Kincaid v. State

Stolz, Judge.

Defendants, husband and wife, along with others, were indicted on three counts of the unlawful possession of drugs within the purview of the Georgia Controlled Substances Act and one count for the unlawful possession of a dangerous drug. Both were convicted of the three counts which charged the violation of the Controlled Substances Act. Both were sentenced to serve a total of five years each. Motions for new trial were filed and denied, and defendants appeal.

The two defendants, Elizabeth Kincaid and Joseph Kincaid, husband and wife, filed separate motions for new trial, etc., and the posture of the cases is such that the separate appeals may be considered together.

Defendants enumerate error because, as they contend: (a) The trial court erred in overruling their motions for new trial, (b) The trial court erred in overruling their motions for directed verdict, (c) The trial court erred in overruling their motions for mistrial, when on two separate occasions, the state introduced evidence as to other search warrants in which they were involved, but were not convicted.

An Atlanta detective executed a search at the house where defendants resided, and went into the kitchen alone and found a leather-type pouch with drugs inside it and several pills next to it, all being on a table. The two defendants, husband and wife, and three other persons, were in a different part of the house when the drugs were found. All five persons were charged and indicted for possession of illegal drugs. J. S. Edwards, member of the Georgia Bureau of investigation, testified that one of the other three persons present in the house, Michael James Collins, stated to him that the drugs belonged to him, and further that he caught Collins coming out of the bathroom and observed a pill in the commode. At the preliminary hearing Collins testified that the drugs in the pouch belonged to him. Another officer, policeman Veerkamp, testified that he found Collins in the bathroom flushing the toilet and a pill was seen by him in the toilet, and that Collins admitted to him that the drugs belonged to Collins.

State’s counsel asked Mrs. Kincaid, defendant, if she was "surprised the police had a warrant,” and obviously used this as an excuse for showing there had been other warrants and searches of the same premises (but without the slightest suggestion that any guilt was proven against her or anyone else because of such previous search warrants and searches). Defendants objected continuously and moved for mistrials because of this type of evidence, and in effect, their position was that it was introduced just to smear defendants, without any real basis therefor, even as to showing that any guilt had been proven during such previous search warrants and searches. All of their objections and motions in this respect were overruled. Held:

Argued September 8, 1975 Decided October 21, 1975 Rehearing denied November 25, 1975. Herbert Shafer, Glenn Zell, for appellants. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, Gordon H. Miller, Assistant District Attorneys, for appellee.

1. The evidence did not demand an acquittal. The trial judge did not err in denying defendants’ motions for a directed verdict of acquittal.

2. The state’s counsel asked the defendant, Mrs. Kincaid, if she was "surprised the police had a warrant,” and used her affirmative reply to this question as an excuse for showing there had been other warrants and searches of the same premises, but without the slightest suggestion that these previous searches resulted in her or anyone’s conviction. The defendants’ motions for mistrial were overruled. There was no admonition of state’s counsel or other corrective measures taken by the trial court. The state’s questioning was highly improper. It had the effect of placing the defendant’s character in evidence without her having previously done so causing reversible error. See Bowen v. State, 123 Ga. App. 670 (182 SE2d 134) and cits.; Smith v. State, 91 Ga. App. 360 (85 SE2d 623) and cits. The trial judge erred in failing to grant defendant’s motion for new trial.

Judgments reversed.

Deen, P. J., concurs. Evans, J., concurs specially.