GIVENS v. THE STATE; BARFIELD v. THE STATE
A93A1102, A93A1186
Court of Appeals of Georgia
DECIDED DECEMBER 6, 1993
RECONSIDERATION DENIED DECEMBER 7, 1993
211 Ga. App. 290 | 439 SE2d 22
BLACKBURN, Judge.
Pope, C. J., and Andrews, J., concur.
DECIDED DECEMBER 6, 1993
Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Savell & Williams, Daniel N. Meyer, for appellant.
Eason, Kennedy & Associates, Richard B. Eason, Jr., McReynolds & Welch, Aubrey T. Villines, Jr., for appellee.
A93A1102. GIVENS v. THE STATE.
A93A1186. BARFIELD v. THE STATE.
(439 SE2d 22)
BLACKBURN, Judge.
The defendants, Carroll Givens and Arthur Barfield, were convicted of criminal attempt to possess cocaine, stemming from a reverse sting operation conducted by the Albany-Dougherty Drug Unit on May 9, 1992. These appeals followed.
The State‘s evidence at trial showed that on the night in question, a truck approached one of the undercover police officers who was posing as a drug dealer on the street. Barfield drove the truck, and Givens was a passengеr. The officer asked the defendants what they wanted, and Givens replied that he needed a “twenty.” The defendants were then told to back up to a point where another officer was standing. Barfield had money in his hand and told the second officer that he wantеd a “twenty,” and the officer handed him a bag containing crack cocaine. Givens then remarked, “you get one then I‘ll get one,” or words to that effect. Barfield looked at the contents of the bag and handed it back to the officer. Next, without any explanation, the defendants attempted to drive off, and they were immediately arrested.
1. On appeal, Barfield and Givens contend that their convictions must be reversed due to the State‘s failure to disprove their affirmative defense of abandonment beyond a reasonable doubt. We disagree.
Although a defendant in a criminal case has no burden of persuasion with regard to an affirmative defense asserted, there must be some evidence presented by either the defendant or the State that raises the defense. “The responsibility of producing evidence of an affirmative defense and the burden of persuasion by proof beyond a reasonable doubt are two distinct and separate concepts. The first is placed squarely on the defendant unless the stаte‘s evidence raised the issue.” Moore v. State, 137 Ga. App. 735, 736 (224 SE2d 856),
Where a defendant testifies and raises an affirmative defense by that testimony, the State then has the burden of disproving that defense beyond a reasonable doubt. Bentley v. State, 261 Ga. 229 (404 SE2d 101) (1991); Coleman v. State, 141 Ga. App. 193 (2) (233 SE2d 42) (1977). However, in the instant cases, the defendants did not testify or present any other evidence to support a defense of abandonment. Further, the State‘s evidence did not raise an affirmative defense of abandonment, or establish such an abandonment as fact.
The defendants were charged with and convicted of сriminal attempt to possess cocaine. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”
Under these circumstances, the trial court properly denied the defendants’ motions for directed verdict of acquittal based on the defense of renunciation, and properly refused to instruct the jury that the State had the burden of disproving that defense beyond a reasonable doubt. The trial court‘s general jury charge on abandonment was not required by the evidence.
Even if the State‘s evidence had raised the affirmative defense of abandonment, “[t]he determination of whether the State has met its burden to disprove the affirmative defense is for the jury.” Bentley v. State, supra at 230. Inasmuch as the defendants have not even suggested an explanation for their conduct other than the jury‘s conclusion that there was no abandonment, we should not disturb the jury‘s finding. Cf. Rash v. State, 207 Ga. App. 585, 587 (5) (428 SE2d 799) (1993).
2. In reverse sting operations, undercover police officers pose as drug dealers in an area known for drug activity аnd sell cocaine to purchasers. Following the purchase or attempted purchase, the buyer is arrested for possession of cocaine. The law enforcement officers use this operation as a means of attempting to prevеnt street level drug activities.
3. A videotape of the attempted purchase was played for the jury after the police officer who taped the incident testified and laid the proper foundation for its admission. During cross-examination of the officer, defense counsel initially asked that the tape be played again to assist with that cross-examination. The trial court denied the request, noting that the jury would recall what the tape depicted, but did not otherwise limit the cross-examination of the officer regarding the matter. On appeal, however, the defendants contend that the trial court‘s refusal to allow the replay of the tape constituted a harmful restriction of their cross-examination of this witness.
The scope of cross-еxamination is not unlimited and lies within the sound discretion of the trial court. Hayes v. State, 193 Ga. App. 33 (2) (387 SE2d 139) (1989). In the instant cases, the defendants have not shown how the restriction adversely affected their ability to develop their defense of abandonment. The videotaped transaction was brief and did not involve a great deal of action to recall, and defense counsel was afforded a thorough cross-examination of the police officer regarding the contents of the tape. Under these circumstances, the trial court did not abuse its discretion.
4. The defendants were represented by separate counsel. At trial, neither defendant presented any evidence, and under
“The question remains, however, whether the error was harmless. The right to make the final argument to the jury is an important right and harm to the defendant is presumed on appeal when the right is erroneously denied. Seyden v. State, 78 Ga. 105 (4) (1886). However, the presumption is not absolute and the error may be shown to be harmless.” McDuffie v. Jones, supra at 547.
5. Viewed in the light most favorable to support the verdict, the evidence was sufficient to authorize a rational trier of fact to find the defendants guilty of criminal attempt to possess cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgments affirmed. Pope, C. J., Birdsong, P. J., Beasley, P. J., Cooрer, Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., dissents.
MCMURRAY, Presiding Judge, dissenting.
Under Georgia law, “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”
The remedial purpose behind
The majority takes the position that the evidence did not raise the defense of abandonment. In this regard, the majority opines: “If the defendants had a change of heart, it was after the criminal attempt was completed, and thus too late.” In my view, this approach misses the point of the abandonment defense. As the Committee Notes point out, the abandonment defense was enacted to enable a person who would otherwise be guilty of a criminal attempt to repent and abandon the criminal enterprise. That is exactly what happened in this case. The mere fact that defendants may have committed a criminal attempt before they had a change of heart is of no consequence.
In my view, the evidence presented by the State demonstrated that defendants abandoned their сriminal scheme. Accordingly, I am of the view that the affirmative defense of abandonment was raised below. See generally Noles v. State, 164 Ga. App. 191, 192 (296 SE2d 768). (Indeed, the trial court must have agreed because it charged the jury on the law of abandonment.)
To overcome defendants’ affirmative abandonment defense, the State needed to introduce evidence disproving abandonment beyond a reasonable doubt. See Coleman v. State, 141 Ga. App. 193, 194 (2) (233 SE2d 42). I feel the State failed in that endeavor. The officers testified that they did not announce they were police officers until defendants started to leave the scene. They also testified that they did not know why defendants aborted their criminal enterprise.
Based on the evidence adduced below, we can only speculate as to why defendants decided they did nоt want to purchase the cocaine that the police were selling. Did they somehow suspect that they were being set up? Did they decide that the cocaine was overpriced? Or, did they have a real change of heart? The evidence adduсed below does not answer these questions.
The State was unable to demonstrate beyond a reasonable doubt that defendants abandoned their criminal purpose because they believed they were about to be apprehended and deсided to wait for a safer opportunity. Compare Padgett v. State, 170 Ga. App. 98, 100 (316 SE2d 523), in which victim‘s obstructive conduct caused defendant to abandon his scheme. Accordingly, it is my view that the State failed to present evidence enabling a rational trier of fact to find beyond a reasonable doubt that defendants made a criminal attempt to possess cocaine.
DECIDED NOVEMBER 15, 1993 — RECONSIDERATION DENIED DECEMBER 7, 1993 —
Dorough & Sizemore, Kermit S. Dorough, Jr., for Givens.
T. Lee Bishop, Jr., for Barfield.
Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.