Lead Opinion
Bonnie Frank Henderson and Carl Robert Coursey were jointly indicted on two counts alleging violation of the Georgia Controlled Substances Act. Count I alleged the sale of the controlled substance methaqualone; Count II alleged possession of methaqualone with the intent to distribute. Henderson was also indicted under the Habitual Offender Act, Code Ann. § 27-2511. Following their joint trial, Henderson was convicted of bоth counts, while Coursey was acquitted on Count I and convicted on Count II. We have consolidated our consideration of these cases on appeal.
Case No. 63242
1. Henderson first enumerates as error the trial court’s denial of his motion for mistrial based upon the introduction of testimony into evidence of other crimes for which he was not on trial. The offending
“We begin with the general rule that in the trial of a crime, evidence of other criminal acts by the defendant is inadmissible as it tends to place the defendant’s character into evidence. See Code Ann. § 38-202. See also, Bacon v. State,
2. Henderson’s second enumeration cites as error the trial court’s failure to require the state to disclose the identity of a confidential informant. The record discloses that Henderson sought discovery of this information by motion made in accordance with Brady v. Maryland,
“Where an informant is a mere tipster, disclosure of his identity is not required. Thornton v. State,
During argument in support of his renewed motion for disclosure, counsel for Henderson stated, “. . .[E]veryone in this courtroom over the age of three years old and who has listened to the testimony knows that Bruce Mitchell is the informant. The testimony is that the informant, whoever he [is], introduced Agent Jackson and Mr. Henderson. Mr. Henderson knows who introduced Agent Jackson to him. It was his buddy Bruce Mitchell. Nobody is trying to find some secret that they have. We know that. Now, our defense will be entrapment and it is going to be necessary that we show that Mr. Mitchell was an agent and was acting in the capacity of an agent of the state.” Counsel had earlier stated that this information had been known to the defense since the day after Henderson’s arrest. The trial court denied the motion to disclose.
Although Henderson asserts on appeal that disclosure of the informant’s identity was necessary to the viability of his entrapment defense, he made no showing at trial as to any possible significance of the informant’s testimony, only his unsupported conclusion that it was nеcessary. The Supreme Court’s decision in “... Brady does not establish an inflexible principle that requires the disclosure of informants’ identities or of all evidence, but only that which is ‘favorable to a defendant if the evidence is material to guilt or punishment.’ [Cits.] In this case, [Henderson] made no showing of, and did not in anyway call in issue, any favorability or materiality of the informant’s testimony to the defense. There was, thеn, no request or showing which would contravene Code [Ann.] § 38-1102, which grants the privilege against disclosure. [Cit.] The question of disclosure is a matter of discretion with the trial judge (see Boyd v. State, [
3. Thirdly, Henderson contends that the trial court erred in failing to exclude testimony relating to certain in-custody statements he had made. Although Henderson made an appropriate written request for pretrial discovery of his in-custody statеments (see Code
The record discloses that the state recalled two witnesses in rebuttal who were questioned as to certain in-custody statements made by Henderson after his arrest. Each of these witnesses was thoroughly cross examined by defense counsel. Only after these witnesses had completed their testimony did Henderson movе to exclude the testimony as to his in-custody statements on the basis of the state’s failure to comply with Code Ann. § 27-1302. The trial court ruled that, since the conversations during which Henderson had made the statements had been initiated by Henderson, and since these statements were made after the commission of the crimes, the state had no duty to disclose the statements. This ruling is an incorrect interpretation оf the law.
Code Ann. § 27-1302 provides: “(a) The defendant shall be entitled to have a copy of any statement at least 10 days prior to the trial of the case given by him while in police custody... (c) Failure of the prosecution to comply with a defendant’s timely written request for a copy of his statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution’s use in its case-in-chief or in rebuttal.” (Emphasis supplied.) Accordingly, Henderson was entitled to have his in-custody statements excluded and suppressed from the state’s use at trial. Garner v. State,
4. Henderson’s fourth enumeration cites as error the trial court’s consideration of Hendersоn’s 1972 federal conviction of importing 1200 pounds of marijuana (a felony) for the purpose of sentencing him as an habitual offender pursuant to Code Ann. § 27-2511. Henderson contends that the importation of marijuana is not a crime punishable under the laws of this state.
Although Code Ann. § 27-2511 provides that a person’s conviction of a crime under the laws of the United States may be considered for sentencing аs an habitual offender if said crime is a felony if committed within this state, the statute does not indicate whether such a crime must have been a felony under Georgia law at
“Possession, as we know it, is the right to exercise power over a corporeal thing; as such, possession may be actual or constructive so long as it is immediate.” Cook v. State,
5. Finally, Henderson contends that the trial court erred by increasing his original sentence after it had been executed and he had been committed thereunder. The record shows that following the jury’s verdict of guilty, the state presented evidence pursuant to Code Ann. § 27-2511 оf Henderson’s convictions of three prior felonies, two Georgia convictions and the federal conviction discussed in Division 4 of this opinion. The trial court then orally sentenced Henderson to serve 30 years, the maximum sentence. Code Ann. § 79A-811 (d). The court then sentenced Coursey. Immediately thereafter, as the clerk was writing out Henderson’s sentence, the state suggested, and the court concurred, that language should be added to Henderson’s sentence to reflect that he had been sentenced pursuant to Code Ann. § 27-2511. Counsel for Henderson noted that this proposed addition was being made outside Henderson’s presence. Therefore, the trial court ordered Henderson returned to the courtroom. The language proposed by the state was then written upon his sentence in his presence, and the trial court re-executed the sentence.
Henderson contends on appeal that the effect of the language added to his sentence was to increase his sentence because, as this was his fourth felony conviction, he would not be eligible for parole under
“While it is true that an oral sentence is not a binding judgment of the court, the law is also clear that once a person has entered upon the execution of his sentence, the court is without powеr to change it by increasing the punishment. This is considered a violation of the Fifth Amendment prohibition against double punishment or jeopardy.” Inman v. State,
Case No. 63609
6. Coursey’s first and second enumerations cite as error the trial court’s failure to sever his case from Henderson’s for trial. In a motion made prior to trial Coursey contended that he could not receive a fair and impartial trial if he were tried with Henderson, who was accused as an habitual felon. Coursey renewed his motion for severance (in the form of a motion for mistrial) after Henderson had admitted his own participation in the crimes charged and also had testified as to his past criminal record.
When presеnted with a motion for severance, the trial court must exercise its discretion in contemplation of the facts of that particular case. The burden is on the defendant requesting severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal; he must make a clear showing of
Viewed in a light most favorable to upholding the verdict, the transcript shows that the two illegal drug transactions alleged in the indictment both occurred at Coursey’s place of business; that Coursey had stated to an undercover GBI agent that he “worked for” Henderson; that Coursey was present on the premises when the second transaction occurred (Count II); that he knew the second transaction was scheduled to occur; and that he acted as a lookout while this transaction took place. Coursey testified at trial that he had no knowledge of the illegal drug transaction, and Henderson also testified that Coursey had nothing to do with the subject transaction. “The jury was obviously hot persuaded by [defendants’ testimony]. In our view, the evidence presented against [Coursey] was not so slight that he was convicted merely by his association with [Henderson] or by being enveloped within a vague, generalized notion that his mere presence [on the premises] was tantamount to his having participated in the crimes charged. Although the state submitted more evidence against [Henderson] than against [Coursey], we do not believe it highly probable that [Coursey] was convicted as the result of a spillover of the greater volume of evidence adduced solely against [Hendеrson].” Parrish v. State,
7. Coursey thirdly enumerates as error the trial court’s failure to give the following request to charge: “Gentlemen, I further charge you if you find that the evidence against CARL ROBERT COURSEY is so slight, he should not be convicted merely by association, or as a result of some spillover of the substantial evidence adduced against his co-defendant.” Even though this request to charge was developed from this court’s opinion in Price v. State,
8. Coursey’s fourth enumeration asserts as error the trial court’s “over-еmphasizing the words ‘party to a crime’ ” during a portion of the charge to the jury. The trial court instructed the jury as to how to complete the form provided for their verdicts. While the trial court displayed the form, the jury was instructed that, if they felt the state had proven that Coursey was a “party to the crime” beyond a reasonable doubt, it was their duty to mark the form accordingly. This instruction and display were nоt an expression or intimation by the trial court as to what had or had not been proved or as to Coursey’s guilt and, therefore, were not error. Compare Gaither v. State,
9. Coursey’s final enumeration cites as error the trial court’s denial of his motion for directed verdict of acquittal made at the close of all the evidence. “Code Ann. § 27-1802 (a)... provides that ‘(w)here there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal’ the court may direct a verdict of acquittal. Suffice it to say, the circumstantial evidence of the state was in conflict with the direct evidence of defendants. Further, all reasonable inferences and deductions from such evidence did not demand a verdiсt of acquittal [as to Count II of the indictment] — as the jury pointed out... Thus, defendant [Coursey] was not entitled to a directed verdict.” Collins v. State,
Judgments affirmed.
Rehearing
On Motion for Rehearing.
In reference to Division 3 of this opinion, appellant Henderson contends that his “motion to strike” the evidence as to his in-custody statement was timely so as to preserve the issue for appeal. This “motion to strike” was made after two witnesses had been subjected to direct and cross examination relating to the statement and their testimony had been сompleted. In support of his contention Henderson cites Blount v. Beall,
We are here dealing with testimony relating to an in-custody statement, the voluntаriness of which was not challenged. The admission of such statement under this circumstance was not error. Taylor v. State,
The General Assembly has seen fit to endow criminal defendants with certain discovery rights and has also provided a method for enforcement of those rights. Garner, supra. However, while the state’s failure to comply with the discovery statute may render certain evidence inadmissible, such failure does not affect the probative value of the evidence. See generally Tanner, supra. Hence, such evidence is not “illegal.”
The general rule cited by this court in Reid v. State,
Judgment adhered to.