MIKELL, Judge.
Sonya Ferrell, Michael Clark, and Elizabeth K. Durante were jointly indicted for trafficking in cocaine and possession of a controlled substance, MDMA.
"As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld."
So viewed, the trial evidence shows that Deputy Billy Jones initiated a traffic stop because the driver and passenger of a car were not wearing seatbelts. The vehicle delayed pulling over but finally stopped. Clark was driving, Durante was in the front passenger seat, and Ferrell was in the back seat. Upon speaking with the driver, the deputy smelled a strong odor of marijuana. After questioning, Clark admitted that his driver's license was suspended, and Durante admitted that she had some marijuana in her purse, which was in the center console of the car. The deputy found a plastic bag with six grams of marijuana in Durante's purse, as well as a cell phone. The phone showed a picture of Clark and Durante with the phrase "Mike and Liz" on the top of the photo. The phone contained text messages referencing drugs and drug sales.
A search of the car revealed a Crown Royal bag on the front floorboard at the edge of the seat. Inside this bag were empty baggies, cocaine, and a digital scale commonly used for weighing drugs. The cocaine was packaged in one large bag, weighing 30.7 grams, and 17 individual baggies, weighing 6.4 grams total. The large bag of cocaine was 80.9 percent pure, and the smaller bags were about 60.7 percent pure. Also inside the Crown Royal bag was a pharmacy pill bottle labeled with Ferrell's anti-depressant prescription. The bottle contained two baggies, one holding five pills and the other holding one pill. GBI crime lab tests subsequently confirmed that the pills were MDMA.
1. Ferrell contends that the evidence summarized above was insufficient to sustain her convictions of trafficking in cocaine
Ferrell was not in actual possession of the contraband, nor was she driving or in control of the car. Therefore, no presumption of control over the contraband attaches. "The issue before us is whether [Ferrell] was in joint constructive possession of the drug[s], and the question turns on whether [she] and the other defendants knowingly shared the power and intention to exercise dominion or control over them."
Ferrell contends that the circumstantial evidence failed to exclude every other reasonable hypothesis save that of her guilt, as required by OCGA § 24-4-6. Her contentions are unavailing. When a constructive possession case "is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."
As stated above, the evidence at trial showed that some of the contraband found in the Crown Royal bag was inside a prescription pill bottle bearing Ferrell's name. Ferrell testified at trial that the last time she saw the pill bottle was on the television stand in her home, and she had called the pharmacy to refill her prescription. She testified that although she had asked Clark to pick up the prescription refill from the pharmacy for her, she had not given him the prescription bottle found at the scene and that he would not have needed it to pick up the prescription for her.
"It is the jury's role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses based upon the circumstantial evidence."
We conclude that the jury was authorized to find that Ferrell had joint constructive possession of cocaine and MDMA under the standard set forth in Jackson v. Virginia.
2. Ferrell next argues that pursuant to Arizona v. Gant,
Pretermitting whether this issue is properly before this Court, we find that, contrary to Ferrell's contentions, Gant did not invalidate the search at issue here, because the officer had reason "to believe the vehicle contain[ed] evidence of the offense of
Additionally, the officer can search the entire vehicle, "including all containers and packages that may contain such contraband."
In the case sub judice, the objective facts known to Deputy Jones after he lawfully stopped the car gave him probable cause to believe that the car. contained contraband. These facts included the fact that the driver did not slow down immediately after the officer initiated the traffic stop; the smell of marijuana in the car; and the fact that Durante admitted to having marijuana in her purse. Thus, it was reasonable for the police officer to believe that there was evidence of contraband in the vehicle,
3. Ferrell next argues that she was denied her Sixth Amendment right to confrontation when text messages from Durante's cell phone were admitted into evidence. However, Ferrell did not object on confrontation grounds to the admission of the evidence. Accordingly, this issue is waived.
4. During cross-examination, Ferrell's counsel asked Investigator Shannon Ryals if he had interviewed any of the defendants himself on the evening of the arrests. He responded, "Yes ma'am. . . . I tried to interview each one. First I Mirandized them. As soon as I Mirandized them, they invoked their right to remain silent." Ferrell claims that this testimony improperly commented on her Fifth Amendment right to remain silent. However, Ferrell cannot complain about this testimony because the comment was elicited by defense counsel.
5. Ferrell contends that her right of confrontation was violated by inadmissible hearsay testimony by Lawrence Sullivan, the testifying GBI chemist, regarding another chemist's testing of the drugs. We disagree.
Sullivan testified at trial because Shelly Davis, the analyst who tested the drugs, was no longer with the GBI. Ferrell argues that this testimony was inadmissible hearsay, but the record does not support this argument. Rather than being a mere conduit for Davis's findings, Sullivan testified that he reviewed the examination, notes, and materials created by Davis during her analysis of the substances, and based on that, his expert opinion was that the solid material was positive for cocaine and the tablets were positive for MDMA. "An expert may base [his] opinions on data gathered by others."
6. Ferrell contends that the trial court issued a jury instruction on impeachment
After the jury left the courtroom, the trial court asked for exceptions to the charge. Co-defendant Clark objected to the inclusion of the portion regarding a felony conviction, and it was revealed that the impeachment charge was requested by Durante. The trial court agreed to recharge on impeachment. When the trial court asked Ferrell for any exceptions, she stated:
When the court asked if disproving the facts about which the witness testified and proof of contradictory statements previously made by a witness applied, Ferrell agreed that they did. The trial court re-charged the jury on impeachment and limited it to those two methods. After all the jury charges were issued, Ferrell objected that "recharging [the jury] puts undue burdensome [sic] on that charge."
Ferrell argues that because she was the only defendant to testify at trial, the jury charge intimated that her testimony regarding how the prescription pill bottle containing MDMA could have gotten into the cloth bag holding the other contraband was susceptible to impeachment. However, Ferrell agreed that the content of the re-charge given by the trial court was appropriate. Therefore, this issue is not preserved for our appellate review.
We also note that, contrary to Ferrell's assertions, the charge was tailored to the following evidence presented at trial: during cross-examination, Deputy Jones was confronted with discrepancies between his trial testimony and the report he prepared at the time of the incident; Investigator Ryals was confronted with what he categorized as a typographical error in chain of custody paperwork; and Ferrell testified that she left her pill bottle on the television stand, but it was found in the car.
7. The cellular phone containing text messages was admitted to show that the phone was used to facilitate drug trafficking. The trial court declined to allow the cell phone to go out with the jury during deliberations. When the jury asked to have the cell phone while they deliberated, the trial court informed them that "[t]here are other things on that cell phone which are not admitted into evidence. They have no relevancy to this case to that extent—and to some extent may be prejudicial to the parties involved." Ferrell contends that the trial court expressed an impermissible opinion, in violation of OCGA § 17-8-57.
The state argues that, because Ferrell failed to object to this comment during trial, she has waived any error. However, our Supreme Court has "clarified that a violation of OCGA § 17-8-57 will always constitute `plain error,' meaning that the failure to object at trial will not waive the issue on appeal. On appeal, the issue is simply whether there was such a violation."
8. In her final enumeration, Ferrell claims that the trial court erred in finding that she received effective assistance of counsel in several respects: (a) by eliciting testimony from a narcotics investigator that Ferrell invoked her right to remain silent; (b) by failing to object to the admission of text messages; (c) by failing to file a motion to suppress the evidence of drug contraband; (d) by failing to object to the GBI chemist's testimony; and (e) by failing to object to the trial court's jury charge on impeachment. We disagree.
In order to prevail on a claim of ineffective assistance, Ferrell must show "both that counsel was deficient and that, but for the unprofessional errors, there is a reasonable probability that the trial's outcome would have been different."
(a) Ferrell first argues that her trial counsel rendered ineffective assistance by eliciting testimony from a narcotics investigator that Ferrell had invoked her right to remain silent. During cross-examination, Ferrell's counsel asked the investigator if he interviewed any of the defendants on the evening of the arrest, and the investigator replied that he could not interview the defendants because they had invoked their Miranda rights. However, the transcript of the hearing on appellant's motion for new trial reveals that counsel's questioning was tactical in nature. Counsel testified that she hoped this question would elicit inconsistent testimony from the investigator. Whether this tactic was "wise or unwise has no bearing on appellant's claim of ineffectiveness, as counsel's tactical decisions will not be judged in hindsight."
(b) Ferrell argues that her trial counsel rendered ineffective assistance by failing to object to the admission of text messages on the cell phone owned by co-defendant Durante. At the motion for new trial hearing, Ferrell's trial counsel testified that she did not object to the admission of these text messages as a matter of trial strategy because she believed they supported Ferrell's defense. Counsel reasoned that because there was no evidence connecting Ferrell to the cell phone, it would be beneficial for Ferrell's defense to allow the text messages into evidence. A failure to object to the introduction of evidence that does not significantly prejudice the defendant does not constitute ineffective assistance of counsel, particularly if there is a tactical reason not to object.
(c) Ferrell also contends that her trial counsel rendered ineffective assistance by failing to file a motion to suppress the evidence of drug contraband; by failing to object to the GBI chemist's testimony; and by failing to object to the trial court's jury charge on impeachment. However, these claims of error depend on enumerations of error unsuccessfully asserted in this opinion,
SMITH, P.J., and DILLARD, J., concur.