Boatwright v. State, A89A0865

• Court: Georgia Court of Appeals
• Writing for the Court: BENHAM; DEEN, P.J., and BIRDSONG
• Citation: Boatwright v. State, 387 S.E.2d 386, 193 Ga.App. 141 (Ga. App. 1989)
• Decision Date: 10 October 1989
• Docket Number: No. A89A0865,A89A0865
• Parties: BOATWRIGHT v. The STATE.

Page 386

387 S.E.2d 386

193 Ga.App. 141

BOATWRIGHT v. The STATE.

No. A89A0865.

Court of Appeals of Georgia.

Oct. 10, 1989.

William D. Hentz, Ringgold, for appellant.

Ralph Van Pelt, Jr., Dist. Atty., James D. Franklin, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

Appellant filed this appeal from his 1987 conviction for trafficking in cocaine after the trial court granted him leave to file an out-of-time appeal.

1. Appellant initially questions whether the evidence presented by the State was sufficient to convict him of trafficking in cocaine.

The State presented evidence that appellant's brother was selling cocaine at the brother's home in north Georgia. Pursuant to a GBI/FBI investigation, the law enforcement officers arranged for an informant, wearing a tape-recording device, to make purchases from appellant's brother on three separate occasions. During each pre-arranged meeting, the agents observed a cream or beige Chrysler Cordoba, occupied by a white male, sitting on the nearby interstate's northbound exit ramp to the road on which appellant's brother's home was located. On two occasions, appellant was observed with his brother, at the brother's home, shortly before the pre-arranged drug transaction was to take place. Each time, appellant drove away in a cream-colored Cordoba shortly before the buyer's arrival, parked the Cordoba on the interstate exit ramp, raised the hood, and sat in the car. On the day the agents raided the site of the sale, the home of appellant's brother, shortly after appellant's brother had sold the informant 151 grams of a mixture that was 64 percent cocaine, appellant drove up to his brother's house in the cream-colored Cordoba from the direction of the interstate and stopped in front of the residence where he was identified and arrested.

"The question of the existence of a conspiracy is ultimately for the jury to determine. (Cit.) The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence. [Cit.] It may be shown by conduct as well as by direct proof or express agreement, by inference as well as deduction from conduct which shows common design on the part of persons charged to act together for the accomplishment of the unlawful purpose. [Cit.].... '(I)t is well settled that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation the act of all.' [Cit.]" Brown v. State, 177 Ga.App. 284(9), 339 S.E.2d 332 (1985). " 'The "actual possession" required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the [distribution] of such substances so as to be a party to the crime of trafficking.' [Cit.] The evidence at trial was sufficient to authorize a rational trier of fact to find appellant guilty ... beyond a reasonable doubt [of trafficking in cocaine]. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.]" Dukes v. State, 186 Ga.App. 815, 369 S.E.2d 259 (1988).

2. Appellant next contends that the trial court erred in admitting evidence that all of the individuals involved in the investigation which resulted in appellant's indictment, except appellant, his co-defendant, and two fugitives, had pleaded guilty. The conviction of appellant's co-defendant was reversed due to the admission of this evidence. Mindock v. State, 187 Ga.App. 508(2), 370 S.E.2d 670 (1988). Although appellant failed to object to the admission of the evidence at trial and did not expressly adopt the objection of his co-defendant, usually resulting in a waiver of that objection (Barnes v. State, 168 Ga.App. 925(2), 310 S.E.2d 777 (1983)), we recognize that " ' "[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." ' [Cits.]" Almond v. State, 180 Ga.App. 475, 480, 349 S.E.2d 482 (1986). We so view the error involved herein, especially in light of the fact that the man with whom appellant was tried had his conviction reversed due to the admission of the testimony of which appellant now complains. Mindock v. State, supra. Accordingly, we conclude that appellant's conviction must be reversed due to the admission of testimony concerning the guilty pleas by others arrested with appellant.

3. Appellant also contends the trial court erred by charging the jury on conspiracy as well as the substantive offenses with which appellant was charged. "[W]e find that [appellant] has nonetheless waived his right to raise this issue on appeal. Following its charge, the trial court inquired of counsel whether there were any exceptions to the charge. [Appellant's trial] counsel responded there were none on behalf of [appellant]. ' "In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), and approved in White [v. State, 243 Ga. 250, 253 S.E.2d 694 (1979) ], of reserving his right to object on motion for new trial or on appeal. Here defense counsel neither objected nor reserved the right to later object, and under such circumstances, [appellant] has waived the right to raise the issue on appeal." [Cits.]' " Wadley v. State, 257 Ga. 280(2), 357 S.E.2d 588 (1987). Even if appellant had preserved the objection for appeal, it was not error to have given the charge, for "it is well settled that where the evidence in a criminal case shows that two or more persons, acting in concert, were concerned in the commission of an...