Cooper v. State, A02A1089.
| Decision Date | 27 November 2002 |
| Docket Number | No. A02A1089.,A02A1089. |
| Citation | 258 Ga. App. 825,575 S.E.2d 691 |
| Parties | COOPER v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Charles H. Frier, Smyrna, for appellant.
Paul L. Howard, Jr., Dist. Atty., Amira A. Arshad, Anne E. Green, Asst. Dist. Attys., for appellee. ELDRIDGE, Judge.
Kenneth Cooper appeals from a Fulton County jury verdict finding him guilty of trafficking in cocaine under Count 1 of the indictment and possession of cocaine with intent to distribute under Count 2, which offenses arose pursuant to a warrant search of Cooper's apartment wherein 171.8 grams of cocaine were found on the nightstand in Cooper's bedroom. In addition, the jury found Cooper guilty of possession of cocaine with intent to distribute under Count 4 of the indictment, which charge arose when, at the time Cooper was arrested for the offenses connected to the search of his apartment, an additional bag of suspected crack cocaine was found in his car.1
Cooper appeals, and in a 50-page, maximum-allowable brief defying the type-size and line-spacing requirements of this Court to a mind numbing degree,2 he claims nine errors of law (with innumerable sub-parts in each) require reversal of his convictions. As Cooper's brief was not returned to him timely in order to "redact and recast such document" so as to comply with the rules of this Court,3 we will consider Cooper's claims, albeit with a difficulty solely of his own making. Upon review, we find as follows.
1. Cooper claims that the trial court erred in denying his motion in limine, because his custodial statement was taken in
violation of his Fifth Amendment right to silence. Under the specific facts of this case, we disagree.
In this case, Miranda6 rights were given on the scene, and Cooper invoked his right to remain silent when he told the police "I don't have anything to say." The arresting officers honored Cooper's right by immediately placing him in a police vehicle where he had no further contact with anyone until he arrived at the police precinct for processing "paperwork and [Cooper's] vehicle."
At the precinct, Cooper was not asked about his case or the circumstances surrounding his arrest. He was asked whether he wanted to become an informant for the police, and he so the officers "didn't press the issue."
Moreover, at the precinct, Cooper was not silent. He questioned the officers about contacting his girlfriend; he questioned the officers about his girlfriend's picture. General conversation ensued:
We didn't really ask him any interrogating questions. We were just talking to him like I'm talking to you now. We didn't ask him where he got the dope from, was it his dope; we didn't ask him anything interrogating him. We were just talking, and his main concern was getting in touch with his girlfriend.7
The evidence is undisputed that the officers never questioned or interrogated Cooper about anything related to his arrest or their case against him. Cooper was informed of the charges against him, and "at that time [an officer] asked Mr. Cooper did he have anything to say." To this general, open-ended question,8 Cooper voluntarily made the statement at issue, i.e., that "he bought the drugs found in his car because he needed to make some money for the earlier raid on his apartment."
Most notably, Cooper testified at the Jackson-Denno hearing, where he specifically testified that he did not feel he had to make any statements at the precinct:
In a custodial interrogation context, "Coercion is determined from the perspective of the suspect."9 Here, Cooper did not testify that his statement was made involuntarily; he did not testify that his statement was made in response to police questioning/interrogation. He did not testify that the police asked any questions about his case at all. In fact, Cooper testified that he did not even make the statement at issue, let alone that it was involuntary or the result of police interrogation in violation of his right to silence.
In light of the fact that Cooper specifically testified that he did not feel he had to make any statement to the officer and, thus, any statement would be voluntary; that he did not testify that any statement was made as a result of police interrogation; that he did not testify any right to remain silent was violated; that the police testified that Cooper's statement was voluntary and not made as a result of police interrogation; that the evidence shows that no interrogating questions about Cooper's case were asked; that Cooper did not remain silent but engaged the police in conversation; and that the statement at issue was made voluntarily in response to a single, general, open-ended question, "do you have anything to say," which was asked after Cooper had already engaged in conversation with the police, we conclude under the totality of the circumstances that the trial court's finding that Cooper's statement was made freely and voluntarily pursuant to the requirements of Jackson-Denno was supported by the evidence and thus was not clearly erroneous.
Surely, we will have gone far afield, indeed, when, after Cooper willingly conversed with law enforcement in contradiction to his right to silence, an officer's simply asking him if he has anything to say becomes the "coercive police practices" against which Miranda was designed to protect.10 Instead, an open-ended, "Do you have anything to say" is a phrase normally attendant with arrest, custody, and processing, and nothing in the record supports a determination that the officers "should have known [such general question] was reasonably likely to elicit an incriminating response" from Cooper.11
Thus, construing Officer Dunham's testimony as "true," as we must based on the credibility determination of the trial court, Cooper's right to remain silent was honored; conversations with Cooper were general and centered on Cooper's desire to contact his girlfriend; no interrogation occurred; and no "behavior" on the part of the police elicited Cooper's statement: Even Cooper testified that no police behavior elicited a statement from him. Since improper interrogation "focuses primarily upon the perceptions of the suspect, rather than the intent of the police,"12 and Cooper testified undisputedly that nothing the police did or said compelled or coerced his statement, we will not elevate form over substance by engaging in speculation as to whether the police honored Cooper's right to silence "scrupulously enough," and disregard whether such police behavior actually compelled Cooper to make the disputed statement. "Since the record supports the trial court's ruling that [Cooper's] statement was voluntary and not part of an interrogation, we conclude that the trial court did not err in admitting the statement into evidence."13
2. In his second enumeration of error, Cooper claims, inter alia, that the warrant for his arrest was unsupported by probable cause. We disagree.
A warrant for Cooper's arrest was issued based on an officer's affidavit and testimony relating facts obtained from both (1) a controlled buy by a confidential informant ("CI") from a person named "Ken" at apartment No. 9, 2165 Martin Luther King, Jr. Drive, and (2) evidence discovered in the search of apartment No. 9. The evidence showed that 171 grams of cocaine were found on the nightstand in what was identified as "bedroom 1" of the apartment; that, in bedroom 1 and in close proximity to the cocaine, Cooper's Social Security card was found; photographs of Cooper were found, which photographs bore a strong resemblance to the description the CI gave of the person who sold her cocaine from the apartment; Cooper's son's birth certificate naming Cooper as the father was found; and a rental receipt for the big screen television in the apartment was found with Cooper's name on it, as well as the address No. 9, 2165 Martin Luther King, Jr. Drive. "Based on this evidence, we conclude that the officer presented the issuing magistrate with sufficient information to support the magistrate's independent finding that probable cause existed for the issuance of the warrant."14
3. We likewise find meritless Cooper's contention that the trial court erred by failing to force the State to disclose the identity of the CI.
Public policy in Georgia favors nondisclosure of the identity of an informant in the interest of the free flow of information about criminal activity. The identity of a mere tipster is privileged, but where the informer is a witness or participant, or has entrapped a defendant into committing a crime, disclosure could be material to the defense. This court has held numerous times that disclosure of an informant's identity was required where the informant was a witness or participant whose testimony would be the only testimony available to amplify or contradict that of the [witnesses].15
The CI in this case purchased suspected contraband and provided information that led to issuance of the search warrant. But, as in Ezzard v. State, above, it is undisputed that...
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