Benefield v. State

• Citation: 232 S.E.2d 89,140 Ga.App. 727
• Decision Date: 05 November 1976
• Docket Number: No. 52557,No. 1,52557,1
• Parties: T. P. BENEFIELD v. The STATE
• Court: Georgia Court of Appeals

Page 89

232 S.E.2d 89

140 Ga.App. 727

T. P. BENEFIELD v. The STATE.

No. 52557.

Court of Appeals of Georgia, Division No. 1.

Nov. 5, 1976.

Rehearing Denied Dec. 13, 1976.

Moulton, Carriere, Cavan & Maloof, J. Wayne Moulton, Bryan M. Cavan, Decatur, for appellant.

William H. Ison, Dist. Atty., Douglas N. Peters, Asst. Dist. Atty., Jonesboro, for appellee.

CLARK, Judge.

This is an appeal from a conviction for sale of cocaine for which appellant was sentenced to fifteen years imprisonment. There are thirteen enumerations of error, including the denial of defendant's extraordinary motion for new trial.

The alleged sale occurred in defendant's automobile at a time and place arranged by Hall, a paid informant for the Drug Enforcement Agency. The putative purchaser, Herndon, an under-cover DEA agent, was introduced to defendant Benefield by Hall as being the informer's cousin.

The testimony of both Hall and Herndon is that defendant picked up a bag of cocaine from under the front seat, passed it to Hall (informer) sitting beside him. In turn Hall gave it to Herndon sitting in the rear seat, he then paying cash to defendant. Hall and Herndon testified the amount was $750.

Defendant in his sworn testimony stated he had neither offered cocaine for sale nor sold any. He further testified that Hall, his former employee, owed him some money and had arranged to pay him at this meeting at which Hall was to receive funds from his cousin, Sanders. 'Sanders' was the name used by Herndon. Defendant claims he drove Hall to the site of the alleged sale only to receive payment of money owed him by his former employee. His testimony was that he saw Hall hand something to Herndon who in turn gave him, the defendant, $600. The jury chose to believe otherwise.

1. We deal first with defendant's thirteenth enumeration contending error in the denial of his motion 'to suppress and to produce tapes and for transcripts of intercepted oral and telephonic communications made by agents in connection with the investigation of appellant.'

Defendant alleged he had been the subject of a lengthy investigation by police authorities during which he had been the subject of numerous illegal wiretaps and 'bugging.' A lengthy hearing was held to determine the existence of the purported illegal intercepted communications and to prove the relation, if any, of such communications to the instant prosecution.

Defendant also moved in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for the production and in camera inspection of the state's files and evidence. The trial court conducted an in camera inspection of the DEA's files and the file of the district attorney. He noted in open court that the DEA file contained a transcript of four pages detailing the intercepted conversations of the defendant with another party (not involved herein) during a one-day period. The date was not indicated. The trial court proceeded to read the contents of the transcript to defense counsel. As the court noted, the transcript had nothing whatsoever to do with the case before it.

Defendant was unable after a lengthy and exhaustive hearing to establish prima facie that the alleged interceptions were illegal, or that if illegal, fruits of the poisonous tree existed and would be used in evidence, or even that they were material to the illegal transaction for which he was being prosecuted. In Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1962), the United States Supreme Court stated that 'We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. " See Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939) and Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1919).

The trial court denied the motion to suppress, finding that no illegally or unreasonably obtained evidence connected with the charge existed, that no intercepted communications would be used, and that 'the mere fact that the defendant had been under investigation for four years, without more, was insufficient to show that information gathered by agents in the course of the investigation related in any way whatsoever to the present case.' The trial court stated it would follow the case closely to insure that no such evidence would be introduced. A careful reading of the lengthy trial transcript reveals without doubt that this promised course of action was carried out by the trial judge.

In the instant case all the evidence introduced against the defendant was direct evidence not derived from or related to any interceptions of communications made by the investigating authorities. The connection between the allegedly improper eavesdropping and the evidence adduced at trial was so attenuated as to completely free and purge it of any taint. See Cauley v. State, 130 Ga.App. 278, 203 S.E.2d 239, cert. denied, 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 117.

2. In this same enumeration thirteen defendant asserts that he was entrapped so that a need exists for transcripts of any and all intercepted conversations so as to be able to prove entrapment. This is without merit. The trial transcript clearly shows that the defendant was a willing seller of cocaine to the undercover agent, and the authorities merely provided him with an opportunity to make a sale he was predisposed to make. '(T)here is no entrapment to commit a crime where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.' Hill v. State, 225 Ga. 117, 119, 166 S.E.2d 338. See Orkin v. State, 236 Ga. 176, 195(8), 223 S.E.2d 61.

3. Enumeration two concerns the failure of the court to grant a mistrial after the assistant district attorney made some allegedly improper remarks.

The trial judge took the necessary purgative action by means of a thorough and forceful instruction to the jury and rebuke to the prosecutor. His language in doing so was more than sufficient to remove any improper impression from the minds of the jurors. The extent of a rebuke and instruction is within the discretion of the court, and when, as here, the improper remark is cured by timely corrective action calculated to preserve the defendant's right to a fair trial, then we cannot say that the court abused its discretion in refusing to grant a mistrial. Code Ann. § 81-1009; Shy v. State, 234 Ga. 816, 824(2), 218 S.E.2d 599; James v. State, 215 Ga. 213, 215(4), 109 S.E.2d 735; Domingo v. State, 213 Ga. 24, 27(4), 96 S.E.2d 896; Westbrooks v. State, 135 Ga.App. 807(3), 218 S.E.2d 908. The second enumeration is accordingly without merit.

4. Nor do we find any merit in enumeration three wherein defendant asserts as error another statement made by the prosecutor in the presence of the jury which dealt with possible violation of the sequestration rule. In this instance the trial court did not deem it necessary to take any corrective action. We fail to see how the colloquy involved here was in any way prejudicial to defendant. It is the duty of the trial court to insure that the sequestration rule, once invoked, is adhered to. Code Ann. § 38-1703; Nance v. State, 123 Ga.App. 410, 181 S.E.2d 295. See also Craig v. State, 130 Ga.App. 689, 692(4), 204 S.E.2d 307. There being no error, there was no need for corrective instructions.

5. Enumeration four concerns a statement made by the witness Hall which defendant asserts improperly placed his character in issue. On cross-examination defense counsel attempted to impeach Hall by introducing into evidence an affidavit he had signed before trial and after the illegal occurrence wherein he stated that he had never seen the defendant break any law and had never seen the defendant inpossession of illegal substances. On redirect the State attempted to explain the prior inconsistent statement of the witness by having him explain in detail the circumstances under which he signed the affidavit.

During this testimony Hall stated that a Woody Pierce brought the affidavit to him to be signed on behalf of the defendant, and that he signed the affidavit in the presence of Pierce. 'Q. Who is he? A. He is a fellow that I know and fellow that I have been working on. Q. That you have been working on? A. Yes, sir. Q. What do you mean by that? A. The process of making buys from Mr. Pierce.' The defense moved for a mistrial which was denied.

A few minutes prior to this the witness had testified that he signed the affidavit out of fear due to threats made to him through his family and because he was still operating 'undercover' and wanted to protect that status and not let 'them' know he was working for DEA.

"Where testimony as to a matter tending to discredit a witness has been introduced in evidence, or drawn from him on cross-examination, it is proper to permit him to explain the matter, in order to rebut its discrediting effect.' Gazaway v. State, 15 Ga.App. 467, 468, 83 S.E. 857, 858.' Bivins v. State, 200 Ga. 729, 741, 38 S.E.2d 273, 281.

In Montgomery v. State, 224 Ga. 845(1), 165 S.E.2d 145, the state's eyewitness to a homicide was impeached on cross-examination by an affidavit made prior to the trial contradicting her testimony. '(S)he was entitled to explain her reasons . . . and the jury could consider this explanation in passing on her credibility. (Cits.) The jury could have believed her explanation that she gave a false account of the homicide because she was afraid of the defendant and did not want him to know that she was the one who had told of his participation in it.' Montgomery v....