Bennett v. State

Decision Date10 November 2015
Docket NumberNo. A15A1007.,A15A1007.
Parties BENNETT v. The STATE.
CourtGeorgia Court of Appeals

Cynthia Wright Harrison, for Appellant.

Lee Darragh, Wanda Lynn Vance, for Appellee.

McMILLIAN, Judge.

Keith Bennett appeals the trial court's denial of his motion for new trial following his conviction on October 24, 2013 for trafficking methamphetamine in a quantity of 200 or more grams, possession of methamphetamine with the intent to distribute, possession of clonazepam, possession of a firearm during the commission of a crime, and possession of a gun by a convicted felon. We affirm.

Viewed in the light most favorable to the verdict,1 the evidence showed that on October 17, 2012, Kenny Pogue drove Bennett and Pogue's friend, Kelsey Lambert, in Pogue's vehicle to a prearranged methamphetamine transaction with Mark Pham. Pogue subsequently pled guilty to charges arising from this incident, and the State called him as a witness against Bennett at trial. Although Pogue refused to answer most of the prosecutor's questions on direct examination, Pogue testified on cross-examination that Bennett had a gun and drugs when he got into Pogue's car. He said that the three individuals in the car combined their drugs into one bag and hid it under the dash because they were concerned that Pham would rob them of their drugs. He also said that Bennett rode with him to the meeting with Pham to make sure that Pogue repaid money he owed to one of Bennett's friends from a prior drug deal.

The State also introduced evidence of Pogue's testimony during his guilty plea hearing. During that testimony, Pogue stated that before the meeting, Bennett, Lambert, and he combined their supply of drugs into one bag, and Pogue put the bag under the dash of his car. They then met with one of Bennett's friends, who put another bag of drugs under the hood of Pogue's car. Because Bennett's friend did not trust Pogue, Bennett accompanied Pogue to keep an eye on his friend's drugs and to make sure that Pogue brought the money back to his friend. Lambert testified that before arriving at the arranged location, Pogue stopped the car and pulled two guns out from underneath his seat, handing one gun to Bennett and keeping the other one himself.

Unbeknownst to the three people in the car, Pham was a confidential informant, who was working with the Hall County Multi–Agency Narcotics Squad to set up a controlled buy from Pogue. When the three approached the vacant house where the meeting was to take place and spotted police officers, Pogue and Bennett threw their guns out of the car windows. The officers subsequently retrieved the two guns, along with a small bag of pills and a small baggie of methamphetamine from the area where they had observed items thrown from the car. After Pogue, Bennett, and Lambert were taken into custody, the officers conducted a search of the vehicle. A bag of methamphetamine weighing 175.05 grams was discovered under the dashboard of the car. The officers also found a magnetic box under the car's hood containing 361.31 grams of methamphetamine, marijuana, oxycodone pills, a set of scales, and a ledger. Police further discovered $7,500 in cash in the car's glove compartment.

During a taped interview with the police that was played during the trial, Bennett admitted that he suspected Pogue was a drug dealer and that he agreed to ride with him to a vacant house that night to meet a man who owed Pogue money. Bennett decided to ride with Pogue because Pogue owed money to Bennett's friend, who had asked Bennett to make sure nothing happened to Pogue. Bennett accepted a gun from Pogue in the car, which Pogue described as "insurance." Bennett suspected that there might be trouble and was scared when Pogue handed him the gun. Bennett denied actual knowledge that there were drugs in the car. However, when an officer recited the events of that night, including that Bennett knew that Pogue was a drug dealer, that Pogue was "probably carrying dope," and that they were collecting money for a drug debt, he asked Bennett to tell him if that basically was what happened that night. Bennett replied, "That is basically what happened," and he did not correct any portion of the officer's recitation.

1. We first address Bennett's assertions that the trial court impermissibly allowed unsworn testimony from Pogue and improperly admitted Pogue's prior testimony from his guilty plea hearing to impeach him.

When the State called Pogue to the stand, he refused to take the oath and announced that he would not testify because he did not want to "get stabbed" in prison for his testimony at trial. In response, Bennett's trial counsel asked that Pogue not testify. After the lawyers conferred with the trial judge, the prosecutor tried again to administer the oath to Pogue. But he again refused, and the prosecutor requested to proceed with unsworn testimony. The trial court granted the request without objection from Bennett's counsel. And trial counsel later cross-examined Pogue, eliciting further unsworn testimony.

(a) Georgia law provides that "[b]efore testifying, every witness shall be required to declare that he or she will testify truthfully by oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so." OCGA § 24–6–603(a). However, it is well settled that the failure to object to unsworn testimony waives the issue for appeal. See Brown v. State, 290 Ga. 321, 322(4), 720 S.E.2d 617 (2012) ; Chapman v. State, 257 Ga. 19, 20(3), 354 S.E.2d 149 (1987) ; Sweeting v. State, 291 Ga.App. 693, 694, 662 S.E.2d 785 (2008) ; Hilson v. State, 204 Ga.App. 200, 203(1), 418 S.E.2d 784 (1992). Although Bennett asserts on appeal that his counsel objected to Pogue's testimony, the cited portions of the record failed to preserve Bennett's argument for review by this Court. After Pogue initially refused to take the oath, Bennett's attorney stated, "I ask that he not testify," without articulating the reason for the request or the grounds for any objection. Further, he raised no objection at the time the State requested that Pogue be allowed to provide unsworn testimony. Although Bennett's attorney objected on relevance grounds to questioning about Pogue's being "jumped" while in prison, Bennett has not cited us to any objection raised by his counsel to the fact that Pogue gave unsworn testimony. "[I]n order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground." (Citation and punctuation omitted.) Hites v. State, 296 Ga. 528, 530(2), 769 S.E.2d 364 (2015).

Accordingly, we find that Bennett waived any objection to Pogue's unsworn testimony.

(b) Bennett also argues that the trial court erred in allowing the State to introduce Pogue's testimony from his guilty plea hearing. During the State's direct examination, the prosecutor asked Pogue about the individual statements he made in his proffer at the guilty plea hearing, and he responded by stating "I don't know" or "I don't remember" to the State's questions. He gave similar answers when questioned about his prior statements to police. However, when Bennett's trial counsel cross-examined Pogue about his prior convictions, his prior statements to police, and the drugs and guns present the day of the crime, Pogue answered his questions. The trial court later allowed the State to call a victim advocate who was present at Pogue's guilty plea hearing to read the transcript of the proffer Pogue made at that time.

Prior to the enactment of the new Evidence Code,

a guilty plea of a joint offender [was] not admissible in evidence at the trial of another joint offender. This rule [did] not apply where the joint offender [was] present at trial and [testified] as a witness subject to cross-examination. Nor [did] it apply where the joint offender's guilty plea [was] admitted with instructions that it not be used as evidence of the defendant's guilt.

Pinckney v. State, 236 Ga.App. 74, 74–5, 510 S.E.2d 923 (1999). However, Bennett was tried in 2013, after the effective date of Georgia's new Evidence Code. See Ga. L. 2011, pp. 99, § 101 (new Code applies "to any motion made or hearing or trial commenced on or after" January 1, 2013). The Pinckney case, upon which Bennett relies, was decided under former OCGA § 24–3–52,2 236 Ga.App. at 75(1), 510 S.E.2d 923, which was repealed with no directly corresponding provision under the new Code. See Ga. L. 2011, p. 99, § 2 But see Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 504 (3d ed. 2015) (suggesting that OCGA § 24–3–52 may have been subsumed within OCGA § 24–8–801(d)(2)(E) regarding the admission of statements by co-conspirators made in furtherance of a conspiracy).

We need not determine whether the holding in Pinckney has current application in this case because Bennett failed to preserve the issue for appeal. When the State offered the transcript of the guilty plea into evidence as a prior inconsistent statement, Bennett's counsel objected to the admission of the transcript on procedural grounds, and the trial court refused to admit the transcript through Pogue's testimony. The next day, the State called the victim advocate who had attended the plea hearing, and, after argument, the trial court allowed her to read the transcript to the jury. Bennett's counsel apparently renewed his objection to the procedure as well as a prior objection on the grounds that reading the transcript would be "redundant and cumulative" to Pogue's cross-examination the previous day.3 Because Bennett's counsel never raised any specific objection on the ground of Pogue's status as a joint offender as described in Pinckney, he waived the issue for appeal. See Bailey v. State, 273 Ga. 303, 306–07(4), 540 S.E.2d 202 (2001).

2. Bennett also argues that the...

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