Lead Opinion
In a joint trial appellants Bentley and Holbert were convicted of trafficking in cocaine and attempted trafficking in cocaine; appellant Quinn was convicted of attempted trafficking in cocaine.
Law enforcement authorities, after receiving information that Graham (a fourth defendant), Quinn and Holbert were in Panama City, Florida to arrange a drug deal, placed them under surveillance and ultimately followed them to a motel in Calhoun, Georgia. An undercover agent posing as a buyer went to the room where Graham, Quinn and Holbert were staying and arranged to test the cocaine for sale. The agent was driven to a farmhouse outside Calhoun, Georgia by Holbert. They met Bentley in a pasture where the agent tested the cocaine and returned it to Bentley. Early the same afternoon the agent met Holbert and showed him $57,000 he would pay fоr the cocaine, and Holbert departed. Holbert and Bentley met the agent about an hour and a half later; the agent got in Bentley’s truck and again tested the cocaine and returned it to Bentley. The agent returned to his car, signalled other agents, and Holbert and Bentley were arrested. Two packages of cocaine with a weight of 817.7 grams (one pound and 12.84 ounces) were seized from Bentley’s truck.
Appellant Quinn
1. Quinn contends the trial court erred by denying his motion for a directed verdict of acquittal because there was no evidence to show that he participated in nеgotiations for the sale of cocaine; he was not present when the cocaine was tested; and he was not present when the sale was to be consummated. This contention is without merit.
Appellant Holbert testified that Quinn and Bentley were putting out the word in Panama City that they had a lаrge amount of cocaine for sale, and later they told Holbert they had a buyer for the cocaine. Holbert also testified that initially Quinn and Bentley were going to take the cocaine to Columbus, Georgia, for testing by the undercover agent posing as a buyer, but changed their plans and agreed to have it tested in Calhoun. Additionally, a tape recording of a telephone conversation between a federal agent and Quinn discussing the drug transaction was introduced into evidence.
2. a. Appellant Quinn contends it was error to deny his motion for a mistrial after the prosecuting attorney testified and gave hearsay evidence in his opening statement. Appellant argues that the prosecuting attorney’s remarks in reference to what Denise Morrison (the confidential informant) did and said in reference to this case constituted hearsay testimony by the prosecuting attorney, because Morrison was not called as a witness by the State.
We have examined the opening statement by the prosecuting attorney and find no reference to what Morrison said, and no statement that Morrison would testify as a witness. The prosecuting attorney stated only that “we expect to show” certain facts relating to what Denise Morrison had dоne. Such statements did not constitute hearsay testimony by the prosecuting attorney; they were merely statements as to what the prosecution expected the evidence to show. The evidence did, in fact, show what the prosecuting attorney stated it would show. “Since the proseсution in its opening statement is permitted to state what it intends to prove and subsequently presented evidence to prove same, the statements of counsel did not require a reprimand or mistrial.” Pinion v. State,
b. Appellant contends error in denial of his motion for a mistrial after the prosecuting attorney announced to the court that Denise Morrison’s whereabouts were being kept secret for security reasons. Quinn argues that this implied he was a mean, vicious, antagonistic, revengeful individual who would harm Morrison. This contention is without merit.
On cross-exаmination defense counsel asked a state witness where Denise Morrison was now; the State objected and the court asked on what grounds. The prosecuting attorney replied: “For security reasons, Your Honor. We don’t think it’s necessary that he know where she is at.” The statement gave no indication that the “security reasons” involved protecting Morrison from being harmed by appellant. The prosecuting attorney made no derogatory comments con
3. Appellant Quinn contends the trial court erred by allowing the jury to hear a tape of a conversation between appellant and an undercover agent, because a proper foundation was not laid.
The transcript shows that the State met all requirements set forth in Brooks v. State,
4. Appellant contends the trial court erred by denying his requests to charge on abandonment of an attempt to commit a crime, and his request to charge on mere presence at the scene of the crime.
Abandonment of an effort to commit a crime is an affirmative defense. OCGA § 16-4-5. Appellant did not raise this defense at trial, and did not testify. As stated in Division 1, the evidence showed clearly that appellant was an active participant in the attempt to sell cocaine, and no evidence was presented to indicate that appellant abandoned his effort to sell cocaine. Thus, the issue of abandonment was not raised, and when a requested charge deals with а matter not in issue, it is not error for the trial court to deny the request. Anderson v. State,
As to appellant’s request to charge on mere presence at the scene of the crime, he was not present when the cocaine was tested, nor was he present in the parking lot where the attempted sale was to be consummated. Since this matter was not placed in issue by the evidence, it was not error to deny this requested charge. Anderson, supra.
5. For the reasons set forth in the preceding divisions, it was not error to deny appellant’s motion for a new trial, as amended.
Appellants Bentley and Holbert
These appellants filеd identical enumerations of error which will be considered together.
6. Appellants contend it was error for the court, on its own motion, to dismiss a prospective juror who was a convicted felon. This contention has been decided adversely to appellants. Norris v. State,
7. a. Appellants objected and moved for a mistrial after the prosecuting attorney asked the following question on voir dire: “Is there anyone on this panel who at sometime or other has been involved in the caring for, treatment of or rehabilitation of a person who is the victim, or who has been the victim of drugs?” The trial judge disallowed the question and denied the motion for mistrial; appellants
Control of voir dire examination is within the discretion of the trial judge and will not be interfered with by an appellate court unless there is a clear abuse of discretion. Waters v. State,
b. Appellants contend it was error to deny their motion for a mistrial after the prosecuting attorney stated a witness was being held in an unknown place for security reasons. For the rеasons set forth in Division 2b of this opinion, this contention is without merit.
c. Appellants contend it was error to deny their motion for a mistrial after a state witness placed appellants’ character in issue by stating he was worried about his safety in going to the farm with Holbert.
When this testimony was given the undercоver agent posing as the buyer was relating what transpired from the time he started dealing with appellants in the morning until their arrest that same afternoon. The evidence was material, and such evidence is not inadmissible because it incidentally puts a defendant’s character in issue. Miller v. State,
8. a. Appellants contend it was error to deny their motion for a directed verdict of acquittal because the State did not prove that the actual cocaine in the substance seized from appellants exceeded 400 grams. This contention has been decided adversely to appellants in Belcher v. State,
The State presented evidence that 817.7 grams of the powdery substance seized contained cocaine. OCGA § 16-13-31 (a) makes it illegal to sell or possess cocaine or any mixture containing cocaine. Thus, it was not error to deny appellants’ motion for a directed verdict of acquittal on this ground.
b. Appellants also contend it was error to deny their motion for a directed verdict of acquittal on the charge of selling cocaine, because appellants were arrestеd before the attempted sale was consummated. We agree and reverse their conviction on charge 1.
In Robinson v. State,
9. a. Appellants contend the court erred by giving the jury an incorrect definition of the word “sale.” The court defined sale as follows: “A sale consists in the passing of title from the seller to the buyer for a price. Unless otherwise explicitly agreed, title passes to the buyer at the time and the place at which the sellеr completes his performance with reference to the physical delivery of the goods.” This language is contained in OCGA § 11-2-401 (2) and comports with the definition of a drug sale in Robinson, supra. Hence, there was no error.
b. Appellants contend the trial court erred by charging the jury that a specific quantity of cocaine is not required to be present in the mixture to constitute a violation of OCGA § 16-13-31. For the reasons set forth in Division 8 a, this charge was a correct statement of the law.
10. Appellants contend it was error to submit both counts to the jury because the cocaine allegedly sold to the undercover agent was thе same cocaine which was the subject of the attempted sale of cocaine. In view of the fact that we have reversed appellants’ convictions for the sale of cocaine, any alleged error in submitting both counts to the jury is moot.
11. Lastly, appellants contеnd it was error to deny appellants’ motion challenging the array of traverse jurors. Appellants argue that the jury commissioners used unauthorized sources, such as the city directory, the telephone book and lists of high school graduates to revise the jury list. Appellants also contend that the commissioners did not place the names of all persons over 65 who requested jury duty on the list.
In regard to using the city directory, telephone book, etc., in Hudson v. State,
In regard to persons over 65 who request in writing tо serve as jurors, appellant argues that OCGA § 15-12-1 (e) is mandatory and requires that the names of such persons be placed in the jury box. In the instant case the names of two persons over 65 who requested that their names be included on the jury list were not placed in the jury box. Appellants argue thаt because the statute is mandatory and was
Judgment affirmed in Case No. 67803. Judgments reversed on Count 1 and affirmed on Count 2 in Case Nos. 68118, 68119.
Concurrence Opinion
concurring specially.
The writer concurs fully and associates himself completely with the majority opinion.
An observation is appropriate that in Divisiоn 1 the majority, in addressing a motion for a directed verdict of acquittal, uses the Jackson v. Virginia,
In Division 8a and b of the majority opinion two additional motions for a directed verdict of acquittal are considered where the rational trier standard is not utilized. Apparently, the majority opinion uses the statutory standard or any evidence standard which is also permissible under Conger v. State,