Fuqua v. StateFuqua v. State
Thе appellant, Edwin Fuqua, a former police officer, appeals his conviction for obstruction of an officer and possession with intent to distribute and distribution of cocaine. Joe Canning, a witness for the defense, testified that he had known Fuqua since both of them had been in the fifth grade. Fuqua introduced him to cocaine and he purchased cocaine for his use frоm Fuqua. In 1984 Canning contacted the Clarke County police and advised them of his drug addiction and that he purchased the cocaine from Fuqua. The county officials thought such an investigation could better be handled by the Georgia Bureau of Investigation and took Canning to them. During the following year, Canning made approximately five attempts, under the auspices of the GBI and the FBI to induce Fuqua to sell him cocaine, without success. In 1985 Canning was arrested for possession of cocaine and was placed in jail. While in jail, he was interviewed by the officer he had contacted one year before regarding his purchase of cocaine from Fu-qua. Canning said, the police knew that “Edwin [Fuqua] was a cocaine addict. ... I just confirmed it.” The officеr enlisted his assistance in making a purchase of cocaine from Fuqua. Because Canning had worked with the GBI and the FBI during the past year, they were brought into the plan. Two adjoining rooms were rented in a local motel. The officers procured Canning’s release from jail through a judge and let him place a phone call to Fuqua. Canning invited Fuqua to the motel. When Fuqua arrived, he was smoking a “marijuana . . . joint.” Canning told Fuqua he “wanted to party,” but Fuqua was thinking of beer, so Canning “made a gesture . . . (sniff, sniff) . . . [and] Edwin’s reaction ... he was certainly ready to go at that point. . . .” Fuqua started making phone calls and found a supplier for “two halves” — half ounces. Canning gave Fuqua the money to purchase the cocaine. Fuqua left and was followed by an officer in an unmarked police car and was under surveillance by a plane in the air. Both surveillance missions failed. Fuqua finally returned to Canning’s room at the motel, and the officers heard what they thought to be Canning and Fuqua “sniffing” the cocaine. Canning testified that both he and Fuqua sniffed a “line” of cocaine.
Lt. Lucas, one of the monitoring police officers, determined that they had sufficient evidеnce and left the motel room to gather together the other officers for the arrest. While the officers were assembling in front of Canning’s motel room, Fuqua walked out of the room
Lucas had seen Fuqua place a packet of cоcaine up his sweater sleeve while he was in Canning’s room and he was observing Fuqua closely while they were in the parking lot. “I had assumed that he was going to try to just dump it. . . . When Detective Duncan and All-britten were about to apprehend him ... I saw his right hand go like this and I saw the small package hit the ground.” Fuqua placed his foot over the small glassine packet, but after he was apprehended Lucas picked it up and turned it over to the FBI. Another officer also found another packet where the scuffle occurred. Both packets were determined to contain cocaine.
At trial, the defendant asserted the defense of entrapment. The jury returned a verdict of guilty on both counts and this appeal followed. Held:
1. Appellant contends the State is guilty of “prosecutorial misconduct” during the trial: in violation of appellant’s “right to due process.” It is argued that the prosecutor made “several specific errors of law . . . which standing alone constitute reversible error. When considered together, however, these errors constitute an intentional pattern of prosecutorial misconduct. . . .” The so-сalled “pattern of prosecutorial misconduct” is broken down into three types of error: (a) appellant was not provided with a supplemental statement made by a police officer in compliance with his Brady motion, (b) although the prosecutor professed to have an “open file” policy and turned over his entire file to the defense, some оf the witnesses’ testimony was not contained in their statements in the file, and (c) the prosecutor improperly placed appellant’s character in evidence by introducing “testimony that the appellant had been co-indicted on the wiretap charge with Carole Gillen.”
(a) The appellant presented a
Brady
motion to the court prior to trial and the assistant district attorney turned over his entire file tо the defense. Five days prior to trial, the prosecutor discovered appellant had made a statement to Officer Hammond while being transported to jail and jotted down a summary of the officer’s testimony. That summary was provided to defense counsel on the day of trial. The first day of trial was May 28, 1985. Officer Hammond was called to testify on June 3, 1985. The State did not attempt to introduce the
Appellant’s cоunsel argues this “situation was created, perhaps even orchestrated” by the prosecutor providing him with his file with “inaccurate Brady material. . . .” This allegation of error will be discussed in conjunction with appellant’s claim of another Brady error.
(b) Appellant’s counsel also called the informer as a witness and Canning testified that he had contacted the Clarke County police after he became addicted to cocaine and had spent $20,000 to $25,000 for cocaine over the past two years. The majority of his direct testimony dealt with his cooperation with the GBI and FBI in attempting to make a purchase of cocaine from the appellant during the past year. His conversations with appellant had been taped and he had been wired with a radio transmitter during some of his talks with Fu-qua. Those tape recordings were identified and played for the jury. On cross-examination, Canning testified that Fuqua “first introduced [him] to cocaine.” Appellant also taught him to use a syringe, and because of Fuqua providing him with cocaine, he became addicted. He was asked if Fuqua had provided him with 95 percent of the cocaine he had purchased over the past two years, and responded: “Yes.” He had observed Fuqua use marijuana and cocaine in his home, and as late as three weeks before this latest arrest he was discussing with Fuqua the purity of the cocaine they were using. Prior to
Appellant also complains about the supplemental statement filed by the pоlice officer that he had seen the appellant “lunge” at the confiscated cocaine with his mouth. In argument to the court, counsel admitted that the assistant district attorney had told him that this was the first time he had seen the supplemental statement and there was no question he “did not conceal that report. . . .” However, he argues, “an agent of the State did conсeal that report from me by failing to provide it to [the district attorney] to be provided to me.”
“There is no constitutional right to discovery in a criminal case, and
Brady
[v.
Maryland,
Hence, counsel was forewarned as to the accuracy of a summation of one witness’ testimony, аnd was not warranted in concluding that another witness’ statement included all of the information possessed by that witness, nor was he authorized, as a matter of law, to conclude that an informant might not possess information adverse to his client which was not included in a statement made to the police which was included in the prosecution’s file made available to him. Counsel is a victim of his own trial tactics, not the tactics of the prosecution. The risk he assumed cannot be attributed to the State on a silent record. There is no evidence of suppression or misrepresentation.
(c) Appellant contends his character was improperly placed in issue by the prosecutor when he elicited “the fact that the appellаnt was also arrested on federal wiretap charges.” The pages referenced in the record by appellant to support this allegation show only that a member of the Clarke County Police Department stated: “I was out there [at the motel] to assist in the execution of the arrest warrant.” Appellant’s counsel promptly moved for a mistrial on the ground “[tjhe officer just stated that the FBI had an arrest warrant for Mr. Fuqua which puts his character in evidence. . . . There is an FBI warrant pending he said.” Counsel embellished what the witness stated at the trial. But, at a later point, the witness was asked about the “scuffle” between Fuqua and Lt. Lucas at the motel, and responded: “Mr. Fuqua had a beer bottle in his right hand and made an erratic motion and asked: ‘What аre you arresting me for?’ He [Lt. Lucas] was telling him that he was under arrest, and that we had a Federal warrant for his arrest.” A second motion for mistrial was denied at this point. Counsel contends that because the State placed in evidence the existence of a federal warrant, he had to cross-examine a State witness to show the jury “the dismissal of the federal indictment.” Prior tо that point in the trial, appellant’s counsel asked the witness the nature of the information the police possessed about Fu-
In appellant’s brief, he contends that although he brought out the fact of Carole Gillen’s involvement with Fuqua and the wiretapping indictment, he was required to enter this area because of the State witness’ reference to a “warrant.”
We find no reversible error in the manner in which the trial court resolved this issue. The State’s witness did refer to a “warrant” as the reason for participating in the motel stake-out. However, the witness only referred to a “federal warrant” when a police officer was responding to Fuqua’s query at his arrest. The references to the “warrant” and the “Federal warrant” were part of the res gestae and the circumstances surrounding the accused’s arrest. Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court.
Andrews v. State,
2. Turning to appellant’s contention that when these alleged errors are “considered together . . . [they] constitute an intentional pattern of prosecutorial misconduct. . . ,” we must first observe that this court and the Supreme Court have held that “ ‘[а]ny error shown upon the record must stand or fall on its own merits and is not aided by the accumulative effect of other claims of error.’ ”
Haas v. State,
3. Appellant’s last enumeration of error claims the trial court “improperly shifted the burden of proof to the appellant in its charge. . . .” In his brief, appellant states that he. raised the issue of entrapment and the State was obligated to prove beyond a reasonable doubt that the defendant was not entrapped, but that twice during its charge the court “stated that the only issue for the jury to determine was whether the appellant knowingly committed the unlawful act charged,” and in defining “admission” charged it was a statement by a defendant “which tend ... to prove the guilt of the accused ... or tо disprove some defense set up by an accused.”
The trial court charged fully and accurately on the defense of entrapment, including the nature of the defense, and that “the State has the burden of proving beyond a reasonable doubt that the Defendant was not entrapped into effecting an unlawful sale of cocaine.” Appellant’s counsel has cited portions of the charge relating to other matters. This enumeration is totally without merit.
Judgment affirmed.