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Holmes v. State

Supreme Court of Georgia

May 15, 2017


          BENHAM, Justice

         Appellant Martin Napoleon Holmes appeals his convictions from a multi-victim crime spree which included the shooting death of Rickey Gibson.[1]We affirm.

          This Court previously considered the instant trial record in the appeal of appellant's codefendant Willie Butler and summarized the evidence as follows:

Construed most strongly in support of the verdicts, the evidence shows that [codefendant Butler], [appellant], and at least two other young men, all of whom were carrying guns, broke into Gibson's and Ms. [Alexis] Yates' house, demanded money, put a handgun into [Ms. Yates'] baby's mouth, hit Ms. Yates in the head with a gun, and forced her to go outside. Ms. Yates escaped with the baby, and the men shot Gibson multiple times, killing him. A shoe print near the house was consistent with the shoes that [Butler] was wearing, and Ms. Yates later identified [appellant] as one of the intruders.
Gibson's gold watch was stolen during the home invasion and was left behind about two hours later in [Randy] Manning's yard after his house was burglarized by [Butler] and [appellant]. [Butler] defecated in the yard and cleaned himself with a bloody sock which tested positive for his DNA. Shortly afterwards, [Butler] …entered [Greg] Pridgen's car while it was running and he was delivering a newspaper. [Appellant did not enter the vehicle, but was standing next to it at the time Butler entered.] Pridgen fought with [Butler], who punched him several times and stabbed him [at appellant's urging]. Police officers responded quickly and found [Butler] and [appellant] running down the street. Pridgen identified both of them as the perpetrators of the crimes against him. A search of a vehicle in which two of their co-indictees were riding revealed a bottle of pills belonging to [Butler's] [relative] and a camera with pictures of [Butler] and [appellant].

Butler v. State, 290 Ga. 412 (1) (721 S.E.2d 876) (2012). The trial record also showed that when appellant was arrested, police found a substance in his pocket which was eventually determined to be marijuana.

         1. Appellant contends the evidence was insufficient to convict him on the charge of misdemeanor marijuana possession. In support of this allegation of error, appellant contends there was little evidence showing that the officer who field tested the substance in appellant's pocket was qualified to conduct such a field test. The officer in question testified he had over nine years of experience in law enforcement and that he was qualified to conduct field tests in order to identify substances such as marijuana. The officer described how he used a chemical testing kit to test the substance confiscated from appellant and stated that the substance in question tested positive for marijuana. No evidence was presented showing that the officer was unqualified to conduct the field test, that the chemical testing kit was faulty, or that the test results were inaccurate or erroneous. Appellant did not posit an objection to the officer's qualifications to field test the substance, but only objected to the admission of the substance into evidence on the ground it was not sent to the Georgia Bureau of Investigation's crime lab to be tested.

It is well established that expert testimony is not necessary to identify a substance, including drugs. And even if police officers are not formally tendered as expert witnesses, if an adequate foundation is laid with respect to their experience and training, their testimony regarding narcotics is properly admitted.

(Citations omitted.) Atkins v. State, 243 Ga.App. 570 (1) (531 S.E.2d 743) (2000). While the foundation laid by the State regarding the officer's experience was unelaborate, the evidence presented about his being qualified to conduct a field test for the presence of marijuana was adequate. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of misdemeanor marijuana possession as well as the other crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Appellant's second enumeration of error "is not supported by argument or citation of authority and is accordingly deemed abandoned. Supreme Court Rule 22." Ruffin v. State, 283 Ga. 87 (4) (656 S.E.2d 140) (2008).

         3. Appellant alleges the trial court erred in denying his motion to sever. The record on appeal, however, does not appear to show that appellant ever moved for a severance[2] or joined any codefendant's motion to sever.[3] Accordingly, this issue has not been preserved for appellate review. See Moore v. State, 272 Ga. 359 (3) (528 S.E.2d 793) (2000); Page v. State, 249 Ga. 648 (3) (292 S.E.2d 850) (1982).

         4. Appellant contends the trial court improperly commented on the evidence during the testimony of an expert witness presented by Butler. Several times while Butler's counsel was questioning the expert, the trial court interjected its own questions to the witness. After one particular interjection by the trial court, Butler's counsel objected on the ground the trial court was improperly commenting on the evidence in violation of OCGA § 17-8-57 and requested a mistrial. Appellant's counsel joined in the request for a mistrial. The trial court denied the request, but gave two curative instructions to the jury, admonishing it that the court had no opinion about the proof in the case or about the guilt or innocence of the defendants.

[W]here, as here, the trial court interrupts defense counsel to make inquiry concerning the admissibility of testimony or the direction which counsel was going with a particular line of questioning, the court's comments do not constitute an opinion as to the proof or the guilt of the accused. This is especially true here because the trial court promptly gave curative instructions disclaiming any intent by any ruling or comment to express an opinion on the facts of the case, on the credibility of any witness, or on the guilt or innocence of either defendant, stating that the questions in the case should be decided by the jury, and expressing the court's absence of any inclination in the case.

(Citation omitted.) Butler v. State, supra, 290 Ga. at 416-417. There was no violation of OCGA ยง 17-8-57 and no ...

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