Manker v. State
| Decision Date | 26 September 1996 |
| Docket Number | No. A96A1512,A96A1512 |
| Parties | MANKER v. The STATE. |
| Court | Georgia Court of Appeals |
Caesar J. Burch, Savannah, for appellant.
Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.
A jury found Ralph Manker guilty of one count each of selling cocaine, possession of cocaine with intent to distribute, and obstruction of a law enforcement officer. The trial court denied Manker's motion for new trial and sentenced him as a recidivist to 30 years for selling cocaine, 25 to be served in prison, and merged his conviction for possession. The trial court also sentenced Manker to 12 months for the obstruction conviction, to be served concurrently with the sentence for selling cocaine. Manker appeals, challenging the sentence and the sufficiency of the evidence on his conviction for selling cocaine, the admission of certain evidence, the jury charge, and the effectiveness of trial counsel. For reasons which follow, we affirm the convictions, but reverse Manker's sentence and remand for resentencing.
1. The evidence was sufficient to convict Manker of selling cocaine.
Viewed in a light most favorable to the jury's verdict, the evidence shows that at 10:30 p.m. on December 11, 1994, members of the Chatham County Counter Narcotics Team were involved in an undercover drug investigation. Team member Agent Thompson was driving a panel van with several "take-down" agents concealed in the rear of the van. Agent Thompson drove the van to an area where Manker was standing and parked it directly below a street light. Manker crossed the street, approached the driver's side of the van, and asked Agent Thompson what he was looking for. Agent Thompson testified he had a full opportunity to view Manker and that he immediately recognized Manker because he had seen him several times before. Agent Thompson told Manker he wanted to get a "fifty pack," which he testified was $50 worth of crack cocaine. When Manker left the van for a couple of seconds to obtain the cocaine, Agent Thompson gave the take-down agents Manker's description. Manker returned to the van, gave Agent Thompson a substance later identified as cocaine, and Agent Thompson gave Manker the money. The take-down agents then exited the van and pursued Manker. As Manker fled, Agent Thompson saw him drop the money in the street. Although the take-down agents were unable to apprehend Manker that night, Agent Thompson learned from people in the area where Manker lived.
Agent Thompson testified that the following morning he talked to a police investigator, identified Manker's face in a photograph, and obtained a warrant for his arrest. Agent Thompson arrested Manker later that morning in front of his residence.
At trial, Agent Thompson positively identified Manker as the person who sold him the crack cocaine. In addition, one of the take-down agents who pursued Manker testified that from his observations that evening, Manker appeared to be the same person he was chasing.
Manker contends that the evidence at trial was insufficient to identify him as the person who sold cocaine to Agent Thompson. We disagree. On appeal from a criminal conviction, Manker no longer enjoys the presumption of innocence, and we do not weigh the evidence or determine witness credibility. Platt v. State, 211 Ga.App. 721, 722, 440 S.E.2d 495 (1994). Those were issues for the jury to determine, and we conclude that the evidence produced at trial was sufficient to authorize a rational trier of fact to find Manker guilty of selling cocaine beyond a reasonable doubt. Id.; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Manker asserts that the trial court erred in denying his motions for mistrial because his character was impermissibly placed in issue on two occasions. We disagree.
On one occasion, Agent Thompson testified that he talked to a police investigator before identifying Manker's face in a photograph. The mere fact that the testimony showed that the photograph came from police department files did not place Manker's character in issue. See Hood v. State, 216 Ga.App. 106, 108(3), 453 S.E.2d 128 (1995). Furthermore, Agent Thompson's testimony was contained in a long narrative given in response to a question by the prosecutor concerning what occurred after he paid Manker for the cocaine. ... Nelson v. State, 204 Ga.App. 409, 410(2), 419 S.E.2d 502 (1992). In light of the nature of the statement and the other evidence presented, the trial court did not err in denying Manker's motion for mistrial based on this testimony. See id.
During other testimony, one of the take-down agents stated that after they failed to apprehend Manker, Agent Thompson told him "that he knew the guy some past experience from maybe to the jail or something like that, I don't know (sic)." The jury was removed from the courtroom, and Manker moved for a mistrial. After arguments, Manker refused the trial court's proposal to instruct the jury concerning the testimony. Because Manker refused to allow the court to repair the alleged prejudice caused by the testimony, he waived the grounds to assert mistrial error on appeal. Scott v. State, 207 Ga.App. 196, 202(1)(b), 427 S.E.2d 537 (1993).
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