Summary
In Hernandez-Cuevas the Georgia courts, trial and Supreme, in a Georgia case, with Georgia interests at stake, addressed the same issue and held that Georgia procedures did not require the appellate lawyer to raise the constructive possession charge on appeal, and that failure to raise it was not a procedural bar.
Summary of this case from Oyola v. BowersOpinion
S90A1282.
DECIDED OCTOBER 18, 1990.
Habeas corpus. Dodge Superior Court. Before Judge Lawson.
Michael J. Bowers, Attorney General, Newton, Smith, Durden, Kaufold McIntyre, Massie H. McIntyre, for appellant.
Michael M. Worth, James C. Bonner, Jr., for appellee.
The trial court granted this petition for a writ of habeas corpus. The state appeals. We affirm.
Marco Polo Hernandez-Cuevas was convicted of trafficking cocaine. The trial court instructed the jury that it could convict upon evidence of actual or constructive possession of cocaine. At the time of conviction, the Court of Appeals had ruled that evidence of constructive possession was sufficient to convict under the statute. See Lockwood v. State, 184 Ga. App. 262 ( 361 S.E.2d 195) (1987); Evans v. State, 167 Ga. App. 396 ( 306 S.E.2d 691) (1983). The jury charge was not raised as an error in the direct appeal. Five days after the direct appeal was decided, this Court issued Lockwood v. State, 257 Ga. 796 ( 364 S.E.2d 574) (1988), which overruled the Court of Appeals' cases that had held constructive possession to be sufficient.
In a well-reasoned decision, Judge Hugh Lawson determined that (1) the jury charge is reversible error under Lockwood v. State, supra; (2) Lockwood applies retroactively; see Chews v. State, 187 Ga. App. 600 ( 371 S.E.2d 124) (1988); and (3) Hernandez-Cuevas' claim is not procedurally defaulted under Black v. Hardin, 255 Ga. 239 ( 336 S.E.2d 754) (1985). Hernandez-Cuevas could not have been expected to raise the Lockwood issue in the direct appeal because Lockwood had not yet been decided. The court therefore granted a writ of habeas corpus. We find no error and affirm.
Judgment affirmed. All the Justices concur.