Callahan v. State
| Decision Date | 16 June 1986 |
| Docket Number | No. 72405,72405 |
| Citation | 179 Ga.App. 556,347 S.E.2d 269 |
| Parties | CALLAHAN v. The STATE. |
| Court | Georgia Court of Appeals |
W. Michael Maloof, Decatur, Jerome Froelick, Atlanta, for appellant.
Robert E. Wilson, Dist. Atty., Robert Morton, Barbara Conroy, Asst. Dist. Attys., for appellee.
Rolland Callahan was indicted for possession of cocaine and possession of a firearm while a convicted felon. The weapons' possession charge was severed by the trial court. Callahan was convicted by jury of possession of cocaine and sentenced to serve ten years. He appeals enumerating some twenty-three asserted errors. Held:
In early December 1984, one Marcel Cardenas presumably was dispatched by underworld figures in Miami to deliver a quantity of cocaine to "pushers" in the Atlanta area. Cardenas delivered the cocaine to various people. While in Atlanta he resided with a woman named Honeycutt. He gave a quantity of the cocaine to Honeycutt. She in turn delivered it to a third person and thence to one Skinner but without obtaining cash payment for the cocaine. When Cardenas realized that Honeycutt had allowed cocaine to be transferred without cash payment, he demanded return of the cocaine or equivalent cash. Ultimately a smaller amount of cocaine was returned and some cash. However, Cardenas contended that he was short $15,000 of cocaine or cash. Because Skinner allegedly was the one who had shorted Cardenas of either cash or cocaine, either Miami figures or someone in Atlanta determined that Skinner would be eliminated.
The foregoing version of Cardenas' statement was not obtained until at least January 18, 1985. An investigation conducted by Officer Mabe concerning an attempt to execute a "contract" on Skinner showed a different sequence of events. Mabe received a call on December 5, 1984 that a shooting attempt had been reported by Skinner to the police. Mabe's investigation disclosed that Skinner, his wife, and child were departing their home in Decatur early on the morning of December 5. Skinner was the holder of a black belt. As Skinner started to drive away, he noticed a grey or light blue vehicle rapidly approaching the cul-de-sac where Skinner's house was located. This other car came to within ten or fifteen feet and stopped. A person dismounted, ran around the back of the grey or blue car and approached Skinner. Skinner saw this person had a rifle. This person (Cardenas) pointed the rifle at Skinner and pulled the trigger. The gun misfired. Before a new attempt could be made, Skinner, using his karate expertise, disarmed and subdued his assailant. While this was occurring, a second person in the grey or blue car fired one or more shots at Skinner but without hitting him. Though Skinner could not make a positive identification, he believed this person to be one Daniel Wade. Skinner maintained control of Cardenas until police officers arrived and arrested Cardenas.
Skinner related to Mabe he had been in business with Rolland Callahan in a karate studio business. Because of several disagreements, Skinner had withdrawn from this business venture and begun his own karate studio. This rupture of business relations had occurred several months previously. Callahan had advanced approximately $100,000 "front" money to establish their joint business. When Skinner withdrew from the business, Callahan accused Skinner of taking the $100,000. Also numerous customers from the old business followed Skinner to the new karate studio. Skinner was aware that Callahan used their common business venture to launder drug money and had accompanied Callahan on many excursions where Callahan had engaged in drug trafficking. Thus, Skinner knew of considerable damaging information concerning Callahan's extracurricular activities. An earlier attempt on Skinner's life had occurred in November 1984, and Skinner at that time had suggested Callahan as a suspect.
Shortly after Labor Day 1984, Callahan visited Skinner and suggested Skinner return to the business. When Skinner refused, Callahan stated "I guess I'll have to turn loose the dogs," which Skinner considered to be a threat. Skinner told Mabe he strongly suspected Callahan was behind the attempt to kill him (Skinner) because Callahan accused him of stealing $100,000; that Skinner was intimately aware of his drug activities and Callahan probably feared that Skinner would go to the police. Skinner described Callahan as being a very dark complected black man with "processed" hair and a gold tooth. Skinner also stated there were several other men involved in the karate-drug business including Daniel Wade.
Mabe then interviewed Cardenas on December 5, 1984. Cardenas related a different story than the one obtained on January 18, 1985. The woman Honeycutt, with whom Cardenas was staying, told Cardenas of a "murder plot." Cardenas, desiring to earn $15,000, was introduced to one Callaway (Chuck) by Honeycutt and Chuck in turn introduced Cardenas to Wade. Wade informed Cardenas that a contract was out on Skinner and that Cardenas could earn $15,000 by being the hit man. Shortly before the murder attempt, Chuck, Cardenas and Wade were at a home believed (erroneously) by Cardenas to be Callahan's home though Cardenas did not know Callahan by name. A dark complected black man with "processed" hair and a gold tooth entered. This black man and Wade went into another room and in a few moments, Wade returned and gave Cardenas $7,000, promising the remaining $8,000 when the homicide was completed. The black man with the gold tooth left without speaking to Cardenas. On December 5, with Wade driving, Cardenas and Wade went to Skinner's home where Cardenas made the attempt to shoot Skinner, resulting in his being disarmed and captured by Skinner. On December 6, 1984, an arrest warrant was obtained for Callahan () for the crime of attempted murder.
On December 7, 1984, while driving on Memorial Drive, Skinner saw parked at a Goodyear store a Lincoln auto frequently driven by Callahan. Shortly thereafter, Skinner saw a woman he recognized as Callahan's wife drive up in a second car and Callahan dismounted, walked over to the Lincoln, placed a briefcase in the car and then entered the Goodyear store. Skinner called the police to report the sighting of Callahan. Two police cars responded. Shortly, Callahan was seen leaving the Goodyear store and walking over to the Lincoln as if to drive away. The police blocked the Lincoln, and Callahan was ordered to get out of the driver's seat. He was searched, had no identification on his person, but stated it was in a small leather bag (apparently a wallet) in the backseat of the Lincoln. The second vehicle approached and Mabe (a passenger in the second patrol car) looked on the front seat of the Lincoln and saw a brown leather briefcase partially open. In plain sight was the handle of a revolver and a clear plastic bag containing a white powder which Mabe suspected to be cocaine. An additional small amount of cocaine was found in the small brown bag (wallet) contained within the briefcase. A third packet of cocaine was found in Callahan's left breast pocket. Mabe reached into the briefcase and found in the smaller brown bag (wallet) Callahan's driver's license and numerous other cards and papers identifying Callahan.
At a subsequent preliminary hearing on the charge of attempted murder, the examining magistrate concluded there was insufficient evidence to warrant a charge of attempted murder (apparently either Cardenas did not testify at that hearing or offered contradictory versions of the incident). An indictment was returned against Callahan for possession of cocaine (in an amount in excess of 23 grams) and possession of a firearm by a convicted felon.
Any further discussion of facts necessary to the disposition of the enumerations of error will be included upon consideration of the relevant enumeration of error.
1. Even though in enumerations 14 and 15, Callahan contends that at trial he admitted the arrest warrant was legal, in order to keep out evidence of other crimes, at the pretrial motions he did not so concede. Thus, eleven of Callahan's 23 enumerations of error deal with the lawfulness of the search of Callahan's person and of his car incident to his arrest. In enumerations 1, 2, 3, and 5, Callahan contends as a matter of law that the superior court was bound by doctrines of res judicata, collateral estoppel and laches. Callahan argues that the magistrate's conclusion there was no probable cause to bind Callahan over on the charge of attempted murder becomes res judicata as to the state. Thus he argues if there was no probable cause to bind him over there likewise was no probable cause to arrest him in the first place for attempted murder. His argument continues that if there was no probable cause to arrest him, the arrest at his automobile on a spurious charge of attempted murder rendered the arrest illegal. He contends that in light of the illegal arrest, the seizure of cocaine from his car, his wallet and his pocket likewise was illegal and should have been suppressed by the trial court. Callahan cites a plethora of cases supporting doctrines of res judicata, collateral estoppel and laches.
We conclude that none of these doctrines has any applicability to this case under the circumstances attending Callahan's arrest. A dismissal of charges based upon lack of probable cause does not bar the subsequent indictment and trial of a defendant on the same charges. Smith v. State, 171 Ga.App. 279, 282, 319 S.E.2d 113. See also Wells v. Stynchcombe, 231 Ga. 199, 200 S.E.2d 745. If a defendant can be indicted and tried on a charge that was dismissed for lack of probable cause in a magistrate court, a fortiori a trial court is not bound by a magistrate's finding of lack of probable cause to bind over a case on the separate consideration of an...
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State v. Hyde
...cause did not adequately safeguard the defendant's constitutional rights. Our holding is in accord with Callahan v. State, 179 Ga.App. 556, 347 S.E.2d 269, 276-77 (1986). In Callahan, the affiant, a police officer, could not recall the details of his oral testimony before the magistrate, bu......
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...basis for objection even if the deductions and inferences are illogical or unreasonable." (Citations omitted.) Callahan v. State, 179 Ga.App. 556, 563(5), 347 S.E.2d 269 (1986). Because the challenged references were inferences from evidence presented during the trial, there was no 7. Final......
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