Bennett v. the State
334 Ga. App. 381
Ga. Ct. App.2015Background
- Defendant Keith Bennett was convicted after a controlled buy where police recovered two caches of methamphetamine (175.05 g under the dashboard; 361.31 g in a magnetic box under the hood), pills, scales, and $7,500 from Pogue’s vehicle; Bennett was a passenger.
- Co-defendant/witness Kenny Pogue (who pled guilty) testified unsworn at trial and had earlier made a proffer at his guilty plea hearing identifying joint conduct with Bennett.
- Lambert (another passenger) testified that Pogue produced two guns in the car and handed one to Bennett; both discarded firearms were recovered by police.
- Bennett gave a taped interview admitting he knew Pogue was a dealer, accepted a gun from Pogue, rode to help collect a drug debt, and did not correct an officer’s recitation that matched the prosecution’s theory.
- Trial court admitted Pogue’s unsworn testimony (no contemporaneous objection preserved) and later admitted the transcript of Pogue’s guilty-plea proffer read by a victim advocate; Bennett’s counsel raised procedural and cumulative objections but not the specific joint-offender objection cited on appeal.
- Bennett moved for a new trial arguing (1) improper admission of unsworn/prior plea testimony, (2) insufficient corroboration of accomplice testimony, and (3) fatal variance between indictment (400+ grams) and conviction (200+ grams); trial court denied and this Court affirmed.
Issues
| Issue | Bennett's Argument | State's Argument | Held |
|---|---|---|---|
| Admission of unsworn testimony and prior guilty-plea proffer | Trial court improperly allowed Pogue to testify unsworn and admitted his plea proffer to impeach him | No timely/specific objection was made; procedure was permissible under the Evidence Code and the admission exception relied upon | Waiver: Bennett failed to preserve objection to unsworn testimony and did not raise the specific joint-offender objection to the proffer; appellate review denied |
| Use of accomplice testimony / sufficiency of evidence | Conviction rests almost entirely on Pogue’s testimony, so insufficient under accomplice corroboration rule | Other corroborating evidence (large quantity of drugs, scales, cash, Bennett’s admissions, Lambert’s testimony, guns) supports conviction | Evidence—including Bennett’s admissions and physical evidence—provided the slight corroboration required; convictions affirmed |
| Fatal variance between indictment (400+ g) and conviction (200+ g) | Conviction of 200+ grams is a fatal variance from indictment alleging 400+ grams | 200+ grams is a lesser-included offense of 400+ grams; indictment embraces lesser included offenses; Bennett was on notice | No fatal variance; lesser-included conviction permissible |
| Jury charge / plain error / invited error | Trial court’s additional trafficking charges (including 200+ g) amounted to error | Defense counsel agreed to giving lesser charges; any error was invited/waived | Defense invited the charge; plain-error review barred |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
- Brown v. State, 290 Ga. 321 (waiver from failure to object to unsworn testimony)
- Clark v. State, 296 Ga. 543 (standards for sufficiency and accomplice corroboration)
- Bradshaw v. State, 296 Ga. 650 (Georgia accomplice corroboration provision discussion)
- Pinckney v. State, 236 Ga. App. 74 (pre-Evidence Code rule on guilty plea of joint offender)
- Green v. State, 298 Ga. App. 17 (corroboration and party-to-crime inference)
- Bailey v. State, 273 Ga. 303 (preservation and waiver principles)
- Hicks v. State, 295 Ga. 268 (invited error / affirmative waiver doctrine)
- Bryant v. State, 320 Ga. App. 838 (indictment embraces lesser included offenses)