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Gunn v. State

Court of Appeals of Georgia, Fourth Division

August 2, 2017


          DILLARD, C. J., RAY, P. J., and SELF, J.

          Dillard, Chief Judge.

         Following a trial by jury, Kenneth Bernard Gunn was convicted of trafficking cocaine, possessing cocaine with the intent to distribute, and possessing a firearm as a convicted felon.[1] Gunn appeals from these convictions, arguing that the trial court erred by (1) admitting "other acts" evidence under Rule 404 (b); (2) denying a motion to suppress his statement to law enforcement when he had used cocaine prior to his interview; (3) failing to grant a mistrial after learning that the State's witnesses violated the rule of sequestration; and (4) failing to grant a new trial when trial counsel rendered ineffective assistance by stating that he was on probation, thereby putting his character at issue. For the reasons set forth infra, we affirm.

         At the outset, before addressing his enumerations of error, we note that Gunn previously filed an appeal with this Court (Case Number A17A0244), which was dismissed for failure to timely file an appellate brief.[2] The present appeal follows a consent-order granting Gunn's subsequent motion for out-of-time appeal in the trial court. In the present notice of appeal, Gunn indicates that the clerk should omit nothing from the appeal, and that a transcript of evidence and proceeding will be filed for inclusion in the record on appeal. But the electronic record for the current appeal is limited to filings relevant to the case after the dismissal of the prior appeal, which contained a lengthy electronic record. And Gunn has not indicated an intention to rely upon the record and transcript from the previously filed appeal. Nevertheless, this Court-having noticed the existence of the electronic record in the related case number-has reviewed the previously filed record to address Gunn's enumerations of error.[3]

         We take this opportunity to, once again, remind appellants that the burden is upon them to ensure that a complete record is transmitted to this Court for review in every appeal and to notify this Court of their intent to rely upon a previously transmitted record or transcript, [4] including any audio- or video-recorded exhibits.[5]

         Turning now to Gunn's contentions on appeal, and viewed in the light most favorable to the jury's verdict, [6] the record reflects that on February 8, 2012, the Gwinnett County SWAT team and Narcotics Unit executed a "no knock" warrant at a mobile home where Gunn and a co-defendant were occupants.[7] In the search that followed, officers located miscellaneous loose pills and sets of digital scales with white powdery residue in the kitchen area; chunks of crack cocaine on the floor of the dining area; drug paraphernalia in the living room area with cocaine residue on the coffee table; and chunks of cocaine, baggies associated with packaging narcotics, and a loaded handgun in one of three bedrooms. In total, officers seized 35.01 grams of cocaine with 53.4 percent purity from the residence, worth an estimated $3, 500-an amount of drugs consistent with an intent to distribute. And in addition to the drugs and the distribution-related paraphernalia (i.e., digital scales, large amounts of sandwich baggies, smaller baggies) found throughout the home, in the kitchen area, Gunn's name was found on a piece of mail sent to the mobile home's address. Elsewhere, officers located receipts that also reflected Gunn's name.[8]

         Following his arrest, and while still in the mobile home, Gunn gave a videotaped statement to law enforcement, and he was photographed. The photograph of Gunn depicts what appears to be a white powder substance in his nostrils, although law enforcement did not conduct testing to confirm the nature of the substance.

         Gunn was subsequently indicted for and convicted of the offenses set forth supra. He filed a motion for new trial, which was denied. This appeal follows.[9]

         1. First, Gunn asserts that the trial court erred by admitting "other acts" evidence under Rule 404 (b).[10] We disagree.

         The record reflects that prior to trial, the State gave Gunn notice of its intent to present evidence of a 2001 conviction for possession of cocaine with the intent to distribute. And in a pretrial hearing, the State proffered that an officer would testify to stopping Gunn's vehicle and, upon a search incident to arrest for providing a false name, finding in Gunn's groin area three grams of cocaine and a packet of small plastic baggies typically used to package cocaine. Gunn objected to the admission of this evidence on the basis that it was not similar to the facts at issue in the current case and due to the lapse of time from 2001 until the time of the charged offenses. But after taking the matter under advisement, the trial court ultimately ruled that it would admit the evidence because Rule 404 (b) "is a law of inclusion rather than exclusion"[11] and because the court found that the evidence could be appropriately admitted to show motive, intent, and knowledge.[12]

         At trial, the trial court maintained its earlier ruling after hearing a proffer from the officer, who clarified that during the traffic stop, he observed Gunn take something from "his backside" and then "stuff[ ] it into his crotch[, ]" and, therefore, upon reaching the jail, he ordered and observed a strip search of Gunn that revealed a cellophane wrapper containing 3.5 grams of crack cocaine in his genital area. Previously, during Gunn's arrest, the officer located in Gunn's pocket approximately 30 small plastic baggies. And the State subsequently presented the same testimony by the officer to the jury before presenting a certified copy of Gunn's conviction for the 2001 incident following a guilty plea. Prior to this testimony, the trial court instructed the jury as follows:

[S]ometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose for which the evidence is limited and not for any other purpose.
In order to prove its case, the State must show intent, must show knowledge, and may show motive. To do so, the State is about to offer evidence of other crimes allegedly committed by the accused. You are permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the defendant is of a character that would commit the crimes alleged in this case.

         The court repeated this charge to the jury just prior to deliberations, and it expounded upon same.

         Gunn asserts that the trial court erred in admitting this "other acts" evidence because the 2001 incident was factually dissimilar and because of the time span between 2001 and the events in 2012.

         Rule 404 (b) provides that

[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.[13]

         Nevertheless, even evidence that is offered for a proper purpose under Rule 404 (b) may be excluded under Rule 403 if the evidence's "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."[14]

         The Supreme Court of Georgia has adopted a three-part test by which we evaluate the admissibility of so-called "other acts" evidence.[15] Under that test, "(1) the evidence must be relevant to an issue other than defendant's character; (2) the probative value must not be substantially outweighed by its undue prejudice; [and] (3) the government must offer sufficient proof so that the jury could find that defendant committed the act."[16] As to the first factor, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."[17] And as to the second factor, even if 404 (b) evidence is relevant, we must decide whether "the probative value of the other acts evidence is substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403."[18] Of course, application of the Rule 403 balancing test is "a matter committed principally to the discretion of the trial courts, but as we have explained before, the exclusion of evidence under Rule 403 is an extraordinary remedy which should be used only sparingly."[19] Finally, on appeal, we review the admission of Rule 404 (b) evidence "for a clear abuse ...

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