Deal v. State, A90A2069

• Decision Date: 15 March 1991
• Docket Number: No. A90A2069,A90A2069
• Citation: 199 Ga.App. 184,404 S.E.2d 343
• Parties: DEAL v. The STATE.
• Court: Georgia Court of Appeals

Page 343

404 S.E.2d 343

199 Ga.App. 184

DEAL v. The STATE.

No. A90A2069.

Court of Appeals of Georgia.

March 15, 1991.

David J. Walker, Sr., Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., for appellee.

COOPER, Judge.

Appellant was indicted and tried for trafficking in cocaine. The jury returned a guilty verdict and he appeals.

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 the Travel Lodge in that 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. 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 discovered. The agents maintained a watch on Room 203 and discovered that the room was registered to Chris Bowe, Preston's brother, whom he denied knowing. The police went into Room 203 without a warrant, moved the men present to Room 219 and left an officer in Room 203 to secure the room while a search warrant was obtained. Appellant was one of the men present in Room 203 who was subsequently moved to Room 219. The search of Room 203 produced two guns, including a nine millimeter hand gun, cash and the keys to the white car with the Florida prestige tag but no cocaine. 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 were arrested and charged with trafficking in cocaine.

1. Appellant enumerates as error the trial court's denial of his motion to suppress because the affidavit supporting the search warrant was insufficient. Appellant argues that the Clayton County agent did not verify the information recited in the affidavit nor did the Atlanta detective or his informant appear before the magistrate; therefore, there was no probable cause to justify the issuance of the search warrant. The affidavit indicated that the information was obtained by a detective of the narcotics unit of the Atlanta Bureau of Police Services who acquired the tip from a "known confidential and reliable informant" who had "provided truthful and accurate information within the past three months" leading to arrests and seizures of controlled substances. The detective was investigating a fire bombing and a drug related homicide involving someone known only as "Red," and the informant indicated that the cocaine was being stored in Room 219 for "Red." The detective visited the motel and confirmed that Walker was registered and had given a Miami address and a fictitious driver's license number. " 'Observations by fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.' [Cits.]" Mitchell v. State, 239 Ga. 456, 458(2), 238 S.E.2d 100 (1977). Moreover, it was not essential that the detective and the informant appear before the magistrate. " 'The rule in Georgia has been that an affidavit supporting a search warrant may be based on hearsay information as long as there is a substantial basis for crediting the hearsay.' [Cit.]" Williams v. State, 193 Ga.App. 677, 680, 388 S.E.2d 893 (1989). In our view, the detective's verification of the informant's tip provided such a basis. "Looking at the totality of the circumstances presented to the magistrate, we are satisfied that the magistrate had a substantial basis for concluding that probable cause existed and there was no error in the denial of the motion to suppress." Bullock v. State, 195 Ga.App. 37, 39(1), 392 S.E.2d 534 (1990).

2. In his second and third enumerations of error, appellant contends the trial court erred in failing to grant his motions for a directed verdict at the close of the State's case and at the close of appellant's case, respectively, as the evidence demonstrated only his "mere presence" at the scene of the crime. The evidence showed that Preston and Chris Bowe were cousins of appellant; that Preston Bowe was a seasoned drug dealer who made numerous trips from Miami to Atlanta to "visit" and sell drugs; that Preston Bowe often associated with appellant, an Atlanta resident, on the trips; that at the time he was removed from Room 203, appellant had been in the presence of loaded guns and money of which ownership had been denied by all the men present in the room; and that the bullets for the nine millimeter gun found in Room 203 were discovered in Room 219, the room in which the cocaine was discovered. " 'Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.' [Cit.]" Lunz v. State, 174 Ga.App. 893, 895(1), 332 S.E.2d 37 (1985). Further, "[t]he direction of a verdict of acquittal is proper only where 'there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal.' [Cits.] If there is any evidence of guilt, it is for the jury, rather than the court, to decide whether the evidence is sufficient to sustain a conviction. [Cit.]" Ross v. State, 194 Ga.App. 285(2), 390 S.E.2d 429 (1990). We find that there was sufficient evidence of guilt to warrant consideration by the jury, and the evidence did not demand a verdict of acquittal.

3. Appellant also enumerates as error the admission of a videotape of the surveillance of the Travel Lodge on the day of the arrests inasmuch as the State failed to produce the tape pursuant to appellant's discovery motions. According to an agent involved in the surveillance, the videotape revealed that after their arrests and while still at the motel, appellant and the co-defendants were asked if they had any knowledge of the money and the weapons, and with the exception of Preston Bowe, all denied knowledge. Specifically, appellant contends that the State failed to produce a copy of appellant's oral statement pursuant to OCGA § 17-7-210(c) and (e), and the State did not produce the videotape pursuant to his motion to examine all "physical evidence in the possession or under the control of the District Attorney." However, the record contains neither a motion to produce under OCGA § 17-7-210 filed on appellant's behalf nor appellant's blanket motion. At trial, appellant joined the co-defendants in an objection to the tape because the State failed to produce, in response to co-defendants' requests prior to...