# Petition for Writ of Certiorari — Smith v. Rigg > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0668%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 888 ## Text 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 i .. sedsstedadauiiainiananaananmnantnaian 5-18 CONCIUSION .............00.sssceessrscsscsecsscceeeeesssscscrsvsscceeesssesees 18,19 Appendix ........sssssesecesesseeneneenenensnsnenenennenensacaceneneseessesenens A es 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0668%3A1. Public record. Not legal advice.