Smith v. State

458 S.E.2d 704 (1995)

217 Ga. App. 680

SMITH v. The STATE.

No. A95A1284.

Court of Appeals of Georgia.

June 28, 1995.

Maria T. Gonzalez, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carl P. Greenberg, Asst. Dist. Atty., for appellee.

SMITH, Judge.

Eddie Smith was convicted of possession of cocaine following a jury trial. Smith's motion for new trial was denied, and he appeals.

1. The trial court's charge to the jury made it abundantly clear that it was the State's burden to prove Smith guilty beyond a reasonable doubt as to each and every element of the offense charged. Accordingly, Smith's attempt to show that the use of the phrase "moral and reasonable certainty" within that charge constituted reversible error is controlled adversely to him by the holding of the Supreme Court in Burgess v. State, 264 Ga. 777, 787(28), 450 S.E.2d 680 (1994). See also Baldwin v. State, 264 Ga. 664-666(1), 449 S.E.2d 853 (1994).

2. Smith contends that the cocaine seized by police was the product of an illegal arrest, and therefore the trial court erred in denying his motion to suppress. We disagree. It is undisputed that Smith was in a state of flight when he discarded the cocaine he now seeks to suppress, and contrary to Smith's arguments, being chased is not tantamount to being "seized" in violation of the Fourth Amendment. See California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); Hunt v. State, 205 Ga. App. 490, 491, 423 S.E.2d 24 (1992). Under such circumstances, even if we assume that Smith ultimately was illegally seized and detained after being chased, that would not serve as a basis to suppress the cocaine at issue, since the contraband was discarded *705 before the seizure effectively occurred. Hodari D., supra, 499 U.S. at 629, 111 S. Ct. at 1552; Anderson v. State, 209 Ga.App. 676, 677, 434 S.E.2d 122 (1993). Smith's enumerations on this ground are therefore without merit.

3. Smith contends that when the trial court recharged the jury on the law of controlled substances it should also have recharged the jury on the concept of reasonable doubt, on defenses at trial, and on the State's burden of proof. We find no merit in this contention. See, e.g., Bowles v. State, 168 Ga.App. 763, 765(4), 310 S.E.2d 250 (1983) (re-charges are to be evaluated "as a part of the whole charge"); Schwerdtfeger v. State, 167 Ga.App. 19, 21(2), 305 S.E.2d 834 (1983) (no error where "main charge was replete with references to the principle of reasonable doubt").

4. The testimony of the arresting officer to the effect that he saw Smith throw down "a clear ziplock bag" right before he jumped a fence, along with testimony that the officer returned to the area after apprehending Smith and recovered the clear bag, which contained 32 hits of crack cocaine, was sufficient to authorize Smith's conviction under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

Judgment affirmed.

BIRDSONG, P.J., and JOHNSON, J., concur.