Citation Codes

Equivalent Citations

citation codes

Docket Number

S05G1928.

Attorney(S)

Garry T. Moss, District Attorney, Scott T. Poole, Assistant District Attorney, for appellant. Stacy D. Barnett, for appellee.

Judges

P. Harris Hines

See more information ...

Smart Summary

Summary of Opinion: THE STATE v. JOHNSON (Supreme Court of Georgia, May 17, 2006)

Factual and Procedural Background

Acting on information from a confidential informant, police obtained a warrant on February 11, 2002, to search Johnson's vehicle. When the warrant was executed on February 19, 2002, officers found twelve grams of crack cocaine in the console ceiling between the two front seats, and Johnson had $997 in cash on his person. At trial Johnson denied ownership of the drugs, claimed they were planted while his unlocked vehicle was unattended at his cousin Marvin's home, and presented witnesses who placed another person, Cedric Bridges, in the vehicle handling the area where the drugs were found. The trial court refused Johnson's requested jury instruction on the doctrine of "equal access." A majority of the Court of Appeals reversed the trial court, holding that an equal access instruction should have been given. The State petitioned this Court for certiorari, which was granted to review the Court of Appeals' determination.

Legal Issues Presented

Whether the trial court erred in refusing to give Johnson's requested jury charge on the doctrine of "equal access" in a prosecution for possession of cocaine with intent to distribute.
Whether an "equal access" instruction is warranted where the jury was not instructed on any presumption of possession and ownership of the vehicle was not the sole evidence of possession.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Johnson v. State, 274 Ga. App. 282 (617 SE2d 252) (2005)	The Court of Appeals' decision reversing the trial court for refusing an equal access instruction.	This Court granted certiorari to review that determination and addressed the Court of Appeals' analysis of equal access language.
Wilkerson v. State, 269 Ga. App. 190, 191-192 (603 SE2d 728) (2004)	Quoted definition: equal access evidence "may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver."	Used to explain that an equal access charge is appropriate to counter a presumption of possession, and is not necessary when no such presumption is instructed.
Burger v. State, 245 Ga. 458, 459 (265 SE2d 796) (1980)	Written requests for jury instructions are required to warrant appellate review.	The Court noted it would not address whether Johnson's request complied with the writing requirement; certiorari did not encompass that procedural issue.
Thompson v. State, 234 Ga. App. 74, 77 (506 SE2d 201) (1998)	Equal access is a defense available only when a presumption of possession arises from ownership or exclusive control of the vehicle.	Quoted to support the proposition that where the State did not show indicia giving rise to the presumption, equal access is not triggered.
Mitchell v. State, 222 Ga. App. 453, 454 (474 SE2d 306) (1996)	Expresses the same principle regarding equal access and presumption of possession.	Included among decisions illustrating the principle that no presumption arose here, so equal access was not required.
Jackson v. State, 216 Ga. App. 842, 845 (456 SE2d 229) (1995)	Expresses the same principle regarding equal access and presumption of possession.	Used as supporting precedent that an equal access instruction is unnecessary absent a presumption charge.
Jones v. State, 200 Ga. App. 519, 521 (408 SE2d 823) (1991)	Expresses the same principle regarding equal access and presumption of possession.	Listed among authorities supporting the Court's proposition.
Lance v. State, 191 Ga. App. 701, 703 (382 SE2d 726) (1989)	Expresses the same principle regarding equal access and presumption of possession.	Listed among authorities supporting the Court's proposition.
Akins v. State, 184 Ga. App. 441 (361 SE2d 707) (1987)	Expresses the same principle regarding equal access and presumption of possession.	Listed among authorities supporting the Court's proposition.
Castillo v. State, 166 Ga. App. 817, 822 (305 SE2d 629) (1983)	Expresses the same principle regarding equal access and presumption of possession.	Listed among authorities supporting the Court's proposition.
Knighton v. State, 248 Ga. 199, 200, n.1 (282 SE2d 102) (1981)	Discusses jury instructions that a presumption of possession may arise from contraband found in a home, but that presumption can be rebutted.	Referenced for the broader discussion of presumptions and rebuttal; supports the conclusion that no presumption arose here.
Burdett v. State, 159 Ga. App. 394 (283 SE2d 622) (1981)	Discusses instructions concerning presumptions of possession and their rebuttal.	Referenced alongside Knighton regarding presumptions and rebuttals.
Allen v. State, 277 Ga. 502, 504 (591 SE2d 784) (2004)	Qualified jurors under oath are presumed to follow the instructions given by the trial court.	Applied to support that because no presumption instruction was given, no presumption arose for the jury to rebut.
Lane v. State, 268 Ga. 678, 680 (492 SE2d 230) (1997)	Requested charge must be "legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence."	Invoked to state the standard for when a requested jury instruction should be given.
Pruitt v. State, 258 Ga. 583, 588 (373 SE2d 192) (1988)	"A requested charge should be delivered if it is a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given."	Invoked together with Lane to explain that no equal access charge was warranted because it was not material absent a presumption charge.
Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991)	Addresses whether equal access was a defendant's "sole defense" requiring a sua sponte instruction.	Cited in a discussion that the "sole defense" analysis is not controlling where a requested charge was submitted to the court.
Smith v. State, 279 Ga. 172, 174 (611 SE2d 1) (2005)	Discusses when a trial court must sua sponte instruct the jury.	Used to distinguish situations where sua sponte instruction is required from those where a party requests a charge.
Pittman v. State, 208 Ga. App. 211, 214-215 (430 SE2d 141) (1993)	Possession of a large sum of cash may be consistent with being a dealer of crack cocaine.	Relied on to show that ownership of the vehicle was not the sole evidence of Johnson's possession with intent to distribute.
Conaway v. State, 277 Ga. 422, 423 (589 SE2d 108) (2003)	A defendant's explanation that creates a question of fact does not eliminate the State's evidence; the jury may reject the explanation.	Applied to note that Johnson's explanation for the cash did not eliminate the State's evidence and the jury could reject it.

Court's Reasoning and Analysis

The Court framed the issue as whether the trial court erred in refusing Johnson's requested jury instruction on "equal access." It reviewed the facts recited by the Court of Appeals and analyzed the legal role of an equal access charge. The Court explained that the equal access rule, as described in Wilkerson, operates to overcome a presumption that contraband found in a vehicle was in the exclusive possession of the owner or driver; consequently, an equal access instruction is properly given to rebut such a presumption.

The Court observed that in this case no presumption of possession was presented to the jury because the trial court did not instruct on any presumption of possession. Applying Allen, the Court reasoned that jurors are presumed to follow the instructions actually given, and therefore, absent a presumption instruction there was nothing for an equal access charge to rebut. The Court further explained, citing Thompson and other appellate decisions, that equal access is a defense that is triggered only when a presumption of possession arises from the evidence (for example, ownership or exclusive control of the vehicle).

The Court also applied the standards for requested jury charges from Lane and Pruitt: a requested charge must be legal, apt, precisely adjusted to a principle in the case, authorized by the evidence, pertinent, and material to an issue in the case. Because ownership of the vehicle was not the sole evidence of Johnson's possession — the State introduced other indicia such as the large sum of cash on Johnson's person and other contextual evidence — an equal access instruction was not authorized or material. The Court rejected the Court of Appeals' reliance on equal access language where ownership was the only evidence of possession, noting that here other evidence supported possession with intent to distribute and Johnson's explanations merely created factual questions for the jury.

Holding and Implications

Judgment Reversed.

Holding: The Supreme Court of Georgia reversed the Court of Appeals, concluding that the trial court did not err in denying Johnson's requested equal access jury charge because no presumption of possession was submitted to the jury and the requested charge was not warranted by the evidence.

Implications: The direct effect is that the trial court's refusal to give an equal access instruction was upheld and the Court of Appeals' reversal was itself reversed. The opinion confines the role of an equal access instruction to circumstances where a presumption of possession has been presented to the jury or ownership/exclusive control of the vehicle is the sole evidence of possession; it emphasizes the requirement that requested charges be authorized by the evidence. The opinion does not announce any broader new rule beyond application of these principles to the case. The opinion notes that all Justices concurred except Benham, J., who dissented.

Show full summary ...

THE STATE v. JOHNSON.

HINES, Justice.

This Court granted certiorari to the Court of Appeals in Johnson v. State, 274 Ga. App. 282 ( 617 SE2d 252) (2005), to review the determination by the Court of Appeals that the trial court erred in refusing to give Johnson's requested jury charge on the doctrine of equal access in his trial for possession of cocaine with intent to distribute. Finding that the requested charge was not warranted, we reverse.

The evidence recited by the Court of Appeals shows that, acting on information from a confidential informant, on February 11, 2002, police secured a warrant to search Johnson's vehicle. The warrant was executed on February 19, 2002, and twelve grams of crack cocaine were found in the console in the ceiling between the two front seats. Johnson also had $997 in cash in his pocket, and there was evidence that such an amount indicated that one was a dealer of crack cocaine, rather than merely a user.

Johnson testified at trial, denying the drugs were his, and asserting that they were planted in his vehicle by someone else. He said that while he was visiting the home of his cousin, Marvin Johnson ("Marvin"), his vehicle was unattended and unlocked. Two witnesses testified that on the night of February 19, 2002, while Johnson was inside Marvin's house, Cedric Bridges entered Johnson's car and moved his hands around the area above the driver's seat. One witness testified that, immediately afterward, Bridges gave the other witness a piece of crack cocaine, said that the two witnesses should split it, and not to say anything about it. Johnson also presented his own testimony, and that of another witness, to explain the presence of the money on his person.

The trial court denied Johnson's request to instruct the jury regarding the doctrine of "equal access" to the place where contraband is found. A majority of the Court of Appeals reversed, ruling that an "equal access" instruction should have been given. This Court granted the State's petition for certiorari.

Further facts can be found in the opinion of the Court of Appeals. Johnson, supra.

In its discussion of the equal access rule, the Court of Appeals quoted from Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728) (2004):

Johnson submitted his request for a jury instruction on equal access by filing a document that requested that the trial court give the "charges from the Uniform Jury Charges listed in Exhibit `A "; included in Exhibit "A" was simply the text: "Equal Access — page 136." No further elucidation concerning the language of the instruction requested appears in the record; we note that the State submitted its requests for jury instructions in a similar manner. The Court of Appeals did not address any issue concerning this procedure, and our grant of certiorari does not encompass consideration of whether this request for jury instruction satisfies Uniform Superior Court Rule 10.3, or complies with the stricture that to warrant appellate review, requests for jury instructions must be written. See Burger v. State, 245 Ga. 458, 459 (5) ( 265 SE2d 796) (1980). In any event, the Court of Appeals addressed language from Wilkerson v. State, 269 Ga. App. 190, 191-192 (2) ( 603 SE2d 728) (2004), and we will address the Court of Appeals's analysis of that language.

The equal access rule, as it applies in the automobile context, is merely that evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver.

(Emphasis supplied.) Johnson, supra at 284-285. Although in its decision, the Court of Appeals relied upon precedent that the purpose of an equal access charge is to rebut the permissive presumption of exclusive possession by the owner or driver of a vehicle, in this case no such presumption arose; the jury was never instructed on any presumption of possession.

The Wilkerson quote accurately reflects the law; a charge on equal access is appropriate to counter a jury instruction on presumption of possession, and is not necessary otherwise.

Equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense. [Cit.]

Thompson v. State, 234 Ga. App. 74, 77 (3) ( 506 SE2d 201) (1998). This principle has been expressed in numerous appellate decisions. See, e.g., Mitchell v. State, 222 Ga. App. 453, 454 (1) (b) ( 474 SE2d 306) (1996); Jackson v. State, 216 Ga. App. 842, 845 (2) ( 456 SE2d 229) (1995); Jones v. State, 200 Ga. App. 519, 521 (2) (c) ( 408 SE2d 823) (1991); Lance v. State, 191 Ga. App. 701, 703 (2) ( 382 SE2d 726) (1989); Akins v. State, 184 Ga. App. 441 (1) ( 361 SE2d 707) (1987); Castillo v. State, 166 Ga. App. 817, 822 (2) ( 305 SE2d 629) (1983). See also Knighton v. State, 248 Ga. 199, 200, n. 1 ( 282 SE2d 102) (1981), and Burdett v. State, 159 Ga. App. 394 (2) ( 283 SE2d 622) (1981), discussing instructions that a jury may presume possession from the fact that contraband was found in a person's home, but that the presumption could be rebutted. Although evidence may have been introduced that satisfied the factual predicate for a presumption charge, none was given, and qualified jurors under oath are presumed to follow the instructions given by the trial court. Allen v. State, 277 Ga. 502, 504 (3) (c) ( 591 SE2d 784) (2004). Accordingly, no presumption arose.

A requested jury charge must be "legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence." (Punctuation omitted; emphasis in original.) Lane v. State, 268 Ga. 678, 680 (2) ( 492 SE2d 230) (1997). "A requested charge should be delivered if it is a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given." Pruitt v. State, 258 Ga. 583, 588 ( 373 SE2d 192) (1988). As no presumption arising from the presence of cocaine in Johnson's vehicle was placed before the jury, there was nothing to make the rebuttal of an "equal access" charge material to Johnson's trial.

The Court of Appeals's opinion addresses the issue of whether "equal access" was Johnson's "sole defense," requiring that the jury be instructed on the principle. Tarvestad v. State, 261 Ga. 605, 606 ( 409 SE2d 513) (1991). The parties also address this issue in this Court. However, we believe this discussion misses the mark. First, determination of whether a legal concept is a defendant's sole defense most properly relates to whether a trial court must sua sponte instruct the jury on the defense. See Smith v. State, 279 Ga. 172, 174 (2) ( 611 SE2d 1) (2005). When, as in this case, a request for a jury instruction is submitted to the court, the preliminary question must be whether the requested charge is appropriate. Second, "equal access" was not Johnson's sole defense; properly viewed, his defense was that the State did not prove the elements of the crime of which he was charged, possession of cocaine with intent to distribute, and without knowledge of the presence of cocaine in his vehicle, he could have no intent concerning it. Id.

Further, the equal access language that the Court of Appeals evaluated, by its own terms, "`applies only where the sole evidence of possession of contraband found in the vehicle is the defendant's ownership or possession of the vehicle.'" Johnson, supra at 285. And, it is not the case that Johnson's ownership of the vehicle was the sole evidence of his possession of cocaine with intent to distribute. He had a large sum of cash on his person, consistent with a person being a dealer of crack cocaine. See Pittman v. State, 208 Ga. App. 211, 214-215 (2) ( 430 SE2d 141) (1993). Johnson was also admittedly in Marvin's home the night of Johnson's arrest; Marvin was arrested for possession of crack cocaine with intent to distribute within a few months of Johnson's arrest; there had been six arrests for crack cocaine "out of [Marvin's] house" in the year preceding trial, and "40 or 50" arrests within 50 yards of his house in the "last few years" before Johnson's trial. As ownership of the vehicle was not the sole evidence of Johnson's possession of crack cocaine with intent to distribute, an equal access instruction was not warranted. Wilkerson, supra at 192.

Johnson asserts that he explained his possession of the money. However, his evidence in explanation did not eliminate the State's evidence, it simply created a question of fact for the jury's resolution; the jury was free to reject Johnson's evidence and conclude that possession of $997 in cash was additional evidence of Johnson's possession of cocaine with intent to distribute. See Conaway v. State, 277 Ga. 422, 423 (1) ( 589 SE2d 108) (2003).

Judgment reversed. All the Justices concur, except Benham, J., who dissents.