Petition for Writ of Certiorari — Smith v. Rigg

S: ipreme Court. ys

a FILED

(!)

O02 684 Aus 26 2002

Docket No.

IN THE SUPREME COURT OF THE UNITED STATES

JAMES WATKINS, PETITIONER

V.

STATE OF GEORGIA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THE GEORGIA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

Please Serve:

Benjamin A. Davis

Counsel of Record

1201 Peachtree Street

400 Colony Square, Suite 200

Atlanta, Georgia 30361

(404) 233-0120

QUESTION PRESENTED:

WHETHER THE APPELLATE COURT ERRED

BY HOLDING THAT THE PETITIONER

RECEIVED A FAIR TRIAL FROM A NEUTRAL

MAGISTRATE WHERE THE TRIAL JUDGE

DEMONSTRATED AN OBVIOUS BIAS IN

FAVOR OF THE STATE BY INSTRUCTING

THE PROSECUTOR TO RECALL AND ELICIT

TESTIMONY FROM A WITNESS

Opinions below...........ssecseseseeseseeeesenenennenenenenseneneneneens 2

JUTISGICTION...................eeecccesssccscssscesenecssssccesnsesescsneeeees 2

Constitutional and statutory provisions involved ......... ye

StateMeENt ..........ccccccccssovssccsessensscssseccesenessssesncscossoossnes 3-9

Reason For Granting

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CONCIUSION .............00.sssceessrscsscsecsscceeeeesssscscrsvsscceeesssesees 18,19

Appendix ........sssssesecesesseeneneenenensnsnenenennenensacaceneneseessesenens A

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TABLE OF AUTHORITIES Page #

Cases:

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 89 L. Ed. 2d 823,

BOG S. Cy, TIE Biiccsssiseecciennsantenaeetantaas 11

Bracy v. Gramley, 520 U.S. 899, 138 L. Ed. 2d 97, 117 S. Ct.

OTIS CIDP T ) vcxs:creninntanineineetip aaa 11

Connally v. Georgia, 429 U.S. 245; 97 S.Ct. 546; 50 L. Ed. 2d

GAG (1971). .1<.<0nreanesesssiniiiasnnctensieeataanaieaan 13

In re Murchison, 349 U.S. 133, 137, 99 L. Ed. 942, 75 S.Ct.

625-159 (1955) ,..<:ininessisiieeeenaisiamiac aan 11

Johnson v. Mississippi, 403 U.S. 212, 29 L. Ed. 2d 423, 91 S.

CT. U7 TRCESTE).nissscmeniaeeeeee POPE 11

Mayberry v. Pennsyivania, 400 U.S. 455

CE SGT). ..<cvsesennnsscoseinsipentenseniop hnatelpaleiuiestnaelinatn ana nna 11

IV

Tumey v. Ohio, 273 U.S. 510 (1926)........scsesereeereesees 12

United States v. Microsoft Corp., 346 U.S. App. D.C. 330; 253

Withrow v. Larkin, 421 U.S. 35, 46, 43 L. Ed. 2d 712, 95 S. Ct.

1456 (1975S) ...ccresresoresresccrorserssceeserversecsessensananesnvssesees

Constitutional, statutes and regulations:

U.S. Const. Amend.

Docket No.

IN THE SUPREME COURT OF THE UNITED STATES

JAMES WATKINS, PETITIONER

V.

STATE OF GEORGIA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THE GEORGIA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

The Petitioner respectfully petitions for a writ

of certiorari to review the judgment of the Georgia

Court of Appeals.

2.

OPINIONS BELOW

The opinion of the Georgia Court of Appeals is

reported as State v. James Watkins, A01A1968. A

copy of this opinion is attached as Appendix “A,” to

this petition.

JURISDICTION

The judgment of the Georgia Court of Appeals

was entered on January 22, 2002. This court has

jurisdiction pursuant to United States Supreme Court

Rule 12&13, over this matter as it is an appeal from

the denial of the Georgia Supreme Court to exercise

discretionary review of a holding of the Georgia Court

of Appeals. The Georgia Supreme Court entered its

order on May 28, 2002.

CONSTITUTIONAL AND STATUTORY

zs

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the United

States Constitution provides in pertinent part:

Nor shall any State deprive any person of life,

liberty, or property, without due process of law.

STATEMENT

The petitioner, JAMES WATKINS was accused along

with a co-defendant, Alfred Gossett, by J. Tom Morgan,

District Attorney of Dekalb County of possession with intent to

distribute cocaine on January 4, 2001. (R, 3) Gossett pled guilty

to Possession With Intent To Distribute on March 2, 2001. (R,

3)

The State presented the following witnesses on the first

day of trial and last day of testimony or May 1, 2001: Officer

Terry M. White, Officer Harry Stiles and crime lab technician,

Tina Wu, respectively. Officer White testified that on January 4,

2001 he was positioned across the street from a Chevron gas

i

station at a U- Haul gas station watching people leave the

location and trying to determine whether they were involved in

drug activity. (T, 18, 11-19).

According to Officer White’s testimony, two

individuals, who were standing at the Chevron gas station,

walked towards him until he, Officer White informed them that

he was waiting on someone, at which point they walked away.

(T, 19, 2-20). Officer White never claimed that any of the

individuals that he observed that night committed a criminal

offense.

Officer White never identified Petitioner, James Watkins as one

of the two people that he saw walking towards his car. Officer

White never identified James Watkins as a person he saw

possess, sell, or attempt to sale cocaine.

It was due to this lack of probable cause that Officer

White, a police officer with full arrest powers, requested a

uniform patrol unit to merely perform a “stop and talk.”(T, 19,

-5-

2-19) or “ask them what they are doing at the location.” (T, 19-

20, 25-2) Officer Stiles in responding to Officer White’s call

approached Petitioner and Gossett because they, according to

Stiles, fit Officer White’s description, (T, 22, 22), however,

they were not standing in front of the Chevron Station- as White

reported, they—Petitioner and Gossett were, instead, walking

eastbound on Church Street. (T, 23, 13-15)

According to Officer Stiles’ testimony, he drove up

behind Petitioner, James Watkins and Alfred Gossett, at 7:45

p.m., and claims to have been able to see something white “fly

to the right.” (T, 23, 13-15), but could not remember who was

standing on the right. (T, 24, 2) Officer Stiles claims to have

found the bag that was thrown with 34 hits of crack cocaine

inside. (T, 24, 7-9).

After the cross-examination and release of both Officer

White and Stiles, the only evidentiary witnesses presented at

trial, the prosecutor approached the bench to report that Alfred

es a es

-6-

Gossett had not shown up for court nor could he be found. (T,

26, 25)

The State also informed the trial court that Alfred

Gossett was not subpoenaed. (T, 27, 22). It is important to note

that up to this point in the trial— after the release of Officer

Stiles, the State had not made mention of the alleged $272

found on Petitioner, the word possession had not been used or

explained by any witness; the term possession with intent to

distribute had not been used or explained by any witness;

Officer Stiles had not opined that the weight or packaging of the

crack cocaine found by him meant that it was for distribution as

opposed to personal use; no witness including Stiles had opined

that the money found on Petitioner was conducive to drug

activity and Stiles had not opined that a certain number of hits

of crack cocaine meant that it was for distribution.

The State did not elicit this testimony from these first

two witnesses-White and Stiles because they could not provide

it.

It is for this reason, the importance of Gossett’s

testimony, and the apparent absence of some witness to testify

to Petitioner’s alleged possession of the 34 hits of cocaine, that

the State approached the bench.

Whereupon, the trial court informed the State through a

series of remarks that it could elicit the surrounding -

“circumstances” from the officer who made the arrest to wit:

Who was it that arrested Mr. Watkins? (T, 29, 7), “... Officer

Stiles” (T, 29, 8); “you didn’t go into anything about the money,

nothing about the circumstances, nothing like that whatsoever.”

(T, 29,9-11); I suggest you better get him or try to find him. (T,

29, 24-25)

Less than two hours before making these remarks or

immediately preceding the lunch break and direct examination

of Officer White, the trial court had explained the legal

significance of showing “the circumstances”, 1.e., “THE WAY

-8-

YOU SHOW INTENT TO DISTRIBUTE IS YOU SHOW

ALL THE SURROUNDING CIRCUMSTANCES, ...

THAT’S MY UNDERSTANDING OF THE LAW IS THAT

YOU SHOW THE SURROUNDING CIRCUMSTANCES,

INCLUDING THE NUMBER OF DRUGS, THE WAY

THEY ARE PACKAGED.”(T, 14, 1-3)

The trial court explained his assistance first by stating

“If somebody overlooks something I don’t think it is fair, I don’t

think the cause of justice is served by either side if somebody

overlooks something, they make a mistake, I’m not going to —

actually I do it more for defense attorneys than I do it for

prosecutors.” (T, 30, 11-16). .

The trial court’s second and last justification was: “we all make

mistakes including me.” (T, 32, 7).

The trial court was eventually thanked by the State for

its assistance. (T, 32, 7-8) And for good reason as the State had

utterly forgotten to establish the elements of possession much

Me

less possession with intent to distribute, e.g., “the money was an

oversight. I don’t know why I didn’t go into that. That was a

complete oversight on my part.” (T, 29, 20-22)

Preservation of error.

The Petitioner raised as his first enumeration of error on

appeal a violation of the federal due process clause as applied to

the State of Georgia via the Fourteenth Amendment. The

Georgia Court of Appeals passed on this issue in the first

paragraph of its opinion holding that the trial judge has

discretion under Georgia law to “interfere with the conduct of

counsel in an effort to require counsel to present properly to the

jury admissible evidence on the relevant legal issues.”

REASON FOR GRANTING THE WRIT:

The Due Process Clause of the fifth amendment

guarantees that “no person shall be... deprived of life, liberty

or property, without due process of law...” (U.S. Const. amend.

V ). This constitutional guarantee is applied to the states via the

Pee dL,

-10-

fourteenth amendment, which states in pertinent part “No ...

State [shall] deprive any person of life, liberty, or property,

without due process of law ...”(U.S. Const. amend. X1V, § 1).

Due process requires an impartial judge. “It certainly

violates the fourteenth amendment, and deprives a defendant in

a criminal case of due process of law, to subject his liberty or

property to the judgment of a court the judge of which has a

direct, personal, substantial, pecuniary interest in reaching a

conclusion against him in the case. ; Ward v. Monroeville, 409

U.S. 57, 58, 34 L. Ed. 2d 267, 93 S. Ct. 80. See also Withrow v.

late: 421 USS. 35, 46, 43 L. Ed. 2d 712, 95 S. Ct. 1456

(1975)(The floor established by the Due Process Clause clearly

requires a “fair trial in a fair tribunal” before a judge with no

actual bias against the defendant or interest in the outcome of

his particular case ). Aetna Life Ins. Co. v. Lavoie, 475 U.S.

813, 822, 89 L. Ed. 2d 823, 106 S. Ct. 1580-825(1986); Johnson

v. Mississippi, 403 U.S. 212, 215, 29 L. Ed. 2d 423, 91S. CT.

1778-216(1971);Mayberry v. Pennsylvania, 400 US.

Anaemia aaa a ii aia

bts

455 (1971); Bracy v. Gramley, 520 U.S. 899, 905, 138 L. Ed.

2d 97, 117 S. Ct. 1793 (1997); In re Murchison, 349 U.S. 133,

137, 99 L. Ed. 942, 75 S.Ct. 623-139 (1955)

There are essentially two categories of partiality which if

demonstrated by a judge or his office would violate the due

process eas the first involves the Judge’s bias or prejudice

not manifested by his actions, but rather by his office, typically

this comes by way of financial compensation which is so

intertwined with the appearance of partiality that one can not

separate the ability to be neutral from the amount of

compensation paid if he is not, in this situation, the Court in

finding due process violations has focused on the unsavory

appearance created by the manner in which the judge is paid.

See Tumey v. Ohio, 273 U.S. 510, 71 L.Ed. 749, 47 S. Ct. 437

(1927)(The mayor of an Ohio town was compensated as the

town judge in such a manner as to conflict with his obligation to

give defendants a fair trial ). A judge under these circumstances

a.

could actually be unaffected by salary and yet be said to have an

interest in the outcome and thereby violate a defendant’s night to

due process because his salary is based upon the number of

times he found against the accused. Connally v. Georgia, 429

U.S. 245; 97 S.Ct. 546; 50 L. Ed. 2d 444 (1977).

The second, involves actual bias demonstrated by the

Judge’s improper comments and actions during the course of the

proceeding. This conduct is more egregious then the former, as

in the latter, the Judge has actually undertaken steps either by

word or by deed that ultimately taints the outcome of the

proceeding. It does not matter that he, the trial judge, makes

his views known outside the presence of a trial jury but in a

courtroom open to the public or that he makes them in private

knowing that they will end up in the public. What is important is

that his actions have eroded the notion of a fair trial overseen

by a fair and impartial arbiter.

For this reason, the United States Court of Appeals for

the District of Columbia reversed a trial judge for making extra-

e

judicial comments during secret interviews with the media

criticizing one of the parties--the Appellant Bill Gates , in terms

which questioned his credibility, to wit:

the District Judge likened Microsoft’s writing of

incriminating documents to drug traffickers who “never

figure out that they shouldn’t be saying certain things on

the phone:” “The Judge apparently became ...

“increasingly troubled by what he learned about Bill

Gates and Paul Allen and their shaggy-haired first

employees at Microsoft.” The reporter wrote that the

Judge said he saw in the picture “ a smart-mouthed

young kid who has extraordinary ability and needs a

little discipline. I’ve often said to colleges that Gates

would be better off if he had finished Harvard.” United

States v. Microsoft Corp., 346 U.S. App. D.C. 330; 253

F. 3d 34

Similarly, the comments made during the course of the

Eee eee eee

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trial in the case sub judice outside the presence of the jury were

improper due to the public appearance of partiality, just as those

made to the reporter in Microsoft, both judges made biased

comments which tainted the process, giving the appearance that

they were partial to the government’s willie over the

Defendant.

Clearly here, as in Microsoft, the focus is centered

around one issue— whether the judge’s comments gave the

appearance of partiality, this threshold was meet in the previous

cases without the defendant having to prove that he actually

suffered prejudice as a result of the judge’s bias. In short, it did

not matter in Microsoft, Connally, Tumey and Monroeville, that

the judge’s comments, actions or compensation did not actually

effect their decision.

Here, however, unlike /ficrosoft, Connally, Tumey and

Monroeville, the trial judge’s comments did have an effect on

the outcome, beginning with the trial court’s reaction to the

surprising revelation that the State could not produce her most

3

important witness, Alfred Gosset, had no right to a continuance

and was about to rest after the testimony of the crime lab expert,

Tina Wu; and thereafter face dismissal upon the upcoming

defense motion for directed verdict to wit:

THE COURT: I DO NOT UNDERSTAND. I DO NOT UNDERSTAND

WHY YOU DID NOT SUBPOENA HIM. THAT’S INCREDIBLE,

THAT YOU DID NOT SUBPOENA HIM, MS. DANIELS. (T, 28, 2-3) ;

MS. DANIELS: WELL, YOUR HONOR, I HAD NO REASON TO

THINK THAT I NEEDED TO. (T, 28, 5-6)

THE COURT: DO YOU UNDERSTAND NOW, OF COURSE

YOU DON’T HAVE HIM UNDER SUBPOENA SO YOU HAVE

NO WAY OF ENFORCING A SUBPOENA? (T, 28, 12-14)

MS. DANIELS: I UNDERSTAND THAT.(T, 28, 18)

THE COURT: YOU UNDERSTAND THAT I CAN’T SEND A

SHERIFF OUT TO GET HIM?(T, 28, 16-17)

MS. DANIELS: I UNDERSTAND.(T, 28,18)

THE COURT: YOU HAVE NO LEGAL GROUNDS FOR A

MOTION FOR A CONTINUANCE. THAT’S THE REASON WHY

YOU SUBPOENA SOMEONE.(T, 28, 19-21)

MS. DANIELS: I UNDERSTAND. AND IF I AGAIN, OBVIOUSLY

20-20 HINDSIGHT AND MONDAY MORNING

QUARTERBACKING, I SHOULD HAVE SENT A SUBPOENA OUT

TO HIM. BUT HE WAS LITERALLY CHOMPING AT THE BIT TO

BE ABLE TO COME AND MAKE RIGHT WHAT HAD HAPPENED.

-16-

SO IT JUST NEVER CROSSED MY MIND THAT I WOULD BE

FACING THE SITUATION THAT

1 AM FACING RIGHT NOW. I GUESS AT THIS POINT THE ONLY

THING I WOULD ASK IS ONCE MS. WU GETS HERE, I GUESS WE

; CAN PUT UP THAT EVIDENCE. AND IF HE DOESN'T SHOW, HE

DOESN’T SHOW. THAT’S THE CASE. ¢T, 28-29,22-6)

) Realizing that the linchpin of the prosecution’s on

Alfred Gossett, was unavailable and worst still that a

continuance was not legally justifiable because Gossett was

never subpoenaed, the trial court sought to help the State

survive the upcoming motion for directed verdict by instructing

the prosecutor on what she did not establish during the direct

examination of the arresting officer, Officer Stiles, to wit:

THE COURT: WHO WAS IT WHO ARRESTED MR.

WATKINS?(T, 28, 7)

MS. DANIELS: MR. STILES, OFFICER STILES.(T, 28, 8)

THE COURT: YOU DIDN’T GO INTO ANYTHING ABOUT

THE MONEY, NOTHING ABOUT THE CIRCUMSTANCES,

NOTHING LIKE THAT WHATSOEVER.(T, 28, 9-11)

MS. DANIELS: I FORGOT ABOUT THE MONEY. THE MONEY

WAS AN OVERSIGHT, AND I DON’T KNOW WHY I DIDN’T GO

INTO THAT. THAT WAS A COMPLETE OVERSIGHT ON MY

ahs

PART.(T, 28, 2023)

THE COURT: WELL, I SUGGEST YOU BETTER GET HIM OR

TRY TO FIND HIM.T, 28, 24-25)

The trial court even acknowledged that he had helped

the State as follows:“If somebody overlooks something I

don’t think it is fair, I don’t think the cause of justice is

served by either side if somebody overlooks something, they

make a mistake, I’m not going to — actually I do it more for

defense attorneys than I do it for prosecutors.” (T, 30, 11-

16).

It certainly can’t be said that impartiality rests with a

judge who decides that he must inform the prosecution on how

to satisfy the elements of the charged offense, here, possession

with intent to distribute by specifically stating “YOU DIDN’T

GO INTO ANYTHING ABOUT THE MONEY, NOTHING

ABOUT THE CIRCUMSTANCES, NOTHING LIKE

THAT WHATSOEVER.” (T, 29,9-11); and by telling the

prosecutor what witness to use to satisfy it to wit: who was it

-18-

that arrested Mr. Watkins? (T, 29, 7), “... Officer Stiles” (T, 29,

8) I suggest you better get him or try to find him. (T, 29, 24-25)

If the court had not given this advise; it is

doubtful that this case would have survived the

motion to dismiss, especially, given the fact that the

judge had expressed his own opinion that the

prosecutor had not elicited the requisite evidence to

satisfy her burden of proof.

It is impossible to know or understand the trial court's

motivation to act in the manner describe herein, however, one

comment seemed to epitomized his attitude towards ensuring that the

Petitioner received a fair trial with adequate constitutional safeguards

where he could have been sentenced to upwards of 30 years, i.e., “...

I REALIZE [THIS] IS A SMALL CASE.” (T, 29, 14-15).

CONCLUSION

For all of the reasons stated above Petitioner

moves this Court to reverse the decision of the

Georgia Court of Appeals.

Respectfully submitted

By:__ (di nam d. Sais

BENJAMIN A. DAVIS

Counsel of Record for Petitioner

1201 PEACHTREE STREET

ATLANTA, Georgia 30361

Docket No.

IN THE SUPREME COURT OF THE UNITED STATES

JAMES WATKINS, PETITIONER

7.

STATE OF GEORGIA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO

THE GEORGIA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

APPENDIX “A”

Benjamin A. Davis

Counsel of Record

1201 Peachtree Street

400 Colony Square, Suite 200

Atlanta, Georgia 30361

(404) 233-0120

TABLE OF CONTENTS Page #

GA Court of Appeals Decision affirming trial

I csciscickcisttser vices viceneciasncitatiasennetnpaeninss 1-17

ii

IN THE COURT OF APPEALS FOR GEORGIA

A01A1968 , WATKINS V. STATE

MILLER, JUDGE

Following a jury trial, James Watkins was

convicted of possession of cocain with intent to distribute.

On appeal he asserts several enumerations of error,

including insufficiency of the evidence to sustain his

conviction, the trial court allowing the State to recall a

witness and the judge’s failure to recuse himself due to

alleged bias.

We discern no error and affirm.

Viewed in light most favorable to the verdict, the

evidence reveals that an undercover police officer was

monitoring suspected drug activity at a gas station in an

.%

area known for its high amount of drug activity. The

officer observed two men approach two others standing at

the corner of the station. The men who approached spoke

with the other two men for a few moments, and then

quickly walked away. The two men who had been

standing at the corner then looked around the gas station

and crossed the street, moving towards the undercover

officer’s car. As they approached the car, they pulled

sweater hoods over their heads. The undercover officer

rolled down his window and told the men that he was

waiting for someone, and the two men walked away.

Suspecting possible drug activity, the undercover

officer contacted a uniformed officer, gave a description of

the two men who approached his car, and told the officer to

do a “stop and talk” on the two men. The uniformed

officer arrived within a few seconds and drove up behind

two who matched the description given by the undercover

Ss

officer. As he drove closer, the officer saw something

white fly to the right of the two men. He stopped the two

men and discovered that the thrown object was a plastic

bag co#taining thirty-four hits of crack cocaine. Although

it had been raining that day and the ground was wet, the

plastic bag containing the crack was dry as if it had just

been thrown on the ground. The officer arrested the two

men, James Watkins and Alfred Gossett, and at the time of

the arrest found that Watkins was carrying $272 in case,

mostly in small bills.

Gossett pled guilty, and Watkins went to trial. The

State indicated that Gossett was prepared to testify

regarding Watkin’s plan to sell the cocaine. However,

when the State failed to subpoena him, Gossett did not

appear at trial. Outside the presence of the jury, the judge

chastised the State for failing to subpoena their key witness

and also criticized the State for failing to discuss the money

adi

that was found on Watkins or the circumstances

surrounding his arrest during the original testimony of the

arresting officer. The State acknowledged its mistake in

failing to subpoena Gossett and further acknowledged its

oversight in failing to ask the arresting officer about the

money that Watkins was carrying at the time of his arrest.

The judge then counseled the State to find the arresting

officer. The judge state that in the interest of fairness and

justice, he would allow the State to recall the arresting

officer to correct its oversight, and that if defense

overlooked something he would do the same for him. The

judge further state that he has more often accorded such

leeway to defense attorneys than the State. Defense

counsel objected, claiming that the court “tipped off” the

State regarding its need to recall the arresting officer.

After the jury returned, the State indicated that

Gossett was not there to testify, and the judge said that the

-5-

prosecutor apparently did not know where Gossett was.

Defense counsel did not object to the judge’s statement.

The arresting officer testified as to his experience in

dealing with drug crimes, and that the denominations of

money found on Watkins were consistent with drug sales.

He also testified as to the amounts of crack cocaine that, in

his experience, would indicate quantities for personal use

or for distribution, and that the amount at issue here would

more likely be for distribution. Defense counsel objected,

stating that no foundation had been laid for the officer to

express such an opinion, but did not object on the basis that

the officer was testifying to an ultimate issue to be decided

by the jury.

After the State rested, defense counsel moved for a

directed verdict. He did not object to the trial judge ruling

on his motion or question the judge’s objectivity, but in

fact requested that the judge rule on it. The judge denied

the motion.

The judge gave pattern jury instructions on direct

and circumstantial evidence including and instruction that

exhibits constituted direct evidence. To clarify the

distinction between direct and circumstantial evidence, the

judge described direct evidence of a person being at the

beach as someone testifying that they saw the person at the

beach, versus someone testifying that they saw the person’s

footprints in the sand. The judge also charged the jury on

parties to a crime. Defense counsel claimed that he was

not informed that the judge would give a charge on parties

to a crime, but the judge stated on the record that he had

informed defense counsel at the charge conference that the

charge would be given. The charge conference was not

recorded.

During deliberations, the jury submitted written

questions to the judge, and he recharged the jury several

x, 3

times on actual, constructive, sole, and joint possession, on

the State’s burden of proof, and on parties to a crime. The

judge also allowed the jury to consider Gossett’s guilty

during deliberations, as it went out with the jury without

any objection from defense counsel. The jury returned a

guilty verdict against Watkins for possession of cocaine

with intent to distribute.

1. Watkins contends that the trial judge erred by

assisting the State when he informed the State that it

needed to recall the arresting officer. However, the trial

judge may interfere with the conduct of counsel in an effort

to require counsel to present properly to the jury admissible

evidence on the relevant legal issues' That is precisely

what the judge was doing here. His helpful comments to

' See Dyke v. State, 232 Ga. 817, 825 (III(209 SE2d

166)(1974)

-8-

the State, outside the presence of the jury, did not indicate

any lack of fairness.’

Moreover, a judge has broad discretion to allow the

recall of a witness, even one that has been excused.’ The

arresting officer here had not yet been excused and:had just

| testified. We find no abuse of discretion in the court

allowing the recall of this witness.‘

2. Watkins claims that the trial judge erred by

failing to recuse himself due to alleged bias prior to ruling

oye wo

on Watkin’s motion for directed verdict. He argues that

the judge was biased because he informed the State that it

needed to recall the arresting officer. However, Watkins

never moved to recuse the judge, nor did he object to the

2 See Johnson v. State, 126 Ga. App. 93, 96(3)(189

SE2d 900)(1972)

> Lynn v. State, 251 Ga. App. 155, 157

(2a) SE2d (2001)

_ eee ee

* See id.

-9-

judge ruling on his motion for directed verdict. He has

therefore failed to preserve this issue for appellate review.°

3. Notwithstanding his argument that the trial judge

should have recused himself prior to ruling on his motion

for directed verdict, Watkins contends that the trial court

erred by denying his motion for directed verdict. We

disagree.

The standard of review for the denial of a motion

for directed verdict of acquittal is the same as for

determining the sufficiency of evidence to support a

conviction.® We view the evidence in light most favorable

to the jury’s verdict, and the defendant no longer enjoys the

* See Johnson v. State, 250 Ga. App. 245, 246-

247(1)(550 SE2d 113)(2001)

® Hash v. State, 248 Ga. App. 456, 457 (1)(546 SE2d

833)(2001)

-10-

presumption of innocence.’ We do not weigh the evidence

or determine witness credibility, but only determine if the

evidence was sufficient for a rational trier of fact to find

the defendant guilty of the charged offense beyond a

reasonable doubt®

Based on the evidence that the police observed

Gossett and Watkins behaving consistent with drug sale

activity, that the cocaine was thrown after the police

approached Gossett and Watkins, and that Watkins was the

one with the money, the jury could have concluded that

Watkins possessed the cocaine along with Gossett and

knew about the cocaine.’

’ Short v. State, 234 Ga. App. 633, 634 (1)(507 SE2d

514)(1998)

8 Id: see also Jackson v. Virginia, 443 U.S. 307 (99 SC

2781, 61 LE2d 5601979).

* See Price v. State, 240 Ga. App. 37, 39 (1)(522 SE2d

543)(1999); Smith v. State, 235 Ga. App. 223, 225-226 (510

SE2d 295)(1998)

as

White it is true that mere possession of cocaine will

not support a conviction for possession with intent to

distribute, additional evidence such as possession of certain

amounts of money and expert testimony that the amount of

cocaine possessed was consistent with amounts for sale

rather than personal use may support proof of intent to

distribute.'° Here, the arresting officer testified that based

on his experience with drug enforcement, the amount of

money found on Watkins was consistent with drug sales,

and that the amount of cocaine involved was more likely to

be used for distribution rather than personal use. The

evidence was sufficient for the jury to exclude reasonable

hypotheses of innocence and to find Watkin guilty of

possession of cocaine with intent to distribute.

4. Watkins further argues that the trial court erred

'° See Burse v. State, 232 Ga. App. 729, 730 (1)(503

SE2d 638)(1998)

-12-

by allowing the jury consider Gossett’s guilty plead during

its deliberations. However, Watkins did not object when

the guilty plea was sent back with the jury and has

therefore failed to preserved this issue for appellate

review. |

5. Watkins also asserts that the arresting officer

inappropriately testified to the ultimate issue to be decided

by the jury. More specifically, he argues that he officer

should not have been allowed to testify that the amount of

crack at issue in this case was more likely to be used for

distribution than personal use. However Watkins did not

object to the officer’s testimony on this basis at the trial

court level and has therefore waived this issue on appeal.'”

'! See Bostick v. Ricketts, 236 Ga. 304, 305-306 (1)(223

SE2d 686)(1976); Flowers v. State, 159 Ga. App. 516, 517 (284

SE2d 32)(1981)

'2 Huntley v. State, 271 Ga. 227, 230 (5)(518 SE2d

890)(1999)

1%

6. Watkins urges that the trial court erred by giving

an instruction that direct evidence included trial exhibits.

He argues that because the cocaine seized in this case was

the only exhibit, the instruction may have misled the jury

into believing that the cocaine was to be considered as

direct evidence of his guilty. We disagree

The charge on direct evidence was not erroneous.'?

In addition, it was given in the context of an instruction on

circumstantial evidence. “Viewing the jury instructions as

a whole, we do not believe that he jury could have

construed the charge to mean that all exhibits were to be

considered direct evidence pointing immediately to the

question of guilt.'*

7. Watkins contends that the judge improperly

'> Hampton v. State, 272 Ga. 284, 287-288 (8)(527 SE2d

872)(2000).

'* (Citation omitted.) Id.

-14-

injected his opinion about Watkin’s guilt by recharging the

jury on knowledge, parties to a crime, and actual, sole and

joint possession, when he also recharged them on

constructive possession. More specifically, he urges that

because the jury initially requested a recharge only on

constructive possession, the repeated recharging on these

other issues placed more emphasis on Watkins’s guilt. We

disagree. |

The record reveals that in direct response to several

questions from the jury, the judge recharged the jury and

also reminded the jurors to keep in min the other charges

that had previously been given, including those on the

State’s burden of proof and the presumption of innocence.

Prior to recharging the jury in response to their specific

requests, the judge gave proper charges on reasonable

doubt, the presumption of innocence, equal opportunity to

possess, and mere presence. The judge also instructed the

-15-

jurors that nothing he did during the trial was intended to

indicate any opinion he had about the case. Looking to the

charge as a whole, we conclude that the trial judge did not

express an opinion about Watkins’s guilt or innocence’

8. Wakins further argues that the trial judge did not

inform him of what jury charges would be given at trial.

However, the record reveals that the trial judge reminded

defense counsel that he had informed him of what charges

would be given at the charge conference. The charge

conference was not recorded, and Watkins has therefore

failed to affirmatively show any error from the record.'®

9. Watkins urges that the trial judge erred by

commenting in front of the jury that the State did not know

'S See, e.g., Reid ». State, 232 Ga. App. 313, 314-315

(1)(501 SE2d 842)(1998).

'® Stephenson v. State, 218 Ga. App. 613, 615 (2)(462

SE2d 767)(1995)

a EN Te

-16-

the wereabouts of Gossetts, one of their key witnesses.

Watkins failed to object to this comment form the judge

and has therefore presented noting for this court to

review.”

Judgement affirmed. Andrews, P.J., and

Eldridge, J., concur aa

'7 Sconyers v. Williams, 198 Ga. App. 673, 674 (2)(402

SE2d 775)(1991)

-17-

SUPREME COURT OF THE STATE OF GEORGIA

CLERK’S OFFICE

ATLANTA

DATE: May 26, 2002

Benjamin Alando Davis, Jr.

1201 Peachtree Street

400 Colony Square, Suite 200

Atlanta, GA 30361

Case No. S02C0805

JAMES WATKINS V. THE STATE

COURT OF APPEALS CASE NO. A01A1968

The Supreme Court today denied the petition for

_ certiorari in this case.

All the Jusiices concur.

Sherie M. Welch, Clerk

Docket No.

IN THE UNITED STATES SUPREME COURT

JAMES WATKINS,

PETITIONER

VS.

STATE OF GEORGIA,

RESPONDENT

+ &£ & & H& &

CERTIFICATE OF SERVICE

I, BENJAMIN A. DAVIS, Attorney for Petitioner, do

hereby certify that I this day served a copy of the within

and foregoing WRIT OF CERTIORARI before the same

was Offered for filing by depositing the same in the United

States Mail with proper postage affixed thereon to insure

delivery addressed to :

THURBERT BAKER

State of Georgia Attorney General’s Office

40 Capital Square, S.W.

ATLANTA, GEORGIA 30334

| y

This the e / day of WA

By: Bebe Boast

BENJAMIN A. DAVIS

Counsel of Record

, 2002.

Georgia State Bar No. 207525

1201 PEACHTREE STREET

400 COLONY SQUARE, SUITE 200

ATLANTA, Georgia 30361

404.233.0120