Coleman v. State

• Decision Date: 10 August 2012
• Docket Number: No. A12A0868.,A12A0868.
• Citation: 317 Ga.App. 409,731 S.E.2d 94
• Parties: COLEMAN v. The STATE.
• Court: Georgia Court of Appeals

317 Ga.App. 409
731 S.E.2d 94

COLEMAN
v.
The STATE.

No. A12A0868.

Court of Appeals of Georgia.

Aug. 10, 2012.

731 S.E.2d 94

Jennifer Adair Trieshmann, for appellant.

Peter J. Skandalakis, Dist. Atty., Raymond C. Mayer, Robert William Mooradian, Asst. Dist. Attys., for appellee.

MIKELL, Presiding Judge.

317 Ga.App. 409

Christopher L. Coleman, convicted of one count of selling marijuana on March 24, 2009 (Count 2),¹ appeals from the trial court's denial of his amended motion for new trial, contending that the trial court erred in its charge to the jury on chain of custody and in

731 S.E.2d 95

responding to notes from the jury outside of his presence. Finding no error, we affirm.

Viewed in the light favorable to the jury's verdict, the evidence was that Anthony Carter became a confidential informant after he was caught with drugs by City of Newnan Officer Todd Lengsfeld² in 1999. Over the years preceding 2009, Carter worked as a paid informant for Lengsfeld on numerous occasions.

In 2009, Newnan Officer Ronald Benjamin was partnered with Lengsfeld in an operation targeting cocaine dealers in Coweta County. On March 24, 2009, pursuant to department policy, Lengsfeld and Benjamin met with Carter, patted him down to determine that he was not carrying drugs, wired him with a camera and microphone, and gave him $300 to attempt to make a purchase from Coleman. Carter was accompanied by his girlfriend, who was not patted down. Carter and his girlfriend were dropped off by the officers near Coleman's home, and they walked to his house, where Carter paid $200 for marijuana and $75 for crack cocaine. Carter and his girlfriend then returned to the van containing the officers. The DVD of this transaction recorded by Carter was played for the jury.

The drugs and remaining $25 cash were then given to Lengsfeld in Benjamin's presence inside the van. In Benjamin's presence, Lengsfeld bagged the marijuana and cocaine separately, sealed the bags, and Benjamin initialed and dated the bags. Coweta County Sheriff's Deputy Floyd Boswell tested the material in one of the baggies and concluded that it was marijuana.

1. Coleman contends that the trial court erred in its charge to the jury on chain of custody.

Coleman did not object to the charge on chain of custody requested by the state either at the charge conference or after the jury was charged. When directly asked by the court following the charge for

317 Ga.App. 410

any exceptions, defense counsel replied "[n]o sir. I have none as we speak." Despite the lack of objection below, the giving of this charge was raised in Coleman's amended motion for new trial and is enumerated as error on appeal. Pursuant to State v. Kelly,³ and the mandate of OCGA § 17–8–58(b), we must review the charge to determine whether it constituted plain error, regardless of preservation below. Kelly sets forth a four-prong test:

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.⁴

As noted by our Supreme Court in Kelly, satisfying all of these prongs "is difficult, as it should be."⁵

Regarding chain of custody, the trial court charged that

with respect to drug evidence, the State is required to establish a chain of

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