga. App. 271, 272 (1) (308 SE2d 681) (1983); Pickett v. State, 123 Ga. App. 1, 2 (2) (179 SE2d 303) (1970).

8 Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991); see McBride v. State, 213 Ga. App. 857, 859 (6) (446 SE2d 193) (1994).

9 The officer who wrote the report had relocated to Sacramento, California.

10 Hertz Corp. v. McCray, supra at 485 (2); Davis v. State, 194 Ga. App. 902, 904 (2) (392 SE2d 327) (1990); Whittington v. State, 155 Ga. App. 667 (2) (272 SE2d 532) (1980).

11 Admissible under OCGA § 24-3-2.

12 See Malcolm v. State, 263 Ga. 369, 370 (3) (434 SE2d 479) (1993).

13 Wilson v. Reed, 246 Ga. 743 (1) (272 SE2d 699) (1980); Sheffield v. State, 237 Ga. App. 701, 702 (2) (516 SE2d 563) (1999); Parrott v. State, 206 Ga. App. 829, 835 (5) (427 SE2d 276) (1992); Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992); Johnson v. State, 204 Ga. App. 453 (419 SE2d 741) (1992); Banks v. State, 201 Ga. App. 266, 268 (410 SE2d 818) (1991).

14 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

15 Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

16 Rutledge v. State, 237 Ga. App. 390, 392 (2) (515 SE2d 1) (1999).

17 Graham v. State, 242 Ga. App. 361, 362 (529 SE2d 641) (2000); Coleman v. State, 229 Ga. App. 642, 643-644 (494 SE2d 549) (1997).

18 See id.; Graham v. State, supra.

19 Carlisle v. State, 242 Ga. App. 253, 255 (1) (529 SE2d 385) (2000).

20 Visser v. State, 237 Ga. App. 798, 800 (516 SE2d 840) (1999); Knox v. State, 216 Ga. App. 90, 92 (3) (453 SE2d 120) (1995); Newman v. State, 216 Ga. App. 73, 74-75 (3) (453 SE2d 117) (1995); see also Carlisle v. State, supra.

21 Jackson v. Virginia, supra.