Banks v. State, A91A1169
| Decision Date | 20 September 1991 |
| Docket Number | No. A91A1169,A91A1169 |
| Citation | 410 S.E.2d 818,201 Ga.App. 266 |
| Parties | BANKS v. The STATE. |
| Court | Georgia Court of Appeals |
H. Bradford Morris, Jr., Gainesville, for appellant.
C. Andrew Fuller, Dist. Atty., Lee Darragh, Asst. Dist. Atty., for appellee.
Having been denied a new trial, Major Banks appeals his conviction for selling cocaine ( 1/5 gram for $40), OCGA § 16-13-30(b), in violation of the Georgia Controlled Substances Act.
Construction of the evidence at trial in favor of the verdict shows the following. The Georgia Bureau of Investigation was conducting undercover drug operations in Hall County. Agents had information that they could purchase cocaine from an individual named "Major" at a local poultry processing plant. Three agents and a confidential informant drove to the plant. One of the agents and the informant exited the car and walked to the plant's front fence. The informant asked an employee standing at the fence whether the employee knew "a tall black male with Jerry curls that goes by the name of Major, who works there." The employee responded that he did and went inside the plant.
Approximately one minute later, Banks came out of the building and to the fence gate. The agent and informant followed Banks across the parking lot, out a side gate and onto a dirt drive. The informant told Banks that the agent wanted to buy some cocaine. Banks asked the agent how much he wanted. The agent stated "half," meaning a $50 amount of cocaine which was probably less than one gram. Banks reached into his freezer suit pocket and pulled out one corner tie-up plastic bag of cocaine. He indicated to the agent that the cocaine would cost $40 rather than $50 and handed the agent the cocaine. After examining the drugs, the agent handed Banks $40. Banks commented that the cocaine was pure.
1. In his first and second enumerations of error, appellant challenges the admission of evidence of similar transactions. He maintains that the evidence was admitted without proper foundation in that the State failed to show identity of the perpetrator and similarity of offense. He further asserts that admitting the evidence without requiring the state to call live witnesses and produce testimonial evidence violated his rights of confrontation under the State and Federal Constitutions.
As to the confrontation contention, no such objection was lodged at trial; therefore, it will not be entertained on appeal. Cooper v. State, 173 Ga.App. 254, 256(1), 325 S.E.2d 877 (1985).
The contention that the independent transactions were substantively inadmissible fails. "Generally, evidence of other independent crimes or acts committed by the defendant is inadmissible as it tends to put the defendant's character into evidence. [Cit.] Exceptions to this rule permit evidence of independent crimes committed by the defendant to be admitted for the limited purposes of showing identity, motive, plan, scheme, bent of mind and/or course of conduct. [Cit.]
Chastain v. State, 260 Ga. 789, 790(3), 400 S.E.2d 329 (1991).
While it is true as appellant points out that a defendant's other possession of drugs may not be admissible as a similar transaction in the defendant's trial for selling drugs, see Faison v. State, 199 Ga.App. 447, 405 S.E.2d 277 (1991), this was a sale case in which prior sales were admitted. The independent prior transactions were a $100 sale of marijuana to an undercover G.B.I. agent on September 29, 1984, and a subsequent $50 sale of cocaine to the same agent six days later. They were four years earlier, but defendant had been incarcerated for at least part of the interim due to a sentence of ten years to serve (plus probation). Both transactions were charged in a single indictment, the content of which was read to the jury by the State's attorney. The face of the indictment informed the jury that both crimes had occurred in an adjoining county to the one on trial, that both were also sales of similar quantities of drugs by virtue of the similar specified dollar amounts, and that both also involved undercover sales to a government agent. A certified copy of the indictment and sentences was introduced into evidence.
This case also differs from Stephens v. State, 261 Ga. 467, 405 S.E.2d 483 (1991). In Stephens, the only evidence as to similarity of the three prior sales of cocaine that was before the jury was the certified copy of the convictions, which had been entered following guilty pleas. The face of the indictment for these crimes contained only the bare allegation of the criminal act of the sale of cocaine in the particular county. The majority noted that had the State presented evidence of similarity in the case during trial as it had done in the USCR 31.3(B) hearing at which the prosecutor stated in his place the relevant facts of the prior conviction, then the only question concerning a challenge on appeal as to similarity would be whether the trial court's finding was clearly erroneous. The record in Stephens reveals that the prosecutor stated in his place that the prior crime was a hand-to-hand undercover sale involving a confidential informant, the approximate quantity of drugs sold, and a dollar amount of the sale.
The trial court's finding of similarity to the charge on trial was not "clearly erroneous." Stephens at fn. 2.
As to the question of identity, the documentary evidence all bore the name, "Major Banks, Jr." See Williams v. State, 180 Ga.App. 227, 348 S.E.2d 747 (1986); Coggins v. State, 168 Ga.App. 12, 13(4), 308 S.E.2d 36 (1983); ...
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