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Owens v. State

Court of Appeals of Georgia
Nov 6, 1989
193 Ga. App. 661 (Ga. Ct. App. 1989)




Drug violation. Whitfield Superior Court. Before Judge Temples.

Bates, Kelehear Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, for appellee.

Appellant and a co-defendant were jointly tried before a jury and both were found guilty of trafficking in cocaine. Separate notices of appeal were filed. In Allen v. State, 193 Ga. App. 16 (___ S.E.2d ___) (1989), we affirmed the co-defendant's conviction and sentence and, in the present case, we now address appellant's appeal from the judgment of conviction and sentence entered against him.

1. Appellant's enumeration of the denial of his motion to suppress as erroneous is controlled by Allen v. State, supra at 16 (1) and is without merit.

2. The general grounds are enumerated. The contention is that, insofar as the evidence showed the co-defendant's equal access to the cocaine, it was insufficient to authorize a finding of appellant's knowing actual possession of that contraband.

In Allen v. State, supra at 17 (2), we held that the "evidence authorized the jury to find, beyond a reasonable doubt, that [the co-defendant] was in knowing possession of the cocaine either individually or jointly. [Cits.]" (Emphasis supplied.) The evidence likewise authorized the identical finding as against appellant. Accordingly, the evidence was sufficient. See also Dukes v. State, 186 Ga. App. 815 ( 369 S.E.2d 259) (1988); McIntosh v. State, 185 Ga. App. 612, 615 (5) ( 365 S.E.2d 464) (1988).

3. Appellant enumerates as error the trial court's admission into evidence of an in-custody statement made by the co-defendant.

The co-defendant did not testify at the joint trial. Under Bruton v. United States, 391 U.S. 123 ( 88 SC 1620, 20 L.Ed.2d 476) [(1968)], "`[t]he law is clear that evidence of the confession of a co-defendant implicating a defendant cannot be admitted against that defendant at a joint trial where the co-defendant does not take the stand and is not available for cross-examination. [Cits.]'" (Emphasis supplied.) Hall v. State, 161 Ga. App. 521, 522 (1) ( 289 S.E.2d 313) (1982). "For the admission of a co-defendant's statements to constitute a Bruton violation, however, the statements standing alone must clearly inculpate the defendant. [Cits.]" (Emphasis supplied.) United States v. De Parias, 805 F.2d 1447, 1455 (8) (11th Cir. 1986). Since the record shows that the co-defendant's statement, standing alone, was not inculpatory of appellant, it follows that the trial court did not err in admitting that statement into evidence.

Judgment affirmed. McMurray, P. J., and Beasley, J., concur.


Summaries of

Owens v. State

Court of Appeals of Georgia
Nov 6, 1989
193 Ga. App. 661 (Ga. Ct. App. 1989)
Case details for

Owens v. State

Case Details

Full title:OWENS v. THE STATE

Court:Court of Appeals of Georgia

Date published: Nov 6, 1989


193 Ga. App. 661 (Ga. Ct. App. 1989)
388 S.E.2d 712

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