Shirley v. State, 304 S.E.2d 468 (Ga. Ct. App. 1983). · Go Syfert
Shirley v. State, 304 S.E.2d 468 (Ga. Ct. App. 1983). Cases Citing This Book View Copy Cite
34 citation events (9 in the last 25 years) across 2 distinct courts.
Strongest positive: Brint v. State (gactapp, 2010-09-10)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 20 distinct citers.
cited Cited as authority (rule) Brint v. State
Ga. Ct. App. · 2010 · confidence medium
See Barnes v. State, 228 Ga. App. 44 ( 491 SE2d 116 ) (1997); Shirley v. State, 166 Ga. App. 456, 458 (3) ( 304 SE2d 468 ) (1983). 2 Compare State u.
discussed Cited as authority (rule) Jackson v. State
Ga. Ct. App. · 2010 · confidence medium
Garrett, Assistant District Attorneys, for appellee. 1 OCGA § 16-13-30 (b). 2 OCGA § 16-13-32.5 (b). 3 Tasha Jackson is not a party to this appeal. 4 Royal does not challenge his misdemeanor convictions. 5 Truitt v. State, 266 Ga. App. 56 ( 596 SE2d 219 ) (2004). 6 (Footnote omitted.) Herberman v. State, 287 Ga. App. 635 -636 ( 653 SE2d 74 ) (2007); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 7 See Stevens v. State, 245 Ga. App. 237, 238 (1) ( 537 SE2d 688 ) (2000) (“Spatial proximity alone is insufficient to prove joint constructive possession of contraband.�…
discussed Cited as authority (rule) Sutton v. State
Ga. Ct. App. · 2000 · confidence medium
Smith, P. J., and Phipps, J., concur. 1 Young v. State, 242 Ga. App. 681 (1) ( 530 SE2d 758 ) (2000). 2 (Citations omitted.) Sanders v. State, 199 Ga. App. 671, 672 (2) ( 405 SE2d 727 ) (1991). 3 Shirley v. State, 166 Ga. App. 456, 457 (1) ( 304 SE2d 468 ) (1983). 4 See Eason v. State, 234 Ga. App. 595, 596-597 (1) ( 507 SE2d 175 ) (1998). 5 Guild v. State, 236 Ga. App. 444, 445 (2) ( 512 SE2d 343 ) (1999). 6 Jones v. State, 243 Ga. App. 374, 376-377 (2) ( 533 SE2d 437 ) (2000); see Guild, supra; Sultenfuss v. State, 185 Ga. App. 47, 49 (2) ( 363 SE2d 337 ) (1987). 7 See Tate v. State, 230 Ga.…
discussed Cited as authority (rule) Widener v. State
Ga. Ct. App. · 2000 · confidence medium
It is true that spatial proximity alone, or “mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citation omitted.) Shirley v. State, 166 Ga. App. 456, 457 (1) ( 304 SE2d 468 ) (1983).
discussed Cited as authority (rule) Maxwell v. State
Ga. Ct. App. · 1999 · confidence medium
The evidence does not show actual possession by [Maxwell], and to support a finding that [s]he was in constructive possession of the contraband the circumstantial evidence must be both consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. [Cit.] Shirley v. State, 166 Ga. App. 456, 457 (1) ( 304 SE2d 468 ) (1983).
cited Cited as authority (rule) Barnes v. State
Ga. Ct. App. · 1997 · confidence medium
Shirley v. State, 166 Ga. App. 456, 458 (3) ( 304 SE2d 468 ) (1983).
cited Cited as authority (rule) Carswell v. State
Ga. Ct. App. · 1991 · confidence medium
He correctly argues that a finding of constructive possession must be based upon something more than mere “spatial proximity.” Shirley v. State, 166 Ga. App. 456, 457 (1) ( 304 SE2d 468 ) (1983).
discussed Cited as authority (rule) Murrell v. State
Ga. Ct. App. · 1991 · confidence medium
Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.’ Shirley v. State, 166 Ga. App. 456, 457 ( 304 SE2d 468 ) (1983).” Llaguno v. State, 197 Ga. App. 789, 790-791 ( 399 SE2d 564 ) (1990).
discussed Cited as authority (rule) Llaguno v. State
Ga. Ct. App. · 1990 · confidence medium
Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Shirley v. State, 166 Ga. App. 456, 457 ( 304 SE2d 468 ) (1983).
discussed Cited as authority (rule) Farmer v. State
Ga. Ct. App. · 1988 · confidence medium
Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Shirley v. State, 166 Ga. App. 456, 457 ( 304 SE2d 468 ). “ ‘ “Merely finding contraband on premises occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” ’ ” Anderson v. State, 166 Ga. App. 459, 460 (304 SE2d *376 550).
discussed Cited as authority (rule) Bostic v. State
Ga. Ct. App. · 1987 · confidence medium
While that is a correct statement of the law, Shirley v. State, 166 Ga. App. 456, 457 (1) ( 304 SE2d 468 ) (1983), there was more than mere presence to connect appellant with the automobile theft, as we discussed in Division 1.
discussed Cited as authority (rule) State v. Peacock (2×)
Ga. Ct. App. · 1986 · confidence medium
Shirley v. State, 166 Ga. App. 456, 458 ( 304 SE2d 468 ) (1983).
cited Cited as authority (rule) Rautenberg v. State
Ga. Ct. App. · 1986 · confidence medium
See in this connection Dean v. State, 247 Ga. 724, 725, fn. 1 ( 279 SE2d 217 ); Shirley v. State, 166 Ga. App. 456, 457 (2a) ( 304 SE2d 468 ).
cited Cited as authority (rule) Ward v. State
Ga. Ct. App. · 1985 · confidence medium
Shirley v. State, 166 Ga. App. 456, 457 (2a) (304 *411 SE2d 468) (1983).
cited Cited "see" In the Interest of B. J. C.
Ga. Ct. App. · 2006 · signal: see · confidence high
See Shirley v. State, 166 Ga. App. 456, 457 (1) ( 304 SE2d 468 ) (1983).
cited Cited "see" In Re BJC
Ga. Ct. App. · 2006 · signal: see · confidence high
See Shirley v. State, 166 Ga.App. 456, 457 (1), 304 *835 S.E.2d 468 (1983).
discussed Cited "see" State v. McMillan
Ga. Ct. App. · 2004 · signal: see · confidence high
See generally Shirley v. State, 166 Ga. App. 456 -457 (1) ( 304 SE2d 468 ) (1983) (conviction reversed because other persons in vehicle had equal opportunity to commit crime, defendant was merely present at scene of crime, and other party had actual possession of drugs).
cited Cited "see" State v. Cobb
Ga. Ct. App. · 1993 · signal: see · confidence high
See Shirley v. State, 166 Ga. App. 456, 458 (3) ( 304 SE2d 468 ) (1983); Change v. State, 156 Ga. App. 316, 319 (6) ( 274 SE2d 711 ) (1980).
cited Cited "see, e.g." Warren v. State
Ga. Ct. App. · 2002 · signal: see, e.g. · confidence low
See, e.g., Shirley v. State, 166 Ga. App. 456 (1) ( 304 SE2d 468 ) (1983).
discussed Cited "see, e.g." Blair v. State
Ga. Ct. App. · 1995 · signal: compare · confidence medium
See Sanders v. State, 199 Ga. App. 671, 672 (2) ( 405 SE2d 727 ) (1991); Lane v. State, 177 Ga. App. 553, 554 (1) ( 340 SE2d 228 ) (1986); compare Shirley v. State, 166 Ga. App. 456, 457 (1) ( 304 SE2d 468 ) (1983); Mitchell v. State, 150 Ga. App. 44, 46 (2) ( 256 SE2d 652 ) (1979).
Shirley
v.
the State; Tharpe v. the State
65452, 65453.
Court of Appeals of Georgia.
Apr 18, 1983.
304 S.E.2d 468
John A. Nuckolls, for appellant (case no. 65452)., T. Christopher Pyles, for appellant (case no. 65453)., Arthur E. Mallory III, District Attorney, Robert H. Sullivan, Assistant District Attorney, for appellee.
Sognier, Quillian, Pope.
Cited by 34 opinions  |  Published
Sognier, Judge.

Shirley and Tharpe were convicted of violation of the Georgia Controlled Substances Act by possessing methamphetamine, methaqualone and marijuana. Both appellants contend they were denied effective assistance of counsel, and Tharpe also appeals on the general grounds. Additionally, Shirely contends the trial court erred by allowing his counsel to represent three of the four defendants in a joint trial, and by failing to make findings of fact in denying Shirley’s motion to suppress evidence.

Based on evidence received from another police agency two Carroll County deputy sheriffs, Johnson and Crawford, located a car and the four defendants at a lake in Carroll County. The deputies had been advised that amphetamines were in the car. The four defendants had ridden to the lake together in Shirley’s car and were fishing. After advising Shirley of the report Johnson and Crawford had received about amphetamines, they obtained Shirley’s consent to search the car. Johnson found a small gym bag on the floor of the rear passenger compartment; the bag contained methamphetamine, methaqualone and marijuana. All four defendants denied any knowledge of the gym bag or its contents. After a joint trial, Rowell and Huckeba, two of the four defendants, were found not guilty; Tharpe and Shirley were found guilty of possession of the contraband in the gym bag.

1. Tharpe contends that the evidence is not sufficient to support the verdict because the state failed to prove that he had knowledge or possession of the contraband, and because the equal access rule is applicable in this case. We agree.

The only evidence relating to Tharpe is that he, Rowell, Huckeba and Shirley left Shirley’s apartment together and drove in Shirley’s car to the lake where they were found fishing. Shirley was carrying the gym bag containing drugs when he left his apartment. The bag was found on the floor in front of the seat where Rowell was riding, and there is no evidence that Tharpe even knew the bag was in the car.

The evidence does not show actual possession by Tharpe, and to support a finding that he was in constructive possession of the contraband the circumstantial evidence must be both consistent with[*457] the hypothesis of guilt and must exclude every other reasonable hypothesis. Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979). “A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.” Id. No such connection was shown in this case. At most, the state’s evidence showed that Tharpe rode in an automobile with three other persons, all of whom had equal opportunity to commit the crime. In fact, the evidence showed actual possession by Shirley, not the other three defendants. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. Huncke v. State, 137 Ga. App. 299, 300 (223 SE2d 492) (1976). Applying these principles to the facts of the instant case, the evidence is insufficient to support Tharpe’s conviction of possession of the contraband.

2. Shirley contends it was error to allow the same counsel to represent Shirley, Rowell and Tharpe (Huckeba was represented by separate counsel), thereby denying him the effective assistance of counsel. He also contends he was denied effective assistance of counsel because his counsel did not investigate the case before trial. Because these two enumerations are inter-related, we will discuss them together.

a. Shirley’s contention regarding multiple representation is not supported by the record. Immediately prior to the hearing on the motion to suppress the court noted that one attorney was representing Shirley, Rowell and Tharpe and asked their counsel if he had discussed with defendants, and determined, whether there were any conflicts of interest in representing three defendants. Counsel stated he had not discussed this possible conflict with his clients, but that he had discussed the case thoroughly with the defendants he was representing. Shirley, Rowell and Tharpe each confirmed, on the record, that they had discussed the case thoroughly with their counsel, and each stated that there were no conflicts of interest. Each defendant also stated that they were satisfied to proceed with one counsel representing all three of them. Based on this inquiry and the responses of Tharpe, Shirley and Rowell, the trial court allowed their counsel to proceed and to continue representing the three defendants concerned.

The trial court’s decision to allow one counsel to represent Shirley, Rowell and Tharpe was based on their statements to the court. Thus, if any error occurred it was induced by these defendants’ statements and induced error is impermissible. Drake v. State, 142 Ga. App. 14, 16 (234 SE2d 825) (1977). “One cannot complain of a... ruling that his own procedure or conduct aided in causing.” Rush v. [*458] Southern Property Mgt., 121 Ga. App. 360, 361 (2 (a)) (173 SE2d 744) (1970). Accordingly, it was not error under the circumstances of this case to allow one attorney to represent three of the four defendants, and the multiple representation did not result in ineffective assistance of counsel.

b. Shirley also contends that he was denied effective assistance of counsel because counsel did not investigate the case prior to trial, and did not confer with Shirley about the case. Shirley relies on post-trial affidavits filed by himself and Rowell to the effect that their counsel did not discuss their case with them. Shirley also stated in his affidavit that he did not carry the gym bag to his car and had no knowledge of the drugs. Rowell stated in her affidavit that the drugs did not belong to Shirley but that she was keeping the drugs for a friend; further, that she related this information to their counsel, but he did not call her (Rowell) to testify. Shirley’s reliance on these affidavits is misplaced. Not only are the affidavits contrary to the statements Rowell and Shirley made to the court, the affidavits are inadmissible as tending to impeach the verdict. Flowers v. State, 159 Ga. App. 516, 517 (284 SE2d 32) (1981).

In discussing the issue of ineffective assistance of counsel our Supreme Court has held: “ ‘We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ (Emphasis supplied.)” Pitts v. Glass, 231 Ga. 638, 639 (203 SE2d 515) (1974). The transcript in the instant case discloses that counsel made a motion to suppress evidence, conducted thorough and extensive cross-examination of the state’s witnesses and made a motion for a directed verdict of acquittal. Applying the standards set forth in Pitts, supra, to the facts of this case we find counsel’s representation more than adequate. Accordingly, the enumeration is without merit.

3. Shirley contends that the trial court erred by failing to make findings of fact in support of its denial of his motion to suppress evidence. He argues that a failure to make findings of fact precludes effective review of the trial court’s ruling. We do not agree.

We note initially that Shirley has referred us to no authority, and we are aware of none, which requires a trial judge to make findings of fact after a hearing on a motion to suppress. The hearing on the motion in this case, including arguments of counsel, was recorded and transcribed verbatim and is included in the record and transcript accompanying this appeal. Thus, we have before us on review all evidence and arguments on which the trial court based its ruling. “On motion to suppress evidence, the trial judge sits as the trior (sic) of the facts, hears the evidence, and his findings based upon[*459] conflicting evidence... should not be disturbed by a reviewing court if there is any evidence to support it (sic).” State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974). In the instant case two police officers testified that Shirley consented to a search of the car he was driving; Shirley denied giving such consent. “The evidence here, although conflicting, authorized the trial judge to find that [Shirley] freely and voluntarily consented to the search of the automobile.” Howard v. State, 150 Ga. App. 847, 849 (258 SE2d 652) (1979). Although Shirley does not contest the ruling of the trial court denying his motion to suppress, our review of that ruling discloses no error.

Decided April 18, 1983 Rehearing denied May 3, 1983 John A. Nuckolls, for appellant (case no. 65452). T. Christopher Pyles, for appellant (case no. 65453). Arthur E. Mallory III, District Attorney, Robert H. Sullivan, Assistant District Attorney, for appellee.

Judgment affirmed in Case Number 65452. Judgment reversed in Case Number 65453.

Quillian, P. J., and Pope, J., concur.