Bowe v. State

• Decision Date: 06 September 1991
• Docket Number: Nos. A91A0837,A91A0913,s. A91A0837
• Citation: 410 S.E.2d 765,201 Ga.App. 127
• Parties: BOWE v. The STATE. McDUFFIE v. The STATE.
• Court: Georgia Court of Appeals

Page 765

410 S.E.2d 765

201 Ga.App. 127

BOWE v. The STATE.

McDUFFIE v. The STATE.

Nos. A91A0837, A91A0913.

Court of Appeals of Georgia.

Sept. 6, 1991.

Melnick, Moore & Elliott, Larry M. Melnick, for appellant in No. A91A0837.

Lloyd E. Hall, for appellant in No. A91A0913.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.

COOPER, Judge.

Appellants were tried jointly and convicted of trafficking in cocaine. In this consolidated appeal, they appeal the denial of their motions for new trial.

Acting on information provided by a detective in the Atlanta police department that cocaine was being stored for distribution in Atlanta in a motel room in Clayton County, Clayton County narcotics agents began surveillance of Room 219 of a motel in Clayton County. Concurrently, an agent obtained a search warrant for Room 219 based on information provided by the Atlanta detective that a reliable and confidential informant had been in Room 219 within the past 48 hours; that four males and a female at the motel were involved in cocaine distribution; and that the room was registered to a "Michelle," who was from the Miami area and drove a white car with a Florida prestige tag. While on surveillance, the officers observed several men getting out of a Toyota and going into Room 203. Shortly thereafter, one of the men left Room 203 and entered Room 219. He was later identified as Preston Bowe. The search warrant was executed, and Michelle Walker and Preston Bowe were found in Room 219 with a box of nine millimeter bullets and $1,838 in cash secreted in Walker's purse. However, no cocaine was then discovered. The agents maintained a watch on Room 203 and discovered that the room was registered to appellant, Chris Bowe, Preston's brother, whom Preston denied knowing. The police went into Room 203 without a warrant, moved the men present in Room 203 to Room 219 and left an officer in Room 203 to secure the room until a search warrant was obtained. Appellants were two of the three men present in Room 203 who were moved to Room 219. The search of Room 203 produced no cocaine, but two guns, including a nine millimeter automatic handgun, $3,900 in cash and the keys to the white car with the Florida prestige tag were found. In a second search of Room 219, approximately 253 grams of crack cocaine were discovered in a brown paper bag inside the box springs of the bed. All the occupants of both rooms were arrested and charged with trafficking in cocaine. Preston Bowe and Michelle Walker entered guilty pleas prior to trial. Appellants and co-defendant Remano Deal were tried jointly. See Deal v. State, 199 Ga.App. 184, 404 S.E.2d 343 (1991). At the time of their arrest, appellants denied knowledge of the guns, cocaine and the money; however, at trial, Chris Bowe admitted owning the nine millimeter gun, and appellant McDuffie testified that $900 of the money seized in Room 203 belonged to him. During the trial, Michelle Walker testified that on the day of the arrest Preston Bowe had been given the drugs by Chris Bowe.

1. Appellants enumerate as error the trial court's denial of their motions to suppress evidence seized from both motel rooms. However, when the evidence was offered for admission, attorneys for both appellants affirmatively stated that they had no objection to the admission of the items, thereby waiving appellants' rights to contest the admission of the evidence on appeal. Abrams v. State, 144 Ga.App. 874(1), 242 S.E.2d 756 (1978). Accord Nolton v. State, 193 Ga.App. 200(1), 387 S.E.2d 364 (1989).

Relying on Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) and James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984), appellants argue that the motions to suppress properly preserved their objections to the evidence and that when raising federal constitutional issues, the state bar to consideration of those issues on appeal on the ground of waiver is not sufficient to deny redress. In Osborne, the Supreme Court held that it was not precluded from considering constitutional issues arising from an erroneous jury charge based on the defendant's failure to object when the charge was given because defendant's motion to dismiss, filed before the trial, had properly placed the issue before the trial court. In James, the Supreme Court ruled that a constitutional claim involving the failure to give a jury charge was not barred by the defendant's failure to request the particular charge but was preserved for appeal by his request during the trial for an admonition of the jury on the same legal principle. In both cases, the Supreme Court, citing Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 68 L.Ed. 143 (1923), held that plain and reasonable assertions of federal rights cannot be defeated by local practice. However, these cases do not require a departure in the instant case from this state's long-standing rule that objections to evidence not raised at trial cannot be considered on appeal. Appellants' acquiescence in the admission of the evidence at trial represented a total reversal of the initial objections asserted in the motions to suppress in opposition to the admission of the evidence, and those initial objections to the evidence are deemed waived by the attorneys' specific and affirmative statements during the trial that there were no objections to the admission of the evidence.

2. Appellants contend the trial court erred in admitting into evidence a videotape depicting appellants denying any knowledge of the cocaine, guns and money recovered in the seizure because the State failed to supply written copies of the statements as requested pursuant to OCGA § 17-7-210. The record demonstrates that prior to the playing of the videotape at trial, the denials were testified to by live witnesses without objection. The court concluded that because the statements were testified to in the suppression hearing, two months prior to trial, when appellants and their counsel were present, appellants had notice of the statements at least ten days before trial as required by OCGA § 17-7-210. We agree. "The purpose of the discovery statute (OCGA § 17-7-210) is to inform the defendant in writing of all relevant and material portions of his own statement that the State may rely upon to the defendant's disadvantage. [Cit.]" Lewis v. State, 183 Ga.App. 41, 42, 357 S.E.2d 862 (1987). In McCarty v. State, 161 Ga.App. 444(1), 445, 288 S.E.2d 249 (1982), this court held that "[t]he testimony of an investigating officer [in a suppression hearing] recalling an oral statement and the recording and transcription of this testimony is the furnishing in writing of 'all relevant and material portions of the defendant's statement' which [OCGA § 17-7-210] requires." Accordingly, we find that there was substantial compliance with the requirements of the discovery statute. Moreover, to obtain a reversal based on the State's failure to provide a written statement, harm, as well as error, must be shown. Van Kleeck v. State, 250 Ga. 551(1), 299 S.E.2d 735 (1983). The statements on the videotape were merely cumulative of other previously rendered testimony to which appellants interposed no objection. See Burton v. State, 191 Ga.App. 822(7), 383 S.E.2d 187 (1989).

3. Chris Bowe enumerates as error the trial court's denial of his renewed motion for new trial on the ground that his counsel at trial was ineffective in failing to object to the tender of the cocaine, money and guns during the trial and thereby failing to preserve his objection for appeal. " 'To establish that there has been actual ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defense. In order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional deficiencies. (Cit.)' [Cit.]" Hall v. State, 194 Ga.App. 200, 390 S.E.2d 104 (1990). Examining the evidence adduced below as if counsel had made timely objections to the introduction of the cocaine, guns and the photograph of the money, we conclude that the evidence nevertheless would have been admissible at trial, and the verdict would not have been different.

Chris Bowe contends there was insufficient probable cause for his arrest in view of the fact that the informant's tip pertained to Room 219; therefore, the seizure of the evidence was illegal, and the evidence should have been suppressed at trial. We disagree and find that Chris Bowe's arrest was supported by sufficient probable cause. What the officers observed in their surveillance of the motel rooms was consistent with the information provided by the informant. No drugs were discovered in Room 219, and it was reasonable for the officers to conclude that the drugs might be found in Room 203 based on their discovery that the room was...