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Partlow v. State

Court of Appeals of Georgia, First Division

June 21, 2018


          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Reese, Judge.

         A jury found Heath Partlow and Dennis Hill guilty of trafficking in cocaine and possession of cocaine with intent to distribute.[1] Each man appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress and in denying his motion for a directed verdict. Partlow also contends that the trial court erred in rejecting his challenge to one of the State's jury strikes, while Hill argues that the trial court erred in denying his motion for a continuance. For the reasons set forth, infra, we affirm the court's orders.

         Viewed in the light most favorable to the jury's verdict, [2] the record shows the following facts. At about 9:20 p.m. on September 12, 2012, Deputy Corey Tate with the Gordon County Sheriff's Office was parked in the median of Interstate 75, monitoring traffic. The deputy observed a Chevrolet Impala pass by and noticed that the tag light on the back of the car was not functioning. After conducting a traffic stop, the deputy walked to the window on the passenger's side. He immediately smelled a strong odor of freshly sprayed cologne. The driver, Partlow, gave the deputy his driver's license and insurance card.[3] The deputy asked Partlow to exit the car and walk with him to the back so the deputy could show him that there was no functioning tag light. Partlow agreed that the light was not working and told the deputy that "it must have just went out." The deputy told Partlow that he was going to write him a warning citation for the tag light violation. When the deputy asked him for the name of the passenger, Partlow responded that the passenger was his distant cousin, "James Jackson, " and that they had been driving from Cartersville in Bartow County.

         As Deputy Tate was writing the warning citation, he smelled the odor of burnt marijuana coming from Partlow. While Partlow waited at the front of the patrol car, the deputy walked over to speak to Partlow's passenger. The passenger told the officer that he did not have any identification with him, but he said that his name was "Rodney Hill, " that his birthdate was December 18, 1964, and that he and Partlow had been driving from Atlanta. Because the two men had made conflicting statements, Deputy Tate decided that further investigation was warranted.

         In the meantime, two troopers with the Georgia State Patrol ("GSP") and another deputy with the Gordon County Sheriff's Office arrived at the scene of the traffic stop. One of the troopers approached the car and asked the passenger to exit and walk to the front of the patrol car to stand with Partlow. According to the trooper, the passenger became upset when Deputy Tate said he was going to get his drug-detection canine from his patrol car. Deputy Tate walked around the car with the dog, which alerted at the front passenger-side door.

         Deputy Tate told Partlow and the passenger that he was going to search the car. Immediately after Deputy Tate and the other Gordon County deputy started searching the car, Deputy Tate observed a black bag and a pair of disposable rubber gloves on the front passenger seat. The bag was pushed toward the back of the seat, down into the junction between the passenger seat's back and the seat itself. Inside the bag were eight individually packaged bags of suspected cocaine, approximately one ounce each. The officers searched the rest of the car and found, among other things, digital scales in the glove box and a pair of disposable gloves, but no more drugs.

         Deputy Tate walked toward Partlow and the passenger in front of the patrol car and told them that they were under arrest. The passenger suddenly bolted and ran away, crossing six lanes of Interstate 75. The two GSP troopers started chasing him, but they had to abandon the chase when one of the troopers was injured. Over the next few hours, officers with the Gordon County Sheriff's Office, the Calhoun Police Department, and the GSP searched for the passenger, but they did not find him. Meanwhile, Deputy Tate arrested Partlow at the scene, and the State indicted him for possession of cocaine with intent to distribute, trafficking in cocaine, and failure to have a tag light.[4]

         Over the next several weeks, Deputy Tate and investigators in his office attempted to identify Partlow's passenger by checking State computer records based on information obtained during the traffic stop and by looking at pictures of men named "James Jackson, " "Rodney Hill, " and "James Hill." According to Deputy Tate, however, none of the men resembled the passenger enough to investigate further. Then, in June 2014, Deputy Tate saw Dennis Hill in Tennessee and recognized him as the passenger based on a scar on Hill's left cheek, his gold tooth, his speech pattern, the tattoo on his forearm, and his unusual height, which was approximately 6 feet, 5 to 6 inches. Tate later reviewed the dashcam video from his patrol car to confirm that Hill and the passenger had the same speech pattern. Investigators also learned that Hill was the brother of Partlow's ex-wife, and that she and Hill had a brother with the same name ("Rodney Hill") that Partlow's passenger had given Deputy Tate during the traffic stop. Hill also had the same birthdate that the passenger had given to Deputy Tate (December 18), although he was born in 1966, not 1964, the year given by the passenger. Based upon this information, the State filed a superseding indictment against Partlow and Hill jointly, charging them both with trafficking in cocaine and possession of cocaine with intent to distribute.

         At trial, evidence showed that the Gordon County Sheriff's Office seized the cocaine found in the car Partlow was driving and sent it to the Georgia Bureau of Investigation's Division of Forensic Sciences (the "State Crime Lab") to be analyzed. The contents of each of the bags tested positive for cocaine. The total weight of the cocaine was 221.24 grams, plus or minus 0.08 grams, and it had a purity of at least 36.875 percent. Deputy Tate testified that the total amount of cocaine was "a lot" more than one would normally have for personal use. Another Gordon County deputy agreed, testifying that a normal amount of cocaine for personal use was about one to three grams at a time and that the street value of the cocaine was about $100 per gram. Further, Deputy Tate testified that the cocaine was packaged in a manner that was intended for "distribution purposes." Deputy Tate also noted that digital scales, such as those found in the car, were often used to weigh cocaine before it was sold, and that drug dealers often wore gloves while packaging the cocaine to keep their fingerprints off the bags.

         After hearing this evidence, the jury found both Partlow and Hill guilty of trafficking in cocaine and possession of cocaine with intent to distribute.[5] The trial court denied their motions for a new trial, and these appeals followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [6] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[7]

         "The standard of Jackson v. Virginia[8] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."[9] With these guiding principles in mind, we turn now to the Appellants' specific claims of error.

         Case No. A18A0436

         1. Partlow contends that the trial court erred in denying his Batson[10] challenge to the State's use of a peremptory strike against the only African-American person in the jury array.

The analysis of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven the proponent's discriminatory intent.[11]

         "The ultimate burden of persuasion regarding racial motivation of peremptory strikes rests with and never shifts from the opponent of the strike. Therefore, in order to prevail on his Batson challenge, [the defendant] had the burden of proving that the State engaged in purposeful discrimination in the exercise of its peremptory strikes."[12]The trial transcript shows that, after excusing the jurors for the night at the end of the first day of trial, the trial court recounted, for the record, a bench conference that had taken place during jury selection. According to the court, the State had used one of its peremptory jury strikes against Juror No. 1, the only African-American in the 42-person jury array. Partlow's counsel asserted a Batson challenge to the State's peremptory strike. The trial court noted that, in response to the Batson motion, the State had the burden of giving a race-neutral reason for the strike. The prosecutor told the court that he believed Juror No. 1 had given an untruthful answer during voir dire by failing to raise her hand or otherwise affirmatively respond when the prospective jurors were asked whether any of them had previously been arrested for anything more serious than a traffic offense. The prosecutor explained that he had checked the criminal histories of the prospective jurors prior to trial and had learned that Juror No. 1 had previously been arrested in Gordon County. According to the prosecutor, because Juror No. 1 had failed to admit to that arrest during voir dire, he struck her from the jury. The prosecutor added that, in addition to Juror No. 1, he had also used a peremptory strike to dismiss a Caucasian female who had disclosed that she had previously been arrested, even though she had later been sentenced as a first offender.[13]

         Partlow's counsel asked if she could verify the criminal history of Juror No. 1, and the court stated on the record that it had independently confirmed the prosecutor's information. The court ruled that the State had met its burden, under Batson, of giving a race-neutral reason for striking Juror No. 1. Partlow's counsel then perfected the record by proffering her assertion that, during voir dire, the court had not allowed her to question Juror No. 1 to see if the failure to admit to the arrest was just an "innocent mistake" or misunderstanding on the prospective juror's part or whether she was actually being dishonest.

         The transcript also shows that, before the jury was seated the next morning, the prosecutor presented the court with a comprehensive criminal history report for Juror No. 1, which showed that she had previously been arrested several times. The prosecutor stated that, based on the report, he would have struck Juror No. 1 based upon her criminal history, even if she had not lied about whether she had been arrested. Consequently, the trial court ruled that, even if Partlow's counsel had been able to question Juror No. 1 to see if her failure to admit to being arrested was the result of a mistake and was not an intentional lie, the result would not have changed, i.e., the prosecutor would have used a race-neutral peremptory strike to remove her from the jury based on her criminal history.

         Upon our review of whether the trial court properly applied the three-step Batson analysis in this case, we note that, once Partlow raised his Batson challenge, the prosecutor responded to it by offering his reason for striking Juror No. 1, and the trial court based its ruling on that explanation. Thus, the issue of whether Partlow made a prima facie showing of discrimination under the first step is moot.[14] Instead, we only need to determine whether the prosecutor's explanation was sufficiently race-neutral to support the court's ruling that the prosecutor did not act with discriminatory intent when striking Juror No. 1.[15]

When conducting this review, we are mindful that the decision as to discriminatory intent rests largely upon assessment of the prosecutor's state of mind and credibility and therefore lies peculiarly within a trial judge's province. Consequently, we give great deference to the trial court's factual findings, which are disregarded only if they are clearly erroneous.[16]

         This Court has previously ruled that "[a] prospective juror's criminal history is an adequate race-neutral reason to strike a prospective juror."[17] Accordingly, we conclude that Partlow has failed to show that the trial court erred in denying his Batson motion.

         2. Partlow contends that the court abused its discretion when it denied his motion to suppress the cocaine seized during the traffic stop. He argues that the traffic stop was illegal because there was no reasonable suspicion to authorize it.

         "[T]he stop of a vehicle is authorized if an officer observes the commission of a traffic offense. When an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment[, ] even if the officer has ulterior motives in initiating the stop."[18] Further, "[i]n reviewing the trial court's order on a motion to suppress, we construe the evidence most favorably to the upholding of the trial court's findings and judgment. We review the trial court's factual findings for clear error, but we review de novo the application of the law to those facts."[19]

         Here, during the motion to suppress hearing, [20] Deputy Tate testified that he stopped Partlow's car because it did not have a functioning tag light.[21] According to the deputy, when he and Partlow walked to the back of the car and he showed Partlow that the tag light was not working, Partlow "did not dispute it. He confirmed that it was not working at that time." In fact, according to the deputy, Partlow expressed surprise that the light was not working because he had just had the car "serviced, " and Partlow talked about buying a replacement bulb as soon as the traffic stop was over. The judge watched Deputy Tate's dashcam video-recording of the traffic stop during the motion to suppress hearing.

         Although there was testimony that the tag light may have started working at some point during the stop (possibly after the deputy slammed the trunk shut during the search), such evidence does not demand a finding that there was no legal basis for the stop.[22] Instead, it was for the judge to decide, based on the testimony presented and the dashcam video-recording, whether the stop was authorized due to the deputy's observation of a traffic violation, [23] i.e., a nonfunctioning tag light.[24]

         Given the evidence presented, we conclude that the judge did not err in denying Partlow's motion to suppress in this case.[25]

         3. Partlow argues that there was insufficient evidence to support his convictions and that the trial court erred in denying his motion for a directed verdict.[26] Specifically, he argues that the evidence was insufficient to prove that he knowingly possessed the cocaine found in the car he was driving. According to Partlow, the drugs belonged to his passenger, who had equal access to the vehicle, and he (Partlow) had no knowledge that the drugs were present. He argues that, because the deputy left the passenger alone in the car after Partlow exited it to look at the tag light, the passenger had the opportunity to try to hide the drugs by stuffing them down into the passenger seat. He also argues that the State presented no evidence at trial, such as fingerprints or the digital scale found in the glove box, to show that he had handled the drugs.

Constructive possession exists where a person[, ] though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing. A finding of constructive possession cannot rest [solely] upon the person's spatial proximity to the object. However, as long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact.[27]

         Further, in cases such as this, where contraband is found in a vehicle, "the State is generally entitled to an evidentiary presumption that the owner or driver of the automobile is in constructive possession of the contraband."[28] Here, the evidence showed that Partlow was driving the vehicle at the time of the stop, that the car belonged to his then-fiancee (his wife at the time of trial), that he was jointly insured on the vehicle, and that he "regularly" drove the car. Thus, there was evidence that Partlow owned or controlled the vehicle in which the cocaine was found at the time it was discovered.

Additionally, the fact that [Hill, as the passenger, ] had equal access to the vehicle is inconsequential. Both [Partlow and Hill] were charged in the same indictment with jointly trafficking in cocaine, and equal access provides no defense where, as here, the evidence shows that the person who had equal access was in joint constructive possession of the contraband.[29] . . . Furthermore, it has long been the law that knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband. Indeed, OCGA § 16-2-6 provides that a jury may find criminal intention "upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted."[30]

         In this case, Partlow's knowledge that there was cocaine in the car could be inferred from the circumstances presented. Partlow gave Deputy Tate a different name for the passenger than the passenger himself (Hill); Partlow falsely told the deputy that the passenger was his distant cousin; and the men gave conflicting stories about where they had been prior to the traffic stop.[31] "A jury could infer that one or both were lying and that these lies evidenced guilty knowledge."[32] In addition, the jury was able to watch the dashcam video showing Partlow's general demeanor and his interactions with Hill and the officers during the traffic stop, including just before Hill suddenly bolted from the scene. The jurors also saw photos from which they could infer that the black bag of cocaine would have been within Partlow's arm's reach when he was in the driver's seat. In addition, digital scales and disposable gloves were found in the car, and there was testimony that both of these items were typically used when packaging drugs for sale.

         Accordingly, we conclude that the evidence was sufficient to support the jury's finding that Partlow knowingly had at least joint possession of the cocaine found in the car and, thus, was ...

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